It may come as a surprise, but voter driven initiatives in California — including voter driven State-wide propositions — must gather signatures with pen and paper and cannot gather signatures over the internet.

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The California Elections Code requires that voters “personally affix” their signatures to any petition. Cal. Elec. Code § 100.

The term “personally affix” is nowhere defined, but in Ni v. Slocum (2011) 196 Cal.App.4th 1636, Division One of the First Appellate District (which governs Bay Area trial court decisions) held that such language did not permit electronic petitioning.

While California law permits electronic signatures in some instances, nothing in the Elections Code equated such permissive electronic signatures with the requirement that a citizen “personally affix” his or her name on a petition.

The Court also noted that the statutory language with respect to petition gathering had not materially changed since 1961. Thus, the Court concluded that it was the Legislature which should clarify the role of electronic signature gathering:

[T]he decision to allow the use of this type of technology is properly one for the Legislature. Under our Constitution, the Legislature has the authority to “provide the manner in which petitions shall be circulated, presented, and certified, and measures submitted to the electors.” (Cal. Const., art. II, § 10, subd. (e).) The use of electronic signatures in the endorsement of initiative petitions entails more than a new means for inscribing a signature. As described by petitioner, the process moves petition endorsement online, providing a means for endorsing petitions solely by use of an Internet Web site. Evaluating the policy issues arising from the use of the Internet for petition endorsement and accommodating this technology within the existing signature validation process is outside the proper scope of our task. Because there is no evidence the Legislature has ever considered these questions, let alone affirmatively approved the use of electronic signatures in connection with initiative petitions, we should hesitate to mandate their acceptance by judicial fiat.

Technically, the decision in Slocum only applies to the Bay Area, but it is likely that other Courts of Appeal in the state would find its logic compelling.

Social change-makers interested in utilizing the petition system as a form of change in California are thus tied down by the use of pen and paper, at least for the moment, and until either the Legislature or a voter-driven proposition updates voting laws for 21st century technologies.

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