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They argued, in effect, that to be democratic, at best elections should consist of voters marking paper ballots, which are then placed in boxes, counted by hand, and stored securely in case a re-count was called for. If voting machines are allowed, they should have a voter-verified paper audit trail to ensure the integrity of the election, and in case a re-count is needed.

One of the legal briefs filed in the case was by The Chaos Computer Club. (Para 86 et seq) They vehemently opposed the use of computer-controlled voting machines. They also argued that a voter-verified paper audit trail was essential for an honest vote count, and for a reliable re-count. Electronic machines do not give an actual re-count, but only the same count repeated. Besides that, the computer-controlled machines can be programmed prior to an election to adjust the vote and alter the outcome in ways that are undetectable. The "fix"can be programmed into the source code before the machines are used. During, or immediately after, the election the votes can be changed by a remote computer, or a nefarious insider. These suspicions are aggravated because Nedap, the company supplying the machines, insists on its right to keep their codes secret; hence, the entire election cannot be trusted.

Applying the Law

The Court explained that several factors are needed to satisfy the requirement of the "public nature" of elections. This includes that elections be based on laws written and passed according to the Basic Law, and supervised by public officials. Also, an election is "public in nature" because the public is participating in it. (Para 140-144) The Court noted that in a representative democracy, the people do not have to be directly involved in every detail. So long as they feel they have a satisfactory understanding of the process, and sufficient confidence in those who conduct the elections, the requirements for a public nature and public monitoring of elections are met.

The Court agreed that some of the misconduct alleged by the parties might be possible in theory. However, it also agreed with the ministry in charge of elections that these claims are "an over-evaluation of technical security requirements as to the voting machines." (Para 87-88) Nothing in these claims justified even a partial invalidation of the election. (Para 162-164) Indeed, compared to marked paper ballots put in a ballot box, or voting by mail, the electronic machines are at least as secure, if not more so. These conclusions were also reached by the Committee for the Security of Elections, and their report was unanimously accepted by the Bundestag. (Para 90-100) The Court declined to substitute its judgment for that of the legislature.

However, the Court did agree that the voting machines used were so complex that they were "not compatible with the principle of the public nature of elections." Only the manufacturer's technicians could understand and monitor the functioning of these machines. Hence, the public was not adequately represented in the monitoring of the machine usage by officials from the elections ministry. But this constitutional shortcoming was not so severe as to require a re-run of the election. There was no evidence of mechanical error, or of manipulation of the votes cast or counted.

Although the Court did not specify this, it seemed to imply that if the agency in charge of the elections had had personnel sufficiently knowledgeable to monitor the operations of the machines, the constitutional requirement would be satisfied. With such personnel working in the public agency, sufficient public monitoring of the equipment could be conducted. The voters only need to know how to vote, not how source codes record votes.

The Court also held that a regulation made by the ministry in charge of administering the election was unconstitutionally vague. (Para 145 et seq) While the Court offered some suggestions as to how the inadequate language could be tightened up, the errors in the regulation were not so bad that the election should be invalidated because of them.

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William J. Kelleher, Ph.D. Political Scientist, author, speaker, CEO for The Internet Voting Research and Education Fund, a CA Nonprofit Foundation My new book, Internet Voting Now, on Kindle, at Blog: (more...)
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