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Gay rights group goes electronic in pandemic test of Michigan election law

LANSING — Struggling to collect signatures amid a pandemic and social distancing mandates, a Michigan group seeking to put a gay rights initiative on the November ballot is adopting a new digital strategy that will test the boundaries of state election law. 

Fair and Equal Michigan on Monday began collecting electronic voter signatures through what organizers contend is a secure and reliable online system. If the signatures are submitted by May 27, state election officials would have to decide whether they count toward the 340,047 valid signatures the group needs to qualify for the ballot. 

“The government has ordered restrictions on public gatherings and social interactions that make it practically impossible to circulate petitions face-to-face, as has always been done,” said Steve Liedel, an attorney with Dykema Gossett LLC who is representing the LGBT rights group. 

Two other Michigan ballot committees have already abandoned petition circulation efforts amid the pandemic, while congressional and judicial candidates face an April 21 deadline to submit signatures required to make the primary ballot. 

Liedel contends a 20-year-old state law designed to facilitate e-commerce, the Michigan Uniform Electronic Transactions Act, makes clear that “any time the law requires a signature, an electronic signature can be used.” Michigan Gov. Gretchen Whitmer’s recent executive order encouraging e-signature transactions “reinforced” that legal argument, Liedel argued. 

“The Legislature didn’t include any sort of exemption that said, ‘No, signatures under the election law don’t count,’” Liedel added, noting his firm is “prepared to defend” that legal rationale in court if any when the state or outside groups challenge it. 

The Michigan Constitution gives voters the ability to petition their own government for new laws through initiated legislation and requires them to meet a signature threshold that is based on the number of votes cast in the prior gubernatorial election.

That process has traditionally been completed via pen-and paper-petition. 

Fair and Equal Michigan had collected more than 100,000 of traditional signatures by March 10, when Whitmer announced the state’s first confirmed COVID-19 case and issued an emergency declaration that she later used to mandate business closures. The ballot group then began mailing individual petitions to supporters and has collected more than 150,000 signatures to date. 

But with only 44 days left to collect and an internal target of 542,000 signatures, the ballot committee is again “adjusting” to the new pandemic reality, said co-chair Trevor Thomas. 

The group hired DocuSign, a California-based firm that specializes in electronic agreement software, to develop a petition signature process for registered voters that will take less than three minutes to complete, Thomas said. 

Users will have to enter a valid Michigan driver’s license or state identification number that will be cross-referenced with the state voter file to make sure the signer is registered, as required. 

The approach “will ensure Michigan voters can continue to participate in the democratic process while doing their part to stop the spread of coronavirus,” Thomas said. 

But it’s unclear whether Michigan election officials will accept electronic signatures, or if they’d hold up in court. 

Fair and Equal Michigan organizers told the state they would collect signatures electronically, but “they did not ask for our permission to do so,” said Jake Rollow, a spokesman for Michigan Secretary of State Jocelyn Benson. 

“We have not yet determined if we can accept signatures collected as they propose as we have not yet conducted a full legal analysis and to no signatures collected in this way in this way have yet been provided to us," he said. 

Norm Shinkle, one of two Republicans on the four-member Board of State Canvassers, said a month ago he would have been “aghast” at the prospect of allowing electronic signatures because of potential security risks.  

But with candidates and committees across the state struggling to circulate petitions amid the pandemic, “I wouldn’t be surprised" if state lawmakers consider policy changes or Bensons' office issues additional guidance, Shinkle said Monday. “We don’t make policy” on the board, he noted.

The initiative, if sent to the statewide ballot and approved by voters, would expand the definition of “sex” in the Michigan Elliott-Larsen Civil Rights Act of 1976 to include “sexual orientation” and “gender identity or expression,” guaranteeing safeguards in housing, public accommodation and employment.

Michigan’s Republican-led Legislature has squashed similar legislation, arguing it could lead to reverse discrimination against religious business owners or groups.

Fair and Equal Michigan’s legal theory on electronic signatures has never been tested here,  but other states have grappled with similar questions. Arizona, for instance, allows candidates to collect electronic voter signatures for ballot access.  

In 2010, the Utah Supreme Court ruled the state’s electronic transaction law should also allow independent political candidates to collect digital signatures. The Utah Legislature disagreed, however, and quickly amended state election law to exclude electronic signatures.

Michigan’s Republican-led Legislature in 2018 adopted new petition drive rules. But several of those provisions, including limitations on the number of signatures that can be collected from a single congressional district, have been suspended during a legal battle that last month reached the Michigan Supreme Court.

State law requires petition circulators to verify that each signature they collected was signed in their physical presence. Fair and Equal Michigan plans to comply with that rule by making each person who signs the petition a circulator as well, Liedel said.

“So you are always in your own presence, and you can satisfy that requirement.”

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