Legal and Procedural Framework
The use of electronic voting and counting technologies should be defined in the legal framework. This process can take a considerable amount of time, particularly since key legal provisions are incorporated at the legislative level (i.e., in constitutions and electoral laws) as well as the regulatory level. Amendments should, at a minimum, address the following: physical and procedural aspects of voting or counting processes; testing and certification; audit mechanisms and conduct; status of audit records versus electronic records; transparency mechanisms; data security and retention; voter identification; and access to source code. The process of developing amendments should involve input from electoral stakeholders, including political parties and civil society.
In order to properly implement electronic voting or counting technologies, the use of these technologies needs to not only be in compliance with the constitutional and legal provisions relating to elections and the general conduct of public affairs, but must also be defined in the legal framework for elections. The legal framework includes the constitution, if there is one, the laws relating to elections, and the secondary legislation (such as regulations, rules and procedures often passed by electoral management bodies).
While constitutions rarely say anything specific about electronic voting or counting technologies, they may include general provisions that are relevant to the use of these technologies. Germany provides a good example of this (see Figure 11 below for more details), with the German Constitutional Court deciding in 2009 that the electronic voting machines used in Germany did not comply with general transparency requirements for the electoral process established in the constitution.
In addition to ensuring that suggested technology solutions are in compliance with the constitutional framework of a country, consideration should also be given to whether suggested solutions meet international standards, including emerging standards for the use of electronic voting and counting technologies. Election officials and lawmakers may wish to study other countries’ experiences when considering whether to adopt such technologies.
Primary and secondary legislation will inevitably need to be amended in order to accommodate the use of electronic voting and counting technologies. It is important that key legal provisions relating to the use of electronic voting or counting system are included at a legislative level so that the use of these technologies is not entirely legislated at the regulatory level. The necessary amendments to the electoral legal framework will vary depending on the technology being implemented but should cover, at a minimum, the issues listed below:
- Physical Aspects of the Voting or Counting Process – The use of electronic voting or counting machines will entail changes to the procedure for the setup and conduct of voting and/or counting. For example, when direct-recording electronic voting machines are used, there is no ballot box to prepare and seal. The common practice of displaying the empty physical ballot box before polling starts does have a comparable procedure for electronic voting or counting machines; a display demonstrating that no ballots have been stored is conducted for observers at the beginning of the process. Some of the procedures relating to the setup and conduct of voting and/or counting may be in the election law(s) or may be in secondary legislation, and both will need to be reviewed and amended to accommodate the setup and use of electronic voting or counting technologies.
- Procedural Aspects of the Voting and Counting Process – The timeline for the preparation of the voting or counting systems should be clearly outlined, as should details of how the system is to be operated, who is allowed access to it during elections, how equipment should be stored between elections and how access to equipment in storage should be regulated and reported.
- Testing and Certification of Technologies – Electronic voting and counting technologies clearly need to be tested before they are used. While any responsible election management body would ensure that sufficient testing of such technologies takes place before they are used for elections, it may be useful to guarantee that testing takes place and specify the kinds of testing to be conducted by including these requirements in the law or in secondary legislation. Likewise, if there is a process of formal certification of electronic voting and counting technologies, this should be included in the law as well. The law should also clearly identify the institutions with the authority to provide this certification, the timeframe for certification and the standards and requirements against which certification will take place.
- Audit Mechanisms – The need for audit mechanisms for electronic voting and counting technologies is an emerging international standard. In order to ensure that this standard is met, the requirement for an audit trail should be included in the law. The nature of the audit mechanisms may also be specified if relevant — for example, any requirement for a voter-verifiable audit trail often used with electronic voting machines.
- Conduct of Audits – Audits should be conducted in order to generate trust in the use of electronic voting or counting machines and to ensure that these technologies function correctly. Many different kinds of audits can be conducted, including audits of the results, audits of internal logs, audits of storage and access to devices, and so on. The law should clearly identify which audits are to be implemented, when such audits are to take place and the scale of the audits. In addition to requiring audits, which should be provided irrespective of whether there are any electoral challenges, the law should also identify conditions under which recounts are to take place.
- Status of Audit Records Versus Electronic Records – In the event that the conduct of an audit determines a different result than is produced electronically by an electronic voting or counting machine, the law should specify how to deal with the situation.
- Transparency Mechanisms – The use of electronic voting and counting machines entails the conduct of existing electoral procedures in different ways, as well as the conduct of new stages in the electoral process (for example, the configuration of electronic voting machines). In the interest of transparency, appropriate procedures will need to be developed to ensure that political actors and observers have access to these different and new processes so that they can provide meaningful oversight of the process. These transparency measures should be clearly defined in the legal framework so that observers and party representatives understand and can utilize their access rights.
- Data Security and Retention – It is unlikely that existing laws and procedures adequately cover the issue of electronic data security when using electronic voting or counting machines. The way in which all electoral data is secured and stored will need to be provided for in the legal framework, as will the timeframe and procedures for deletion of the electronic data, and these provisions must be in accordance with existing data protection legislation.
- Voter Identification – If identification/authentication is being incorporated into the electronic voting process, then this may require legislation, whether using biometrics or making mandatory a particular form of machine-readable ID. In such cases it is essential that the secrecy of the vote be protected through de-linking the vote and the identity of the voter.
- Access to Source Code – It may be prudent to legislate whether source code is open source or not, in addition to legislating the mechanisms for any access by stakeholders.
Many of these issues are covered in greater detail later in this part of the guide, and the intention here is to identify the issues that are relevant for inclusion in order to properly legislate for the use of electronic voting or counting technologies.
It is clear from the preceding discussion that adapting the legal framework for the use of electronic voting or counting technologies will entail considerable amendments to laws and secondary legislation. Electoral stakeholders must be involved in the development of these legislative and regulatory amendments. Initially, political parties and observers should be consulted on the ways in which the legislation needs to be changed, especially from a transparency and oversight perspective. Once legislation is passed, the election management body will need to fully brief political parties, the media and civil society on the changes that have been made.