Fair and Equal Michigan to collect electronic signatures to keep safe from COVID-19 and campaign moving forward

LANSING, MI – Fair and Equal Michigan announced today it will keep its campaign moving forward by transitioning to an electronic signature collection strategy. Supporters in favor of introducing a citizens’ bill to amend the Elliott-Larsen Civil Rights Act to protect lesbian, gay, bisexual and transgender people from discrimination may now sign a petition electronically via the campaign website, FairAndEqualMichigan.com. 

“To keep our supporters safe and to recognize the stay-at-home orders by the state, we are encouraging people to sign the petition for LGBTQ equality electronically during this unique moment,” said Fair and Equal Michigan Co-Chair Trevor Thomas. “This transition to electronic signature collection will ensure Michigan voters can continue to participate in the democratic process and exercise their reserved constitutional right to initiate legislation while doing their part to stop the spread of coronavirus.”

To electronically sign the Fair and Equal Michigan petition, supporters who are registered to vote in Michigan must go to the campaign website FairAndEqualMichigan.com. The process will take approximately three minutes and includes 2-factor authentication, which requires users to enter a valid Michigan driver’s license or state identification card number. Information provided will be cross referenced with Michigan’s list of registered voters.

Use of electronic signatures on petition signatures is legally permitted under both the Uniform Electronic Transactions Act (UETA), and Executive Order 2020-41, both of which provide that a signature will not be denied legal effect or enforceability solely because it is in electronic form and if a law requires a signature, an electronic signature satisfies the law.

DocuSign, the company contracted to process electronic petition signatures, is the most trusted and widely used electronic signature vendor with more than 200+ million processed. DocuSign meets and exceeds some of the most stringent US, EU, and global security standards including the requirements of the federal ESIGN Act and the UETA as adopted in Michigan. The company pioneered the development of e-signature technology and now has more than 500,000 customers and hundreds of millions of users across the world. The company’s technology is already used by more than 800 federal, state, and local government agencies throughout the United States.

Fair and Equal Michigan has until May 27, the state mandated deadline, to turn in 340,047 valid signatures required by the state. The campaign launched on January 7, has already collected more than 150,000 signatures and built a risk mitigation plan to collect 542,000 signatures. Upon the submission of signatures, the Legislature will then have 40 days to adopt the initiative as written or send it for voters to decide in the November election.

Previously announced companies supporting Fair and Equal Michigan include DTE Energy, Consumers Energy, Apple, Dow, Rock Holdings, and Herman Miller. It has been endorsed by the Ann Arbor-Ypsilanti Chamber, Michigan Dental Association, League of Women Voters, American Association of University Women and State Employees Retiree Association.

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Legal Notes on THE Use of Electronic Signatures for Initiative Petitions under the Michigan Election Law GIVEN THE IMPACT OF the Novel Coronavirus (COVID-19)

The following information was provided by Fair and Equal Michigan Legal Counsel Steven Liedel of the Dykema Law firm.

 

The Issue

The Right of Initiative is a Constitutional Right Reserved by the People of the State of Michigan

  • “All political power is inherent in the people. . . .” Const 1963, art 1, § 1.
  • “The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative. . . .” Const 1963, art 2, § 9.

 

The Right of Initiative is Exercised by Petition, a Right Currently Restricted by Response to COVID-19

  • “To invoke the initiative or referendum, petitions signed by a number of registered electors, not less than eight percent for initiative and five percent for referendum of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required.” Const 1963, art 2, § 9.
  • To mitigate the impact of COVID-19, public gatherings and social interactions have been severely limited by government action. As a result, groups circulating initiative petitions like Fair and Equal Michigan have ceased circulating signatures in person.

 

State Law Imposes Deadlines for Circulation of Initiative Petitions

  • An initiative creating new or amending existing legislation requires signatures from at least 340,047 registered voters on petitions that must be filed by May 27, 2020. MCL 168.471.
  • “The signature on a petition that proposes an amendment to the constitution or is to initiate legislation shall not be counted if the signature was made more than 180 days before the petition is filed with the office of the secretary of state.” MCL 168.472a.

 

Election Law Deadlines Combined with Restrictions on the Ability to Circulate Initiative Petitions due to COVID-19 Response Activities are Infringing on the Right of Initiative

  • The inability to circulate petitions at public gatherings and other limitations on social interaction greatly increases the time and effort associated with obtaining signatures from registered voters, if not rendering the activity a practical impossibility.
  • Signatures not obtained in the presence of the petition circulator are invalid and cannot be counted. MCL 168.482a(5).

 

The Legal Basis for an Alternative

Use of Electronic Signatures Permitted by Uniform Electronic Transactions Act

  • Under Michigan’s enactment of the Uniform Electronic Transactions Act (2000 PA 305, as amended, MCL 450.831 to 450.849) (“UETA”), digital signatures have the same legal effect as physical signatures:
    •  “A record or signature shall not be denied legal effect or enforceability solely because it is in electronic form.” MCL 450.837(1)
    • “If a law requires a signature, an electronic signature satisfies the law.” MCL 450.837(4)
    • “If a law requires a signature or record to be notarized, acknowledged, verified, or made under oath, the requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record.” MCL 450.841
    • “An electronic record or electronic signature is attributable to a person if it is 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.” MCL 450.839(1).

 

Use of Electronic Signatures Encouraged by Executive Order 2020-41

  • “Strict compliance with rules and procedures under the Uniform Electronic Transactions Act (“UETA”), 2000 PA 305, as amended, MCL 450.831 et seq. . .  is temporarily suspended to the extent necessary to permit the use of an electronic signature for a transaction whenever a signature is required under Michigan law, unless the law specifically mandates a physical signature. As provided in section 7 of the UETA, MCL 450.837, a signature will not be denied legal effect or enforceability solely because it is in electronic form and if a law requires a signature, an electronic signature satisfies the law.” Executive Order 2020-41, § 1.
  • “To minimize in-person interaction and facilitate remote work during the declared states of emergency and disaster: ... Persons and entities engaged in transactions are encouraged to use electronic records and electronic signatures. . .” Executive Order 2020-41, § 4.b.

 

Affixing Electronic Signatures for Governmental Affairs within the Scope of Transactions Covered by UETA

  • UETA is not limited to business or commercial transactions and includes actions related to governmental affairs, such as an initiative petition:
    • “‘Transaction’ means an action or set of actions occurring between 2 or more persons relating to the conduct of business, commercial, or governmental affairs.” MCL 450.832(p) [emphasis added]
    • UETA applies to a “transaction” as defined in UETA, including actions relating to the conduct of governmental affairs.
    • “Except as otherwise provided in subsection (2) and section 4, this act applies to electronic records and electronic signatures relating to a transaction.” MCL 450.833(1).
  • Transactions excluded from UETA are specific, and there is no exclusion of transactions under the Michigan Election Law, 1954 PA 116, as amended, MCL 168.1 to 168.992, (the “Election Law”). The Michigan Legislature could have excluded transactions under the Election Law from UETA, but has not.
    • “[UETA] does not apply to a transaction to the extent it is governed by either of the following:
      • (a) A law governing the creation and execution of wills, codicils, or testamentary trusts.
      • (b) Except as otherwise provided in subsection (3), the uniform commercial code, 1962 PA 174, MCL 440.1101 to 440.11102.” MCL 450.833(2).
    • “This act applies to any electronic record or electronic signature created, generated, sent, communicated, received, or stored on or after the effective date of this act. [October 16, 2000]”. MCL 450.834.

 

Under UETA, When Two Parties Agree to Conduct a Transaction Using an Electronic Signature, the Electronic Signature is Legally Valid

  • “This act [UETA] applies only to transactions between parties each of which has agreed to conduct transactions electronic means. Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties' conduct.” MCL 450.835(2).
  • An electronic signature on the Fair and Equal Michigan is a transaction relating to government affairs between two parties: (1) Fair and Equal Michigan; and (2) the registered voter signing the petition electronically.

 

Electronic Signatures for Petition Signatures have been Authorized Elsewhere

  • In Anderson v Lieutenant Governor, 234 P.3d 1147 (Utah 2010), the Utah Supreme Court, relying upon Utah’s enactment of the Uniform Electronic Transactions Act, unanimously concluded that electronic signatures are just as valid as handwritten signatures and must be accepted by state election officials. State officials unsuccessfully argued that Utah’s election law mandated strict guidelines to be followed for paper signatures and did not address electronic signatures.[1]
    • See: Statford, Barry G. (2013) “Digital Democracy: Anderson v. Bell & the Expansion of Electronic Signatures in Election Law,” Utah OnLaw: The Utah Law Review Online Supplement: Vol. 2013, Article 9.
  • The State of Arizona currently permits the use of electronic signatures to sign a candidate nominating petition.
    • See: https://apps.azsos.gov/equal/.
  • The City of Denver, Colorado permits the use of digital versions of petitions for municipal petitions for nomination of candidates, initiatives, referendum, or recall.
    • See: denvergov.org/content/dam/denvergov/Portals/778/documents/CampaignInfo/Rule_12.pdf.

 

Fair and Equal Michigan’s Solution

Fair and Equal Michigan Will Circulate Initiative Petitions Electronically Using Electronic Signatures for Registered Voters and Petition Circulators in Compliance with Both UETA and the Election Law, Consistent with Executive Order 2020-41

  • When electronically signing an initiative petition, a registered voter will be required to provide his or her printed name, address, city or township, zip code, birthdate, and either a driver’s license number or state identification card number to assist in verifying the validity of the signature.
  • The registered voter will then be presented with an electronic document that includes the initiative petition as submitted to and approved the Board of State Canvassers.
  • The initiative petition would be signed using a finger, stylus, or mouse to affix and electronic signature.
  • The electronic signature would be encrypted to assure security using industry best practices for electronic signatures.
  • Records of electronic signatures would be retained and provided to the Board of State Canvassers in addition to printed petitions that include images of the affixed electronic signatures.

 Signature Collection will comply with Election Law Requirements.

  • Petitions will be circulated electronically. Each petition will contain the signature of a single registered voter and that same registered voter also will be the circulator for that petition. This procedure satisfies the requirement under the Election Law that a petition be signed in the presence of the circulator.
    • “Any signature obtained on a petition under section 482 that was not signed in the circulator’s presence is invalid and must not be counted.” MCL 168.482a(5).
  • Other provisions of Election Law relating to signatures will continue to apply.
  • Verification of signatures can  be performed consistent with MCL 168.476(1), which provides in part: “The qualified voter file shall be used to determine the validity of petition signatures by verifying the registration of signers and the genuineness of signatures on petitions when the qualified voter file contains digitized signatures.”

Fair and Equal Michigan’s use of electronic signatures is permitted under existing Michigan law and does not require amendments to any law or suspension of any regulatory requirements.

The proposal also increases the ability of persons to engage in initiative petition activity, mitigating the need to seek other relief such as deadline extensions or reductions in signature requirements.

 

Questions?

Contact:

Steve Liedel
Dykema (counsel for Fair and Equal Michigan)
[email protected]
(517) 374-9184


[1] The Utah Legislature subsequently amended Utah election law to prevent the use of electronic signatures.