Previous 9 / 37 Next

Bundestag election are said to be unlawful. The complainant re 2. complains over and above this that the proceedings of the German Bundestag suffered from a number of faults. a) aa) The complainant re 1. objected to the result of the elections to the 16th German Bundestag in 30 constituencies in Brandenburg, Hesse, North RhineWestphalia, Rhineland-Palatinate and Saxony-Anhalt referred to in greater detail. He moved to ascertain the constituencies in which computer-controlled voting machines had been used, and the number of the votes cast with these voting machines, and to repeat the elections in the constituencies concerned. The deployment of computercontrolled voting machines was said to have violated the principle of the public nature of elections and the principle of the official nature of elections. Over and above this, the voting machines were said not to be compatible with the Guidelines for the Construction of Voting Machines. 34 The principle of the public nature of elections was said to guarantee the proper implementation of the elections and the correct constitution of Parliament. The monitoring of the election act was said to have to encompass above all ensuring that the marking of the vote took place secretly and that the votes cast by the voters were inserted into the ballot box without a change, that the votes were not subsequently altered and that only the votes from the ballot box were counted at the end of the election. In the deployment of the voting machines complained of, effective monitoring by the public and by the returning committee were said to be prevented since a major part of the election act and the investigation and ascertainment of the election result were said to take place inside the voting machine. 35 If voting machines were deployed, it was said to only replace the public nature of elections possible in an election with voting slips if equivalent and publicly verifiable control mechanisms existed, such as a paper record of the votes cast printed by the voting machine which the voter could inspect. Corresponding control possibilities were however said not to be available to the public in deployment of the Nedap voting machines. 36 It was said not to be possible for the public to check the trustworthiness of the software installed in the voting machines. The examination by the PhysikalischTechnische Bundesanstalt and the type approval were said not to have taken place publicly; also, the voting machines were said not to be made available to the interested public for independent examination. The source code software of the voting machines was said not to be open. Ultimately, it was said also not to be possible to examine whether the copies of the software used in the polling stations were identical to the sample examined by the Physikalisch-Technische Bundesanstalt and whether they were free of manipulations. It was said to be possible to effect authentication by a chain of characters (“hash value”) being calculated for each original program and the copy and then compared, so that agreement between the two values was said to document the authenticity of the software. This was however said not to be reliably 37 9/37

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

Election Judgments - IFES

Select target paragraph3

EVMs in 2005 German Elections

Primary Documents

Notifications