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sibilities at its disposal to ensure that the central steps in ballot and vote counting can be checked. Since the Federal Voting Machine Ordinance in its current version does not make it possible to recognise what such monitoring should look like, there is no constitutionally required provision, and hence there are no adequate indications which an interpretation in conformity with the constitution could take as its starting point. It must also be taken into consideration here that the Federal Ministry of the Interior, as the institution handing down the ordinance, as it has also clearly confirmed in its statements in the proceedings at hand, considers the possibilities for monitoring which are constitutionally necessary for effective monitoring of election acts and ascertainment of the results to be neither legally required nor expedient. 154 V. The computer-controlled voting machines used in the elections to the 16th German Bundestag also did not meet the requirements made by the constitution as to the use of electronic voting machines. 155 The use of the Nedap electronic voting machines of Type ESD1 hardware versions 01.02, 01.03 and 01.04, as well as of Type ESD2 hardware version 01.01, violates the principle of the public nature of elections (Article 38 in conjunction with Article 20.1 and 20.2 of the Basic Law) because these voting machines did not facilitate effective monitoring of the election act or the reliable verifiability of the election result. 156 The votes were exclusively recorded on an electronic storage medium after the ballot. Neither the voter nor the returning committees, nor the citizens present in the polling station, were able to check whether the votes cast were recorded by the voting machines without falsification. Using the display on the control unit, the returning committees could only recognise whether the voting machines registered a ballot, but not whether the votes were recorded by the voting machines without changing the content in any way. The voting machines did not provide a possibility to record the votes independently of the electronic record on the vote storage module enabling the respective voter to check his or her ballot. 157 The essential steps in the ascertainment of the results by the voting machines also could not be verified by the public. Since the ascertainment of the results exclusively formed the object of a data processing procedure running inside the voting machines, it was possible for neither the election bodies nor the citizens participating in the ascertainment of the results to verify whether the valid votes cast were correctly allotted to the electoral proposals and the votes accounted for by the individual electoral proposals in total were correctly ascertained. It was not sufficient that the result of the computing process implemented in the voting machine could be taken note of using a summary paper printout or an electronic display. A public examination by means of which the citizen could have reliably verified the ascertainment of the election result himself or herself without prior special technical knowledge was hence ruled out. 158 34/37

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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

Primary Documents

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