Germany's Federal Constitutional Court Rules E-Voting Unconstitutional
Federal Constitutional Court – Press office
Press release no. 19/2009 of 3 March 2009
Judgment of 3 March 2009 – 2 BvC 3/07 and 2 BvC 4/07 –
Use of voting computers in 2005 Bundestag election unconstitutional
The Federal Constitutional Court rendered judgment on two complaints
concerning the scrutiny of an election, which were directed against the
use of computer-controlled voting machines (so-called voting computers)
in the 2005 Bundestag election of the 16th German Bundestag (see German
press release no. 85/2008 of 25 September 2008). The Second Senate
decided that the use of electronic voting machines requires that the
essential steps of the voting and of the determination of the result can
be examined by the citizen reliably and without any specialist knowledge
of the subject. This requirement results from the principle of the
public nature of elections (Article 38 in conjunction with Article 20.1
and 20.2 of the Basic Law (Grundgesetz – GG)), which prescribes that all
essential steps of an election are subject to the possibility of public
scrutiny unless other constitutional interests justify an exception.
Accordingly it is, admittedly, constitutionally unobjectionable that §
35 of the Federal Electoral Act (Bundeswahlgesetz – BWG) permits the use
of voting machines. However, the Federal Voting Machines Ordinance
(Bundeswahlgeräteverordnung) is unconstitutional because it does not
ensure that only such voting machines are permitted and used which meet
the constitutional requirements of the principle of the public nature of
elections. According to the decision of the Federal Constitutional
Court, the computer-controlled voting machines used in the election of
the 16th German Bundestag did not meet the requirements which the
constitution places on the use of electronic voting machines. This,
however, does not result in the dissolution of the Bundestag because for
lack of any indications that voting machines malfunctioned or could have
been manipulated, the protection of the continued existence of the
elected parliament prevails over the electoral errors which have been
ascertained. To the extent that the manner in which the German
Bundestag’s Committee for the Scrutiny of Elections conducted the
proceedings was objected to, the complaint for the scrutiny of an
election was unsuccessful.
In essence, the decision is based on the following considerations:
I. The objections to the errors of the proceedings for the scrutiny of
elections which had been conducted before the German Bundestag were
unsuccessful. Even though the duration of the proceedings between
the lodging of the objection to the election and the German
Bundestag’s decision was more than a year, this is not yet a
serious procedural error. The duration of the proceedings alone
does not deprive the German Bundestag’s decision of its foundation.
Nor is the fact that the Committee for the Scrutiny of Elections
refrained from conducting an oral hearing of the complainant’s
objection to the election, and also apart from this did not
deliberate in public, a serious error which deprives the German
Bundestag’s decision of its foundation.
II. The principle of the public nature of elections, which results from
the fundamental decisions of constitutional law in favour of
democracy, the republic and the rule of law prescribes that all
essential steps of an election are subject to the possibility of
public scrutiny unless other constitutional interests justify an
exception. Here, the examination of the voting and of the
ascertainment of the election result attains special significance.
The use of voting machines which electronically record the voters’
votes and electronically ascertain the election result only meets
the constitutional requirements if the essential steps of the
voting and of the ascertainment of the result can be examined
reliably and without any specialist knowledge of the subject. While
in a conventional election with ballot papers, manipulations or
acts of electoral fraud are, under the framework conditions of the
applicable provisions, at any rate only possible with considerable
effort and with a very high risk of detection, which has a
preventive effect, programming errors in the software or deliberate
electoral fraud committed by manipulating the software of
electronic voting machines can be recognised only with difficulty.
The very wide-reaching effect of possible errors of the voting
machines or of deliberate electoral fraud make special precautions
necessary in order to safeguard the principle of the public nature
of elections.
The voters themselves must be able to understand without detailed
knowledge of computer technology whether their votes cast are
recorded in an unadulterated manner as the basis of vote counting,
or at any rate as the basis of a later recount. If the election
result is determined through computer-controlled processing of the
votes stored in an electronic memory, it is not sufficient if
merely the result of the calculation process carried out in the
voting machine can be taken note of by means of a summarising
printout or an electronic display.
The legislature is not prevented from using electronic voting
machines in elections if the possibility of a reliable examination
of correctness, which is constitutionally prescribed, is
safeguarded. A complementary examination by the voter, by the
electoral bodies or the general public is possible for example with
electronic voting machines in which the votes are recorded in
another way beside electronic storage. In the case at hand, it need
not be decided whether there are other technical possibilities
which make it possible for the electorate to trust in the
correctness of the procedure of the ascertainment of the election
result in a way that is based on its retraceability, thus complying
with the principle of the public nature of elections.
Limitations of the possibility for the citizens to examine the
voting cannot be compensated by an official institution testing
sample machines in the context of their engineering type licensing
procedure, or the very voting machines which will be used in the
elections before their being used, for their compliance with
specific security requirements and for their technical integrity.
Also an extensive entirety of other technical and organisational
security measures alone is not suited to compensate a lack of the
possibility of the essential steps of the electoral procedure being
examined by the citizens. For the possibility of examining the
essential steps of the election promotes justified trust in the
regularity of the election only by the citizens themselves being
able to reliably retrace the voting.
If computer-controlled voting machines are used, no contrary
constitutional principles can be identified which could justify a
far-reaching restriction on the public nature of the election, and
thus on the possibility of examining the voting and the
ascertainment of the result. The exclusion of ballots unwittingly
being marked in an erroneous manner, of inadvertent counting errors
and of erroneous interpretations of the voters’ will in vote
counting does not as such justify forgoing any kind of
retraceability of the voting. The principle of the secrecy of the
vote and the interest in a rapid clarification of the composition
of the German Bundestag> are also no contrary constitutional
interests which could be invoked as the basis of a far-reaching
restriction on the possibility of examining the voting and the
ascertainment of the result. It is not constitutionally required
that the election result be available shortly after the closing of
the polls. Apart from this, the past Bundestag elections have shown
that also without the use of voting machines, the official
provisional result can, as a general rule, be ascertained within a
few hours.
III. While the authorisation to issue an ordinance, which is granted by
§ 35 BWG, does not meet with any overriding constitutional
reservations, the Federal Voting Machines Ordinance is
unconstitutional because it infringes the principle of the public
nature of elections. The Federal Voting Machines Ordinance does not
contain any regulations which ensure that only such voting machines
are permitted and used which comply with the constitutional
requirements placed on an effective examination of the voting and a
reliable verifiability of the election result. The Federal Voting
Machines Ordinance does not ensure that only such voting machines
are used which make it possible to reliably examine, when the vote
is cast, whether the vote has been recorded in an unadulterated
manner. The ordinance also does not place any concrete requirements
as regards its content and procedure on a reliable later
examination of the ascertainment of the result. This deficiency
cannot be remedied by means of an interpretation in conformity with
the constitution.
IV. Also the use of the above-mentioned electronic voting machines in
the election to the 16th German Bundestag infringes the public
nature of the election. The voting machines did not make an
effective examination of the voting possible because due to the
fact that the votes were exclusively recorded electronically on a
vote recording module, neither voters nor electoral boards nor
citizens who were present at the polling station were able to
verify the unadulterated recording of the votes cast. Also the
essential steps of the ascertainment of the result could not be
retraced by the public. It was not sufficient that the result of
the calculation process carried out in the voting machine could be
taken note of by means of a summarising printout or an electronic
display.
V. The electoral errors which have been identified do not lead to a
repetition of the election in the constituencies affected.
The electoral error which results from the use of computer-
controlled voting machines whose design was incompatible with the
requirements placed on an effective possibility of examining the
voting does not result in a declaration of partial invalidity of
the election to the 16th German Bundestag even if it is assumed to
be relevant to the allocation of seats. The interest in the
protection of the continued existence of parliament, the
composition of which was determined trusting in the
constitutionality of the Federal Voting Machines Ordinance,
prevails over the electoral error because its possible implications
on the composition of the 16th German Bundestag can be rated as
marginal at most, for lack of any indications that voting machines
malfunctioned or could have been manipulated, and because, also in
view of the fact that the established infringement of the
constitution took place when the legal situation had not been
clarified yet, they do not make the continued existence of the
elected parliament appear intolerable.
This press release is also available in the original german version.