Guess what? Electronic signatures aren’t new to California politics. In most counties of this state, records of voter registration are kept in electronic form. So when the clerk’s office checks to see if your pen-and-paper signature on an initiative petition matches the signature they have on file, the signature they’re comparing it with is an electronic one.

I learned more about this through reading the fascinating court filings in the case of Ni v. Slocum, a new lawsuit that asks a superior court judge in San Mateo County to find that an electronic signature on the marijuana initiative – Michael Ni signed it electronically with the touch screen of his iPhone – is valid and should be counted. The county’s chief elections officer, Warren Slocum, ruled the signature invalid.

If Ni wins and his signature is approved, this could be a very significant decision, making it much easier and cheaper to collect signatures on everything from voter registration to ballot initiative petitions.
Below are a few notes I made while reading the court filings. There’s also one bit of news: a decision in the case, which could be momentous, could come as soon as next Thursday, March 18, when a hearing is scheduled.

– Signatures are already electronic. Registering to vote is still a pen-and-paper thing, at least when it comes to signatures (though that could change very soon). But most counties have converted those records into electronic form. So they are routinely comparing signatures on paper ballots and initiative/referendum petitions with electronic records..

This alone doesn’t mean that Ni’s signature, and the technology developed by the company Verafirma, of which Ni is a founder, should be held valid. But it does seem to suggest that there’s nothing particularly new or foreign about electronic signatures. And it raises a question: wouldn’t an electronic signature on an initiative petition be easier to compare with an electronic record than a paper and pen signature?

– San Mateo County, Secretary of State Debra Bowen, and Attorney General Jerry Brown are all on the same page. And that page is made of paper.

In various filings, the county and state make a very simple argument against accepting Ni’s signature—or any electronic signature. The California constitution gives the legislature the task of setting the rules for signature gathering. And in various briefs and memo, the county and the state argue that electronic signatures are invalid until the legislature expressly permits them.

The authority cited by the county and the offices of these two leading Democrats? None other than former Gov. Pete Wilson, a Republican. Wilson’s veto of 1997 legislation that would have required a study of digital election technologies, including signatures, is cited approvingly, particularly his veto message that such signatures would “compromise voter confidentiality and generate significant opportunities for fraud.” By quoting Wilson, the county and state are arguing that his veto, and the legislative history of the bill he vetoed, showed that the state considered the possibility of such signatures and rejected it.

– This case likely will turn on technology and semantics.

The county and state – particularly the Secretary of State’s office – argue that Ni’s signature was not “personally affixed” to a real petition when he signed an electronic petition on his iPhone. Instead, in a filing signed by deputy attorney general Hiren Patel, this signature was actually made not on the petition but on the iPhone itself. The data of the signature is then transferred to Verafirma, and then onto an electronic copy of a petition, which was saved on a flash drive and submitted to San Mateo County. Too many steps there. (By my reading, the state almost seems to suggest that if you sign an initiative via an iPhone, you should turn in the iPhone to the county).

The state maintains that such an electronic signature isn’t a real signature. It’s more like a signature stamp (such stamps are permitted for the disabled in some circumstances in California) or like a facsimile (faxed ballots are used only in rare cases, such as last minute votes by California soldiers stationed overseas).

The legal response to this argument from the attorney for Ni and Verafirma isn’t yet filed. But I expect Verafirma to argue that such comparisons are bunk. An electronic signature is what it is – an electronic signature. As such, it represents an improvement on pen and paper signatures, because the signature consists of data that can be saved, and checked more easily – and in detail — against electronic files.

– Nagging questions. Why don’t we have a clear standard for validating signatures?

I kept thinking about this as I read the filings. County clerks check initiative signatures (or absentee ballot signatures) against their (usually electronic) files, but it’s far from clear what standard they use to decide whether the signatures are a valid match and which are not. Do any of the counties use signature experts for this work? Or do they use their own staffs? Or temporary workers? What do those people know about signatures? (I’d love to hear from counties on this).

Whatever you think of electronic signatures, Ni’s decision to file this lawsuit is a public service. It is going to force Californians who deal with elections to answer these questions – and others about how our election and signature systems work. Let’s hope the result is a better, more honest system, with clearer standards.