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module. The voting machines are linked with a control unit on the returning committee’s table. The control unit shows the returning committee the casting of the votes by the respective voter such that the display of the number of voters increases by one. After the voter has cast his or her votes, the voting machine is blocked for further balloting until the returning committee releases it for the next voter. An element of the “Integral Election System” sold by H. is a programming and reading out device which enables the local authority to prepare the vote storage modules in conjunction with a personal computer prior to the elections and to read out the ballot information from the storage module after the election and to make it available for further data processing. The storage modules can be read out once more after the election day with the aid of a voting machine. The software of the “Integral Election System“ also makes it possible to print the stored votes at a computer as voting slips with the corresponding crosses. 6 An individual identification number of the individual voting machine, as well as the version numbers of the hardware and the software, and two checksums which are constituted by a checksum algorithm contained in the voting machine software, can be shown and printed on the voting machine. These data can be compared with the information on the nameplate of the voting machine and in the declaration of identity. 7 2. An attempt was already made in Germany in the nineteen-sixties to replace the manual counting of the voting slips linked to the traditional election event using more rational methods and by deploying voting machines. According to § 35.3 of the Federal Electoral Act (Bundeswahlgesetz – BWG) of 7 May 1956 (Federal Law Gazette I p. 383 – Federal Electoral Act), the Federal Minister of the Interior was able to permit officially authorised vote counting devices to be used instead of voting slips. The Ordinance on the Use of Vote Counting Devices in Elections to the German Bundestag (Verordnung über die Verwendung von Stimmenzählgeräten bei Wahlen zum Deutschen Bundestag) of 24 August 1961 (Federal Law Gazette I p. 1618) was handed down on this basis. § 35.3 of the Federal Electoral Act was rescinded by means of the Act Amending the Federal Electoral Act (Gesetz zur Änderung des Bundeswahlgesetzes) of 24 June 1975 (Federal Law Gazette I p. 1593), and replaced by a more detailed provision on “balloting with voting machines”, which since the promulgation of the new version of the Federal Electoral Act of 1 September 1975 (Federal Law Gazette I p. 2325) can be found in § 35 of the Federal Electoral Act. The Ordinance on the Deployment of Voting Machines in Elections to the German Bundestag (Federal Voting Machine Ordinance) (Bundeswahlgeräteverordnung – BWahlGV) of 3 September 1975 (Federal Law Gazette I p. 2459) provided in § 1 that mechanically or electrically driven voting machines may be used in elections to the German Bundestag if their type is authorised and their use was approved. 8 On the basis of the Ordinance on the Use of Vote Counting Devices of 24 August 1961 (Federal Law Gazette I p. 1618) and of the Federal Voting Machine Ordinance of 3 September 1975 (Federal Law Gazette I p. 2459), voting machines were initially 9 4/37

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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
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Election Judgments - IFES

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EVMs in 2005 German Elections

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