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the list place of the party or of the candidate. A further manipulation variant was said to consist in already providing for a preset percentage final result for a specific electoral proposal prior to commencement of the elections without this coming to light in a test election. It was said to be possible in practice to exchange the software without encountering difficulties. The storage media could be removed from the voting machine, read out, deleted and re-programmed using widely available tools. A person with a modicum of technical knowledge could exchange a storage medium within less than five minutes after brief training; someone with experience could have effected a swap in about one minute. Manipulations to the hardware were also simple without this being identifiable by any testing procedure used or proposed by Nedap or by the Physikalisch-Technische Bundesanstalt. All in all, the tests had shown that the Nedap voting machines did not meet the requirements of the Federal Voting Machine Ordinance. The dynamics of the development in the potential for attack and manipulation were said to constitute one of the main risk factors of computer-aided election procedures. In contradistinction to established procedures, it was possible at any time for attack methods to be developed which were as yet unknown and the consequences of which were not foreseeable which remained unrecognised and made it possible to falsify an election. None of the fundamental difficulties in the use of computer-controlled voting machines was said to be solvable by technical means with sufficient reliability since greater technical security measures would of necessity lead to more complex systems which could be examined by even fewer people. 86 b) The Federal Ministry of the Interior takes the view that the statement of the Chaos Computer Club showed all in all an over-evaluation of technical security requirements as to the voting machines. There was said to be no way to guarantee absolute security against falsification in elections. Ballot box election and postal voting was said to be theoretically susceptible to manipulation in a similar way to elections with voting machines. Any technical security measure could be circumvented with the corresponding effort. 87 The criticised manipulation possibilities still in existence despite a protected environment were said not to differ from the risks also existing in classical elections. The existing regulations were said to be adequate. 88 4. In the oral hearing, the Senate furthermore heard Dr. Jörn Müller-Quade, European Institute for Systems Security (Europäisches Institut für Systemsicherheit) in Karlsruhe, and Melanie Volkamer, Institute of IT-Security and Security Law (Institut für IT-Sicherheit und Sicherheitsrecht) of the University of Passau, as experts. Dr. Müller-Quade particularly made a statement on the question of whether and to what degree manipulation to the hardware or software could be discovered by subsequent examinations of the voting machines. Ms Volkamer explained how the concurrence of the software with the samples installed in the individual voting machines could be examined prior to the elections. 89 19/37

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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

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EVMs in 2005 German Elections

Primary Documents

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