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of elections under Article 38 in conjunction with Article 20.1 and 20.2 of the Basic Law because in the use of computer-controlled voting machines it guarantees neither effective monitoring of the election act nor the reliable verifiability of the election result. This shortcoming cannot be remedied by means of an interpretation in conformity with the constitution. a) The public nature of elections requires in the deployment of computer-controlled voting machines that the essential steps in the election act and the ascertainment of the results can be reviewed reliably and without special expert knowledge. Such provisions are not contained in the Federal Voting Machine Ordinance. 148 It particularly does not emerge from the Federal Voting Machine Ordinance that only voting machines may be deployed which enable the voter in casting his or her vote to ensure reliable monitoring of whether his or her vote is recorded in an unfalsified manner. The ordinance also does not make any concrete content and procedural requirements as to reliable subsequent monitoring of the ascertainment of the results. 149 The obligation to seal computer-controlled voting machines and the containers in which the vote storage media are located after ascertaining the election result (§ 15.3 of the Federal Voting Machine Ordinance), as well as to ensure that the vote storage media are not accessible to unauthorised parties (§ 16.2 of the Federal Voting Machine Ordinance), is not sufficient in this respect. Even if the vote storage media can be read out once again at any time after the election day with the aid of a voting machine, the object of such a re-count is only the electronically stored votes, with regard to which neither voters nor the returning committee can examine whether they were recorded without falsification. The citizen cannot examine the essential steps in the ascertainment of the results if the re-count again takes place inside a voting machine. 150 In addition, the counting of the ballot records entered in the list of voters and of the election slips which have been accepted, as well as the comparison with the numbers for the total first and second votes at the voting machine shown (see § 13 of the Federal Voting Machine Ordinance) only facilitates monitoring as to whether the voting machine has processed as many votes as voters have been admitted for the operation of the voting machine. This does not guarantee the public monitoring of the essential steps in the election act and the ascertainment of the results. 151 b) The Federal Voting Machine Ordinance cannot be interpreted in conformity with the constitution such that only voting machines may be deployed which comply with the principle of the public nature of elections. 152 An application of the Federal Voting Machine Ordinance in conformity with the constitution such that type approval and use authorisation may only be issued by the Federal Ministry of the Interior if effective monitoring of election acts and ascertainment of the results is guaranteed (see Schiedermair, Juristenzeitung – JZ 2007, p. 162 (170)) would overstep the boundaries of an interpretation in conformity with the constitution. In principle, the institution handing down the ordinance has various pos- 153 33/37

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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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