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The legal ordinance shall be handed down in agreement with the Federal Ministry of Economics and Labour in cases falling under nos. 1 and 3. 27 (4) § 33.1 sentence 1 and§ 33.2 shall apply mutatis mutandis to the operation of a voting machine. 28 The provisions of the Federal Voting Machine Ordinance of 3 September 1975 (Federal Law Gazette I p. 2459), which were most recently amended by ordinance of 20 April 1999 (Federal Law Gazette I p. 749), relevant to the proceedings at hand, relate to the approval of voting machines and their deployment in elections. The voting machines require a type approval and a use authorisation (see § 1 of the Federal Voting Machine Ordinance). According to § 2.2 sentence 1 of the Federal Voting Machine Ordinance, the type approval may be granted if the voting machine corresponds to the Guidelines for the Construction of Voting Machines (Richtlinien für die Bauart von Wahlgeräten) according to Annex 1 to the Federal Voting Machine Ordinance. These guidelines regulate in particular the technical requirements to be made on the voting machines, and contain detailed stipulations for the identification, technical structure and functioning of the voting machines. Statements are made in this context on the portrayal of the electoral proposals, on operation and operability, on the ballot, on the storage of votes and on the creation of backups. The examination of the compliance of the voting machine with the above guidelines is a matter for the Physikalisch-Technische Bundesanstalt. 29 The use of approved-type voting machines requires authorisation prior to each election (§ 4.1 sentence 1 of the Federal Voting Machine Ordinance). Only those voting machines may be used which, once the election date has been set, have been examined by the manufacturer or the local authority using the operating manuals and maintenance regulations and with regard to which it has been ascertained that they are functional (§ 7.1 sentence 1 of the Federal Voting Machine Ordinance). In the constituencies in which voting machines are used, the local authority is to familiarise the head of the returning committee and his or her deputies with the voting machines prior to the elections and to familiarise them with their operation (§ 7.3 of the Federal Voting Machine Ordinance). Prior to the commencement of the election act, the local authority assigns the devices to the head of the returning committee with the necessary operating manuals and the declaration of the manufacturer according to § 2.6 of the Federal Voting Machine Ordinance that the device is constructed identically to the tested, approved type sample (see § 8 of the Federal Voting Machine Ordinance). Prior to the commencement of the ballot, the returning committee must ascertain amongst other things that the counting and storage devices are set to zero or have been erased (§ 10.1 no. 3 of the Federal Voting Machine Ordinance) and must close the voting machine needed (§ 10.2 of the Federal Voting Machine Ordinance). Prior to reading the displays of the votes counted by a voting machine, the number of the ballot records in the voter list is to be added to the number of election slips taken in and compared with the number of votes displayed (§ 13 of the Federal Voting Machine Ordinance). Deviations are to be noted and explained in the election record 30 7/37

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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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