Previous 2 / 37 Next

Judgment of the Second Senate of 3 March 2009 on the basis of the oral hearing of 28 October 2008 – 2 BvC 3/07, 2 BvC 4/07 – in the proceedings regarding the complaints requesting the scrutiny of an election I. of Dr. W… - authorised representative:1. Prof. Dr. …, 2. lawyers … – against the resolution of the German Bundestag of 14 December 2006 – WP 145/05 – (Bundestag document (Bundestagsdrucksache – BTDrucks) 16/3600) – 2 BvC 3/07 –, II. of Prof. Dr. W… - authorised representative: Prof. Dr. … – against the resolution of the German Bundestag of 14 December 2006 – WP 108/05 – (Bundestag document 16/3600) – 2 BvC 4/07 –. RULING: 1. The Ordinance on the Deployment of Voting Machines in Elections to the German Bundestag and of the Members of the European Parliament from the Federal Republic of Germany (Federal Voting Machine Ordinance (Bundeswahlgeräteverordnung – BWahlGV)) of 3 September 1975 (Federal Law Gazette (Bundesgesetzblatt – BGBl) I p. 2459) in the version of the Ordinance Amending the Federal Voting Machine Ordinance and the European Election Code (Verordnung zur Änderung der Bundeswahlgeräteverordnung und der Europawahlordnung) of 20 April 1999 (Federal Law Gazette I p. 749) is not compatible with Article 38 in conjunction with Article 20.1 and 20.2 of the Basic Law insofar as it does not ensure monitoring that complies with the constitutional principle of the public nature of elections. 2. The use of the electronic voting machines of N.V. Nederlandsche Apparatenfabriek (Nedap) of type ESD1, hardware versions 01.02, 01.03 and 01.04, as well as of type ESD2, hardware version 01.01, in the elections to the 16th German Bundestag was not compatible with Article 38 in conjunction with Article 20.1 and 20.2 of the Basic Law. 3. The complaints requesting the scrutiny of an election are rejected in other respects. 4. The Federal Republic of Germany is ordered to reimburse to the complainant re 1. the full amount of the necessary expenses from these proceedings and to reimburse to the complainant re 2. three-quarters of his necessary expenses 2/37

Select target paragraph3

● ● ●

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
Download View