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ballot and the keeping of the secrecy of elections are explicitly spoken of in § 35.2 sentence 1 of the Federal Electoral Act. The other principles of electoral law are regulated in § 1.1 sentence 2 of the Federal Electoral Act. They therefore certainly also apply to the deployment of voting machines in the elections to the German Bundestag. Finally, the legislature provided in § 35.3 sentence 1 no. 6 of the Federal Electoral Act that the Federal Ministry of the Interior may regulate the particularities in connection with the elections brought about by the use of voting machines. This provision forms not only a sufficient normative basis in order to account for the constitutional particularities of the deployment of computer-controlled voting machines. It also makes it recognisable for citizens that an election with voting machines may entail modifications in comparison with the classical ballot box election. It is not constitutionally required that all details of the content of a legal ordinance can be derived from the respective basis for the authorisation. The latitude which can be granted to the institution adopting the ordinance in this respect is also to be measured accounting for the complexity of the material and the dynamics of development processes in voting machines. The parliamentary legislature is hence certainly not constitutionally obliged to make detailed regulations for the deployment of electronic voting machines. 2. § 35 of the Federal Electoral Act is compatible with the principle of the public nature of elections. 142 a) It is not constitutionally objectionable that § 35.1 of the Federal Electoral Act permits voting machines “in place of voting slips and ballot boxes”. For § 35.1 of the Federal Electoral Act does not rule out with this wording the approval and use of voting machines with control devices which record the votes in addition to (electronic) recording in the voting machine in a manner controlled by the voter. According to the systematic status of § 35.1 of the Federal Electoral Act, the words “in place of voting slips and ballot boxes” refer to the classical election procedure set out in § 34 of the Federal Electoral Act in which exclusively official voting slips and ballot boxes are used. § 35.1 of the Federal Electoral Act, by contrast, does not rule out the adoption of provisions which provide for devices for a verifiability of the election result that is independent of the electronic recording and evaluation of votes. 143 b) It is unobjectionable for the principle of the public nature of elections contained in § 35 of the Federal Electoral Act to not be explicitly listed once more as a precondition for the authorisation and use of computer-controlled voting machines. These requirements emerge directly from the constitution, and hence are also binding on the institution adopting the ordinance in lending concrete form to § 35 of the Federal Electoral Act. Independently of this, it also emerges from other provisions of the Federal Electoral Act that the use of voting machines is only permissible if the principle of the public nature of elections is adhered to. § 31 of the Federal Electoral Act determines that the election act is public. § 35.3 sentence 1 no. 4 of the Federal Electoral Act permits regulations to be made on the open testing of a voting machine prior to its use. 144 31/37

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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
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Election Judgments - IFES

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EVMs in 2005 German Elections

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