The Volokh Conspiracy
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Electronic Signatures Not Good Enough for Montana Candidate Nomination Petitions
From today's Montana Supreme Court opinion in Meyer v. Jacobson, written by Justice Beth Baker and joined by Justices Mike McGrath, James Jeremiah Shea, Dirk Sandefur, and Jim Rice:
John Meyer sought to run as an Independent candidate for Montana Attorney General in the 2020 general election, but the Gallatin County Election Administrator (Administrator) denied his petition for nomination forms because they contained only electronic signatures….
That rejection was correct under Montana election law, the majority held:
There is one Section within [Montana election law]—the Montana Absent Uniformed Services and Overseas Voter Act—that expressly authorizes the use of "digital signatures" for active-duty United States military members and United States citizens residing outside the United States but eligible to vote. The Act limits the use of digital signatures to "proof that the voter is the sender when the voter is electronically transmitting" a federal postcard application, an application for voter registration, a request for an absentee ballot, or the voter's marked ballot. The Act expressly provides that "[a]n election administrator shall verify a digital signature received pursuant to this section and accept a validated digital signature as proof that a document has been transmitted by the voter." The Act also mandates that the Secretary adopt rules regarding electronic registration and voting.
[Montana election law] does not, by contrast, define "signature" or its relation to electronic signatures in the context of petitions. We cannot assume, therefore, that the Legislature intended a "signature" to encompass the definition of an "electronic signature" for purposes of ballot petitions….
And the court held that the Uniform Electronic Transactions Act, which Montana adopted, doesn't apply here, because by its text it covers "only transactions between parties each of which has agreed to conduct transactions by electronic means." "Though the signers may have agreed to transact electronically with Meyer, the Secretary [of State] did not."
The court noted that courts in Massachusetts, Utah, and West Virginia had allowed electronic signatures, but concluded that this stemmed from the particular circumstances and statutory schemes in those cases, and didn't apply to the Montana statutes.
Justice Laurie McKinnon, joined by Justice Ingrid Gustafson, dissented on procedural grounds (she believed the challenge was moot). Congratulations to Dale Schowengerdt and E. Lars Phillips (Crowley Fleck PLLP), Austin Markus James (Montana Secretary of State Chief Legal Counsel), and Erin L. Arnold (Chief Civil Deputy County Attorney, Gallatin County), who represented the defendants.
