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authorised and used in Germany which worked on the basis of (electro)mechanical counting devices (see Schreiber, Handbuch des Wahlrechts zum Deutschen Bundestag, 7th ed. 2002, § 35, marginal no. 5). These voting machines worked mechanically; a count was mechanically increased by activating a button or by placing an election token in an opening allotted to the respective electoral proposal. They did not catch on since the cost of procuring, transporting, storing and maintaining the devices was compared to a relatively minor gain in time, and the devices could frequently only be deployed in elections with a small number of electoral proposals (see Bundestag document 8/94, p. 2). These disadvantages were to be avoided by the deployment of electronic voting machines. In 1997, Nedap applied to the Federal Ministry of the Interior for a type approval for an electronic voting machine which it manufactured. The Federal Voting Machine Ordinance of 3 September 1975 (Federal Law Gazette I p. 2459), at that time most recently amended by Ordinance of 15 November 1989 (Federal Law Gazette I p. 1981) was not amenable to examine and approve such a device type. After the Physikalisch-Technische Bundesanstalt, referring to this circumstance in an examination report of 8 September 1998, had made a positive evaluation of the Nedap voting machine in technical terms and a test of the voting machine in Cologne had been assessed as satisfactory, the Federal Ministry of the Interior decided to make it possible to deploy computer-controlled voting machines in the European elections in June 1999. For this reason, amendments were also prepared to § 35 of the Federal Electoral Act and the Federal Voting Machine Ordinance for the deployment of computer-controlled voting machines in future Bundestag elections. 10 § 35.1 of the Federal Electoral Act in the version promulgated on 23 July 1993 (Federal Law Gazette I p. 1288, 1594), most recently amended by Act of 1 July 1998 (Federal Law Gazette I p. 1698, 3431), applicable at that time was worded as follows: 11 Voting machines with separate counting devices may be used in place of voting slips, election envelopes and ballot boxes to make the casting and counting of the votes easier. 12 The words “with separate counting devices” were deleted with the Act on General and Representative Election Statistics in Elections to the German Bundestag and in the Election of Members of the European Parliament from the Federal Republic of Germany (Gesetz über die allgemeine und die repräsentative Wahlstatistik bei der Wahl zum Deutschen Bundestag und bei der Wahl der Abgeordneten des Europäischen Parlaments aus der Bundesrepublik Deutschland) of 21 May 1999 (Federal Law Gazette I p. 1023). The amendment to § 35 of the Federal Electoral Act was regarded as being necessary in order to be able to adjust the Federal Voting Machine Ordinance to technical developments in voting machines (see Bundestag document 14/ 401, p. 5). 13 The Ordinance Amending the Federal Voting Machine Ordinance and the European Election Code of 20 April 1999 (Federal Law Gazette I p. 749) already entered into 14 5/37

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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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