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GROUNDS: A. The complaints requesting the scrutiny of an election relate to the permissibility of the deployment of computer-controlled voting machines, which are also referred to as electronic voting machines or “election computers”, in the elections to the 16th German Bundestag. 2 I. 1. Roughly two million persons eligible to vote in Brandenburg, Hesse, North RhineWestphalia, Rhineland-Palatinate and Saxony-Anhalt cast their votes in the elections to the 16th German Bundestag via computer-controlled voting machines which are manufactured by the Dutch company Nedap and have been sold in Germany since 1999 as a central component of the “Integral Election System” (IWS) of H. GmbH. The type designations of these voting machines are composed of a name for the device generation (ESD1 or ESD2), as well as in each case of a version number for the hardware (HW) and for the software (SW). The types ESD1 (HW 1.02; SW 2.02), ESD1 (HW 1.02; SW 2.07), ESD1 (HW 1.03; SW 3.08), ESD1 (HW 1.04; SW 3.08) and ESD2 (HW 1.01; SW 3.08) have so far been used in elections to the German Bundestag. 3 These voting machines are controlled via a microprocessor and a software program. The votes cast are exclusively stored on an electronic storage medium and are counted electronically by the voting machine at the end of the election day. After the electronic ascertainment of the results, the voting machine shows the total votes cast for the respective electoral proposals; the results can be printed out via a printer that is integrated into the voting machine. The software program which controls the registration of the ballot and the ascertainment of the results is to be found on two electronic storage modules (so-called EPROMs; EPROM = Erasable Programmable ReadOnly-Memory) which are installed in the device under a screwed-on cover and are secured by two seals applied by the manufacturer. The votes cast at the voting machine – including the linkages (first vote and connected second vote) – are stored on a removable cassette-like storage medium – the so-called vote storage module, also referred to as “electronic ballot box” (see Schönau, Elektronische Demokratie, 2007, p. 53). The data of the voting slips, the attribution of the individual keys to the electoral proposals, as well as the date of the election and the polling station, are also stored on the vote storage module. 4 The voting machines have a keypad (“the voter tableau”) over which an insertion sheet is placed portraying a voting slip imitating the official voting slip. Above the key field one finds a display (LCD display) which guides the voter through the election procedure and enables him or her to examine her or her entries. The keypad and the LCD display are flanked by two vision-shielding panels on either side. On the reverse of the voting machine are the abovementioned printer and a slot for the vote storage 5 3/37

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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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