The Federal Constitutional Court (BVerfG) has ruled on two election review complaints directed against the use of computer-controlled voting machines (so-called voting computers) in the 2005 federal election 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 results can be reliably verified by citizens without special technical knowledge. This follows from the principle of public transparency of elections (Art. 38 in conjunction with Art. 20 para. 1 and para. 2 of the Basic Law), which mandates that all essential steps of an election must be subject to public scrutiny, unless other constitutional interests justify an exception. Accordingly, it is not constitutionally objectionable that § 35 of the Federal Electoral Act (BWG) permits the use of voting machines. However, the Federal Voting Machine Ordinance is unconstitutional because it does not ensure that only voting machines that meet the constitutional requirements of the principle of public transparency are approved and used. According to the Federal Constitutional Court's decision, the computer-controlled voting machines used in the election for the 16th German Bundestag did not meet the constitutional requirements for the use of electronic voting machines. However, this does not lead to the dissolution of the Bundestag, because the protection of the elected representative body outweighs the identified electoral errors, given the absence of any indications that voting machines malfunctioned or could have been manipulated. Insofar as the procedural design of the Election Review Committee of the German Bundestag was criticized, the election review complaint was unsuccessful.
The decision is essentially based on the following considerations:
I. The criticized errors in the election review procedure before the German Bundestag were unsuccessful. Even though the procedure between the filing of the election appeal and the decision of the German Bundestag lasted over a year, this does not yet constitute a serious procedural error. The duration of the procedure alone does not invalidate the decision. It also does not constitute a serious error that would invalidate the German Bundestag's decision that the Election Review Committee refrained from an oral hearing of the complainant's election appeal and otherwise did not deliberate in a public session.
II. The principle of public transparency of elections, which arises from the fundamental constitutional decisions for democracy, republic, and the rule of law, mandates that all essential steps of an election must be publicly verifiable, unless other constitutional interests justify an exception. In this context, the control of the voting process and the determination of the election results are of particular importance.
The use of voting machines that electronically record voters' ballots and electronically determine election results only meets constitutional requirements if the essential steps of the voting process and result determination can be reliably verified without special technical knowledge. While manipulations or electoral fraud in conventional elections with paper ballots are possible only with considerable effort and a very high, preventative risk of detection under the framework of current regulations, programming errors in software or targeted electoral fraud through software manipulation in electronic voting machines are difficult to detect. The widespread impact of potential errors in voting machines or targeted electoral fraud necessitates special precautions to uphold the principle of public transparency of elections.
The voter themselves must be able to ascertain, without detailed computer technical knowledge, whether their cast vote is recorded without alteration as a basis for the count or, at least, as a basis for a later recount. If the election result is determined by computer-controlled processing of votes stored in an electronic memory, it is not sufficient if only the result of the calculation process performed by the voting machine can be noted from a summary paper printout or an electronic display.
The legislator is not prevented from using electronic voting machines in elections, provided that the constitutionally required possibility of reliable accuracy verification is ensured. Supplementary verification by the voter, election officials, or the general public is possible, for example, with electronic voting machines in which votes are recorded by other means in addition to electronic storage. Whether there are other technical possibilities that enable the electorate's trust in the correctness of the procedure for determining election results, based on verifiability, and thus satisfy the principle of public transparency of elections, does not require a decision in the present case.
Limitations on the civic verifiability of the voting process cannot be compensated by having sample devices, as part of the type approval procedure, or the specific voting machines used in an election, checked by an official institution for compliance with certain security requirements and for their technical integrity before use. Furthermore, an extensive set of other technical and organizational security measures alone is not sufficient to compensate for the lack of verifiability of the essential steps of the electoral process by citizens. This is because the verifiability of the essential steps of an election only fosters justified trust in the regularity of the election when citizens themselves can reliably comprehend the voting process.
When using computer-controlled voting machines, no conflicting constitutional principles are discernible that could justify a far-reaching restriction of the public transparency of elections and thus the verifiability of the voting process and result determination. The exclusion of unconsciously incorrect ballot markings, unintentional counting errors, and inaccurate interpretations of voter intent during vote counting does not, in itself, justify foregoing any form of verifiability of the electoral act. Furthermore, neither the principle of ballot secrecy nor the interest in a swift clarification of the composition of the German Bundestag constitute conflicting constitutional interests that could serve as a basis for a far-reaching restriction of the verifiability of the voting process and result determination.
Constitutionally, it is not required that the election result be available shortly after the polling stations close. Furthermore, past federal elections have shown that even without the use of voting machines, the preliminary official final result of the election can regularly be determined within a few hours.
III. While the authorization to issue regulations of § 35 of the Federal Electoral Act (BWG) does not raise any fundamental constitutional concerns, the Federal Voting Machine Ordinance is unconstitutional due to a violation of the principle of public transparency of elections. The Federal Voting Machine Ordinance contains no provisions ensuring that only voting machines are approved and used that meet the constitutional requirements for effective control of the voting process and reliable verification of election results. The Federal Voting Machine Ordinance does not ensure that only voting machines are used that allow for reliable verification, upon casting a vote, that the vote is recorded without alteration. The ordinance also does not specify concrete substantive and procedural requirements for reliable post-hoc verification of result determination. This deficit cannot be remedied through a constitutional interpretation.
IV. The use of the aforementioned electronic voting machines in the election for the 16th German Bundestag also violates the principle of public transparency of elections. The voting machines did not allow for effective control of the voting process, as due to the exclusively electronic recording of votes on a vote storage module, neither voters nor election boards or citizens present in the polling station could verify the unaltered recording of the cast votes. Furthermore, the essential steps in determining the results could not be understood by the public. It was not sufficient that the result of the calculation process performed by the voting machine could be noted from a summary paper printout or an electronic display.
V. The identified electoral errors do not necessitate a repeat of the election in the affected constituencies.
The electoral error stemming from the use of computer-controlled voting machines, whose design was incompatible with the requirements for effective verifiability of the electoral process, even assuming its relevance to the mandate, does not lead to a partial invalidation of the election for the 16th German Bundestag. The interest in preserving the continuity of the representative body, constituted in reliance on the constitutionality of the Federal Voting Machine Ordinance, outweighs this electoral error. This is because its potential impact on the composition of the 16th German Bundestag is, at most, marginal, given the absence of any indications that voting machines malfunctioned or could have been manipulated. Furthermore, considering that the identified constitutional violation occurred when the legal situation was still unresolved, it does not render the continued existence of the elected representative body intolerable.
Judgment of March 3, 2009 – 2 BvC 3/07 and 2 BvC 4/07 –
Source: Press Release of the Federal Constitutional Court No. 19/2009 of March 3, 2009
Goldberg Rechtsanwälte
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
