German Court Decision (2009)


Reading the German Court Press Release

    What follows in an annotated version of the official press release concerning
    the German Constitutional Court’s decision of March 3, 2009 concerning voting machines.
    The original text is at :

    http://www.bundesverfassungsgericht.de/en/press/bvg09-019en.html

    Please note that the machines used for the 2005 Bundestag elections were paperless (not retraceable),
    which is why, IMHO, they were ruled unconstitutional.

    Note that the court did not call §35 of the Federal Electoral Act unconstitutional,
    even though it allows for voting machines. What is unconstitutional is the
    Federal Voting Machines Ordinance, which implements the law, because it used paperless voting machines.

    <!–

    Please also note the use of the words “complementary/later examination”, and “retraceable”.
    There is no use of the word “observable”. “Examination” and “observation” are two different things.
    Nor is there any use of the word “authenticate”, which I find vague.
    The emphasis in the text is on the ability to retrace the results.

    Also, please note, that there is no mention in this text of the words “human rights”.
    This is because the court did not use the word Menschenrecht
    anywhere in the 163 paragraph decision.
    –>

    I have inserted the into the text the German words used at the same point
    in the original press release. This facilitates a complementary examination of the translation.

    At some point, I hope to post a complementary page about paragraph 121 of the
    court’s decision, that explicitly names scanners and VVPATS (voter verifiable paper audit trails)
    as components of permissible electronic voting systems.


    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
    (ergänzende Kontrolle) 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
    (Nachvollziehbarkeit),
    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 (nachvollziehen) 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
    (nachträglichen Kontrolle) 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.

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