The Constitutionality of Electronic Voting in Germany
After a largely successful trial period spanning from 1998 to 2005, two citizens challenged the constitutionality of electronic voting before the German Constitutional Court. Though the public generally viewed the voting system in a favorable manner throughout the trial period, the actual legality of the technology was not fully assessed in advance of implementation.
Germany piloted its first electronic voting machines, supplied by the Dutch company NEDAP, in Cologne in 1998. The trial was seen as successful, and one year later Cologne used electronic voting machines for its entire European Parliament elections. Soon other cities followed suit, and by the 2005 general election nearly 2 million German voters were using these NEDAP machines to cast votes. Reaction to the use of these electronic voting machines was generally very positive among voters, who found the machines to be easy to use, and among election administrators, who were able to reduce the number of polling stations and staff in each polling station.
However, after the 2005 election, two voters brought a case before the German Constitutional Court after unsuccessfully raising a complaint with the Committee for the Scrutiny of Elections. The case argued that the use of electronic voting machines was unconstitutional and that it was possible to hack the voting machines, thus the results of the 2005 election could not be trusted.
The German Constitutional Court upheld the first argument, concurring that the use of the NEDAP voting machines was unconstitutional. The Court noted that, under the constitution, elections are required to be public in nature and
that all essential steps of an election are subject to the possibility of public scrutiny unless other constitutional interests justify an exception . . . 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 . . . 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.30
Making it clear that the court’s decision did not rule out the use of voting machines in principle, it stated that:
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.
This decision by the German Constitutional Court, stressing the need for transparency in the electoral process without specialist technical knowledge, effectively ended Germany’s recent use of electronic voting. Although the Court decision does not rule out electronic voting machines entirely, no further moves to adopt machines that meet the transparency requirements have been made.
30 A link to the German Federal Constitutional Court’s 2009 ruling can be found in the Resources section of this manual.