Law (see Morlok, in: Dreier, GG, Vol. 2, 2nd ed. 2006, Art. 38, marginal no. 127), and
hence the decision on deployment of voting machines and the determination of the
more detailed preconditions for their deployment. Details may be regulated by means
of a legal ordinance on the basis of a statutory authorisation (see Magiera, in: Sachs,
GG, 5th ed. 2009, Art. 38, marginal no. 114).
The legislature is entitled to broad latitude when lending concrete shape to the principles of electoral law within which it must decide whether and to what degree deviations from individual principles of electoral law are justified in the interest of the uniformity of the entire election system and to ensure the state policy goals which they
pursue (see BVerfGE 3, 19 (24-25); 59, 119 (124); 95, 335 (349)). The Federal Constitutional Court only reviews whether the legislature has remained within the boundaries of the latitude granted to it by the Basic Law, or whether it has violated a valid
constitutional election principle by overstepping these boundaries. It is not a matter
for the Court to find whether the legislature has found solutions which are expedient
or desired in terms of legal policy within the latitude to which it is entitled (see BVerfGE 59, 119 (125)).
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3. The deployment of voting machines which record the voters’ votes in electronic
form and ascertain the result of the election electronically is hence only compatible
with the Basic Law subject to strict preconditions.
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a) When electronic voting machines are deployed, it must be possible to check the
essential steps in the election act and in the ascertainment of the results reliably and
without special expert knowledge.
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The necessity of such monitoring emerges not lastly from the susceptibility to manipulation of electronic voting machines and their amenability to error. In these, the
acceptance of the voters’ votes and the calculation of the election result is based on a
calculation act which cannot be examined from outside or by persons without special
computer knowledge. Errors in the voting machine software are hence difficult to
recognise. Over and above this, such errors can affect not only one individual election
computer, but all the devices used. Whilst manipulations or election falsifications are
virtually impossible in classical elections with voting slips under the conditions of the
valid provisions, including the provisions on the public nature of elections – or at least
are only possible with considerable effort and with a very high risk of discovery which
has a preventive impact – a major impact may in principle be achieved with relatively
little effort by encroachments on electronically controlled voting machines. Manipulations of individual voting machines can already influence not only individual voters’
votes, but all votes cast with the aid of this device. The scope of the election errors
which are caused by alterations and malfunctions of a single software program affecting multiple devices is even wider. The major scope of the effect of possible errors in
the voting machines or targeted election falsifications requires special precautions to
be taken in order to comply with the principle of the public nature of elections.
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aa) The voter himself or herself must be able to verify – also without a more detailed
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