Why German High Court Ruled E-Voting Unconstitutional

Originally published at OpEdNews
October 15, 2009

E-Voting Ruled Unconstitutional in Germany: An Interview with Dr. Ulrich Wiesner

Dr. Wiesner Filed a Lawsuit in Germany Claiming E-Voting Unconstitutional, and Won

By Kathleen Wynne

The very word secrecy is repugnant in a free and open society;
and we are as a people inherently and historically opposed to secret societies,
to secret oaths and to secret proceedings.
-- John F. Kennedy

No words were ever more relevant than these are when it comes to our elections and the counting of our votes. When did secrecy take precedence over transparency in the counting of our votes in America through the use of electronic voting systems and, more importantly, why? What the majority of Americans have NOT heard about, but most election reform advocates are already aware of, is the German Constitutional Court's recent decision to ban electronic voting in Germany by ruling it “unconstitutional.”

Let's think about this for a minute. By using a Constitution, similar to our own, and which had to be approved of by the U.S. after World War II, Germany has, through its High Court, determined that computerized, secret vote counting does not subscribe to the democratic standards of their country! Yet, still here in America, 95% of us are using some sort of computerized voting system to cast and/or count our ballots---completely government sanctioned, corporate controlled, using software protected from public scrutiny by trade secret laws. NO ONE can guarantee even a single voter that their vote is being counted as cast. What's wrong with this picture?

It is, indeed, encouraging that support is growing for a return to public hand-counts here in the U.S. and, as a result, we may someday soon reach a “critical mass” of support largeenough to put pressure on our courts to also recognize this fundamental right and “persuade” them to rule in a similar fashion as the German Court. When that day comes, we will be forever indebted to our German counterparts.

Obviously, the significance of the German Court's ruling is not only a sea change in how elections will be administered in Germany , which are now to be done by properly administered public hand-counts, but I see it as a powerful new tool that can be used by election reform advocates in achieving similar reform in the U.S.

Bev Harris, Founder of Black Box Voting.org, and Paul Lehto, an attorney from Washington State and election reform advocate, have both written excellent articles analyzing the Court's decision to ban electronic voting and are must reads.

Harris' article, Let's Get Off The Hampster Wheel, was featured in Democracy For New Hampshire (as well as on other websites). Lehto's article, Germany Bans Computerized Voting, Will Hand Count in 2009, was featured in OpEdNews (as well as on other websites).

[On a personal note, I am extremely gratified to have discovered that the arguments made by the Court in banning electronic voting were almost the exact same arguments made to election officials and Congress by those of us in the election reform community who chose to be totally committed to a return to public hand-counts for the past 3+ years. I, along with a small group of public hand count advocates, in particular, Dr. Sheila Parks, founder of the Center for Hand-Counted Paper Ballots, and Vickie Karp and Karen Renick, co-directors of VoteRescue.org, decided early on to oppose compromise of any kind that would require the use of voting machines, audits, exit polls, or mail-in ballots, i.e., anything other than public hand counts, as an acceptable way ofcounting the votes. In fact, the Court's ruling actually supported our unequivocal position that “the only experts in our elections should be the citizens themselves." When average citizens with no legal expertise are vindicated by such a venerable body of legal experts, it is for me, testament to the absolute need to recognize and honor the “principles of transparency” in elections, which can only be achieved through public hand-counts.]

After reading Harris's and Lehto's analyses, as well as reading the Court's decision in its entirety, I immediately recognized the importance of locating the father (Joachim Wiesner) and son (Ulrich Wiesner), who had filed the lawsuit and then persuade them to tell their story to the American people.

Dr. Ulrich Wiesner holds a Ph.D. in Physics and works as a consultant for a U.S.-American Software Company. His father, Joachim, is a retired political scientist. Together, they filed the lawsuit with Germany 's Federal Constitutional Court after the German parliament had rejected a petition drive promoted by the Wiesners, which had been signed by over 45,000 people to try to ban electronic voting back in 2005.

Even "cell phones are better protected against manipulation," said Ulrich Wiesner in an interview with Spiegel Online. The Wiesners were making the case that the security concerns surrounding electronic voting machines are so great that they run afoul of the German constitution, which mandates that elections be open and transparent.

Nonetheless, German politicians were still skeptical that the court would rule against the machines. In an interview with German radio, Max Stadler, a member of parliament with the German liberal Free Demoocrat Party (FDP), said “It was very unlikely the court would rule in the Wiesners' favor, a move which might force the court to invalidate parts of the 2005 election." Stadler said he personally favors paper ballots because they inspire confidence in the electorate and possess a "certain charm." Ultimately, though, he argued that the issue was a policy question, not a constitutional one. To our good fortune, the Court did not agree with Stadler's position.

So, after jumping through various hoops and several e-mails later, Dr. Wiesner finally received my request for him to please contact me and he did. In our first conversation, we talked about the security issues surrounding electronic voting, which continues to be the core issue election reform advocates have been tangling with in the U.S., and he told me, “We should not waste our time arguing about machine security because citizens would never win that argument with the experts.” “Besides”, he said, “the Court's decision was not based on voting machine security anyway.”

Dr. Wiesner kindly agreed to be interviewed on Deadline Live, a nationally-syndicated radio show in Austin, Texas, hosted by Jack Blood, who generously agreed to play the interview live in a “Special Edition” 2-hour show, which aired on October 7, 2009. I then promptly invited Bev to join us to offer her comments and questions in this much-anticipated conversation. Following is the YouTube link to that entire interview.

[Note: The two-hour interview is broken down into 12 parts. The first half hour is with Jack Blood, Bev and I setting the stage for the interview with Dr. Wiesner, followed by the hour-long interview with Dr. Wiesner. The final half-hour is a recap and commentary of the interview by Jack, Bev, and me]:

Wiesner Interview Video

I hope that after listening to the interview, you will ask yourselves how is the German Court's ruling of the unconstitutionality of electronic voting under the Germany Constitution any different from it also being considered unconstitutional by an American court under our own constitution?

As Paul Lehto noted in his article, German Court Honors U.S. Democratic Principles:
"The March 3, 2009 ruling interprets the German Constitution, which became effective right after the December 10, 1948 passage date of the Universal Declaration of Human Rights by the United Nations. Soon thereafter, Germany's new Constitution came into effect May 23, 1949, with the signature of the Allies, specifically including the United States (http://en.wikipedia.org/wiki/Grundgesetz [paragraph one])."

Approval of the German Constitution by the United States and occupying powers was conditional on two non-negotiable terms: (1) Complete rejection of master race theory and with it the treatment of other groups with barbarism or worse; and (2) an unequivocal commitment to the inviolability and inalienability of human rights.

The last time I looked, both Germany and the U.S. are still considered to be democratic republics, with similar constitutions, when it comes to protecting a citizen's human rights, governed by the rule of law, with a representative government duly elected by the people. In light of the German Court 's ground-breaking decision, it is very disturbing that our mainstream media has been virtually silent in reporting this very important decision, particularly in how it correlates to the elections process in the U.S. Why?

More importantly, neither the U.S. courts nor our legislative branch of government have acknowledged that, with this decision, the German Court put forth the human rights argument that meant protecting a German citizen's right to see their votes counted, without specialized technical knowledge being required as a priority over everything else; a decision, I believe, that should also be applied by our courts on behalf of American citizens.

Of course, we can expect to hear from voting machine vendors, members of Congress and many election officials their usual response to a request by citizens for any kind of change from the status quo -- “We've already spent billions of taxpayer dollars implementing these voting systems throughout the country and it would simply be too costly and impractical to get rid of them.” I say, preserving and protecting a citizen's human rights in the elections process --PRICELESS.

Kathleen Wynne is the founder HCPBnow.org and former associate director of Black Box Voting.org