Paper Ballot Only

[Not only Germany, but US, UK, EU countries, etc. almost 120 or more countries in the world to this day are using paper ballots only. We publish below some excerpts from the German Constitutional Court decision.]

Judgment of the Second Senate of the Federal Republic of Germany at Berlin Tuesday, 3 MARCH 2009

RULING:
"1. The Ordinance on the Deployment of Voting Machines in Elections to the German Bundestag and of the Members of the European Parliament from the Federal Republic of Germany is not compatible with Article 38 in conjunction with Articles 20.1 and 20.2 of the Basic Law insofar as it does not ensure monitoring that complies with the constitutional principle of the public nature of elections.

2.   The use of the electronic voting machines of N V Nederlandsche Apparatenfabriek (Nedap) {Dutch Apparatus Factory} of type ESD1, hardware versions 01.02, 01.03 and 01.04, as well as of type ESD2, hardware version 01.01, in the elections to the 16th German Bundestag was not compatible with Article 38 in conjunction with Article 20.1 and 20.2 of the Basic Law”.

"Manipulations were said to be possible both by politically or financially motivated “insiders”, in particular employees of the manufacturer, and by external third parties who gained access to the computers used by the manufacturer... no suitable regulations in force that were able to guarantee protected storage of the voting machines...

"...interests of the manufacturer in protecting its business secrets should be subordinate to the principle of democracy. ... non-publication of the control reports and documents and the source code was ...said to constitute an electoral error.

"...not ... compatible with the “principle of the official nature of the elections” that the functionality of the voting machines could only be examined by the manufacturer...

"...tests carried out by the district returning officer in the context of preparation for the election and by the returning committee in the polling station were said not to be suited to recognise any manipulations...."

"...voting machines were said not to be compatible with the “Guidelines for the Construction of Voting Machines” (Annex 1 to § 2 of the Federal Voting Machine Ordinance). They neither complied with the general state-of-the-art, nor were they constructed in compliance with the rules of technology for systems with grievous consequences in case of misconduct... software used was said not to be clearly identifiable..."

"...objectionable that § 35 of the Federal Electoral Act only calls for the ballot to be held in secret, but not for adherence to the other electoral principles..."

"In a republic, elections are a matter for the entire people and a joint concern of all citizens. Consequently, the monitoring of the election procedure must also be a matter for and a task of the citizen. Each citizen must be able to comprehend and verify the central steps in the elections reliably and without any special prior technical knowledge. ... An election procedure in which the voter cannot reliably comprehend whether his or her vote is unfalsifiable recorded and included in the ascertainment of the election result, and how the total votes cast are assigned and counted, excludes central elements of the election procedure from public monitoring, and hence does not comply with the constitutional requirements..."

"...voter himself or herself must be able to verify–also without a more detailed knowledge of computers–whether his or her vote as cast is recorded truthfully as a basis for counting..."

"... the principle of secrecy of elections is not to restrict the principle of the public nature of elections for the ballot act. It also does not justify a restriction of public monitoring in the casting of the–previously secretly marked–vote carrier or in the ascertainment of the results..."

"...Federal Voting Device Ordinance is unconstitutional on grounds of a violation of the principle of the public nature of elections from Article 38 in conjunction with Article 20.1 and 20.2 of the Basic Law..."

"...Federal Voting Machine Ordinance violates the principle of the public nature of elections under Article 38 in conjunction with Article 20.1 and 20.2 of the Basic Law because in the use of computer-controlled voting machines it guarantees neither effective monitoring of the election act nor the reliable verifiability of the election result. This shortcoming cannot be remedied by means of an interpretation in conformity with the constitution..."

"...voting machines did not provide a possibility to record the votes independently of the electronic record on the vote storage module enabling the respective voter to check his or her ballot.

"The essential steps in the ascertainment of the results by the voting machines also could not be verified by the public. Since the ascertainment of the results exclusively formed the object of a data processing procedure running inside the voting machines, it was possible for neither the election bodies nor the citizens participating in the ascertainment of the results to verify whether the valid votes cast were correctly allotted to the electoral proposals and the votes accounted for by the individual electoral proposals in total were correctly ascertained. It was not sufficient that the result of the computing process implemented in the voting machine could be taken note of using a summary paper printout or an electronic display. A public examination by means of which the citizen could have reliably verified the ascertainment of the election results himself or herself without prior special technical knowledge was hence ruled out."

"...complainants rightly complain of the unconstitutionality of the use of computer-controlled voting machines, the necessary expenses which they have incurred are to be refunded to them according to §§ 18 and 19 of the Law on the Scrutiny of Elections in conjunction with § 34a.3 of the Federal Constitutional Court Act in this respect. Accordingly, the complainant re 1. is to be refunded the necessary expenses in full, and the complainant re 2., whose complaints are partly unfounded, is to be refunded three-quarters of the necessary expenditure."

Back to Home Page

Frontier
Vol 57, No. 4, Jul 21 - 27, 2024