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the technical questions that had been put forward. a) The federal returning officer considers the deployment of the electronic voting machines to be lawful. 79 b) The Federal Ministry of the Interior has extended and supplemented its statements from the objection procedure before the German Bundestag on the use of the voting machines allegedly having been constitutional and lawful. 80 The public nature of elections was said to be overstretched if it were to be demanded that anyone should be able to verify the entire election events, including the preparations for the election, right down into the ramifications of the technical details and the entire state activity in an election, including the type approval of the voting machines, and that the other preparatory work of the election bodies and other institutions were subject to public monitoring. 81 The local organisation was said to be one of the most important means to prevent manipulations in the use of voting machines. Since the local authorities decided on their own responsibility on the acquisition of the voting machines and were said to be responsible for the proper storage of the voting machines, and for their examination prior to deployment, manipulation of the voting machines was said to require, in addition to the appropriate technical skills, a knowledge of the manner in which each individual local authority stored the voting machines and how the security measures could be overcome. The local organisation was said to also include the ascertainment of the results in the respective polling station. This meant that it was not possible to manipulate the voting machine during transportation. Impacts of any irregularities were hence restricted to the election result in the respective constituency. 82 c) The Physikalisch-Technische Bundesanstalt explained the examination concept on which the type sample check was based, and stated that the security requirements should be judged in the context of the implantation of the voting machines into the proven processes in traditional elections. The arguments of the complainant were said not to take this into account. 83 3. a) The Chaos Computer Club e.V. refers in its statement to an examination of the security and manipulability of Nedap election computers which was implemented in 2006 in cooperation with the Dutch initiative “We do not trust voting computers” (“Wij vertrouwen stemcomputers niet”). The software and the hardware of the Dutch ES3B type, which in the view of the study’s authors differed only slightly from the ESD 1 and ESD 2 types used in Germany, was said to have been susceptible to manipulation with relatively little effort. The test indicates that the processes and programming methods analysed by reconstructing the source code of the voting machine were trivial and only constituted the state-of-the-art of the early nineteen-nineties. 84 The voting machines could be manipulated by the votes cast for an electoral proposal being altered prior to their storage, so that they would be stored on the vote storage module as votes cast for another party. This was said not to require any knowledge of 85 18/37

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EVMs in 2005 German Elections

Judgment

Question Presented: Was the use of EVMs in the elections erroneous and unconstitutional enough to annul the elections?

Summary: Following the 2005 parliamentary elections, the Federal Constitutional Court of Germany ruled on two complaints about the use of computer-controlled voting machines. Complainants alleged that two laws that had been drafted, and the specific EVMs used, violated the principle of the public nature of elections, which means that all essential steps of an election “are subject to the possibility of public scrutiny.” The complainants moved to invalidate the elections and to repeat them with voting slips and ballot boxes. The principle of equality was also alleged to have been violated by the different treatment of voters who used voting slips and voters who used EVMs. The court ruled that one of the laws in question did permit voting machines without effective monitoring of voting or results and was therefore unconstitutional. It found that the EVMs used were also incompatible with the public principle; votes were recorded only on an electronic storage medium, so voters could not verify their votes, and could only see that the machines had registered a ballot. No procedure should render the voter unable to verify “whether his or her vote is unfalsifiably recorded and included in the ascertainment of the election result, and how the total votes cast assigned and counted.” The court did not dissolve the Bundestag, saying that without evidence of manipulation, or evidence that results would have been different without the EVMs, there was no sufficient reason to invalidate the elections. The public interest “in the protection of the status quo of the people’s representation composed in trust in the constitutionality of the Federal Voting Machine Ordinance outweighs the election errors that have been ascertained.”

Conclusion: The Court ruled the use of EVMs in the elections was unconstitutional but did not annul the elections.

Legal Issue(s)

Electronic Voting

Applicable Law(s): Basic Law- Articles 38, 20.1, 20.2

Region: Europe and Eurasia

Country: Germany

Language of Decision

English

Court: Supreme Court

Election Type: General

Date of decision: Mar 3, 2009

Geolocation

Latitude: 52.54001106864457

Longitude: 13.436899041806134

: Geolocation

Primary Documents

Germany- Senate Hearing on EVMs.pdf
English
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Election Judgments - IFES

Select target paragraph3

EVMs in 2005 German Elections

Primary Documents

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