In a ruling handed down earlier this year, Germany's highest court, the Federal Constitutional Court, upheld the constitutionality of recent elections to the German legislative branch known as the Bundestag (similar to the US Senate). An English translation of the ruling is now available.
Two of the losing candidates sued for "a scrutiny of the election," in the hope of having it invalidated. They first challenged the election in the Bundestag. After the Bundestag rejected their claims, they appealed to the High Court.
The Controlling Law
The Court declared the constitutional principles that it follows in cases like this. These principles are derived from the German Constitution, or "Basic Law." Article 38, section one, of the Basic Law states, in part, that "Members of the German Bundestag shall be elected in general, direct, free, equal, and secret elections." This has traditionally been interpreted to mean that elections should be conducted in ways that are consistent with the highest principles of democracy. Since the end of WWII, German law has developed and articulated these principles.
The Court stated, for example, "The public nature of elections is a fundamental pre-condition for democratic will-formation." Such public elections are also a "major precondition for the well-founded trust of citizens in the correct operation of the elections." (Para 107 et seq)
Public monitoring of elections is necessary "so that manipulation can be ruled out or corrected and unjustified suspicion can be refuted." Trust in elections is best assured only if they are carried out "before the eyes of the public." (Para 108) Hence, the conduct of elections should not require any specialized knowledge on the part of the voters.
The Complaints of the Challengers
The complainants contended, among other things, that the use of electronic paperless "computer-controlled voting machines" in this election violated Germany's Basic Law.
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.