Case Name: Alex Padilla, in his official capacity as California Secretary of State, v. County of Santa Clara, et al.
Case No.: 16-CV-293166

Petition by Petitioner Alex Padilla, in his Official Capacity as California Secretary of State, for Writ of Mandate

Factual and Procedural Background

This action concerns the legality of voter signatures on nomination papers for a local county office. On March 11, 2016, real party in interest Jonathan Padilla (“Padilla”) submitted nomination papers to the Santa Clara County Registrar of Voters (“Registrar”), requesting that his name be added to California’s presidential primary election ballot as a candidate for the position of Member of the County Central Committee, 27th Assembly District, Democratic Party (“Committee Member Position”). (Reyes Dec., ¶ 9.) For Padilla to be eligible for the Committee Member Position, 20 or more registered voters needed to validly sign his nomination papers. (See Elecs. Code, §§ 7227, 8062, subd. (a)(3).) Padilla’s nomination papers contained 31 voter signatures. (Jones Dec., ¶ 2, Ex. A; Bushey Dec., ¶ 3, Ex. A.)

A few days later, the Registrar was contacted by the chief executive officer of Allpoint Voter Services, Inc. (“Allpoint”), Michael Marubio (“Marubio”), regarding Padilla’s nomination papers. (Reyes Dec., Ex. B; Marubio Dec., ¶ 1.) Marubio advised the Registrar that of the 31 signatures on Padilla’s nomination papers, 19 signatures were signed by voters using a traditional pen and the remaining 12 signatures were signed by voters using Allpoint’s “remote pen” technology. (Reyes Dec., ¶ 9, Ex. B; Marubio Dec., ¶ 3.) With Allpoint’s “remote pen” technology, a voter accesses a webpage that displays an electronic image of the document to be signed. (Reyes Dec., ¶¶ 3-5, 11-13, Exs. B-D.) The voter traces his or her signature and required personal information (e.g., the voter’s printed name and address) on the screen of an electronic device, such as a smartphone or tablet, using a stylus or his or her finger. (Ibid.) The data supplied by the signer is then electronically transmitted over the internet to a remote location where, either in real time or later as part of a batch process, a mechanical robotic arm with a pen transcribes a facsimile of the signature onto a paper copy of the document. (Ibid.)

Subsequently, the Registrar evaluated Padilla’s nomination papers and the sufficiency of the signatures therein. (Bushey Dec., ¶¶ 3-5.) The Registrar did not consider any evidence outside of the nomination papers themselves and was unable to distinguish between signatures that were signed using a traditional pen and those that were signed using Allpoint’s “remote pen” technology. (Ibid.; Jones Dec., ¶ 4, Ex. C.) Ultimately, the Registrar verified 24 of the 31 voter signatures that were submitted with Padilla’s nomination papers. (Jones Dec., Ex. A.) Thereafter, Padilla was listed on the Santa Clara County’s list of candidates for the presidential primary election as a candidate for the Committee Member Position. (Jones Dec., ¶ 3, Ex. B.)
On March 24, 2016, petitioner Alex Padilla, in his official capacity as California Secretary of State (“Secretary”), filed a petition for writ of mandate, seeking an order prohibiting respondents County of Santa Clara and the Registrar (collectively, “Respondents”) from including Padilla’s name on the ballot for the Committee Member Position in the primary election scheduled for June 7, 2016.

The following day, March 25, 2016, the Secretary filed an ex parte application for a temporary restraining order or preliminary injunction enjoining Respondents from placing Padilla on the ballot for the June 7, 2016 primary election pending resolution of its petition. The same day, the court (Hon. Drew Takaichi) issued an order granting the application (“Order”). The Order provides, in relevant part, as follows:

1. Respondents are directed to take no further steps to place Jonathan Padilla on the June 7, 2016 Primary Election ballot as a candidate for the office of Democratic Central Committee for the 27th district, and to take any and all necessary steps to ensure that he does not appear on such ballot. This directive shall not be reversed for Mr. Padilla’s candidacy for the June 7, 2016 Primary Election.

2. The Parties shall not hereafter attempt or seek to place Mr. Padilla on the June 7, 2016 Primary Election ballot as a candidate for the office of Democratic Central Committee for the 27th district, notwithstanding any decision by the Court on the action being brought by the Secretary of State or related matters.

The Court recognizes that this Order likely moots the specific dispute that gave rise to this action, but the Court finds that this action ‘raises important issues that are capable of repetition but likely to evade review’ and that a decision on the merits of this action is thus appropriate despite issuance of this Order.

A little more than one week after issuance of the Order, the Registrar filed a declaration stating that Padilla’s candidacy information had been removed from the Election Information Management System database, which precluded it from being placed on the ballot.

In early May 2016, the Secretary filed an opening brief in support of its petition, arguing that the signatures generated using Allpoint’s “remote pen” technology do not comply with the Elections Code. Later that month, Padilla filed papers in opposition to the petition, arguing that those signatures comply with the Elections Code. The Registrar also filed a response to the petition, stating that she “takes no position in this matter on whether signatures applied to a nomination petition using Allpoint Pen technology are valid under Elections Code 100 or 104 ….” (Resp. Brief, pp. 1, 4.) In July 2015, the Secretary filed a reply.

Discussion

Currently before the Court is the Secretary’s petition for writ of mandate. The Secretary argues that this case is analogous to Ni v. Slocum (“Ni”) (2011) 196 Cal.App.4th 1636 in that the signatures on Padilla’s nomination papers that were signed using Allpoint’s “remote pen” technology were not “personally affixed,” as that phrase is used in the Elections Code; Allpoint’s “remote pen” technology is inconsistent with statutory scheme for the endorsement of nomination papers because it moves the process online and eliminates the circulator; and the Legislature must authorize any new electronic system for the endorsement of election papers.

In opposition, Padilla argues that the Court’s scope of review is limited and it can only evaluate whether the Registrar acted reasonably in determining that the signatures complied with the Elections Code; the Registrar determined that the signatures were “personally affixed” and there is no evidence that the Registrar acted unreasonably; and Allpoint’s “remote pen” technology is distinguishable from the technology at issue in Ni because the signatures are made by a pen on paper, as opposed to electronic signatures.

I. Request for Judicial Notice

The Secretary asks the Court to take judicial notice of: Padilla’s nomination papers; Santa Clara County’s Status of Candidate Filing Signature Checking for the nomination papers; Santa Clara County’s official candidate list for the June 7, 2016 presidential primary election as of March 21, 2016; Assembly Bill (“AB”) No. 44, which was passed by the Legislature in 1997; the State Assembly’s Floor Analysis of AB No. 44; and California Secretary of State Memorandum No. 10063 issued on February 9, 2010, to all county clerks and registrars of voters. The request for judicial notice is unopposed.

Official acts of the legislative, executive, and judicial departments of states are proper subjects of judicial notice. (See Evid. Code, § 452, subd. (c); see also Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518.) Additionally, legislative history is a proper subject of judicial notice. (See In re Greg F. (2012) 55 Cal.4th 393, 409, fn. 2; see also Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 31-37.)
Here, the subject documents are properly subject to judicial notice as legislative history or official acts and/or records of state legislative and/or executive departments. Accordingly, the Secretary’s request for judicial notice is GRANTED.
II. Mootness

As a preliminary matter, though not addressed by the parties, the Court recognizes that the petition for writ of mandate is moot. “A case becomes moot when a court ruling can have no practical impact or cannot provide the parties with effective relief.” (Simi Corp. v. Garamendi (2003) 109 Cal.App.4th 1496, 1503; see also Wilson & Wilson v. City Council of Redwood City (“Wilson”) (2011) 191 Cal.App.4th 1559, 1574 [“A case is considered moot when ‘the question addressed was at one time a live issue in the case,’ but has been deprived of life ‘because of events occurring after the judicial process was initiated.’”].) Here, Padilla’s name was removed from the presidential primary election ballot pursuant to the Order of March 25, 2016. Furthermore, the June 7, 2016 presidential primary election has come and gone. Thus, a ruling on the instant petition can have no practical effect and cannot provide the parties with effective relief.
Given the foregoing, the Court questions whether this action is justiciable. (See Wilson, supra, 191 Cal.App.4th at pp. 1573-1574 [“California courts will decide only justiciable controversies. [¶] … [¶] When events render a case moot, the court, whether trial or appellate, should generally dismiss it.”].) While it is well-established that appellate courts have inherent discretion to resolve an otherwise moot issue if the matter is of continuing public interest, capable of repetition, and likely to evade review (see Conservatorship of John L. (2010) 48 Cal.4th 131, 142, fn. 2; see also Californians for Fair Representation—No on 77 v. Super. Ct. (2006) 138 Cal.App.4th 15, 22), it is unclear whether trial courts also possess such discretion especially since the decision of a trial court has no precedential value.
Nonetheless, some courts have suggested that trial courts have discretion to hear matters that are otherwise moot if the matter is of continuing public interest and capable of repetition, but likely to evade review. (See e.g., Californians for Alternatives to Toxics v. Cal. Dept. of Pesticide Regulation (2006) 136 Cal.App.4th 1049, 1069-1070 [finding that it was error for a trial court to dismiss an action as moot as the matter was of continuing public interest and capable of repetition, but likely to evade review]; see also Consumer Cause, Inc. v. Johnson & Johnson (2005) 132 Cal.App.4th 1175, 1185 [suggesting that trial courts may have discretion to hear otherwise moot cases].) Here, the court (Hon. Drew Takaichi) previously found that this matter “raises important issues that are capable of repetition but likely to evade review” such that a decision on the merits was appropriate. Thus, in an abundance of caution, the Court exercises its discretion to resolve the issues presented by the petition for writ of mandate.
III. Elections Code Provisions Regarding the Collection of Voter Signatures

To be eligible to appear on a California presidential primary election ballot, a candidate must submit to county election officials a declaration of candidacy and nomination papers signed by the requisite number of eligible voters. (Elecs. Code, §§ 7227, 8020, 8062, subd. (a)(3), 8068-8069.) County officials then review and verify the authenticity of the signatures; prepare a list of qualified candidates; and, after a public review period, prepare the ballot materials. (Id. at §§ 105, 8081, 8100, subd. (b), 13000.) The Elections Code sets forth detailed requirements for voter signatures on election petitions and papers, which apply equally to nomination papers, initiative petitions, and other election papers. (Id. at §§ 100-106.) Of particular importance, Elections Code section 100 states that when signing, the voter must “personally affix” his or her signature, printed name, and place of residence to the nomination papers. The phrase “personally affix” requires each signer himself or herself to inscribe the information required by Elections Code section 100. (Ni, supra, 196 Cal.App.4th at p. 1645.) The necessary printed information—voter name and address—may be typed onto the papers, rather than written in by hand, so long as the voter does the typing. (Ibid.)
In addition, each copy of the nomination papers submitted to elections officials must be accompanied by a declaration under penalty of perjury, signed and dated by the “circulator” of the nomination papers. (Elecs. Code, § 104, subds. (a), (c); see Friends of Bay Meadows v. City of San Mateo (2007) 157 Cal.App.4th 1175, 1190.) The declaration must state that the declarant circulated the papers, witnessed each of the signatures “being written,” and believes each signature to be the genuine signature of the person whose name it purports to be. (Elecs. Code, § 104, subd. (b).) The nomination papers must also include, “in the circulator’s own hand,” the circulator’s printed name and address and the dates between which the signatures to the papers were obtained. (Elecs. Code, § 104, subd. (a).) Any person who is a voter or is qualified to register as a voter may circulate nomination papers. (Elecs. Code, § 102.)

Upon receipt of nomination papers, elections officials must review the election papers and determine whether they contain the necessary number of signatures of persons who were qualified registered voters at the time they signed the papers. (Mapstead v. Anchundo (“Mapstead”) (1998) 63 Cal.App.4th 246, 257.) To accomplish this, elections officials are required to compare information on the nomination papers with information on the voter’s affidavit of registration. (Ibid.) Election officials must also “determine that the residence address on the petition or paper is the same as the residence address on the affidavit of registration.” (Elecs. Code, §105.) If the addresses are different, or if the petition omits any of the address information, the signature is invalid. (Ni, supra, 196 Cal.App.4th at p. 1646.) Additionally, the signatures must also be declared invalid if election officials conclude that some person other than the signer inscribed the signer’s address information on the nomination papers—even if the address is the same as the one on the voter registration affidavit. (Ibid.) When making these determinations, election officials are prohibited from examining extrinsic evidence or going beyond the nomination papers and affidavits of registration. (Mapstead, supra, 63 Cal.App.4th at p. 257.)

IV. Case Law Interpreting the Relevant Elections Code Provisions: Ni v. Slocum

In Ni, the petition at issue contained a single signature, that of the petitioner, which he had inscribed on an electronic image of the petition by tracing it on the screen of his smartphone. (Ni, supra, 196 Cal.App.4th at p. 1641.) The petitioner reviewed the initiative petition on the internet and endorsed the online petition by using software. (Ibid.) Using the same signature, the petitioner also executed the required declaration by the circulator of the petition, attesting to the genuineness of his signature. (Ibid.) Thereafter, a copy of the petition bearing the petitioner’s signature was submitted to county election officials in electronic form on a thumb drive, but the county refused to accept the electronic signature. (Id., at pp. 1641-1642.) The county deemed the petitioner’s signature invalid because it was submitted electronically and it did not attempt to determine whether the petitioner’s signature otherwise satisfied statutory requirements. (Id., at p. 1642.) The petitioner then sought a writ of mandate requiring the county to accept his electronic signature. (Id., at p. 1641.) The trial court denied the petition, concluding that the thumb drive did not comply with statutory requirements for submission of an initiative petition and the use of an electronic signature was impermissible because it did not allow elections officials to determine whether the voter personally affixed his or her signature to the petition. (Ni, supra, 196 Cal.App.4th at p. 1643.)

On appeal, the Court of Appeal considered “whether the use of electronic signature qualifies as ‘personally affix[ing]’ the signature” on an initiative petition as that phrase is used in the Elections Code.” (Ni, supra, 196 Cal.App.4th at p. 1649; see Apple Inc. v. Super. Ct. (“Apple”) (2013) 56 Cal.4th 128, 138.) The county argued that a signer must “write his or her signature and other information directly on a paper copy of the petition,” physically attaching the signature to the petition by inscribing it with a writing utensil. (Ni, supra, 196 Cal.App.4th at p. 1649, emphasis added.) Conversely, the petitioner claimed that the statutory requirement could be satisfied by tracing ones signature and address on the face of a smartphone in response to online instructions accompanying a copy of the petition. (Ibid. [stating that the petitioner contended that “[a]lthough the signature is not inscribed directly by the hand of the voter onto the printed petition, the image on the printout is that of a handwritten signature, originally formed by the voter’s own hand, and it can be evaluated by elections officials in the same manner as a directly inscribed signature.”], emphasis added; Apple, supra, 56 Cal.4th at p. 138.)

The Court of Appeal found “no reason to reject either of these definitions solely on the basis of the plain language of the statute.” (Ni, supra, 196 Cal.App.4th at p. 1650; Apple, supra, 56 Cal.4th at p. 138.) Rather, the court ultimately concluded that the legislative history weighed heavily in favor of the county’s construction. (Ni, supra, 196 Cal.App.4th at p. 1650.) It pointed out that the Legislature did not anticipate the use of electronic signatures when it drafted the statute in 1933; instead, “the legislators who enacted the language intended that voters would write directly on a paper copy of the petition, since there was no other means for a voter personally to affix information to a petition.” (Ni, supra, 196 Cal.App.4th at pp. 1650-1651, emphasis added.) The Court of Appeal stated that this fact was “of overriding importance because, as the County and the Secretary of State argue, the decision to allow the use of this type of technology is properly one for the Legislature.” (Id., at p. 1651.) The court opined that “[t]he use of electronic signatures in the endorsement of initiative petitions entails more than a new means for inscribing a signature” because it moves the process of petition endorsement online, “providing a means for endorsing petitions solely by use of an Internet Web site.” (Ibid.)

The court further opined that the electronic signature system was “not entirely consistent with the present statutory scheme for the endorsement of initiative petitions because … electronic signature software deletes the circulator from the signature collection process” by allowing “voters to gain access to petitions from the Internet and execute them without the assistance or intervention of a circulator.” (Ni, supra, 196 Cal.App.4th at pp. 1652–1653; Apple, supra, 56 Cal.4th at p. 138.) It explained that the “Elections Code requires each petition submitted to county election officials to be accompanied by the declaration of the circulator, attesting to the genuineness of the signatures on the petition,” and that “the Legislature viewed the participation of the circulator as a protection against fraud in the collection of signatures.” (Id., at p. 1652.) The court noted that although digital signatures are generally said to be more secure than handwritten signatures, there was nothing in the record “to suggest that [the] … petition signature software includes a means for ensuring that the person affixing a signature is actually the person whose signature purports to be affixed.” (Id., at p. 1653.) Thus, the Court of Appeal concluded that “the electronic signature system is partially incompatible with the current statutory scheme” because it “eliminates from the signature collection system one of its primary protections against fraud.” (Ibid.)

V. Signatures Collected Via Allpoint’s Remote Pen System Do Not Comply with the Elections Code

As an initial matter, the Court finds that it may properly review the legality of the signatures that were signed using Allpoint’s “remote pen” technology, and the Registrar’s approval of the same, under a de novo standard. (See Alliance for a Better Downtown Millbrae v. Wade (“Alliance”) (2003) 108 Cal.App.4th 123, 134-136.) This case is not, as Padilla contends, an action to challenge the Registrar’s factual determination regarding the sufficiency of the voter signatures based on the information in the nomination papers, voter’s affidavits of registration, and/or voter registration records. Rather, this action is based on undisputed extrinsic facts that were not considered by the Registrar and seeks a determination as to whether Allpoint’s “remote pen” technology complies with the Elections Code, an issue that was never considered by the Registrar. (Id., at p. 135 [noting that cases applying a differential standard of review based on reasonableness, such as Mapstead, “involved an explicit statutory structure authorizing elections officials to conduct factfinding on the limited question of the authenticity and validity of voter signatures” and “[e]ven then, the governing statute channels that factfinding by barring clerks from considering extrinsic evidence”].) While local elections officials may refuse to approve and/or certify election petitions and/or papers if noncompliance is manifest on the face of the submitted documents, in all other instances the courts are the appropriate forum for enforcing the provisions of the Elections Code because the election petitions and/or papers are susceptible to legal challenge by interested parties. (Alliance, supra, 108 Cal.App.4th at pp. 135-136.)
Turning to the parties’ substantive arguments, the Court finds that the signatures on Padilla’s nomination papers that were signed using Allpoint’s “remote pen” technology do not comply with Elections Code section 100 because they were not personally affixed to the nomination papers. As in Ni, rather than directly signing their names on a paper copy of Padilla’s nomination papers, the voters who used Allpoint’s “remote pen” technology traced their signatures on the screen of an electronic device, such as a smartphone or tablet. (Reyes Dec., ¶¶ 3-5, 11-13, Exs. B-D.) The generated data was then electronically transmitted over the internet to a remote location where, either in real time or later as part of a batch process, a mechanical robotic arm with a pen transcribed copies of the signatures onto a paper copy of the nomination papers. (Ibid.) Thus, the voters did not personally affix their signatures to the nomination papers; instead, their signatures were affixed to the nomination papers outside of their presence by a robotic mechanical arm.
Moreover, just like the technology at issue in Ni, the use of the Allpoint’s “remote pen” technology entails more than a new means for inscribing a signature as it moves the endorsement process online, providing a means for endorsing nomination papers solely by use of an internet website. (See Ni, supra, 196 Cal.App.4th at p. 1651.) The legislators who enacted the relevant language in the Elections Code intended that voters would write directly on a paper copy of the nomination papers. (See id., at pp. 1650-1651.) There is no evidence whatsoever that the Legislature contemplated electronic images of signatures being sent over the internet and recreated at a remote location by a robotic mechanical arm. Because there is no evidence that the Legislature has ever considered the use of such technology, let alone affirmatively endorsed it, this Court will not mandate its acceptance by judicial fiat. (See id., at p. 1651.)
Furthermore, Allpoint’s “remote pen” technology is not consistent with the present statutory scheme for the endorsement of nomination papers because it deletes the circulator from the signature collection process. (See Ni, supra, 196 Cal.App.4th at p. 1652.) While the Elections Code does not preclude a signer from serving as his or her own circulator, use of Allpoint’s “remote pen” technology bypasses the circulator because it permits voters to gain access to nomination papers from the internet and execute them without the assistance or intervention of a circulator. (Ibid.)
Additionally, Allpoint’s “remote pen” technology eliminates from the signature collection system one of its primary protections against fraud because the circulator does not witness the actual application of the signature to the paper copy of the nomination papers. (See Ni, supra, 196 Cal.App.4th at p. 1652 [“By requiring the circulator to certify that he or she witnessed each signing and believes the signatures to be genuine to the best of his or her information, the Legislature installed the circulator as a partial guarantor that the signatures were not the result of fraud. Although a circulator is not required to take active measures to prevent fraud, the circulator’s declaration effectively certifies there was no obvious fraud and no non-obvious fraud of which the circulator was aware.”].) Rather, as indicated above, the actual inscription of the document occurs at a remote location, potentially hundreds of miles away, outside the circulator’s presence. For that reason, Allpoint’s “remote pen” technology does not comply with Elections Code section 104 and presents even more concerns with respect to the issue of fraud than the electronic signature technology at issue in Ni. (See Elecs. Code, § 104, subd. (b)(1) [providing that each circulator declaration must state that “the circulator circulated that section and witnessed the appended signatures being written.”], emphasis added.)

To be sure there are differences between this action and the Ni case; however, the dissimilarities between the technology at issue in this case and Ni are largely differences without distinction. Padilla makes much of the fact that the signatures in Ni were submitted on a thumb drive, while the signatures here were “wet signatures” on paper. However, this fact was not a factor in the Court of Appeal’s decision in Ni as it did not address the trial court’s holding that paper petitions, rather than memory devices, must be submitted to elections officials and it assumed that future initiative proponents could submit the electronic images of a petition in hard copy. (Ni, supra, 196 Cal.App.4th at p. 1657, fn. 2.) Padilla also argues at length that the signatures generated using Allpoint’s “remote pen” technology are not electronic signatures like the ones at issue in Ni. However, the fact that the signatures at issue here are not electronic signatures is immaterial. The Court of Appeal in Ni was concerned not so much with the electronic nature of the signature itself, but the fact that the electronic signature was not personally affixed to the election papers. (See id., at pp. 1647-1648 [“For purposes of argument, we assume that one or both of these statutes deems an electronic signature to satisfy the requirement of a ‘signature’ in Elections Code section 100. Elections Code section 100, however, requires more than a signature. The voter must ‘personally affix’ his or her signature to the petition and must then ‘personally affix’ his or her printed name and address. Neither Government Code section 16.5 nor the UETA states that the use of an electronic signature is deemed to constitute ‘personally affix[ing]’ it for purposes of Elections Code section 100. Further, both statutes are limited to electronic signatures. Neither authorizes the use of electronics to ‘affix’ a printed name and address.”].) Thus, Padilla’s attempts to distinguish Ni are not well-taken.
For the foregoing reasons, the petition for writ of mandate is GRANTED.