Court: Constitutional change needed to allow e-signing of initiative petitions




Photo by Garry Knight | Flickr/CC BY-SA 2.0

Arizona voters are allowed to electronically sign petitions to get their favored candidates on the ballot, but the Arizona Supreme Court said Friday that the only way for voters to do the same for proposed ballot measures is to change the state constitution.

The court on Friday issued its opinion from a May ruling that denied a request from four citizen initiative campaigns to use an existing online signature-gathering system to qualify for the ballot after in-person efforts ground to a halt in late March because of the coronavirus pandemic.

That online system, known as E-Qual, is used by candidates to gather the signatures needed to appear on the ballot. 

The courts rejected the request, saying that the Arizona Constitution requires that a sheet of paper must be used to gather signatures and those signatures must be witnessed by another person. The rules governing candidates, meanwhile, are set by the state legislature and not the Constitution, the justices ruled. 

Critics of the GOP-led legislature have for years complained that the online signature-gathering portal should be available to initiative campaigns, not just elected officials.

“The elected officials basically made E-Qual available to themselves,” former Democratic lawmaker Chad Campbell said. Campbell, who served as the Demcoratic leader in the state House of Representatives, is now a political consultant working on two of the four campaigns that asked the court to open up online signature-gathering. 

The Supreme Court also was skeptical about the ability of the E-Qual system to handle the influx of information that would come its way if it were opened up to ballot initiatives. 

“In the recent 2020 candidate filing period, (Secretary of State Katie Hobbs) states she processed approximately 58,000 E-Qual signatures,” the ruling says. “Indeed, we now know that three of the Petitioners, as well as another initiative proponent, have in fact filed just over one million signatures, or approximately twenty times the number of signatures processed in the last candidate nomination period.” 

If the courts had sided with the initiative groups back in May, the Secretary of State’s Office would have had only a few weeks to prepare for the influx of signatures and information. 

Additionally, the court had concerns over the how Arizona law regulates E-Qual and the collection of initiative signatures. 

Specifically, state law requires initiative campaigns to register paid signature-gatherers. How that would work if a person was paid to gather electronic signatures is unclear, the justices said.

“Presumably, individuals compensated for sharing E-Qual weblinks with potential signers would qualify as initiative circulators,” Justice Andrew Gould wrote for the six-member majority. He added that there was “no evidence that E-Qual has the capability to identify individual petitions according to the specific ‘circulator’ who shared the petition’s weblink.” 

And the Secretary of State’s Office has not posted any guidelines on how to verify E-Qual signatures, something the court noted. The office also does not list the system within its “Approved List of Certified Authorities” that are allowed to certify electronically signed documents. 

“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. 

The Secretary of State’s Office did not respond to a request for comment. 

Former State Election Director Eric Spencer said state elections officials “have done the very best they can with the system they have,” even though the legislature has failed to properly fund the expansion of E-Qual it ordered in 2016. 

“Without the funds to make it a truly world-class system, I worry it will be relegated to an afterthought in future election cycles,” he said.

However, Spencer worries that the court’s ruling could lay “breadcrumbs” for people to challenge any candidate in the future who uses E-Qual by citing the Supreme Court’s reasoning that the electronic signatures can’t be truly verified. 

Campbell sees it a bit differently. 

“It’s being used by candidates just fine, and if there is a problem with it, it either needs to be fixed and be used by all signature gatherers in the state or it shouldn’t be used by anyone,” Campbell said.