San Mateo County Superior Court Judge George Miram this week ruled invalid the first electronic signature submitted on an initiative petition.
It’s an important ruling and not unexpected – but nevertheless it’s a setback for those of us who hope that electronic signatures might make registering voters and qualifying initiative petitions cheaper, and thus give more power to individuals and organizations that don’t have deep pockets.
What was Miram’s problem with the signature submitted by Michael Ni, founder of a Silicon Valley company that developed a technology that, it claims, allows voters to sign their names securely on their smart phones?
According to his four-page ruling, Miram’s problem wasn’t so much with the signature as it was with the nature of the electronic copy of the petition on which Ni signed his name.
One was technical. Noting that the election code requires a one-inch margin for initiative petitions, Miram found that the electronic petition that Ni signed with his iPhone was invalid because it didn’t have such margins.
The judge’s second objection was both technical and legal, and thus more problematic for advocates of electronic signatures.
The judge’s argument is a bit hard to follow (and maybe a little bit Kafkaesque), but the judge, citing a combination of law and a previous California appellate decision in an unrelated case, says that county clerks, who must check signatures, can’t look at “extrinsic evidence” – a legal term that means evidence that isn’t before them.
The judge seems to consider the technology underlying the electronic petition and the electronic signature such evidence – in this way. To verify such a signature, the county clerk would have to check that technology. And since such technology is “extrinsic evidence,” in the judge’s view, the county clerk can’t by law check it.
That’s the Kafka part. The technology is the way to verify the signature—the designers of the technology maintain that the technology provides more security, since a signature is stored and can be checked – but the technology can’t be considered, at least according to this judge.
An appeal is expected.