bb) In a republic, elections are a matter for the entire people and a joint concern of
all citizens. Consequently, the monitoring of the election procedure must also be a
matter for and a task of the citizen. Each citizen must be able to comprehend and verify the central steps in the elections reliably and without any special prior technical
knowledge.
110
cc) The public nature of the elections is also anchored in the principle of the rule of
law. The public nature of the state’s exercise of power, which is based on the rule of
law, serves its transparency and controllability. It is contingent on the citizen being
able to perceive acts of the state bodies. This also applies as to the activities of the
election bodies.
111
b) The principle of the public nature of elections requires that all essential steps in
the elections are subject to public examinability unless other constitutional interests
justify an exception. Particular significance attaches here to the monitoring of the
election act and to the ascertainment of the election result.
112
An election procedure in which the voter cannot reliably comprehend whether his or
her vote is unfalsifiably recorded and included in the ascertainment of the election result, and how the total votes cast are assigned and counted, excludes central elements of the election procedure from public monitoring, and hence does not comply
with the constitutional requirements.
113
c) Despite the considerable value attaching to the constitutional principle of the public nature of elections, it does not ensue from this principle that all acts in connection
with the ascertainment of the election result must take place with the involvement of
the public so that a well-founded trust in the correctness of the elections can be created. For instance, activities of the district returning officer with which according to
§ 76.1 of the Federal Electoral Code the – public – ascertainment of the election result is prepared by the district election committee are not constitutionally obliged to be
subject to the principle of the direct public nature of elections (see BVerfG, judgment
of the Second Senate of 3 July 2008 – 2 BvC 1/07, 7/07 –, Neue Zeitschrift für Verwaltungsrecht 2008, p. 991 (992)).
114
d) The requirements as to the examinability of the election events apply to the implementation of parliamentary elections regardless of the responsibility of the state bodies which have a constitutional structure (see BVerfGE 20, 56 (113); 41, 399 (414);
Seifert, Bundeswahlrecht, 3rd ed. 1976, p. 130).
115
It is primarily a matter for the legislature to regulate how the retraceability of the essential steps in the election procedure is ensured. Article 38.3 of the Basic Law empowers and obliges the legislature to determine the details of the structure of electoral
law (in particular the election system and the election procedure) and compliance
with the principles of electoral law (see Magiera, in: Sachs, GG, 5th ed. 2009, Art. 38,
marginal nos. 106 et seq. and 113 et seq.). The design of the technical aspects of the
election events also falls within the regulatory mandate under Article 38.3 of the Basic
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