Electronic Voting Ruled Unconstitutional in Germany

German High Court’s Ruling Strikes Down
Electronic Voting Under Principles of Democracy
Signed by and Imposed by USA After WWII

Paul R Lehto, Juris Doctor

Lehto.paul@gmail.com

Wednesday, March 4, 2009

According to a ruling by Germany’s highest court yesterday, computerized voting machines used by 2 million of Germany's 5 million voters in 2005’s parliamentary elections are unconstitutional because they are not in line with democratic standards and principles -- especially the “publicity” of the vote counting (i.e. transparency, visibility). The court added that “specialized technical knowledge” may not be demanded of observing citizens, and that government-defined checks or audits are no substitute for the constitutional requirement of publicity via observation.

The ruling of Germany’s highest court affirmed the principles required for a constitutional voting system that makes Self-Government possible, which include the following tests:

1. No "specialized technical knowledge" can be required of citizens to vote or to monitor vote counts. (This is a simple application of democracy’s equality principle combined with an aversion to an aristocracy of experts.)
2. The constitution requires a bona fide publicly observed vote count. (The court noted that the government substitution of its own check or checks in any amount, or substitution of what we’d probably call in the USA an “audit” is no substitute at all for the constitutional requirement of public observation or “publicity.” Publicity was the term of art favored by Founders of the USA, and the term still used by the German (High) Federal Constitutional Court.)
3. A paper trail does not suffice to meet the above standards where ballots are not publicly counted on election day, the court holds generally, in its ruling on the NEDAP push-button DRE electronic voting system used in the 2005 Bundestag elections in Germany.
4. The German Federal Constitutional Court threw out the German Voting Machine Act completely (the analog in the US would be HAVA – the “Help America Vote Act.”) Message to Congress: We don’t need YOUR help, especially since your help comes with concealing the vote counts on computers like optical scans and touch screens so we can’t tell on election night if the counts are genuine results or not.!
5. CONCLUSION ON THE EFFECT OF THE OPINION’S HOLDING: As a result of these principles, a source in Ireland concludes that “all independent observers” conclude that “electronic voting machines [are totally] banned in Germany” because no conceivable computerized voting system can cast and count votes that meet even just the two most basic requirements of publicity: being both publicly observed and not requiring specialized technical knowledge on the part of the public in order to exercise the right of observation (transparency).
6. CONCLUSION ON THE OUTLOOK IN GERMANY ITSELF: Moreover, any resumption of any kind of optical scan or touch screen voting of any kind would require the Bundestag to first past a new Voting Machine Act that complies with the constitutional principles set forth in the Courts opinion. About the only kind of electronic voting that would be constitutionally permissible would be that strictly limited to those who need a computer’s help to cast a ballot, because in that case only would the right to vote FAVOR technology such that concerns of constitutional magnitude (quite unlike speed, efficiency or other such business-based non-constitutional values) would come into play and be balance against the constitutional command for publicity/transparency of vote counts and “all essential steps.” A little non-transparency in how individual small numbers of disabled persons cast their ballot is not an “essential step” given the secret ballot, so long as the output of the process is a ballot that can be publicly counted like all the others.

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Excerpts from European and American based media outlets:
International Herald Tribune:
"Federal Constitutional Court upheld two complaints about the use of the machines in 2005. It found they violated provisions requiring that voters be able to assure themselves - without specific technical knowledge - that their vote was recorded correctly."
IT Examiner:
"The court made it clear that a simple print-out or flashy icon displaying what party or person was voted for is not enough. / Not only that, any constraint on the people's right to know cannot be alleviated by having a state institution check machines to make sure they have not been tampered with."
Radio Netherlands reports that elections later this year must be on pencil and paper, counted publicly.
"[Plaintiffs] complained that push button voting was not transparent because the voter could not see what actually happened to his vote inside the computer and was required to place "blind faith" in the technology."
Here's a link to the national Zogby poll official press release expressing an apparently unprecedented 92% level of support for the proposition that Americans have "the right to observe vote counting and obtain any and all information about vote counting"
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Lehto.paul@gmail.com
This article is (c) 2009 by Paul R Lehto, but may be forwarded and/or posted freely with attribution and all links and footnotes attached, so long as it is on a not for profit basis.