LESSONS ON THE USE OF TECHNOLOGY IN ELECTIONS Issues Related to Technology Used in Elections Issue 1: Verifiability of Votes in the Use of Electronic Voting Machines This section examines case studies from Germany (2005) and India (2013) to highlight the importance of verifiability of votes in the use of electronic voting machines (EVMs). In both cases, the lack of transparency around results — spurred by a lack of public trust in voting machines — led to distrust in the elections and their outcomes. Following the 2005 Federal Bundestag elections in Germany, complainants alleged that the electoral laws and specific EVMs used violated the principle of the “public” nature of elections, under which the essential steps of an election should be “subject to the possibility of public scrutiny.” 22 The Federal Constitutional Court of Germany ruled on two complaints about the use of computer-controlled voting machines. 23 The central question was whether the use of EVMs was unconstitutional for not meeting the public scrutiny requirement and, if so, whether this presents sufficient ground to annul the elections. The complainants sought to invalidate the elections and to repeat them with voting papers and ballot boxes. They also alleged that the principle of equality had been violated by the differential treatment of voters who used voting slips and voters who used EVMs. In its 2009 judgment, 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. The court found that the EVMs used were incompatible with the principle of public scrutiny; 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. The court found that 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 [were] assigned and counted.” However, in terms of remedies 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. It is also worth noting that the court’s judgement was issued four years after the 2005 elections, and that elected officials in the Bundestag had been sitting for almost a full term. The 2013 case Swamy v. Election Commission in India raised the question of whether the EVMs that had been introduced in India met international standards for elections, notably due to the absence of a paper trail to record votes in the EVM. 24 The petitioner in the High Court of Delhi sought an order requiring the Electoral Commission of India (ECI) to implement modifications to the EVMs, 25 arguing that the EVMs were open to manipulation. In its response, the ECI argued that the system was impossible to hack. The High Court dismissed the petition, and the petitioner, a member of parliament, appealed to the Supreme Court. The petitioner claimed that EVMs should have 22 Federal Constitutional Court of 3 March 2009 – 2 BvC 3/07, 2 BvC 4/07 – regarding the use of electronic voting machines (EVMs) in the 2005 Federal Bundestag elections. 23 Federal Constitutional Court of 3 March 2009 – 2 BvC 3/07, 2 BvC 4/07 – regarding the use of electronic voting machines (EVMs) in the 2005 Federal Bundestag elections. 24 Swamy v. Election Commission (2013, India). 25 The petitioner sought the issuance of a writ of mandamus/direction(s) directing the Union of India, the Chief Election Commissioner and the Technical Experts Committee (Respondent Nos. 1-3) to effect the necessary modifications in the EVMs so as to allow the voters to verify their respective votes and to attach the printers to the EVMs with a facility to print the running record of the votes for the purpose of verification by the voters in the process of voting. He also sought a direction to frame guidelines and to effect necessary amendments in the Conduct of Election Rules, 1961. 13