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force on 24 April 1999 and amended a large number of provisions of the Federal Voting Machine Ordinance in order to create the preconditions for the deployment of computer-controlled voting machines. The words “including computer-controlled” were added in § 1 of the Federal Voting Machine Ordinance after the words “electrically driven”. Further amendments were effected where the Federal Voting Machine Ordinance had previously used the term “counting devices”. § 2.6 of the Federal Voting Machine Ordinance was added, obliging the manufacturer to enclose a declaration of identity. 3. § 35 of the Federal Electoral Act applied to the elections to the 16th German Bundestag, in the version of the Federal Electoral Act promulgated on 23 July 1993 (Federal Law Gazette I p. 1288, corrected p. 1594), most recently amended by the Eighth Competence Adjustment Ordinance (Achte Zuständigkeitsanpassungsverordnung) of 25 November 2003 (Federal Law Gazette I p. 2304). The provision read as follows: 15 16 § 35 Voting with voting machines 17 (1) Voting machines may be used in place of voting slips and ballot boxes to make it easier to cast and count the votes. 18 (2) Voting machines within the meaning of subsection 1 must guarantee that the ballot remains secret. Their type must be authorised for use in elections to the German Bundestag officially for individual elections or generally. The Federal Ministry of the Interior shall decide on authorisation on request by the manufacturer of the voting machine. The use of an officially authorised voting machine shall require approval by the Federal Ministry of the Interior. Approval may be issued for individual elections or in general terms. 19 (3) The Federal Ministry of the Interior is herewith empowered to hand down by means of a legal ordinance which shall not require the consent of the Bundesrat more detailed provisions regarding 20 1. the preconditions for the official approval of the type of voting machine, as well as for the withdrawal and revocation of approval, 21 2. the procedure for the official approval of the type, 22 3. the procedure for the examination of a voting machine for construction corresponding to the officially approved type, 23 4. the public testing of a voting machine prior to its use, 24 5. the procedure for the official authorisation of the use, as well as for the withdrawal and revocation of the authorisation, 25 6. the particularities related to the elections caused by the use of voting machines. 26 6/37

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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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