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constitute a grievous procedural error. The length of the proceedings by itself does not remove the basis for the decision (see Federal Constitutional Court (Bundesverfassungsgericht – BVerfG, judgment of the Second Senate of 3 July 2008 – 2 BvC 1/ 07, 7/07 –, Neue Zeitschrift für Verwaltungsrecht – NVwZ 2008, p. 991 (992)). 2. The fact that the Committee for the Scrutiny of Elections refrained from holding an oral hearing on the complainant’s objection to the election, and also deliberated in camera in other respects, also does not constitute a grievous error removing the basis for the decision of the German Bundestag. 97 a) According to § 6.1a no. 3 of the Law on the Scrutiny of Elections in the version of 24 August 1965 (Federal Law Gazette I p. 977 (Law on the Scrutiny of Elections, Wahlprüfungsgesetz – WahlPrG, old version)), which applied at the time of the decision on the complainant’s objection, the committee was able to refrain from holding an oral hearing if the preliminary review revealed that the objection was manifestly unfounded. Since the amendment of § 6.1 of the Law on the Scrutiny of Elections by the Act Amending the Law on the Scrutiny of Elections of 6 June 2008 (Federal Law Gazette I p. 994), a date for an oral hearing is only to be set if the preliminary examination reveals that this can be expected to further promote the proceedings. 98 An objection is manifestly unfounded if no aspect is recognisable at the time of the decision which may help it to succeed (see BVerfGE 89, 243 (250); 89, 291 (300)). The evaluation is not conditional on the unfoundedness of the appeal being evident; it may also be the result of a prior thorough examination (see BVerfGE 82, 316 (319-320) on the regulation of § 24 of the Federal Constitutional Court Act with identical content). 99 Even if there may be reasons according to the submission of the complaint suggesting that the objection was not manifestly unfounded, in particular with regard to compliance with the Guidelines for the Construction of Voting Machines, refraining from holding an oral hearing is certainly not so grievous that the decision of the German Bundestag would be deprived of its basis by these means. It based its decision primarily on the deployment of computer-controlled voting machines not violating the principle of the public nature of elections and the concrete non-constitutional provisions contained in electoral law. In this respect, the German Bundestag has addressed the complainants’ arguments in detail and made a detailed statement on the questions raised. Where it deals with the question of the approval of the Nedap voting machines used in the Bundestag election, it takes as a basis the statement of the Federal Ministry of the Interior, according to which manipulations are theoretically possible but, because of the bundle of technical and organisational security measures, are ruled out to the same degree as in classical voting slip elections. 100 b) In contradistinction to the view taken by the complainant re 2., the Committee for the Scrutiny of Elections was not obliged to deliberate in an open hearing. 101 The Law on the Scrutiny of Elections regulates in the provisions on oral hearings 102 21/37

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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

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