Initiatives with online signatures are rejected

Ink on paper is required, Arizona high court rules

Voters in Arizona must sign petitions for ballot measures with a pen and paper, the Supreme Court said Friday, snubbing the idea of online signatures.

The opinion comes after four ballot measure campaigns filed suit earlier this year requesting to use the same website, known as E-Qual, that candidates for state offices use to get signatures for their nominating petitions.

The groups argued that collecting the hundreds of thousands of signatures necessary to get their initiatives on the ballot had become significantly harder amid the COVID-19 pandemic.

While two campaigns still managed to get their measures placed on the November ballot, the lawsuit raised the question of whether election officials might allow for digital signatures in the future, which would upend the current labor-intensive and increasingly expensive process of dispatching armies of volunteers or paid staff with clipboards and reams of paper.

The state’s highest court said that would be unconstitutional.

The court said a section of the Arizona Constitution in place since 1912 requires that each person collecting signatures for an initiative petition must witness every signature and requires that they are made on sheets of paper.

That means it would take a change

in the state Constitution to let them do so, the court said.

“We agree that technology has drastically changed since ... 1912, but technological advancement and common practice do not justify rewriting the text of the Constitution,” Justice Andrew Gould wrote.

Vice Chief Justice Ann A. Scott Timmer dissented from that section of the opinion, writing she would not have required that initiative petition signatures be gathered face-to-face.

Combining that requirement with the governor's stay-at-home order, she wrote, "severely burden individuals' First and Fourteenth Amendment rights to vote and to associate and to engage in political discourse."

Timmer cited specific cases of Arizonans who were unable to sign or share initiative petitions due to the pandemic, like a retired Air Force lieutenant who lives in a senior living community where visitors — including petition circulators — were banned.

"The current pandemic has deeply impacted Arizonans’ health, employment, schooling, mobility, social connections, and finances. I’m saddened to add infringement of our ' most precious' voting and associational rights to that list," she wrote.

The opinion changes nothing about the ballot voters will receive this year.

The court already rejected the proposal of allowing voters to sign initiative petitions online with a short order in May.

But the opinion is likely to squelch proposals at the Legislature to require the secretary of state accept initiative petition signatures electronically.

Several Democrats sponsored such a bill this year. Though the bill did not get far, proponents argued that allowing voters to sign initiative petitions online would cut the cost of what are increasingly expensive campaigns and make it easier for Arizonans to participate in the direct democracy process.

"That debate is now dead. Absent an amendment to the Arizona Constitution, the court has permanently stopped this experiment in its tracks," said Eric Spencer, a lawyer specializing in election law who previously served as state elections director.

The opinion will likely prod future initiative campaigns to start collecting signatures sooner, too, he said.

In underscoring how some campaigns soldiered on despite the pandemic, the court chided those who waited until late last year or early this year to begin the work of accumulating the hundreds of thousands of signatures needed.

The decision may also have an effect on candidates, who might shy away from collecting signatures online, Spencer added.

While voters can still sign nominating petitions for candidates online thanks to a separate section of law, the court suggested even this system is on shaky legal ground.

Using E-Qual, voters can type in identifying information to add their name to a candidate's nominating petition but are not required to physically sign anything. The court said the Secretary of State's Office has not shown how these signatures meet the standards of the kind of electronic signatures used in financial transactions.

“As a result, based on this record, we are unable to conclude who is responsible for certifying E-Qual and whether E-Qual is properly authorized to accept any electronic signatures much less initiative signatures,” Gould wrote.