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(§ 13 sentence 3 of the Federal Voting Machine Ordinance). If the total of the counter results displayed does not tally with the number of the total votes cast as displayed, the returning committee must show the difference and note it in the election record (§ 14.5 of the Federal Voting Machine Ordinance). The head of the returning committee, the local authority and the district returning officer must ensure on completing the tasks of the returning committee and returning the voting machines that the voting machines used or the vote storage devices removed from them and the election record with the Annexes are not made available to unauthorised parties until the Land (state) returning officer has revoked the blocking and sealing of the voting machines and of the vote storage devices (see § 16.2 and § 17.3 of the Federal Voting Machine Ordinance). 4. The Federal Ministry of the Interior issued type approvals for the voting machines used in the elections to the 16th German Bundestag. On 15 August 2005, it announced the authorisation of the use of computer-controlled voting machines made by Nedap in the elections to the 16th German Bundestag with details on hardware versions, storage module types and software versions (Federal Gazette (Bundesanzeiger) no. 158 of 23 August 2005, pp. 12747-12748). Invoking company secrets of Nedap, the Ministry however refused to make available to the interested public documents which Nedap had provided to the Physikalisch-Technische Bundesanstalt for the examination of the samples, or test reports of the Physikalisch-Technische Bundesanstalt. 31 5. The decision as to whether voting machines are acquired, and in which constituencies they are used, is a matter for the towns and local authorities. As a reason for the acquisition and the deployment of voting machines, in addition to the more rapid calculation of the election result and to the anticipated cost savings, it is stated that it is virtually impossible to inadvertently cast invalid votes; cases of doubt as to the validity of individual votes because of ambiguous markings on the voting slip and unintended errors in counting the votes are said to be virtually ruled out (see Schreiber, Handbuch des Wahlrechts zum Deutschen Bundestag, 7th ed. 2002, § 35, marginal no. 2). The recruitment of voluntary election assistants is also said to be made much easier because less time is needed to ascertain the election result (see Schönau, Elektronische Demokratie, 2007, p. 50). These advantages are said to be evident in particular in local elections, which in many Länder (states) were said to have been made more complex because of possibilities of cumulative voting and voting for candidates from different party lists. 32 II. 1. With their complaints requesting the scrutiny of an election, both complainants target the Federal Electoral Act and the Federal Voting Machine Ordinance insofar as they facilitate the deployment of computer-controlled voting machines. They complain of the authorisation of the use and deployment of the voting machines; furthermore, the type approvals which were issued for the Nedap voting machines used in the 8/37 33

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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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