期刊名称：Utah OnLaw: The Utah Law Review Online Supplement
出版年度：2013
卷号：2013
期号：1
语种：English
出版社：Faculty of Education
摘要：0 0 1 771 4401 University of Utah 36 10 5162 14.0 Normal 0 false false false EN-US JA X-NONE /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:Cambria;} At the turn of the twentieth century, Utah adopted a statutory initiative and referendum process whereby citizens could pass laws and suspend statutes by gathering enough signatures to place an issue on a statewide ballot for voting. Initiatives provided citizens a means of engaging directly in the state lawmaking process by drafting proposed bills. Similarly, through popular referenda, citizens could challenge and potentially repeal specific acts of the legislature. Since its inception, this democratic process has had a troubled existence and seen many obstacles. For several years after its ratification in 1900, the constitutional amendment granting Utah citizens the right to initiative remained ineffectual due to the legislature's failure to pass reasonable implementing laws. Not until over sixteen years later did initiative and referenda proponents finally influence the legislature to pass an implementing bill. As M. Dane Waters, founder of the Initiative and Referendum Institute, notes, however, this first bill "was worthless." "[I]t specified that anyone signing a petition to put an initiative on the ballot had to sign ‘in the office and in the presence of an officer competent to administer oaths.'" This stifled early initiative and referendum efforts by preventing circulation of petitions throughout voting districts. Not until 1960 did Utahns finally pass a citizen initiative. More recently, initiative and referenda proponents have encountered resistance from the legislature in the form of Senate Bill 165 (S.B. 165), which categorically banned use of electronic signatures gathered on the Internet. The bill effectively stifles Internet circulation efforts, which provide citizens a secure and effective way to disseminate political information. The Utah legislature has also prohibited the use of e-signatures in election drives conducted under Utah's Election Code, which allows candidates for state office who are unaffiliated with a registered political party to collect and submit signatures from registered voters so that their name may be placed on the official, statewide ballot. Such signatures must be holographic-that is, handwritten-to qualify candidates for the public vote. This Note addresses the constitutionality of these recent measures that annul the legal effect of e-signatures in grassroots political movements. Specifically, it will examine how S.B. 165 has violated Utah voters' core political speech rights by creating an undue burden on both grassroots political campaigns and circulation of initiatives and referenda. This examination proceeds in two parts. Part I provides a historical context of the use of electronic signatures in the commercial and electoral activities of the United States. It then narrows its focus to examine Utah's checkered legislative history regarding the use of e-signatures for both electoral petitions and initiative and referenda movements. This turbulent history came to a head with Farley Anderson's abbreviated rise to candidacy for governor and the controversy that spurred the Utah Supreme Court's 2010 decision in Anderson v. Bell . Part I concludes by documenting the legislature's response to Anderson , exposing both the haste and lack of substantiation with which it enacted S.B. 165. Part II attempts to do, in part, what the court declined to do in Anderson : address the merits of Anderson's constitutional claims. Specifically, Part II analyzes Anderson's claims under a free-speech rubric, taking his case as representative of past and future actions in which the constitutionally vested right to engage in core political speech by circulating voting petitions and initiatives is threatened. Utah plaintiffs have generally avoided raising this species of constitutional challenge, relying instead upon Utah's uniform operation of laws provision, which, like the equal protection clause, provides that "persons similarly situated should be treated similarly." Ultimately, a free-speech challenge cuts closer to the constitutional harm caused by S.B. 165 than the uniform operation of laws challenges brought by plaintiffs in earlier initiative and referenda cases, such as Gallivan v. Walker . Whereas uniform operation of laws challenges were successful in preventing rural Utah counties from exercising disproportionate voting power over multicounty petitions, they likely would not succeed against the new constitutional harm brought by S.B. 165. Absent a clear discriminatory practice on the part of the government in applying the ban on e-signatures, a free-speech challenge more accurately identifies the constitutional violation. S.B. 165 thwarts the politically expressive conduct of the voter memorialized in signature, as well as the persuasive communication preceding it. The First Amendment protects both of these stages in a petition-gathering effort. Ultimately, any state action that unilaterally seeks to limit a group of voters' access to the ballot deserves strictest scrutiny, and the legislature's action cannot withstand this scrutiny because S.B. 165 unduly burdens petitioner gatherers' interest in the franchise, which is inviolable.
