Courts rule

Elsewhere citizens were given the opportunity to petition electronically — why not in Boulder?

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While dozens of Boulderites spent the spring risking their health to collect thousands of petition signatures and get citizen initiative measures on the 2020 ballot, this wasn’t the case elsewhere in the nation. From the East Coast to the Southwest, legislators in other states were able to provide secure electronic systems that allowed their constituents to collect signatures online.

It was a surprise to some political scientists, as Boulder was the first municipality in the nation to have voters approve use of an electronic petitioning system back in 2018. Colorado, too, is known in election law circles as a state with relatively active and progressive use of direct democracy. As John Cluverius, an assistant professor of political science at the University of Massachusetts Lowell, says, “Outside of the pandemic, Boulder should really be leading the way.”

Instead, Massachusetts — a state with tougher standards for direct democracy compared to Colorado, with greater signature thresholds and shorter collection periods — implemented the first successful electronic ballot initiative petitioning system when, on April 29, the state’s Supreme Judicial Court ruled in favor of citizen initiative campaigns.  

“I’m shocked that this wasn’t deployed everywhere,” Cluverius says. “You all are in Boulder, Colorado. There’s already been a democratic commitment that favors this. The voters have said already they like this and they want it.” 

With a pandemic killing thousands of Americans a day, he adds, “This is a no-brainer.” 

Before COVID-19, none of the states that allow citizen initiatives were using remote, electronic petitioning systems. Everyone had to collect signatures in person, and though Colorado and Arizona did pioneer new technologies in the mid-2010s to assist with petitioning, these methods weren’t necessarily helpful for the 2020 campaigns trying to navigate a pandemic. The City of Denver’s unique eSign system facilitates the use of an iPad, but still requires someone in-person to supervise the signing; Arizona implemented an electronic petitioning system in 2011, but it was designed only for use by candidates seeking election to public office, not those petitioning ballot initiatives. In Boulder, the electronic system championed and approved in 2018 remains months away from deployment. 

Pre-2020, conversations about the concept and/or application of electronic petitioning systems were relatively absent on a national scale. But, as with so much else, the pandemic quickly changed that.Suddenly, collecting signatures online, from the safety of one’s home, was not only a topic of national debate around democractic participation, but also a question of legality. Before long, a wave of legal challenges began populating dockets in many state supreme courts. 

Only 24 states (plus Washington D.C.) guarantee citizens the right to petition for ballot measures — often following a very specific set of rules. These rules are outlined in state constitutions, statutes and city charters. The process varies in detail state to state and municipality to municipality, but all citizen initiative procedures share a common outline: gather enough valid signatures by a certain deadline, and your measure is guaranteed a spot on the ballot. Because support from elected officials is not needed, ballot initiatives provide an avenue for citizens to advance solutions to issues and enact structural changes that might be overlooked or ignored by politicians. 

Thus, when the conditions around these rules changed due to the pandemic, petitioners were quick to engage with those governing the petitioning process, requesting accommodations to rules during these unprecedented circumstances. 

According to Richard Collins, a professor of constitutional law at the University of Colorado Law School, it became a matter of trying to understand what constitutions intended. “The people who put [the rules] in the constitution, they plainly were not thinking about how these provisions should be applied in the case of a disease epidemic,” he says. In many ways, it boils down to a question: What’s more important: the right to petition, or the rules that determine how to access that right? 

As signature-collection deadlines loomed over spring and summer, with no reliable precedent for health accommodations and no progressive movements from leadership in sight, campaigns across the country began suing for the right to petition electronically as early as April. Many figured, if it’s possible to securely deposit checks, sign leases and apply for federal assistance programs online, it could be possible to facilitate community endorsements of petitions, too. Some were successful in their lawsuits, but most were not. 

In Boulder, four citizen campaigns began the petitioning process for ballot initiatives this spring. Potential use of an electronic system during the pandemic came up quickly, as many citizens were aware of the community’s 2018 vote to approve an electronic system. Plus, City Attorney Tom Carr was coincidentally scheduled to update Boulder’s City Council about the system’s implementation in March. 

At this meeting, Carr announced the electronic system would not be ready to use in the 2020 election cycle — as city staff and Runbeck, the contracted software vendor, are still developing the system and conducting security tests — but he offered the potential for a temporary system that could help petitioners during the pandemic. Council asked Carr to draft an ordinance that would temporarily permit electronic petitioning, but the conversation around it swiftly ended in mid-April, when Council voted not to pursue Carr’s ordinance (for more on this, see News: “What will happen to Boulder’s 2020 citizen initiatives?,” July 30). Council members cited concerns about data security and burdens placed on petitioners to switch systems mid-campaign. Many citizen-initiative volunteers, however, had explicitly asked for such a health-preserving accommodation. Ultimately Council made no concessions, directing the four ballot initiative campaigns to continue collecting pen-and-paper signatures.

Only one of Boulder’s citizen initiative measures — “No Eviction Without Representations” (NEWR) — made it onto the 2020 ballot via this process, though campaign organizers had started collecting signatures two months before the pandemic hit. The other campaigns, with later starts, weren’t as successful, though organizers spent hundreds of hours gathering thousands of handwritten signatures. Their efforts were further stymied when the City Attorney revealed his office had misinformed campaigns about the rules, and Council again took no action, declining to correct the mistake. Now one Boulder campaign, “Bedrooms Are For People” (BAFP), is appealing its case to the Colorado Supreme Court, requesting Council place the measure on the ballot. 

BAFP campaign co-chair Chelsea Castellano explained in a statement that organizers will continue litigating “on behalf of all Boulder voters who wish to exercise their right to direct democracy, this year and in the future.” 

What’s happened on the municipal level, with city officials quickly determining “rules-are-rules,” has been mirrored on the state level. In Colorado, citizen initiative campaigns pressed Gov. Jared Polis for emergency petitioning accommodations, as did dozens of other campaigns in Massachusetts, Idaho, Michigan, Arizona, North Dakota, Montana, Ohio and more.

“We’re only asking for the chance to be able to have the people vote,” says Cara Brown McCormick, campaign manager for Massachusetts’ Yes on 2 initiative proposing ranked choice voting. The Yes on 2 campaign filed its lawsuit, asking the state to accept electronic petitions in April following the lead of candidates who’d filed a similar suit. In early May, Massachusetts judges granted permission, and campaigns worked closely with their Secretary of State, Attorney General and the electronic-agreement company DocuSign to find common ground. 

Courtesy Liz Popolo and Yes on 2 Though citizens were allowed to sign petitions online, Massachusetts’ Yes on 2 campaign had to print out each individual’s petition signature and turn in paper copies to county clerks.

“It really was a compromise,” Cluverius explains. “The effect was one where everybody came together and the state reached a conclusion that preserved why we have signature gathering requirements, which are to prevent a glut of ballot initiatives, but also give these initiative campaigns the flexibility they need to [have a reasonable chance at success].”

Using DocuSign, the Yes on 2 campaign was able to collect one signature every two minutes for 40 days in a row, totalling more than 30,000 electronic signatures by the end of their campaign. All together it became the largest signature gathering effort in the history of Massachusetts, eclipsing the 13,374 signatures required to place the measure on the ballot. 

“That’s the way it’s meant to be: People taking things into their own hands to petition their government. And that’s what this was, a pure exercise,” McCormick says. “It was tremendously successful.” 

Perhaps most importantly, McCormick adds, “The Secretary only disqualified a tiny number of signatures. There was no fraud.” 

From her years of experience, McCormick knows there are ample ways for governments to reject signatures and petitions. “In this case, when the campaign delivered the petitions to the hundreds of town clerks for certification and then to the Secretary of State, there were no problems — no forgeries, nothing,” she says, “It just seems to me that the judges in Massachusetts were very much aligned with democracy moving forward, even during a pandemic.”

While Massachusetts was able to quickly deploy a new electronic petitioning system, Arizona was able to at least partially rely on a framework that had already been in use for years. In 2011, the Secretary of State’s office created an electronic petitioning system, known as E-Qual, that prospective candidates can use when running for state or legislative office. Initially, the system was meant to help candidates for national, statewide and legislative offices collect signatures and qualifying financial contributions, explains Sophia Solis, public information officer for the Arizona Secretary of State’s office. At one point E-Qual expanded to include more candidates seeking election to county, city or town offices. 

So, when the pandemic hit Arizona and several petition campaigns were already underway, citizens pursuing ballot initiatives asked if E-Qual could be further extended to support their signature collections. Six ballot initiatives ended up filing lawsuits, seeking authorization to use E-Qual. Secretary of State Katie Hobbs, who was in the legislature in 2011 and voted in favor of E-Qual at the time, championed the campaigns’ request. 

“I won’t oppose the request being made by these organizations,” she wrote in a statement. “I plan to let the court know that my office can implement the necessary changes, should that be the court’s order.” 

She argued, given the challenges COVID-19 poses to in-person signature collection, “allowing initiative campaigns to use the E-Qual system, as some candidates already do, is a reasonable option for protecting public health and supporting continuity in our democratic processes.”

A district court judge in Arizona, however, dismissed the lawsuits, first stating the pandemic was not enough of an “extraordinary circumstance” to merit reevaluating the long-standing state election laws. 

Solis explains the use of E-Qual for ballot initiatives is not authorized in state statute, and to expand into this realm would require a legislative change. The judge also justified his dismissal by asserting the ballot initiative campaigns should’ve begun collecting signatures before the pandemic. “Had Plaintiffs simply started gathering signatures earlier, they could have gathered more than enough to qualify for the ballot before the COVID-19 pandemic started interfering with their efforts,” the judge ruled.

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In response, Hobbs remained sided with the citizen campaigns: “We can and should make reasonable accommodations in light of the global pandemic,” she stated in a press release. “I hope that the court will recognize the need for workable solutions.”

In Colorado, a similar fate awaited Secretary of State Jena Griswold, as she collaborated with Gov. Polis on an emergency executive order that would make signature collection easier for people who wanted to participate in democracy, but not risk their health. Griswold and Polis’ proposed system, via emergency executive order, was designed to facilitate “remote signature gathering,” where people could print petitions in their homes, sign them, and then either mail or scan-and-email the paperwork directly to campaigns. 

But Polis’ executive order was challenged in two lawsuits — one filed by the pro-business group Colorado Concern, and the other by a Denver-based citizen initiative group petitioning for anti-abortion legislation. The case was taken to the Colorado Supreme Court, and was swiftly and unanimously struck down. So far, it’s been the only emergency executive order in Colorado successfully challenged during the pandemic.

At the end of the day, it’s the courts that rule, CU Law professor Collins says. “What’s legally permissible is what the courts allow, and what’s not legally permissible is what the courts don’t allow.” 

Emma Athena CU Law professor Richard Collins

The range of Colorado’s Supreme Court political perspective “is considerable from left to right,” Collins says, and that makes their decision particularly significant. “The procedures are spelled out in some detail, and what the Supreme Court has said: [citizen initiatives are] a right, but it’s a right on specified conditions, and the conditions haven’t been met and that’s that, signed: Love, Justices.”

At the Boulder County Democratic Party’s executive meeting on Aug. 12, Griswold briefly explained Colorado’s constitution effectively bans electronic or remote petitioning on a state level, due to a rule requiring certified in-person witnesses be present for a valid signature. “There would have to be a constitutional change before we saw online petitioning” used in state initiatives, Griswold says.

In Boulder, this rule is applicable only to local initiatives pursuing City Charter amendments, as the charter amendment process is dictated by the state constitution. Local municipal ordinances, however, are still technically eligible for electronic or remote petitions. 

“Trying to say, ‘Massachusetts did it, we didn’t’ is probably too simplistic because there are other differences in the two states,” Collins says. Aside from technical distinctions, he postulates Colorado judges might be “a little more skittish about making it too easy to get on the ballot.” He says, “Massachusetts might not have had, let’s say, the experience of the TABOR amendment, or, in other words, what can happen using this initiative procedure to embed something very troublesome in the state constitution.”

Other states like Ohio and Michigan saw lawsuits favor electronic petitions in lower-level courts, but as appeals brought the cases higher up the legal ladder, federal courts were quick to overturn rulings, and ultimately most electronic system proposals have since been rejected.

As campaigns and states turn toward Massachusetts to learn from its successful electronic system adaptation strategy, McCormick says many of the cited concerns — disrupting traditional procedures, lowering democracy standards, data security, etc. — need not hold much weight. “First of all, I don’t want people to think that this was easy. Because it’s not,” she says. 

For one thing, not all of the Massachusetts citizen initiative groups were able to pivot and gather enough signatures this year, even with the option of campaigning online. This exemplifies the challenge of adapting to a new procedure and leveraging social media networks, but it also serves as an assurance to elected officials: electronic systems won’t “throw our governments into disarray,” McCormick says — using 21st century technology won’t open the flood gates to dozens of citizen initiatives each year: “Going forward it’s simply a way to get more and more people involved and engaged in citizen democracy.”

Concerns about fraud don’t hold up for Cluverius either, as paper petitioning itself is far from perfect, he says. “[Paper petitioning] is rife with fraud and people paying signature-gatherers per signature, which incentivise them to falsify here and there.” Thus, there’s no reason not to try something new, he says. “The goal is to make the best choices you can with the democracy you have.” 

The entire U.S. political system is built on the premise of community engagement — on city, state and national levels. Some of Boulder’s most defining qualities — like the open space sales tax and building-height ordinance — came from citizen initiatives. “The last thing that American democracy needs is to associate participation with a risk of infection,” Cluverius says. “Of all of the things that maybe the democratic system could bend a little bit on, I think signature gathering for ballot access is one of the most obvious.” 

And McCormick agrees. Petitions, after all, are only used to grant the community the chance to vote, and “that right should never be taken away.”  

Editor’s note: This article is part of a series analyzing online signature-gathering’s role in the future of direct democracy in 2020. Reporting for this series was made possible, in part, thanks to the Solutions Journalism Network. Para leerlo en español, por favor visita aquí.  

Correction: In the original version, we misstated the number of COVID related deaths each day. We regret the error.