Navigating the intersection of innovation and tradition: Electronic signatures in US election codes

Abstract

Electronic signatures have revolutionised the way agreements are executed, offering increased convenience and efficiency in various industries. However, their integration into US state election codes remains a point of contention. While legal frameworks such as the Uniform Electronic Transactions Act (UETA) and the Electronic Signatures in Global and National Commerce Act (E-SIGN) support the legitimacy of electronic signatures, equating them with traditional handwritten ones, many state laws impose exceptions or additional requirements specific to election codes. These challenges arise from the need to balance technological progress with the integrity and trust that handwritten signatures have historically symbolised in electoral processes. This article delves into these issues, analysing key court cases that address the tension between embracing innovation and preserving the principles of election security and authenticity. It highlights the role of judicial decisions in shaping the legal landscape for electronic signatures in voting. Ultimately, the article concludes by reaffirming the significance of UETA in legitimising electronic signatures, while acknowledging the enduring role of handwritten signatures as a trusted and symbolic safeguard of democratic processes.

Introduction

The emergence of electronic signatures has revolutionised the way agreements are formalised, offering unparalleled convenience, efficiency, and accessibility. Yet, within the intricate and high-stakes realm of state election codes in the United States, this technological innovation is met with both opportunity and resistance.

At the heart of this dynamic legal landscape lies the Uniform Electronic Transactions Act (UETA) and the Electronic Signatures in Global and National Commerce Act (E-SIGN). ¹ These legislative frameworks have championed the legitimacy of electronic signatures across industries, fostering their acceptance as functional equivalents to traditional handwritten signatures (hereinafter wet signatures). ² However, as state election codes often operate under unique legal and symbolic imperatives, they pose distinct challenges to the integration of electronic signatures.

The debate over whether electronic signatures can fulfil the stringent requirements of voter registration and election processes revolves around three primary tensions. First, the flexibility offered by UETA allows states to selectively exempt their election codes from its purview or impose additional conditions, creating a patchwork of legal standards. Second, the specific language of election codes – such as mandates for holographic or personally affixed signatures – can render electronic signatures inadmissible despite the overarching support of UETA. Finally, the psychological and symbolic weight of wet signatures continues to shape perceptions of their authenticity, solemnity, and resistance to fraud, especially in matters as consequential as democratic participation.

This article delves into these tensions, exploring how legal frameworks, judicial interpretations, and societal expectations converge to shape the legitimacy and applicability of electronic signatures in US election codes. Section ‘What is a signature’ begins by defining the concept of a signature and explores the historical precedents and legal frameworks that have shaped the understanding of signatures. It covers the criteria courts used before the Internet era to validate alternative signatures and post-internet laws that were crafted and refined to accommodate the utilisation of electronic signatures within the online environment. Section ‘Electronic signature’ focuses on the legal development of electronic signatures legislation. It also focuses on the types of electronic signatures and the technology of digital signatures, a unique type of electronic signature that uses public-key cryptography.

Section ‘Electronic signatures, UETA and state election laws’ delves into the gripping conflict between the UETA and state election laws, a battleground where tradition and innovation collide. It scrutinises five pivotal cases from different states across the United States, where courts have wrestled with the nuanced interplay of these legal frameworks. At the heart of each case lies a pressing question: can electronic signatures, bolstered by UETA's modern provisions, stand on equal footing with the time-honoured wet signature? Through these judicial decisions, the article uncovers the courts’ reasoning and the broader implications for the evolving landscape of electoral integrity and technological progress.

After the broader approach of Section ‘Electronic signatures, UETA and state election laws’, which explores the general conflict between the UETA and state election laws across multiple states, the next section of the article narrows its focus to the specific process of voter registration. Section ‘Electronic signatures, voter registration and state election laws’ delves into the legal nuances of electronic versus wet signatures, with the Texas Election Code serving as a focal point. This section is inspired by a notable case recently brought before the Fifth Circuit Court of Appeals, which challenged the necessity of wet signatures on voter registration forms. The case sets the stage for a deeper analysis of the legal and practical implications of electronic signatures in safeguarding electoral integrity and fulfilling the symbolic and functional role of wet signatures.

The final section is the conclusion. It reflects on the pivotal role of UETA in legitimising electronic signatures while recognising the enduring importance of wet signatures in certain contexts, particularly under state election codes. The conclusion underscores the tangible and personal nature of wet signatures as a cornerstone of trust and integrity in critical democratic processes.

What is a signature

A dictionary defines a signature in a number of ways. As a verb, a signature is the act of signing one's name to something. ³ Signing is defined as ‘a motion or gesture by which a thought is expressed or a command or wish made known’. ⁴ A signature is also ‘the name of a person written with his or her own hand’. ⁵ As an adjective, a signature is ‘closely and distinctively associated and identified with someone or something’. ⁶

The formal requirement of signature was first introduced in the Statute of Frauds 1677 (Imp) in England in the 17th century to prevent fraudulent claims. The intention behind the legislation was to eliminate the potential for using oral evidence ‘to deny the apparent accuracy of a document or explain its true meaning’. ⁷ Subsequently, this legislation or a modified form of it was embraced by numerous jurisdictions adhering to the common-law system, including the United States. Nevertheless, before the Internet became prevalent, the courts exhibited a wide-ranging interpretation of the Statute of Frauds. They examined alternative forms of signature, beyond wet ink signatures, as having legal validity.

In Bishop v. Norell, the Supreme Court of Arizona stated:

We are fully satisfied that the general rule is that a writing or memorandum is “signed” in accordance with the statute of frauds if it is signed by the person to be charged by any of the known modes of impressing a name on paper, namely, by writing, printing, lithographing, or other such mode, provided the same is done with the intention of signing (emphasis added). ⁸

Several courts in the United States have accepted a typed name at the bottom of the document as an acceptable form of signature. ⁹ A facsimile signature, ¹⁰ a signature by means of a rubber stamp, ¹¹ and the initials of a judge on a judgement ¹² have been considered a legally valid signature in some circumstances. In 1869, the New Hampshire Supreme Court, in the case of Howley v. Whipple, affirmed the legality of a contract accepted via telegraph, stating that ‘[i]t makes no difference whether operator writes with a steel pen an inch long attached to an ordinary penholder, or whether his pen be a copper wire a thousand miles long’. ¹³

The critical legal principle in all the cases mentioned above was that the function a signature performs is more important than its form. In Salt Lake City v. Hanson, ¹⁴ the Supreme Court of Utah said:

In regard to a signature, it is the intent rather than the form of the act that is important. While one's signature is usually made by writing his name, the same purpose can be accomplished by placing any writing, indicia or symbol which the signer chooses to adopt and use as his signature and by which it may be proved: e.g., by finger or thumb prints, by a cross or other mark, or by any type of mechanically re­produced or stamped facsimile of his signature, as effectively as by his own handwriting (emphasis added). ¹⁵

Reed examined several English legislation and found that the primary function ¹⁶ of a signature, as far as hard copy documents are concerned, is to ‘provide evidence of: (i) the identity of the signatory; (ii) that the signatory intended the “signature” to be his/her signature; and (iii) that the signatory approves of and adopts the contents of the document’. ¹⁷

Furthermore, statutory signature requirements for evidential purposes fall into two main categories. ¹⁸ The first involves provisions making signed documents admissible as evidence or establishing presumptions about their contents – either as conclusive proof or prima facie evidence of the stated facts. ¹⁹ The second category involves provisions mandating signatures to authenticate documents. Some laws explicitly state the need for a signature to authenticate, while in other cases, this purpose is inferred from the context. ²⁰

During the formulation of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce 1996, the Working Group deliberated upon the various functions of a handwritten signature, which were reiterated during the formulation of the UNCITRAL Model Law on Electronic Signatures 2001. These functions are:

to identify a person; to provide certainty as to the personal involvement of that person in the act of signing; to associate that person with the content of a document…[I]n addition, a signature could perform a variety of functions, depending on the nature of the document that was signed. For example, a signature might attest to: the intent of a party to be bound by the content of a signed contract; the intent of a person to endorse authorship of a text (thus displaying awareness of the fact that legal consequences might possibly flow from the act of signing); the intent of a person to associate itself with the content of a document written by someone else; the fact that, and the time when, a person had been at a given place. ²¹

Electronic signature

With the advent of the Internet, the issue arose as to how to move from paper-based transactions to electronic transactions, especially what form of electronic signatures should be used, which are legally equivalent to wet signatures.

The first legislation on electronic signatures in the world was enacted in 1995 by the U.S. state of Utah. ²² In 1996, the UNCITRAL Model Law on Electronic Commerce (MLEC) introduced a comprehensive framework of regulations to guide national lawmakers in establishing a secure legal framework for electronic commerce. The MLEC does not define an electronic signature but states that where there is a legal requirement of a signature, such requirement is fulfilled in relation to a data message (information generated, sent, received or stored by electronic, optical or similar means) ²³ if:

1(a) a method is used to identify that person and to indicate that person's approval of the information contained in the data message; and

1(b) that method is as reliable as was appropriate for the purpose for which the data message was generated or communicated, in the light of all the circumstances, including any relevant agreement (emphasis added). ²⁴

The Guide to MLEC sets out several legal, technical and commercial factors that may be considered when determining whether the method used was sufficiently reliable and appropriate:

the sophistication of the equipment used by each of the parties; (2) the nature of their trade activity; (3) the frequency at which commercial transactions take place between the parties; (4) the kind and size of the transaction; (5) the function of signature requirements in a given statutory and regulatory environment; (6) the capability of communication systems; (7) compliance with authentication procedures set forth by intermediaries; (8) the range of authentication procedures made available by any intermediary; (9) compliance with trade customs and practice; (10) the existence of insurance coverage mechanisms against unauthorised messages; (11) the importance and the value of the information contained in the data message; (12) the availability of alternative methods of identification and the cost of implementation; (13) the degree of acceptance or non-acceptance of the method of identification in the relevant industry or field both at the time the method was agreed upon and the time when the data message was communicated; and (14) any other relevant factor (emphasis added). ²⁵

To date, most countries, just like the United States, have adopted technology-neutral electronic signatures legislation. These jurisdictions accept all forms of electronic signatures, such as a PIN, password, typed name at the end of an email, email header, and biometric traits, as long as they fulfil the function of a signature.

Some jurisdictions, such as the European Union (EU), provide divergent rules on the legal recognition of electronic signatures. The EU eIDAS Regulation (formerly the Electronic Signatures Directive) (eIDAS Regulation) ²⁶ allows various electronic signature technologies. It defines an electronic signature as ‘data in electronic form which are attached to or logically associated with other data in electronic form and which is used by the signatory to sign’. ²⁷ It also defines an advanced electronic signature as one that satisfies the following four criteria:

it is uniquely linked to the signatory;

it is capable of identifying the signatory;

it is created using means that the signatory can maintain under his sole control; and

it is linked to the data to which it relates in such a manner that any subsequent change of the data is detectable. ²⁸

Under the eIDAS Regulation, only advanced electronic signatures that are based on a qualified certificate and created by a qualified electronic signature-creation device ²⁹ (also known as a qualified electronic signature) are given a presumption of validity, considered legally equivalent to a manuscript signature, and admissible as evidence in legal proceedings.

Although the eIDAS Regulation does not explicitly outline the electronic signature types that qualify as an advanced electronic signature, presently, the only technology that meets the mentioned criteria is digital signatures utilising Public Key Infrastructure (PKI).

A digital signature is created and validated through public-key cryptography, a discipline of applied mathematics. This process transforms an electronic document from the sender into a seemingly unintelligible format, which is then reversed to its original form once it reaches the intended recipient. ³⁰ A digital signature certificate and cryptographic key generation software are issued by a trusted third party known as the Certification Authority to a person. The person (sender) uses a hash algorithm and their secret cryptographic key (private key) to create a digital signature and use it to sign an electronic document. The recipient uses the sender's cryptographic (public) key to verify that it was, in fact, the sender who signed the electronic document. The recipient also uses the hash algorithm to ensure that the document has not been tampered with during transmission from the sender's computer to the recipient's computer. ³¹

Information Technology professionals believe that a digital signature is the most secure and robust form of electronic signature because of its ability to ensure authentication, integrity, and non-repudiation in an electronic environment. However, this has been challenged by legal scholars. ³²

Electronic signatures, UETA and state election laws

The UETA provides a legal framework for using electronic signatures and records in transactions related to business, commercial (including consumer) and governmental matters. ³³ UETA has been adopted by all US states (including the District of Columbia, Puerto Rico, and the US Virgin Islands) except New York.

The UETA excludes transactions governed by laws regarding wills, the Uniform Commercial Code (except Sections 1-107 and 1-206, Article 2, and Article 2A), the Uniform Computer Information Transactions Act, and any other laws identified by the state. ³⁴ Hence, a state can specifically exclude any law, including the state's election code, when adopting the UETA. In cases where a state has not explicitly omitted the election code requirements from the UETA, it implies that the UETA will apply to electronic signatures as long as all its other conditions are met.

UETA provides that when a law requires either a writing or a signature, an electronic record or an electronic signature can satisfy that requirement when [all] parties to the transaction have agreed to proceed electronically. ³⁵ Further, the UETA provides for the attribution and effect of electronic records and signatures. Section 9 of the UETA states that:

An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.

The effect of an electronic record or electronic signature attributed to a person under subsection (a) is determined from the context and surrounding circumstances at the time of its creation, execution, or adoption, including the parties’ agreement, if any, and otherwise as provided by law. ³⁶

Under the UETA, it must be ensured that the process (e.g. security procedure) through which an electronic signature is applied to a document is set up in a manner that the application of the signature evidences the intention of the signer. This is usually determined by the context in which the signature is applied and the surrounding circumstances. ³⁷

Post-2000, several cases applying the provisions of UETA examined the legal validity of different forms of electronic signatures. In Crestwood Shops, L.L.C. v. Hilkene, ³⁸ the Missouri Court of Appeals determined that the typed names exchanged in the email communications constituted valid signatures for terminating a lease agreement. This decision was based on the fact that both parties had clearly indicated their intention to conduct business transactions through email. ³⁹

A similar view was taken by the Supreme Court of Michigan, where attorneys’ names were typed at the bottom of an email. ⁴⁰ The pre-programmed inclusion of a traffic officer's electronic signature on the charging documents was deemed to satisfy the stipulated signature prerequisite under the New York State Criminal Procedure Law. ⁴¹ The Supreme Court of Arizona in Haywood Securities v. Ehrlich, ⁴² held that a judge's name typed in a judgement constitutes a signature.

The phrase “signed by a judge” as used in Rule 58(a) therefore encompasses more than manual signatures. Nothing in the Rules of Civil Procedure or our case law prohibits judgments from being signed electronically. Instead, the defining characteristic of the requirement that a judgment be “signed” is that the document has affixed to it in some form the name of the judge that evidences an intention of authentication (italics in original). ⁴³

Although electronic signatures were deemed legally valid in the cases above, the courts faced challenges in reaching a similar consensus when evaluating electronic signatures within the framework of election laws. This discrepancy stemmed from the intricate nature of election regulations and the unique considerations they entail, prompting a more nuanced assessment of the validity and reliability of electronic signatures in this specific context. The distinction between elections and business transactions lies in their fundamentally different stakes, purposes, and modes of accountability. Business dealings typically occur between private parties, where fraud, though costly, is generally addressed through civil litigation, insurance, or internal safeguards. ⁴⁴ In contrast, elections are public, collective acts that shape the composition of government and the direction of national policy, and thus carry symbolic and constitutional weight far beyond private contracts. Policymakers and legislators often frame voting in an election as a civic trust, not a commercial agreement. ⁴⁵

In the following paragraphs, I discuss five cases from different states where the courts examined the applicability of UETA to state election laws.

Anderson v. Bell (2010) ⁴⁶

In 2010, Farley Anderson, a multifaceted professional and a Utah resident, initiated an independent campaign for the governorship of Utah. He needed to gather 1000 signatures from registered voters to qualify, as per Utah's Election Code. ⁴⁷ Anderson exceeded this requirement, collecting signatures both manually and electronically via a campaign website. Following the Code's procedures, he submitted these signatures to county clerks for verification. Seven counties certified 1055 signatures as valid. Anderson then submitted his candidacy petition to the Lieutenant Governor's Office. However, his candidacy petition was rejected for not meeting the 1000 wet signature requirements. Anderson appealed to the Utah Supreme Court, arguing that electronic signatures met the Election Code's criteria and that the Lieutenant Governor exceeded his authority by removing him from the nomination certificate.

The Utah Supreme Court had to decide whether Anderson could use the collected electronic signatures to meet the number of signatures required by the Utah Election Code to run for statewide office. In other words, does an electronic signature count toward a ‘signed’ nomination certificate under section 20A-9-502 of the Utah Election Code?

The Utah Supreme Court examined the definition of a signature and writing under the Utah Code Ann. § 68-3-12(2) (2008). ⁴⁸ The Utah Code defines ‘signature’ to include a ‘name, mark, or sign written with the intent to authenticate any instrument or writing’. The term ‘writing’ includes ‘printing’, ‘handwriting’, and ‘information stored in an electronic or other medium if the information is retrievable in a perceivable format’. Reading the two definitions (signature and writing) together, the Supreme Court concluded that a signature includes any ‘name, mark, or sign written with an intent to authenticate information stored in an electronic … medium’. ⁴⁹

The Supreme Court further examined whether the Utah UETA applies to the Utah Election Code. According to the Utah UETA, ‘electronic signature means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record’. ⁵⁰ And, ‘if a law requires a signature, an electronic signature satisfies the law’. ⁵¹

Utah UETA excludes laws governing the creation and execution of wills, codicils, testamentary trusts and certain transactions under the Uniform Commercial Code(UCC). ⁵² The Supreme Court held that the exclusion does not explicitly leave out the Election Code requirements from the UETA, implying that the UETA will apply to electronic signatures where its other conditions are met. ⁵³ The Court concluded that electronic signatures satisfy the signature requirement of section 20A-9-502 of the Utah Election Code.

Another issue that the Supreme Court examined was whether section 501 ⁵⁴ of the UETA, in particular, section 46-4-501(1)(a) & (b) and (4), allows government agencies to reject the use of electronic signatures. Section 46-4-501(1) states:

A state governmental agency may, by following the procedures and requirements of Title 63G, Chapter 3, Utah Administrative Rulemaking Act, make rules that: (a) identify specific transactions that the agency is willing to conduct by electronic means; [and] (b) identify specific transactions that the agency will never conduct by electronic means (emphasis added). ⁵⁵

Section 46-4-501(4) states that ‘nothing in this chapter requires any state governmental agency to: (a) conduct transactions by electronic means; or (b) use or permit the use of electronic records or electronic signatures’ (emphasis added). ⁵⁶

The Supreme Court read both sections [46-4-501(1) & (4)] in conjunction and held that section 46-4-501 is a rulemaking statute, and the rulemaking requirement is critical. Where the government agency has done nothing to promulgate rules for electronic records under Title 63G, the UETA does not grant these agencies the authority to arbitrarily decide which transactions are unsuitable for electronic signatures. ⁵⁷

The court also rejected the lieutenant governor's argument that electronic signatures are more prone to fraud than paper signatures and should not be trusted as much.

We are unpersuaded that an electronic signature presents special concerns regarding candidate fraud; a candidate could as easily handwrite or type fraudulent names onto a certificate of nomination…. Moreover, electronic signatures may be a better deterrent to candidate fraud because an electronic signature incorporates readily verifiable personal, but not-public, information. For instance, the signors … apparently had to enter a security code that corresponds to the last four digits of their driver license number before their signature would be counted. ⁵⁸

While Utah's Supreme Court considered electronic signatures a better deterrent to candidate fraud, other courts have a different view. In re Stanley Mayfield, 2016 WL 3958982, No. 16-22134-D-7 (E.D. Cal. July 15, 2016), the US Bankruptcy Court of the Eastern District of California expressed apprehensions about the possibility of electronic signatures being susceptible to easier forgery or manipulation and can lead to potential disputes regarding the authenticity of the document. ‘The essential point is that an individual's handwritten signature is less easily forged than any form of software-generated electronic signature, and the presence of forgery is more easily detected and proven’. ⁵⁹ An article on the American Bar Association's website also warns legal practitioners of the downside of electronic signatures: ‘An electronic signer can more easily deny that he actually signed the document. And it may be difficult to determine how to lay the proper foundation for an electronic signature’. ⁶⁰

In 2011, the Utah state legislature amended the Utah Election Code, a year after the Supreme Court's verdict. The new section ⁶¹ The amended code prohibits electronic signatures on petitions from unaffiliated candidates and mandates that they provide holographic signatures of registered voters. ⁶²

The Utah Election Code lacks a specific definition for ‘holographic signature’. However, Carolina M. Laborde, in her book Electronic Signature in International Contracts, states, ‘The term signature is traditionally associated with a holographic signature, that is, the signature written by a person with his or her own hands with a pen on paper’. ⁶³ According to section 20A-9-502 of the Utah Election Code, the signature sheets must be printed, and each signer must state that ‘I have personally signed this petition with a holographic signature’. ⁶⁴ Further, the Code states, ‘[i]n reviewing the petition, the county clerk shall count and certify only those persons who signed the petition with a holographic signature…’. ⁶⁵

Statford has criticised the amendment of the Utah Election Code, stating that it was a visceral reaction to Anderson and that electronic signatures should not be limited to commercial and business transactions but should apply to election codes. ⁶⁶

Ni v. Slocum (2011) ⁶⁷

The petitioner, a voter in California, utilised an electronic signature software designed by a company, Verafirma, to sign an initiative petition for legalisation of marijuana in California. Verafirma's software was designed explicitly for voters to use their mobile touchscreen devices to sign and input their printed name and address digitally. The technology, known as ‘signature dynamics’, adhered to California's legal standards for electronic signatures in both commercial and governmental contexts. The electronic signatures produced through Verafirma's software were deemed unique, verifiable, securely controlled by the signer, and safeguarded against tampering.

However, the county's chief elections officer rejected the voter's initiative petition because the electronic signature does not satisfy the statutory requirement that a voter ‘personally affix’ their signature, printed name, and address to an initiative petition. ⁶⁸

The petitioner filed a writ of mandate and complaint for declaratory relief, seeking an order compelling the County to accept his electronic signature on an initiative petition and declaring electronic signatures to be a valid means of endorsing such petitions.

The Court of Appeal, First District, Division 1 of California examined provisions of the Election Code (sections 100 and 100.5) that governed the signing of the initiative petitions and California's UETA. According to section 100 of the Election Code, ‘Notwithstanding any other provision of law … [a] signer shall at the time of signing the petition … personally affix his or her signature, printed name, and place of residence’ (emphasis added). ⁶⁹ Under section 100.5, where a voter is unable to personally affix his or her printed name and address to a petition, they may get assistance from another person. However, assisted voters shall personally affix their mark or signature on the appropriate space of the petition (emphasis added). ⁷⁰

The California UETA uses language identical to the Utah UETA (discussed above in Anderson), i.e. ‘if a law requires a signature, an electronic signature satisfies the law’. ⁷¹ Furthermore, UETA does not apply to laws governing the creation and execution of wills, codicils, or testamentary trusts and certain transactions under the UCC. ⁷² The petitioners argued that the UETA must cover Elections Code section 100 because it is not among the many enumerated exemptions. A similar argument was raised in Anderson v. Bell, discussed above, in which the Supreme Court of Utah held that the Election Code of Utah is not explicitly excluded from the UETA, implying that the UETA applies to electronic signatures.

However, the Court of Appeal said that the same argument in California cannot be raised because its Election Code (section 100) differs from the Election Code of Utah. The former has a prefatory phrase, ‘Notwithstanding any other provision of law’, which is lacking in the latter. This phrase self-exempts California's Election Code from the UETA. ⁷³

Additionally, all three judges of the District Court noted that even under the assumption that UETA is applicable, section 100 of the Election Code imposes greater requirements: personal affixing of signature, printed name, and address. ⁷⁴ Since UETA does not state that using an electronic signature qualifies as personally affixing under Elections Code section 100, it is insufficient to validate the petitioner's use of an electronic signature for endorsing the initiative petition.

When examining the plain meaning of the word ‘affix’, Marchiano P.J. said, ‘[t]racing an electronic signature is not the same as personally affixing one's signature on an initiative petition’. ⁷⁵ The Court of Appeal stated:

Although [electronic] signatures are generally said to be more secure than handwritten signatures, there is nothing in the record before us to suggest that Verafirma's petition signature software includes a means for ensuring that the person affixing a signature is actually the person whose signature purports to be affixed.

Even if such security exists, the Legislature, as the branch of government possessing the power under our Constitution to control “the manner in which petitions shall be circulated, presented, and certified”, (Cal. Const., art. II, § 10 subd. (e)), is the proper body to determine whether and how to incorporate this technology, with its new risks and equal promise, into the process of initiative endorsement. Finding no indication, the Legislature has yet considered that issue, let alone approved it, we would overstep the bounds of our proper role to walk into the breach (emphasis added). ⁷⁶

To summarise, the California Court of Appeal disagreed with Anderson's assertion that electronic signatures are more secure than wet signatures. It emphasised that the legislature, rather than the judiciary, is responsible for integrating this technology.

Benjamin v. Walker (2016) ⁷⁷

In 2016, the petitioner, Justice Brent D. Benjamin, a nonpartisan candidate for re-election to the West Virginia Supreme Court of Appeals, chose to participate in the state's Public Campaign Financing Programme. To qualify, Justice Benjamin needed at least 500 ‘qualifying contributions’ from West Virginia voters, totalling a minimum of $35,000. Justice Benjamin managed to get the 500 ‘qualifying contributions’, of which 192 were made electronically, generating electronic receipts. Electronic payments were authorised under the West Virginia Election Code ⁷⁸ but required that every qualifying contribution to a candidate be acknowledged by a receipt that includes, among other things, ‘the contributor's signature’. ⁷⁹ Respondent Walker contended that the 192 electronic contributions were invalid because the electronic receipts do not include a written signature, and Justice Benjamin is short of the 500 ‘qualifying contributions’ required under the Public Campaign Financing Programme.

Before the West Virginia Supreme Court, the question was whether electronic receipts containing unique transaction identifiers could serve as sufficient ‘signatures’ under the West Virginia Election Code. ⁸⁰ The Supreme Court said that since the electronic receipt contained unique transaction identifiers tracing back to the respective contributors, it satisfies the definition of an electronic signature contained in West Virginia's UETA – ‘“Electronic signature” means an electronic sound, symbol or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record’. ⁸¹

The Supreme Court also looked into the decisions in Anderson and Ni. It concluded that, unlike California (discussed in Ni), the Election Code of West Virginia ⁸² does not contain the phrase ‘notwithstanding any other provision of law’, or require a contributory voter to ‘personally affix’ their signature. No language in the Election Code makes it mandatory to use wet signatures.

The Supreme Court concluded that the Election Code provisions of West Virginia are similar to those of Utah (discussed above in Anderson), and Justice Benjamin's campaign had obtained the requisite number of qualifying contributions and otherwise satisfied all statutory requirements to be certified for public funding under the Act.

Yoshimura v. Kaneshiro (2021) ⁸³

The appellant tried to bring impeachment proceedings in the City Court of Honolulu against the defendant (city prosecutor) through 1300+ electronic signatures collected via the online platform Change.org and DocuSign. The Deputy Corporation Counsel informed the appellant that impeachment petition(s) must contain the full legible names, handwritten (not electronic) signatures, and residence addresses of at least 500 signatories. The appellant sought a declaratory order that the City must accept electronic signatures under Hawaii's UETA [Hawaii Revised Statutes (‘HRS’) Chapter 489E (2008)]. HRS § 489E-7 (2008) indicates that when a law mandates a signature, an electronic signature fulfils that requirement.

The Supreme Court of Hawaii said that:

The legislative history of Hawaii's UETA also reflects a permissive, rather than mandatory, approach to the use of electronic signatures. See Sen. Stand. Comm. Rep. No. 3265, 2000 Legislative Session (“The Act does not mandate the use of electronic signatures or records, but establishes procedural guidelines for their use ….”). The NCCUSL Commentary to the model UETA is in accord. See Commentary at 52 (“Section 18 broadly authorizes state agencies to send and receive electronic records and signatures in dealing with non-governmental persons. Again, the provision is permissive and not obligatory ….”). ⁸⁴

The appellant further argued that Hawaii's UETA is similar to Utah's UETA, which was examined in Anderson v. Bell, discussed above. In Anderson's case, the Utah Supreme Court said that where a government agency has the discretion to reject electronic signatures, the government agency must first promulgate rules or otherwise set forth a written policy detailing the circumstances under which electronic signatures may be rejected. As the City has not promulgated rules or a written policy for electronic signatures under the Hawaii Administrative Procedures Act (HAPA), the UETA does not grant these agencies the authority to arbitrarily decide which transactions are unsuitable for electronic signatures.

The Supreme Court of Hawaii rejected the appellant's argument and said:

The Anderson case is distinguishable from the instant case in one key respect, and that is the Utah UETA required governmental agencies to promulgate rules before exercising discretion to accept or not accept electronic signatures. No such requirement exists in HRS § 489E-18, which grants governmental agencies the discretion to accept or not accept electronic signatures. ⁸⁵

The Supreme Court concluded that

[T]he City was free to determine, …that it would require full legible names, handwritten signatures, and residence addresses in order to certify the signatories as duly registered voters of the City and County of Honolulu. ⁸⁶

The Supreme Court also explored the potential for fraud with electronic signatures versus traditional wet signatures. In contrast to the Anderson case, the court stated, ‘Requiring handwritten signatures … is rationally related to preventing fraud in impeachment petitions’. ⁸⁷

Meyer v. Jacobson (2022) ⁸⁸

The attorney general candidate sued the county election administrator and the Secretary of State of Montana, requesting a writ of mandamus to force the county election office to accept nomination forms with electronic signatures. The lawsuit also alleged violations of Montana election laws and the UETA. The Supreme Court, in a 5:2 majority, dismissed the motion. ⁸⁹ It said that the UETA is applicable solely when both parties agree to electronic transactions, as specified in Section 30-18-104(2), Montana Code Annotated (MCA). This prerequisite must be fulfilled before the UETA takes effect.

Furthermore, the Montana Supreme Court considered the earlier-discussed rulings in Anderson and Yoshimura. It said that Montana's UETA (identical to Hawaii's UETA) is different from that of Utah – it does not impose a rulemaking requirement but grants governmental agencies the discretion to accept or not accept electronic signatures. ⁹⁰ ‘Each governmental agency shall determine whether, and the extent to which, it will send and accept … electronic signatures to and from other persons’. ⁹¹

Summary of findings

The analysis of the above five cases leads to the conclusion that the UETA establishes a legal structure governing the utilisation of electronic signatures within the context of state election codes. States retain the choice to remove any law, including the election code, from the purview of their UETA. Moreover, a state's UETA can mandate that governmental bodies formulate rules before exercising their discretion to accept or reject electronic signatures.

In situations where a state has not expressly excluded its election code from the UETA or where governmental entities have not established rules (despite being required under the UETA) disallowing electronic signatures, the UETA will apply, and electronic signatures will be considered legally valid provided that all other stipulations are met. ⁹²

Where UETA has not expressly excluded its election code nor mandated governmental entities to formulate rules, the government agencies have the discretion to determine whether to accept or reject electronic signatures.

The legal validity of electronic signatures is also contingent on the wording of the election code. If the election code explicitly states that an individual's holographic signature is required, then electronic signatures cannot be used; only wet signatures can be used. Where the election code specifies that ‘notwithstanding any other provision of law a signer shall personally affix his or her signature’, then the UETA will not apply. It is crucial to note that utilising an electronic signature differs from personally affixing a signature; the term ‘personally affix’ denotes the use of a wet signature physically applied by the signer.

Finally, the evolving landscape of electronic signatures continues to shape legal perspectives; however, courts generally consider wet signatures less vulnerable to fraud.

Electronic signatures, voter registration and state election laws

Voter registration is mandatory across the United States (excluding North Dakota), with individuals in each state required to register to participate in federal and state elections. To register, an applicant must apply to the registrar of their residing county, which must include their signature. ⁹³

This section delves into the legal stance on electronic signatures vis-à-vis wet signatures as applied to voter registration. It focuses on Texas’ Election Code and is prompted by a recent case before the Fifth Circuit Court of Appeals, in which the requirement for wet signatures on voter registration forms was challenged.

Texas Election Code

In accordance with the established legal procedure in the USA, individuals residing in Texas are mandated to undergo voter registration before exercising their right to vote in elections. Under the Texas Election Code, to register to vote, an applicant ‘must submit an application to the registrar of the county in which the person resides’. ⁹⁴ Such an ‘application must be in writing and signed by the applicant’. ⁹⁵

Texas voter registration form (see Appendix A) requires the applicant to fill in their name, residential address, Date of Birth, Gender, Texas Driver's Licence No. or Texas Personal I.D. No. or the last four digits of their social security number. The applicant then has to sign the following undertaking:

I understand that giving false information to procure a voter registration is perjury and a crime under state and federal law. Conviction of this crime may result in imprisonment up to one year in jail, a fine up to $4,000, or both. Please read all three statements to affirm before signing.

I am a resident of this county and a US citizen;

I have not been finally convicted of a felony, or if a felon, I have completed all of my punishment, including any term of incarceration, parole, supervision, period of probation, or I have been pardoned; and

I have not been determined by a final judgment of a court exercising probate jurisdiction to be totally mentally incapacitated or partially mentally incapacitated without the right to vote.

The applicant must use their wet signature below the undertaking and send the form to the county office for processing.

In 2013, Texas passed Senate Bill 910, permitting individuals to send voter registration forms via fax, provided they submit a hard copy within four days. ⁹⁶ Vote.org, a ‘non-profit, non-membership organisation that seeks to simplify and streamline political engagement by facilitating voter registration’, developed a smartphone application that allowed voters to register online with their electronic signature. However, in October 2018, Texas's Secretary of State warned against misleading voter registration websites allowing electronic signature submissions, prompting Vote.org to deactivate its app.

It is worth mentioning here that Texas voters have other available registration options, including submissions via the Department of Public Safety, direct mail, personal delivery, and volunteer deputy registrars. ⁹⁷ When voters visit the Department of Public Safety, they can use their electronic signature to register for voting.

In 2021, Texas House Bill 3107 clarified that where a voter registration application is submitted by fax, it would only be effective if a copy of the original registration application containing the voter's wet signature were submitted by personal delivery or mail within four days. ⁹⁸ If an applicant submits an incomplete voter registration application, the county registrar will notify the applicant and allow ten days to cure the deficiency. ⁹⁹

Vote.Org v. Callanen et al (2023) ¹⁰⁰

The Appellee, Vote.org, challenged Texas’ wet signature requirement on two grounds. First, it alleged that the wet signature requirement violated section 1971 of the Civil Rights Act of 1964. Second, requiring a wet signature unduly burdens the right to vote in violation of the First and Fourteenth Amendments, and the state has no interest that is sufficiently weighty to justify the burden it imposes upon Texas voters.

The Civil Rights Act's voting rights provisions, often called the Materiality Provision, contain strong rights-creating language:

All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding…and no person acting under the color of law shall deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election (emphasis added). ¹⁰¹

Vote.org successfully argued before the District Court of Texas ¹⁰² that the wet signature requirement is immaterial to an individual's voting qualification. ¹⁰³

The District Court of Texas accepted that a signature is essential to determine a voter's qualification to vote. However, it said that requiring a particular form of signature, i.e. a wet signature, violates the Materiality Provision ¹⁰⁴ because such a form of signature is not ‘material’ to an individual's qualifications to vote. The District Court rejected Texas’ argument that wet signatures help prevent fraud, stating that the burden of requiring wet signatures on Texas voters outweighs any state interests. It concluded that this requirement excessively burdens the right to vote, violating both the First and Fourteenth Amendments. The District Court permanently enjoined Texas to enforce the wet signature requirement for voter registration. ¹⁰⁵

However, the Fifth Circuit Court of Appeals overturned the District Court's judgement by a 3:2 ruling.

The Fifth Circuit Court, when discussing the Materiality Provision, said that as there is no statutory definition of the core term ‘material’ used in the Civil Rights Act (USC § 10101), one must take assistance from the legal dictionary:

The most used legal dictionary gives this definition: “Of such a nature that knowledge of the item would affect a person's decision-making: significant; essential.” Material, BLACK'S LAW DICTIONARY (8th ed. 2004). A more comprehensive dictionary has this definition: “Of serious or substantial import; significant, important, of consequence.” Material, OXFORD ENGLISH DICTIONARY, III.6.a. (July 2023). We reject “essential” as a reasonable meaning, but the rest of the variations seem about right (emphasis added). ¹⁰⁶

The Fifth Circuit Court also said:

For a successful claim of immateriality, the statutory text requires that the “error or omission” — here, the absence of an original signature on a voter application — not be material in determining qualifications to vote. Some requirements for a voter application could easily be dismissed as immaterial, while others could as easily be upheld as material. The requirement of an original [wet] signature is not in either category (emphasis added). ¹⁰⁷

The Fifth Circuit Court (and the District Court) had no doubt ‘that Texas’ interest in voter integrity is substantial [and] that its interest relates to the qualifications to vote – are the registrants who they claim to be?’ ¹⁰⁸ However, the issue before the Court was whether this interest was sufficiently linked to the wet signature requirement. Does giving weight to a wet signature ‘material’ to deciding the applicant's identity? In other words, does requiring a wet signature on the voter registration form affect a person's decision-making?

According to the Fifth Circuit Court, voter registration applications are frequently completed outside of government buildings, making it challenging to confirm the registrant's identity. Because the signature block is situated directly below the requirements and warnings (providing false information is perjury and may result in imprisonment), in such cases, a wet signature helps ensure that an applicant meets the substantive requirements (i.e. the applicant is a resident and a US citizen and has not been convicted of a felony) to vote. ¹⁰⁹

The Fifth Circuit Court went on to state that while warnings may not have a significant effect on applicants, a wet original signature improves voter integrity and is, therefore, a necessary criterion given all of the circumstances. Compared to an electronic signature, a wet signature is more likely to capture applicants’ attention and discourage fraudulent declarations:

Physically signing a voter registration form and thereby attesting, under penalty of perjury, that one satisfies the requirements to vote carries a solemn weight that merely submitting an electronic image of one's signature via web application does not. Thus, it is almost unquestionable that the wet signature requirement helps deter voter registration fraud (emphasis added). ¹¹⁰

Higginson J, who dissented with the majority opinion, said: ‘There is no evidence … that the wet signature itself—as opposed to a digitally imaged signature—adds any sort of “solemnity”’ (emphasis in original). ¹¹¹

It is worth mentioning here that a few social psychological studies have examined the solemnity of electronic signatures vis-à-vis wet signatures. A study conducted in 2015 found that electronic signatures had the effect of diminishing the sense of the signer's social presence and involvement. ¹¹² Consequently, this reduced social presence led to a negative perception of electronic signatures, which translated into the signer treating the document and resulting obligations with less seriousness. As a result, a person who signed using an electronic signature was less likely to uphold their obligations imposed by the document than those who provided a physical signature. Further, those who used a wet signature were less likely to engage in fraudulent or misleading behaviour than those who executed a document using an electronic signature. Interestingly, this negative perception remained consistent across five different types of electronic signatures (checked box, PIN, avatar, typed name, and software-generated signature), regardless of an individual's familiarity or comfort level with technology. ¹¹³

Another study conducted in the same year by the same author examined seven forms of electronic signatures and found that electronic signatures ‘are largely ineffective for curbing dishonest behaviour … participants who signed by typing their name were more likely to cheat than those who provided handwritten signatures’. ¹¹⁴ This study reconfirmed that each form of electronic signature suffered the same limitations when compared to a wet signature.

Another study conducted in 2020 found that individuals who utilised an avatar as their electronic signature were consistently rated as less socially present and were perceived as more likely to breach the contract compared to those who used wet signatures on the contract. ¹¹⁵ The study corroborated the findings of the two 2015 studies.

Policymakers also appear to adopt a cautious approach toward electronic alternatives. In the United States and many other jurisdictions, wet signatures are legally required for documents such as wills, estate planning instruments, and notarised agreements. ¹¹⁶ Similarly, the European Union's eIDAS Regulation (discussed earlier) grants full legal equivalence to wet signatures only for the most secure, qualified tier of electronic signatures. ¹¹⁷ These regulatory frameworks reflect a broader reluctance to treat all electronic signatures as interchangeable with handwritten ones, particularly in contexts where public trust and institutional legitimacy are critical.

First and Fourteenth Amendment Claim

Vote.org argued that registration to vote is necessary for a Texas citizen to be qualified to vote. ¹¹⁸ Consequently, registration to vote necessarily implicates a citizen's fundamental right to vote. Any requirement (e.g. wet signature) placed upon voter registration imposes an undue burden on the right to vote in violation of the First and Fourteenth Amendments.

The Fifth Circuit Court examined its earlier decision on this issue in Voting for America, Inc. v. Steen, ¹¹⁹ where it took help from two Supreme Court Decisions, Anderson v. Celebrezze ¹²⁰ and Burdick v. Takushi. ¹²¹

In Steen, the Court said that:

Where a state election rule directly restricts or otherwise burdens an individual's First Amendment rights, courts apply a balancing test pursuant to which court first considers the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate, and then identifies and evaluates the precise interest put forward by the state as justifications for the burden imposed by its rule. ¹²²

The Steen Court also said severe restrictions on First and Fourteenth Amendment rights in state election laws require narrow, compelling justifications. On the other hand, reasonable, non-discriminatory restrictions are generally justified by the state's regulatory interests.

The Fifth Circuit Court (overturned the district court's decision) stated that the wet signature requirement should be weighed against other registration methods like submissions through the Department of Public Safety, direct mail, personal delivery, and volunteer deputy registrars. ¹²³ Considering these options, the burden of a wet signature is only ‘slight’. Texas’ interests in reliability and fraud prevention are legitimate, as wet signatures may discourage improper registrations. The Fifth Circuit Court also said that Texas may prefer the uniformity and quality of original signatures to those collected through third-party apps.

Trust Issue

Voter.org also argued that Texas accepts voter registration forms submitted electronically through the Texas Department of Public Safety (DPS). To provide this service to those requesting it, DPS combines the registrant's personal information provided through the DPS services rendered with an image of the applicant's signature (i.e. an electronic signature) that is held within DPS's database. Texas accepts these electronic submissions. When Texas does not require those who register through DPS to also provide a hard copy of the registration form with a wet signature, why is it required for voter's registration forms submitted by facsimile?

The Fifth Circuit court held that Texas allowing electronic submissions with an electronic signature via the DPS ‘does not necessarily alter the calculus. Texas exerts more control over and may legitimately have more confidence in that department's systems’. ¹²⁴

The court implied but did not explicitly state that when an individual submits an image of their signature at the DPS, it is likely done in the presence of a DPS employee. The employee would have meticulously verified the individual's identity by scrutinising official documents such as a valid passport, birth certificate, or social security number, alongside corroborating evidence like utility bills or bank statements. Only upon satisfying themselves regarding the authenticity of the person's identity would the employee have permitted the individual to utilise the stylus to affix their signature on the electronic pad, thereby providing their electronic signature. This stringent verification process, overseen by a government official, effectively mitigates the risk of fraudulent activity.

Subsequently, transmitting the electronic signature – essentially a digital representation of the individual's handwritten signature – to any other governmental entity would likely occur via a highly secure channel fortified with robust encryption measures, ensuring the data's integrity and confidentiality.

The Fifth Circuit court held that the voter registration via facsimile process differs from DPS. It lacks the rigorous scrutiny inherent in registration procedures facilitated by the DPS. Unlike the meticulous verification conducted by DPS personnel, the authenticity of a voter's identity is not authenticated in the direct presence of a government official during facsimile registration. This absence of physical oversight diminishes the level of scrutiny applied to verifying the individual's identity, potentially increasing vulnerability to fraudulent practices. Consequently, the security and reliability of voter registration via facsimile may be comparatively lower, underscoring the importance of robust authentication mechanisms to uphold the integrity of electoral processes.

Vote.org has filed another case that is pending before the District Court of Florida ¹²⁵ challenging the Florida Election Code that requires citizens to register using a voter registration form before they can vote. ¹²⁶ According to Fla. Stat. § 97.053(5)(a) 8.

A voter registration application is complete if it contains the following information necessary to establish the applicant's eligibility pursuant to § 97.041, including … The original signature or a digital signature transmitted by the Department of Highway Safety and Motor Vehicles of the applicant swearing or affirming under the penalty for false swearing pursuant to § 104.011 that the information contained in the registration application is true and subscribing to the oath required by § 3, Art. VI of the State Constitution and § 97.051.

The plaintiff's arguments were similar to that in Callanen in that whether a voter provides a signature using a pen, an electronic signature, or any other method is immaterial as it does not indicate the voter's eligibility or qualifications for registration. However, Winsor J, in his order granting motions to dismiss, said that

the question is whether Plaintiffs’ allegation here plausibly show that the wet-signature requirement is immaterial, and I conclude they do not….I find the wet-signature requirement is material (emphasis added). ¹²⁷

The examination of the cases above and social psychological studies on electronic signatures underscore the central role of signatures in determining voter eligibility, particularly during registration and absentee voting. Wet signatures are often viewed as more serious and trustworthy than electronic ones. They tend to capture the applicant's attention and are considered more effective in deterring fraudulent declarations. Yet their role extends beyond fraud prevention. Signatures also serve a symbolic function, marking voting as a deliberate and meaningful civic act. This dual function, both technical and symbolic, aligns with what some political theorists describe as a form of ‘civic religion’, where participation in democracy carries moral and ceremonial significance. ¹²⁸ However, motivations for signature regulation are not always aligned. A lawmaker may focus on preventing fraud ¹²⁹ without invoking civic ideals, while a voter may value democratic participation regardless of fraud concerns. As such, signature regulation in US elections reflects more than a security calculus; it encodes broader ideas about what it means to participate responsibly in a democracy.

It is important to acknowledge here that signature laws, whether related to voter registration or absentee ballot verification, may not be politically neutral. ¹³⁰ They may be structured in ways that advantage certain political actors or make it more difficult for certain groups to participate fully in the electoral process. Historically, the United States has seen such tools deployed in ways that have had uneven impacts, sometimes placing greater burdens on minority communities, third-party candidates, or voters with fewer resources. ¹³¹ Accordingly, discussions about wet versus electronic signatures may also benefit from considering the broader context in which electoral rules are developed, including the practical and political factors that can influence their design.

Conclusion

UETA and E-SIGN have played a pivotal role in legitimising electronic signatures and fostering widespread acceptance across various sectors. However, wet signatures maintain their relevance under the election code of a state. A state may refuse to accept electronic signatures and instead require individuals to use their wet signatures for specific documents or transactions that demand more assurance and trust regarding their authenticity and integrity. In such cases, the tangible nature of wet signatures is seen as a crucial element in ensuring the validity and credibility of the signed documents. This is especially true where the wet signature on a document carries symbolic significance and represents a personal commitment.

Supplemental Material

sj-docx-1-clw-10.1177_14737795251343904 - Supplemental material for Navigating the intersection of innovation and tradition: Electronic signatures in US election codes

Supplemental material, sj-docx-1-clw-10.1177_14737795251343904 for Navigating the intersection of innovation and tradition: Electronic signatures in US election codes by  Aashish Srivastava in Common Law World Review