Netherlands: Legal Framework
From the early introduction of voting machines in the Netherlands, their regulation in law remained limited. In 1989, the Electoral Code was revised thoroughly; however, there were still few references to electronic voting. The code explicitly stated local authorities could decide if voting means other than ballot papers are used, that this was only allowed with technical appliances approved by the MoI, and other rules would be determined in the Electoral Decree, although they were never elaborated.
One paragraph of the code (Article J33, Paragraph 2) listed requirements for the “approved technical appliance,” including: secrecy of the vote needed to be guaranteed; the appliance had to be well-made; the voter had to be able to operate it easily; the candidate lists, their assigned number and the name of the political groups needed to be mentioned clearly; and the voter only had the possibility to vote once and had the opportunity to correct a mistake.
Later in 1989, the State Secretary produced a Ministerial Regulation for the Approval of Voting Machines, but the document was process-oriented and did not include any additional requirements or standards for voting machines. The MoI and the Electoral Council lacked technical knowledge to determine clear requirements regarding functionality, integrality and security of the voting machines.
By 1990, the Electoral Council and the MoI realized the regulation of voting machines was not adequate. For the next seven years a working group was convened to discuss new regulation requirements and approval of voting machines. The working group consisted of members of the MoI, the Electoral Council, TNO, representatives of local authorities and the Expertise Centre, which included HEC, a consultancy agency dealing with public administration/ICT issues. The MoI and the Electoral Council depended heavily on TNO and HEC for their technical knowledge.
TNO drafted a final concept of the technical text of the new regulation in September 1990, including requirements for the software to be reliable, clearly written and not changed or influenced. However, while voting machines informally had to comply with the TNO report from its date of publication, it was not until 1997 that the regulation was approved. It still did not require any security features or address the possibility of manipulation. No requirement for a paper trail was included, as the State Secretary explained, “one can assume that the print out of a voting machine with the voting results is the same as the votes that were cast on the voting machine, so that afterwards there is no need to check the votes cast.”49
During the working group’s deliberations, a lengthy discussion opened about the possibility of phased voting – a possible solution for increasing the number of political parties and candidates per party in elections. The Minister sent a letter to Parliament in March 1996 granting permission for the option. NEDAP stood alone in its opposition to phased voting, as its machines at the time did not have the capacity to process votes in this way. This opened the possibility for other suppliers, and was the starting point for the company VUGA (later SDU) to start developing voting computers. However, NEDAP remained the primary supplier, with 95 percent of the market.
49 Staatsblad 1997, pgs. 164and297, Besluit tot wijziging van de bepalingen van het Kiesbesluit inzake stemmen door middel van elektronische stemmachines (Decision to amend the regulation on voting by electronic voting machines).