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Michael Ni v. Warren Slocum

June 30, 2011

MICHAEL NI, PLAINTIFF AND APPELLANT,
v.
WARREN SLOCUM, AS CHIEF ELECTIONS OFFICER, ETC., DEFENDANT AND RESPONDENT.



Trial Court: San Mateo County Superior Court Trial Judge: Hon. George A. Miram (San Mateo County Super. Ct. No. CIV492074)

The opinion of the court was delivered by: Margulies, J.

CERTIFIED FOR PUBLICATION

To qualify an initiative measure for the election ballot, its proponents must submit to county elections officials a petition endorsed by a statutorily specified number of eligible voters. Initiative petition endorsement is ordinarily a pen-and-paper affair. Proponents of a recent initiative to legalize marijuana, however, submitted to respondent Warren Slocum, the Chief Elections Officer of San Mateo County (the County), a digital memory device containing an electronic image of an initiative petition. The petition contained a single signature, that of Michael Ni (hereafter petitioner), which he had inscribed on the electronic image of the petition by tracing it on the screen of his smartphone. Using the same signature, petitioner had also executed the required declaration by the circulator of the petition, attesting to the genuineness of his signature. The County rejected petitioner's electronic signature, explaining he had not "personally affixed" it to the petition, as required by Elections Code section 100.

Petitioner unsuccessfully sought a writ of mandate requiring the County to accept his electronic signature. We agree with the County that use of an electronic signature to endorse an initiative petition is not contemplated by the Elections Code and affirm the trial court's denial of the writ.*fn1

I. BACKGROUND

Petitioner is a registered voter residing in San Mateo County. In February 2010, he filed a verified petition for 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 petition and complaint alleged that the proponents of Initiative No. 1377, an initiative to legalize marijuana use in California (hereafter the marijuana initiative), had agreed to work with Verafirma, Inc. (Verafirma), a developer of electronic signature software, to test the use of such signatures in the endorsement of initiative petitions. During the signature drive to place the marijuana initiative on the ballot, petitioner reviewed a copy of the initiative petition on the Internet and endorsed the online petition by using Verafirma's software to "sign[] it on an iPhone screen." A copy of the petition bearing petitioner's signature was submitted to County election officials in electronic form, but the County refused to accept the electronic signature.

In support of the petition and complaint, petitioner submitted a declaration from a cofounder of Verafirma, Michael Marubio, explaining the company's method for creating an electronic signature. Using the company's software, a voter can view a copy of an initiative petition on a personal computer screen, use the screen of a "mobile touchscreen device" to trace the required signature and printed name and address, and cause an image of those tracings to appear on an electronic copy of the petition. According to Marubio, Verafirma's software uses " 'signature dynamics' " technology, an electronic signature technology approved for use in California (see Gov. Code, § 16.5), and it complies with existing California statutory and regulatory requirements for electronic signatures used in connection with commerce and other governmental activities. A signature created using Verafirma's software is unique, capable of verification, under the sole control of the signer, and protected against manipulation.

In opposition, the County submitted a declaration from an elections official stating that on February 9, 2010, the San Mateo County Elections Office (County Elections Office) received a memorandum from the California Secretary of State warning elections officials that one or more counties were likely to receive "electronic devices" containing initiative petitions with electronic signatures. The memorandum stated that, after reviewing the issue, the Secretary had concluded electronic signatures do not satisfy the statutory requirement that a voter "personally affix" his or her signature, printed name, and address to an initiative petition.

Shortly thereafter, the County Elections Office received from the marijuana initiative proponents, along with ordinary signed paper copies of the petition, a portable digital memory device, known as a "thumb drive." The thumb drive held an image of the marijuana initiative petition. In the space provided for voter endorsement on the petition were the signature "Michael Ni" and petitioner's handwritten name and street address. Petitioner's city of residence and zip code were also included, written in typeface rather than by hand. Petitioner had also executed the required circulator's declaration, stating that he witnessed his signature and that it was genuine. After careful examination, it appeared to the County that the same signature and printed name and address had been used for endorsing the petition and executing the circulator's declaration.

In a certification sent to the Secretary of State, the County Elections Office deemed petitioner's signature invalid because it was submitted electronically. The County apparently did not attempt to determine whether petitioner's signature otherwise satisfied statutory requirements. If it had done so, the official explained, elections officials would have visually compared the signature and address on the petition with the signature and address on petitioner's voter registration affidavit, which was maintained in electronic form in the County Elections Office.

The trial court denied the petition in a detailed written decision. The court concluded the thumb drive submitted to the County did not comply with statutory requirements for submission of an initiative petition, which the court construed to require the submission of a paper petition. In addition, the court concluded the use of an electronic signature was impermissible because it did not allow elections officials to determine whether the voter personally affixed his or her signature to the petition, as required by statute.

II. DISCUSSION

Petitioner contends the County was required to accept his electronic signature and address information as compliant with the statutory requirements for endorsement of an initiative petition under the Elections Code.*fn2

In interpreting statutory provisions, our task " 'is to ascertain and effectuate legislative intent.' " (Bernard v. Foley (2006) 39 Cal.4th 794, 804.) " '[I]t is well settled that we must look first to the words of the statute, "because they generally provide the most reliable indicator of legislative intent." ' " (Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 1394.) In examining a statute's words, we " ' "giv[e] them their 'usual and ordinary meanings' and constru[e] them in context." ' " (People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 708-709.)

If the statutory language is unambiguous, our inquiry ends. (Pineda v. Bank of America, N.A., supra, 50 Cal.4th at p. 1394.) On the other hand, "[i]f the language is susceptible of multiple interpretations, 'the court looks "to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part." [Citation.] After considering these extrinsic aids, we "must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute . . . ." ' " (Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1063.) Statutory interpretation is a question of law, which we review de novo. (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724.)

A. The Statutory Background

The California Constitution provides that an initiative measure must be placed on the ballot if the proponents present a petition signed by a sufficient number of voters--5 percent, for a statutory provision, or 8 percent, for a constitutional amendment, of the total votes cast for gubernatorial candidates in the last election. (Cal. Const., art. II, § 8, subds. (b), (c); see Strauss v. Horton (2009) 46 Cal.4th 364, 386, 393, fn. 2.) The signing of initiative petitions is governed by Elections Code sections 100 and 100.5, with the pertinent requirements of section 100 reiterated in Elections Code section 9020. Section 100 states, in pertinent part, "[n]otwithstanding any other provision of law," initiative petitions may be signed only by persons who are "eligible registered voter[s]" at the time of signing. When signing, the voter must "personally affix" his or her signature, printed name, and place of residence to the petition.*fn3 (Ibid.) Section 100.5 provides that a voter who is "unable" to personally affix his or her printed name and address to a petition may be assisted in doing so, if the person assisting also provides a signature. Assisted voters, however, are still required to "personally affix" their "mark or signature" to the petition. (See Capo for Better Representation v. Kelley (2008) 158 Cal.App.4th 1455, 1463 [§ 100.5 available only to voters who are "disabled" from writing their printed name and address].)

Each copy of the petition submitted to elections officials must be accompanied by a declaration under penalty of perjury, signed and dated by the "circulator" of the petition. (Elec. Code, § 104, subds. (a), (c); see Friends of Bay Meadows v. City of San Mateo (2007) 157 Cal.App.4th 1175, 1190.) The declaration must state that the declarant circulated the petition, witnessed each of the signatures "being written," and believes each signature to be the genuine signature of the person whose name it purports to be. (Elec. Code, § 104, subd. (b).) The petition must also include, "in the circulator's own hand," the circulator's printed name and address and the dates between which the signatures to the ...


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