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 [1] –
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 [2].