Previous 17 / 37 Next

deployment of computer-controlled voting machines (§ 35 of the Federal Electoral Act and the Federal Voting Machine Ordinance), and the concrete deployment of the Nedap voting machines in the elections to the 16th German Bundestag. The electronic voting machines used were said to violate as to their construction and functioning the principles of electoral law of the public and official nature of elections and Article 38.1 sentence 1 of the Basic Law, as well as the Federal Voting Machine Ordinance. The procedures for the approval of the voting machines by the PhysikalischTechnische Bundesanstalt and the Federal Ministry of the Interior which were the subject of complaint were also said not to comply with the principles of democracy and the rule of law, as well as with the principles of electoral law of the public nature of elections and the sovereign implementation of elections. As grounds, the complainant re 2. repeats the arguments that he already submitted in the objection procedure before the German Bundestag. He additionally alleges that the equality of elections had been violated by differing treatment of voting slip voters and voting machine voters since the principles of democracy and the rule of law, as well as of the public and official nature of the elections, were said to apply to the same degree to voting slip voters and to voting machine voters, and that the legislature had not provided legal provisions for the deployment of the electronic voting machines which were identical and equivalent to those in the Federal Electoral Code for voting slip elections. Insofar as it was not possible to rule out that because of the technical shortcomings of the voting machines there might be discrepancies between the ballot intended by voters and the ballot registered by the voting machine, the principle of equality between “successful” and “unsuccessful” voters was said to have been violated. 76 He also objects to the proceedings before the German Bundestag. The length of the proceedings was said not to be acceptable. The German Bundestag was said to have taken its decision on the basis of an insufficiently verified set of facts. The impugned resolution of the German Bundestag was said to have not come into being effectively for a lack of a quorum since 40 Members at most had attended the ballot. The deliberations of the Committee for the Scrutiny of Elections were said to have taken place in camera. The Rules of Procedure of the German Bundestag (Geschäftsordnung des Deutschen Bundestages – GO-BT) were said to be unconstitutional because they had not provided for the hearings, deliberations and rulings of the committee in the election scrutiny procedure to be held in public. Despite an explicit motion, no date had been set for an oral hearing. 77 2. The complaints requesting the scrutiny of an election were served on the German Bundestag, the Bundesrat, the Federal Government, all Länder Governments, the federal associations of the parties represented in the German Bundestag (CDU, SPD, The Greens, FDP, Linkspartei, CSU) and the federal returning officer. The Physikalisch-Technische Bundesanstalt and the Federal Office for Information Security were afforded the opportunity according to § 27a of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) to make a statement on 78 17/37

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