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IV. The Federal Voting Device Ordinance is unconstitutional on grounds of a violation of the principle of the public nature of elections from Article 38 in conjunction with Article 20.1 and 20.2 of the Basic Law. It does not already encounter legal reservations because the expansion of the area of application of the Federal Voting Device Ordinance to cover computer-controlled voting machines effected by the Ordinance Amending the Federal Voting Device Ordinance of 20 April 1999 (Federal Law Gazette I p. 749) had exceeded the framework of the provision on authorisation of § 35 of the Federal Electoral Act. The Federal Voting Machine Ordinance does not however contain any provisions ensuring that only those voting machines are approved and used which comply with the constitutional preconditions of the principle of the public nature of elections. 145 1. Insofar as the Ordinance Amending the Federal Voting Machine Ordinance of 20 April 1999 (Federal Law Gazette I p. 749) with effect from 24 April 1999 regulates the preconditions for the deployment of computer-controlled voting machines, it remains within the authorisation contained in the version of § 35 of the Federal Electoral Act still applicable on 24 April 1999. The latter permitted the use of voting machines “with separate counting devices” (§ 35.1 of the Federal Electoral Act). The subsequent deletion of the words “with separate counting devices” was considered necessary “in order to adjust the Federal Voting Device Ordinance to technical developments in voting machines” (Bundestag document 14/401, p. 5). This exception from the legislative procedure to amend § 35.1 of the Federal Electoral Act cannot however exert a decisive influence on the interpretation of the provision in the version which it had prior to the amendment. The expansion of the area of application of the Federal Voting Machine Ordinance to cover computer-aided voting machines was compatible with the wording of this earlier version. The term “counting device” only requires that item numbers, flow volumes or other values are calculated and shown automatically (see Duden, Das große Wörterbuch der deutschen Sprache, 3rd ed. 1999). According to the wording, this therefore also covers electronic or softwarecontrolled counting devices in computer-controlled voting machines. The characteristic “separate counting devices” is intended in the view of the institution adopting the ordinance to refer merely to the requirement of “independent counting of first and second votes”; such independent counting of first and second votes is also possible with computer-controlled voting machines using an electronic counting device. Even if the legislature was not yet able to consider deployment of microprocessor-controlled voting machines in the original version of § 35.1 of the Federal Electoral Act (see Breidenbach/Blankenagel, Rechtliche Probleme von Internetwahlen, Berlin 2000, p. 7), neither the wording nor the purpose of § 35 of the Federal Electoral Act in the version applicable on entry into force of the Ordinance Amending the Federal Voting Machine Ordinance on 24 April 1999 suggest that these voting machines were intended to be ruled out from the legislative authorisation of the institution adopting the ordinance. 146 2. The Federal Voting Machine Ordinance violates the principle of the public nature 147 32/37

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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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