The Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) has ruled on two election review appeals which were directed against the use of computer-controlled voting machines (so-called voting computers) in the 2005 Bundestag elections for the 16th German Bundestag. The Second Senate of the BVerfG ruled that the use of electronic voting machines requires that the essential steps of the voting process and the determination of the results can be reliably verified by the citizen without special expertise. This follows from the principle of the publicity of the election (Article 38 in conjunction with Article 20 (1) and (2) of the Basic Law), which requires that all essential steps of the election are subject to public scrutiny, unless other constitutional concerns justify an exception. Accordingly, it is not constitutionally objectionable that section 35 of the Federal Electoral Act (BWG) allows the use of voting machines. However, the Federal Electoral Equipment Ordinance is unconstitutional because it does not ensure that only such voting machines are permitted and used that meet the constitutional requirements of the principle of publicity. According to the decision of the Federal Constitutional Court, the computer-controlled voting machines used in the election to the 16th German Bundestag did not meet the requirements imposed by the constitution on the use of electronic voting machines. However, this does not lead to the dissolution of the Bundestag, because the protection of the elected representation of the people outweighs the identified electoral errors in the absence of any indications that voting machines had malfunctioned or could have been manipulated. As far as the procedural organisation of the Election Review Committee of the German Bundestag was objected to, the election review complaint was unsuccessful.
The decision is essentially based on the following considerations:
I. The errors complained of in the election review proceedings before the German Bundestag were unsuccessful. Even if the proceedings between the filing of the election objection and the decision of the German Bundestag lasted more than one year, this does not yet constitute a serious procedural error. The duration of the procedure alone does not deprive the decision of its basis. Nor does it constitute a serious error that deprives the decision of the German Bundestag of its basis that the Electoral Review Committee refrained from holding an oral hearing on the complainant's election objection and also did not otherwise deliberate in public session.
II. the principle of the publicity of the election, which results from the fundamental constitutional decisions for democracy, republic and the rule of law, requires that all essential steps of the election are open to public scrutiny, unless other constitutional concerns justify an exception. In this context, the control of the electoral process and the determination of the election result are of particular importance.
The use of voting machines that electronically record the votes of the voters and electronically determine the election result only satisfies the constitutional requirements if the essential steps of the electoral process and the determination of the result can be reliably verified without special expertise. Whereas in the case of conventional elections with ballot papers, manipulation or falsification of elections under the framework conditions of the applicable regulations is at any rate only possible with considerable effort and a very high risk of detection with a preventive effect, programming errors in the software or targeted falsification of elections through manipulation of the software are difficult to detect in the case of electronic voting machines. The broad impact of possible errors in the voting machines or targeted electoral fraud requires special precautions to safeguard the principle of the publicity of the election.
The voter himself/herself must be able to understand without detailed computer knowledge whether his/her cast vote is recorded unaltered as a basis for the count or in any case as a basis for a later recount. If the election result is determined by computer-controlled processing of the votes stored in an electronic memory, it is not sufficient if only the result of the calculation process carried out in the voting machine can be noted on the basis of a summary paper printout or an electronic display.
The legislature is not prevented from using electronic voting machines in elections if the constitutionally required possibility of a reliable accuracy control is ensured. A supplementary control by the voter, the electoral bodies or the general public is possible, for example, in the case of electronic voting machines in which the votes are recorded in another way in addition to the electronic storage. Whether there are other technical possibilities that enable the electorate to have confidence in the correctness of the procedure for determining the election result based on comprehensibility and thus satisfy the principle of the publicity of the election, does not need to be decided in the present case.
Restrictions on the ability of citizens to control the electoral process cannot be compensated for by the fact that sample devices are checked by an official institution for their compliance with certain security requirements and for their technical integrity within the framework of the type approval procedure or the voting machines actually used in the election before they are used. Even a comprehensive set of other technical and organisational security measures alone is not suitable to compensate for the lack of controllability of the essential steps of the electoral process by the citizens. For the controllability of the essential steps of the election promotes well-founded trust in the regularity of the election only through the fact that the citizens themselves can reliably comprehend the electoral process.
When using computer-controlled voting machines, no opposing constitutional principles can be identified that could justify a far-reaching restriction of the publicity of the election and thus of the controllability of the electoral process and the determination of the results. The exclusion of unintentionally incorrect ballot markings, unintentional counting errors and inaccurate interpretations of the voters' will during the counting of votes does not in itself justify the renunciation of any kind of traceability of the electoral act. The principle of secrecy of the election and the interest in a quick clarification of the composition of the German Bundestag also do not constitute conflicting constitutional concerns that could be used as a basis for a far-reaching restriction of the controllability of the election process and the determination of the results.
There is no constitutional requirement that the election result must be available shortly after the polling stations close. Moreover, the past Bundestag elections have shown that even without the use of voting machines, the provisional official final result of the election can regularly be determined within a few hours.
III While the authorisation to issue ordinances under Section 35 of the Federal Constitutional Act does not meet with any far-reaching constitutional objections, the Federal Electoral Equipment Ordinance is unconstitutional because it violates the principle of the publicity of the election. The Federal Electoral Equipment Ordinance does not contain any regulations that ensure that only such voting machines are approved and used that meet the constitutional requirements for an effective control of the election process and a reliable verifiability of the election result. The Federal Election Equipment Ordinance does not ensure that only such voting machines are used which, when the vote is cast, allow a reliable check whether the vote is recorded in an unaltered manner. The ordinance also does not set any concrete requirements in terms of content and procedure with regard to a reliable subsequent control of the determination of the result. This deficit cannot be remedied by means of an interpretation in conformity with the constitution.
IV. The use of the above-mentioned electronic voting machines in the election for the 16th German Bundestag also violates the public nature of the election. The voting machines did not allow for an effective control of the election process, since neither voters nor election committees nor citizens present in the polling station could verify the unaltered recording of the votes cast due to the exclusively electronic recording of the votes on a vote storage module. The essential steps in the determination of the results could also not be comprehended by the public. It was not sufficient that the result of the calculation process carried out in the voting machine could be noted on the basis of a summary paper printout or an electronic display.
V. The identified electoral errors do not lead to a repetition of the election in the constituencies concerned.
The electoral error resulting from the use of computer-controlled voting machines, the condition of which was not compatible with the requirements for an effective controllability of the electoral process, does not, assuming its relevance to the mandate, lead to the partial invalidation of the election to the 16th German Bundestag. The interest in the protection of the continued existence of the people's representation, which was composed in trust in the constitutionality of the Federal Electoral Equipment Ordinance, outweighs the electoral error, since its possible effects on the composition of the 16th German Bundestag, in the absence of any indications that voting machines had functioned incorrectly or could have been manipulated, are to be classified as marginal at best and, also in view of the fact that the established violation of the constitution occurred in a legal situation that had not yet been clarified, do not make the continued existence of the elected people's representation appear intolerable.
Judgment of 3 March 2009 - 2 BvC 3/07 and 2 BvC 4/07 -
Source: Press release of the Federal Constitutional Court No. 19/2009 of 3 March 2009
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
