Can Virginia voter registrars accept mailed registration forms signed with an electronic signature (e.g., a touchscreen finger swipe) gathered by a third-party voter registration group?

Plain-English summary

The Norfolk Electoral Board described a workflow that had become common with third-party voter registration drives. A canvasser would walk up to a potential voter with a tablet. The voter would give their information by voice (or fill in the screen themselves), then sign by dragging a finger or stylus across the screen. The signature would be transmitted to a voter registration organization, often headquartered out of state, which would print a paper copy of the completed form and mail it to the local registrar. When the registrar received the form, it looked like a normal paper application, but the signature was an electronic one captured at the moment of registration and then printed.

The Board was worried about two things: the security of the confidential voter information passing through a third party and the difficulty of verifying that the signature was genuinely the voter's. The Board asked whether the law required, permitted, or forbade them from accepting these applications.

The AG worked through the federal and state statutory regimes.

ESIGN does not require acceptance. The federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. §§ 7001 et seq., generally protects electronic signatures from being denied legal effect just because they are electronic. But ESIGN applies only to "transactions" in or affecting interstate commerce, and "transaction" is defined as actions "relating to the conduct of business, consumer, or commercial affairs." Voter registration is civic and governmental in nature, not commercial. So ESIGN does not reach mailed voter registration applications and does not require registrars to accept them.

Virginia's UETA covers voter registration but does not compel acceptance. Virginia's Uniform Electronic Transactions Act (Va. Code §§ 59.1-479 to 59.1-498) defines "transaction" more broadly than ESIGN, sweeping in actions relating to "business, commercial, or government affairs." Voter registration is a government affair, so it is a UETA "transaction." UETA's general rule is that an electronic signature satisfies a signature requirement. But UETA also expressly says, in § 59.1-496(c), that the Act "does not require public bodies of the Commonwealth to use or permit the use of electronic ... signatures." When public bodies do choose to use electronic signatures, UETA (§ 59.1-496(2) and (4)) lets them specify the format, the verification process, the criteria for third parties facilitating the filings, and other authenticity rules.

The statutory voter-registration framework neither requires nor prohibits electronic signatures on mailed applications. Mail registration is governed by Article 3.1 of Title 24.2. The application must be signed (§ 24.2-418), but the statute does not specify the manner in which the signature must be made. (Separate statutory requirements for fully electronic registration under § 24.2-416.7, including the DMV-records check, were not applicable to mailed applications.)

The State Board's role. Under § 24.2-103, the State Board of Elections supervises and coordinates registrars and electoral boards "to obtain uniformity in their practices and proceedings and legality and purity in all elections." The State Board "shall make rules and regulations and issue instructions and provide information consistent with the election laws." Prior AG opinions had given the State Board's interpretations of the election laws "great weight." The AG concluded that the State Board could, in its discretion, direct registrars to accept electronic signatures on mailed registrations (and had already done so in a September 25, 2013 email from the Board's deputy secretary), and could establish criteria to protect voter information and verify signature authenticity. Local registrars and electoral boards had to follow those State Board rules so long as they were consistent with state and federal law.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Virginia's voter-registration framework has been amended substantially since 2014, including the creation of the Virginia Department of Elections in 2014 (which absorbed staff functions previously performed for the State Board), expansion of online registration (§ 24.2-416.7), changes to the third-party voter registration organization statute (§ 24.2-416.6), and various pandemic-era changes to mail and absentee procedures. Election-security guidance has also evolved significantly. The federal National Voter Registration Act and ESIGN remain in force but should be verified for amendments. Anyone administering or designing a present-day voter registration program should consult current Department of Elections guidance.

Common questions

What is an electronic signature, for these purposes?
A finger-drawn or stylus-drawn signature captured on a tablet or other electronic device, or any "electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record" (Va. Code § 59.1-480(8); 15 U.S.C. § 7006(5)).

Does a third-party voter registration group have to be in Virginia?
No. The opinion noted that the law did not place limits on where an organization mailing in completed applications must be located. The specific group that prompted the inquiry was based in Oakland, California.

Does federal ESIGN require Virginia to accept electronic signatures for voter registration?
No. ESIGN is limited to transactions "in or affecting interstate commerce," and voter registration is civic, not commercial.

Does Virginia's UETA require it?
Also no. UETA covers voter registration as a government-affairs transaction, but § 59.1-496(c) expressly says UETA "does not require public bodies of the Commonwealth to use or permit the use of electronic ... signatures."

What does Virginia's voter-registration statute say about signatures?
At the time of this opinion, § 24.2-418 required the mailed application to be signed, but did not specify the manner. The opinion read that silence to mean the manner of signing was open as long as a signature was present.

Could the State Board ban electronic signatures?
The opinion did not directly address that question, but the structure of the answer (the law neither requires nor prohibits, the State Board has discretion) implies that the State Board could establish criteria, including stricter rules, as long as they were consistent with state and federal election law.

Could a local registrar refuse to accept these applications?
Only if the State Board had not directed acceptance, or had given registrars discretion. At the time of the opinion, the State Board had already instructed registrars to process them. Local registrars and electoral boards are required to follow State Board rules (§ 24.2-103) so long as those rules are consistent with state and federal law.

What about verification and fraud risks?
The opinion identified the State Board's UETA authority to "establish other criteria to ensure the authenticity and validity of electronic signatures" (§ 59.1-496(4)) and to "specify the type of electronic signature required, the manner and format in which the electronic signatures must be affixed ... and the identity of, or criteria that must be met by, any third party used by a person filing a document to facilitate the process" (§ 59.1-496(2)). Those criteria could include format standards, identity-verification requirements for the third-party intermediary, and other measures.

Does this affect overseas military voters?
No. Registration by overseas military personnel is covered by a separate statute, the Uniform Military and Overseas Voters Act (Va. Code §§ 24.2-451 to 24.2-467), with its own rules.

Background and statutory framework

• Va. Code § 24.2-103: vests the State Board of Elections with authority to supervise registrars and to make rules and regulations consistent with the election laws.
• Va. Code § 24.2-417: requires registrars to register qualified applicants when all applicable requirements are met.
• Va. Code § 24.2-418: requires the voter registration application to be signed.
• Va. Code §§ 24.2-416.1 through 24.2-416.6: govern mail registration and third-party voter registration organizations.
• Va. Code § 24.2-416.7: governs electronic (online) voter registration through the Department of Motor Vehicles records.
• Va. Code §§ 59.1-479 to 59.1-498: Virginia Uniform Electronic Transactions Act.
• Va. Code § 59.1-496(c): UETA does not require public bodies to use or permit electronic signatures.
• Va. Code § 59.1-496(2) and (4): UETA grants public bodies authority to specify the format and authenticity criteria for electronic signatures they do choose to use.
• 15 U.S.C. §§ 7001 to 7031: federal Electronic Signatures in Global and National Commerce Act (ESIGN).
• 42 U.S.C. §§ 1973gg to 1973gg-10: National Voter Registration Act of 1993.

The interpretive moves:
- ESIGN is commercial-only; voter registration is civic, so ESIGN does not apply.
- UETA covers voter registration but does not require public bodies to accept electronic signatures.
- Section 24.2-418's signature requirement does not specify manner, leaving room for State Board interpretation.
- The State Board's supervisory authority under § 24.2-103 lets it direct registrars to accept or to set criteria for electronic signatures.

Citations

• Va. Code § 24.2-101
• Va. Code § 24.2-103
• Va. Code §§ 24.2-411 through 24.2-412
• Va. Code § 24.2-417
• Va. Code § 24.2-418
• Va. Code §§ 24.2-416.1 through 24.2-416.6
• Va. Code § 24.2-416.7
• Va. Code §§ 24.2-451 through 24.2-467
• Va. Code §§ 59.1-479 through 59.1-498
• Va. Code § 59.1-480
• Va. Code § 59.1-481
• Va. Code § 59.1-483(e)
• Va. Code § 59.1-485(d)
• Va. Code § 59.1-496
• 15 U.S.C. §§ 7001 through 7031
• 15 U.S.C. § 7006
• 42 U.S.C. §§ 1973gg through 1973gg-10
• Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1 (2013)
• 2006 Op. Va. Att'y Gen. 124
• 2005 Op. Va. Att'y Gen. 97
• 2001 Op. Va. Att'y Gen. 125
• 1999 Op. Va. Att'y Gen. 3
• 1996 Op. Va. Att'y Gen. 124
• 1983-84 Op. Va. Att'y Gen. 140
• 1983-84 Op. Va. Att'y Gen. 152

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/13-111_Hinshaw.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

September 26, 2014

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Mr. James M. Hinshaw
Mr. Daniel H. Haworth
Mr. W. Donald Brown
City of Norfolk Office of Elections
808 City Hall Building
Norfolk, Virginia 23510

Dear Messrs. Hinshaw, Haworth, and Brown:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire regarding whether applicable law requires, permits, or forbids the Norfolk Electoral Board from accepting mailed voter registration applications with electronically created signatures.[1] In the context of this inquiry, you express concerns about possible abuses of this new technological process.

Response

It is my opinion that, although no law requires the acceptance of mailed voter registration applications with electronic signatures, the State Board of Elections is not precluded from directing that general registrars accept such applications, and the State Board, in its discretion, may do so. The State Board also has discretionary authority to establish criteria to preserve the security of confidential voter information and to ensure the authenticity and validity of electronic signatures.

Background

You express concern regarding a new technology, commonly referred to as an "electronic signature,"[2] that is now being used for voter registration by third-party voter registration organizations. This technology uses the motion of a cursor, finger, stylus, or similar device moved by someone to capture his signature in an electronic device such as a computer, a tablet, or a cell phone. The device then transmits the signature over the Internet to a third party.

When this method is used for voter registration, the signature could be affixed to a registration form filled out by the potential voter on his electronic device, with the completed form then being transmitted to a voter registration organization, but this is not necessarily so. It is also possible for the potential voter to give all information needed to the voter registration organization via telephone so that the organization, rather than the voter, completes the form, with the potential voter then transmitting only his or her electronic signature to the organization. The organization then adds the electronic signature to the thus-completed form, which remains located only on the organization's computer, and which the potential voter has never seen. The completed form then may be printed by the organization and mailed to the appropriate registrar's office. When a registrar receives such a form, it is not initially apparent whether the form was filled in by the voter or by the voter registration organization.

Provided all applicable registration requirements are met, local registrars must register qualified voters upon receipt of the voter registration application.[3] The law does not place any limits on who may submit valid application forms, so an organization mailing in completed applications to register Virginia voters could be located in Virginia, or it could be located anywhere else.[4]

You indicate that the State Board has advised Virginia general registrars to accept such electronic signatures on mailed voter registration applications.[5] The principal concerns you express involve the possible misuse of confidential voter information by voter registration organizations (including possible identity theft) and the ability to verify the authenticity of signatures on such registration applications.

Applicable Law and Discussion

The General Assembly explicitly has provided that the State Board of Elections

shall supervise and coordinate the work of the county and the city electoral boards and of the registrars to obtain uniformity in their practices and proceedings and legality and purity in all elections. It shall make rules and regulations and issue instructions and provide information consistent with the election laws to the electoral boards and registrars to promote the proper administration of election laws.[6]

Local electoral boards and registrars shall follow rules and regulations of the State Board insofar as they do not conflict with Virginia law or federal law.[7]

In your request, you specifically ask about the application of the federal Electronic Signatures in Global and National Commerce Act ("ESIGN"),[8] which generally provides that signatures related to certain transactions "may not be denied legal effect, validity, or enforceability solely because it is in electronic form[.]"[9] ESIGN applies only to "transaction[s] in or affecting interstate commerce"[10] and defines "transaction" to mean "an action or set of actions relating to the conduct of business, consumer, or commercial affairs," to include sales, leases, exchanges and other dispositions of property and services.[11] Because voter registration is civic or governmental in nature, and not "business, consumer or commercial," I conclude that voter registration is not a "transaction" for purposes of ESIGN, and therefore this federal act does not require Virginia general registrars to accept the applications you describe.[12]

Nevertheless, Virginia has enacted its own statutes governing the use of electronic signatures: the Virginia Uniform Electronic Transactions Act ("UETA")[13] applies to "electronic signatures relating to a transaction."[14] Unlike ESIGN, UETA defines "transaction" as "an action or set of actions occurring between two or more persons relating to the conduct of business, commercial, or government affairs."[15] Voter registration is an action relating to government affairs and, therefore, it is a "transaction" for purposes of UETA. UETA's actual impact, however, is governed by other applicable substantive law and circumstances.[16] Specifically, whether an "electronic signature has legal consequence is determined by [UETA] and other applicable law."[17] UETA generally provides that, "[i]f a law requires a signature, or provides for certain consequences in the absence of a signature, an electronic signature satisfies the law[;]"[18] however, by its terms, UETA expressly "does not require public bodies of the Commonwealth to use or permit the use of electronic ... signatures."[19] Accordingly, I find nothing in UETA that specifically requires general registrars to process the voter registration applications about which you inquire.

Although UETA does not require applications featuring electronic signatures to be accepted, the law clearly contemplates that public bodies, such as the State Board of Elections, may accept electronic signatures. In recognizing this authority, UETA provides that

To the extent that public bodies of the Commonwealth use ... electronic signatures ..., the following rules apply:

---

(2) Public bodies of the Commonwealth may specify the type of electronic signature required, the manner and format in which the electronic signatures must be affixed to the electronic record, and the identity of, or criteria that must be met by, any third party used by a person filing a document to facilitate the process.

---

(4) Public bodies of the Commonwealth may establish other criteria to ensure the authenticity and validity of electronic signatures.[20]

Your inquiry concerns registering to vote by mail, which is one of three authorized means by which to register,[21] with the other two being to apply in-person or electronically.[22] Mail registration is governed by Article 3.1 of Title 24.2 of the Code of Virginia and related statutes.[23] Although the application must be signed,[24] the statutes do not require signatures to be made in a particular manner.[25] No statute either requires or prohibits the use of electronic signatures for mailed voter registration applications.

As prior Opinions of this Office have articulated, the State Board of Elections, through the Department of Elections, is vested with the administration of the Commonwealth's election laws, and consequently, interpretations of such laws by the Board are entitled to great weight.[26] Therefore, in the absence of a statutory mandate or prohibition providing otherwise, the State Board has the discretion to interpret the signature requirement applicable to voter registration applications submitted by mail to include signatures affixed to application forms by electronic means. I therefore conclude, because the applicable law neither requires nor prohibits the use of electronic signatures on mailed voter registration applications, that the State Board of Elections may direct general registrars to accept and to process applications containing such signatures.[27] I further conclude that under UETA, the State Board of Elections has authority to adopt reasonable rules in furtherance of the purposes set forth in UETA. Any such actions by the State Board of Elections should be followed by local registrars and electoral boards.

Conclusion

Accordingly, it is my opinion that, although no law requires the acceptance of mailed voter registration applications with electronic signatures, the State Board is not precluded from directing that general registrars accept such applications, and the State Board may do so. The State Board also has authority to establish criteria to preserve the security of confidential voter information and to ensure the authenticity and validity of electronic signatures.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] This opinion addresses only registration by non-military personnel and military personnel who are stationed in the United States. Registration and voting by overseas military personnel is covered by a separate body of law, the Uniform Military and Overseas Voters Act, Va. Code Ann. §§ 24.2-451 through 24.2-467 (Supp. 2014).

[2] As applicable to your inquiry, under both federal and Virginia law, an "electronic signature" is defined as "an electronic sound, symbol, or process attached to or logically associated with" a record and "executed or adopted by a person with the intent to sign the record[,]" 15 U.S.C. §§ 7006(5); Va. Code Ann. § 59.1-480(8) (2006), and "'Electronic' means relating to technology having electrical, digital, magnetic, wireless, ... or similar capabilities," 15 U.S.C. §§ 7006(2); Va. Code Ann. § 59.1-480(5).

[3] Va. Code Ann. § 24.2-417 (2011). See also § 1973gg-6(1)(D) of the National Voter Registration Act of 1993, 42 U.S.C. §§ 1973gg through 1973gg-10.

[4] The statute governing voter registration organizations is Va. Code Ann. § 24.2-416.6 (Supp. 2014). The requirements imposed by this statute are not relevant to your inquiry, for the facts you present involve Virginia activities of a voter registration organization in Oakland, California.

[5] An e-mail about electronic signatures on mail-in registrations dated September 25, 2013 from Justin Reimer, Deputy Secretary of the Virginia Board of Elections to all General Registrars stated, in relevant part, "SBE's [the State Board of Elections'] advice is that general registrars should process these applications."

[6] Va. Code Ann. § 24.2-103 (Supp. 2014).

[7] Id.

[8] Electronic Signatures in Global and National Commerce Act, 15 U.S.C. §§ 7001 through 7031 (2012).

[9] 15 U.S.C. § 7001(a)(1).

[10] 15 U.S.C. § 7001(a).

[11] 15 U.S.C. § 7006(13).

[12] While ESIGN does not require acceptance of electronic signatures, Congress does have the power to determine the time, place, and manner of conducting federal elections, including the procedures by which voters register to vote in federal elections. Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. (June 17, 2013).

[13] Uniform Electronic Transactions Act, Va. Code Ann. §§ 59.1-479 through 59.1-498 (2006 & Supp. 2014).

[14] Section 59.1-481(a) (Supp. 2014). Section 59.1-481(b) provides exemptions to UETA not relevant here.

[15] Section 59.1-480(16) (emphasis added).

[16] Section 59.1-481(d).

[17] Section 59.1-483(e) (2006). See also Official Comment to the Act, stating in paragraph B, "Whether a record is attributed to a person is left to law outside this Act. Whether an electronic signature has any effect is left to the surrounding circumstances and other law."

[18] Section 59.1-485(d) (2006).

[19] Section 59.1-496(c) (2006).

[20] Section 59.1-496.

[21] See Va. Code Ann. §§ 24.2-411 through 24.2-412 (2011 & Supp. 2014).

[22] See § 24.2-416.7 (Supp. 2014).

[23] Sections 24.2-416.1 through 24.2-416.6 (2011 & Supp. 2014).

[24] Section 24.2-418.

[25] The additional statutory conditions applicable to electronic registration that are contained in § 24.2-416.7, including having certain Department of Motor Vehicles records available for review by the general registrar, do not apply to mailed applications.

[26] See, e.g., 2006 Op. Va. Att'y Gen. 124; 2005 Op. Va. Att'y Gen. 97; 2001 Op. Va. Att'y Gen. 125; 1999 Op. Va. Att'y Gen. 3; 1996 Op. Va. Att'y Gen. 124; 1983-84 Op. Va. Att'y Gen. 140; 1983-84 Op. Va. Att'y Gen. 152.

[27] I note that permitting the use of electronic signatures does not alter the review process of these applications. The requirements established by Chapter 4 of Title 24.2 of the Code of Virginia govern the evaluation of voter registration applications, and to be approved an application also must meet the requirements of Chapter 4, regardless of the manner by which an application is signed.