E-Voting Case Law

A Comparative Analysis

Ardita Driza Maurer, Jordi Barrat

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317138181
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

E-voting is the use of electronic means in the casting of the vote at political elections or referendums. This book provides an overview of e-voting related case-law worldwide and explains how judicial decisions impact e-voting development. With contributions by renowned experts on thirteen countries, the authors discuss e-voting both from controlled environments, such as voting machines in polling stations, and uncontrolled ones, including internet voting. Each chapter examines a group of country-specific leading judicial decisions on e-voting and their likely impact on its future development. Reference is made to emerging standards on e-voting such as the Recommendation Rec(2004)11 of the Council of Europe, the only international instrument on e-voting regulation, and to other countries' case-law. The work provides a broader, informative and easily accessible perspective on the historical, political and legal aspects of an otherwise very technical subject, and contributes to a better understanding of the significance of case law and its impact in shaping e-voting's future development. The book will be significantly useful to anyone with an interest in e-voting, in particular decision makers and officials, researchers and academia, as well as NGOs and providers of e-voting solutions.

Chapter 1
E-Voting: What Do Judges Say?

Ardita Driza Maurer¹

Elections today are more honest than they were a century ago. Nonetheless, the battle is far from over, and we would be presumptuous to claim that we will ever achieve a perfect democracy.

Douglas W. Jones and Barbara Simons, Broken Ballots, 2012

The adage ‘there is no better way to learn about something than to write about it’ proved particularly true with this book. When launching the idea of a publication on electronic voting (e-voting) case law we, the editors, were seeking to achieve mainly two things. First, to present an outline of the legislation that regulates e-voting in the countries considered and, second, to contribute to a better understanding of the significance of case law and its impact in shaping e-voting’s future development. By placing e-voting and related case law into their respective contexts, however, the 16 authors featured in this book provide a broader, informative and easily accessible perspective on the historical, political and legal aspects of an otherwise very technical subject: the use of electronically backed solutions to cast a vote in political elections and referendums.

Why focus on case law? E-voting can be compared to the tip of an iceberg. It is the most visible part of a larger picture: the extensive use of computers and telecommunication networks in electoral procedures including voter registration, the administration of voter lists, vote tallying, etc. It also provides good evidence of the broader challenge faced by decision makers when ‘traditional’ processes such as referendums and elections start integrating high-tech and become dependent on it. Difficulties with regulating e-voting are symptomatic of electoral legislation that reacts only slowly to technical evolution. Several chapters in this book testify against the lack of legal provisions or their vagueness or inadequacy to regulate e-voting. Different reasons can explain this relative inertia, including ‘good’ ones, such as the stable character of electoral legislation, and ‘bad’ ones, such as the lack of cross-disciplinary knowledge needed to regulate domains at the crossroads of technology and law. As one might reasonably expect, national judges have been asked to intervene and to clarify the legal conditions that should govern the use of e-voting.

Case law has been pivotal in interpreting the meaning of broader electoral principles in an e-voting context. Judges have evaluated the constitutional conformity of e-voting-specific legislation as well as its implementation. Case law, especially of the highest courts, is an integral part of e-voting legislation and thus influences its future development. This publication is a first attempt to present in a structured way the contribution of judges in clarifying the conditions for the use of high-tech voting solutions.

Why adopt an international, comparative viewpoint? As e-voting raises new questions and challenges, claimants, defendants and judges seek references and naturally look at developments in other countries. Each country discussed in this book has some interesting e-voting case law; however, none has a relevant number of important decisions on e-voting to offer, on its own, enough insight. The different chapters mention the influence (or not) of international experiences with e-voting on the judicial opinions examined. We believe that comparing e-voting judicial decisions in different countries enriches our perspective. However, comparaison n’est pas raison,² so let us stress, electoral and political processes are country specific. Solutions adopted somewhere may not necessarily apply elsewhere, or may apply in a different way. Despite this, common trends are observed in several countries. The main contribution of this book would be to help identify them.

Outline of the Book

This publication is organized in three parts. Part I groups contributions that focus primarily on the application of broader, constitutional principles to e-voting. These include the principle of the public nature of elections (Germany), legal determination (Austria), the separation of powers and the impartiality of judges (Brazil), the transparency and verifiability of voting systems (India) and the principle of equality (Estonia).

Part II concentrates on e-voting regulations and their implementation. The following issues are highlighted: the suitability of the existing regulatory framework conceived for low-tech (mechanical) voting machines to regulate e-voting (France); provinces’ extended regulatory powers and the discrepancies between provincial regulations of e-voting in a federal country (Argentina); issues of implementation such as the adequacy of voting instructions provided to the voter as well as the ergonomics of the voting platform (Finland); the relationship between parliamentary acts and statutory instruments, the role of political parties in ensuring the meaningful observation of e-voting, and the responsibility of individual voters (Mexico).

Part III turns to the role of politics in determining the development of e-voting. The common thread of the four chapters included here is that the introduction, use and development of e-voting are first a political matter, or even a broader, a societal one. The judges’ explicit or implicit opinion seems to be that it is not up to the judiciary to define the contours of e-voting. When faced with e-voting related claims, the highest court (Switzerland) or lower ones (USA) have so far opted to refer issues of principle to the political branches of government. Elsewhere e-voting is restricted to a well delimitated subset of voters, such as the sight-impaired and overseas military personnel, and there is political consensus that it is necessary to wait before any widespread remote e-voting is introduced (Australia). Finally, as the last chapter in Part III shows (Venezuela), the technical merits and advantages of an e-voting solution cannot compensate for lack of political trust.

In Chapter 2 Sebastian Seedorf examines what is probably the best known and most referenced judicial decision on e-voting – Germany’s Constitutional Court decision of March 2009 which declared unconstitutional the e-voting regulation and the use of e-voting machines in the parliamentary elections of September 2005. The Court derives a principle of ‘the public nature of elections’ from other constitutional principles and considers it a means to guarantee that the people, or the sovereign, trust that Parliament is elected according to the collective will of the voters. By applying this principle to e-voting, the Court reaches the conclusion that each voter must be able to comprehend the central steps in the elections and verify reliably that his or her vote has been recorded truthfully – without any special prior technical knowledge. This requirement, the contribution shows, has for the time being stopped any effort to introduce e-voting in Germany. It should be noted that both the principle of ‘the public nature of elections’ and the way it was applied to e-voting are, so far, specific to Germany.

Melina Oswald analyses in Chapter 3 the decision of the Constitutional Court of Austria of December 2011 which declared unconstitutional the administrative level regulation of e-voting for the Students’ Union Elections of 2009. Unlike political elections, elections of self-administering bodies such as Unions are governed by ‘ordinary’ law and do not need a constitutional amendment. Despite this somewhat ‘lower rank’, the Court applied a strict interpretation of the principles of transparency and verifiability. Noting that there exists no principle of ‘the public nature of elections’ in the Austrian constitutional order, the Court still reached a conclusion similar to the German decision. The administrative regulation was declared unlawful because it was insufficiently detailed. Sufficient detail would mean, according to the Court, that the regulation allows the Electoral Commission, the body in charge of controlling elections and verifying results, to understand and control an e-voting system without outside help from computer specialists. The author demonstrates that the ruling has to be understood as a rejection of e-voting for the near future in all kinds of elections.

Chapter 4, by Amílcar Brunazo Filho and Augusto Tavares Rosa Marcacini, describes the failed attempts to introduce a Voter Verifiable Paper Audit Trail (VVPAT) requirement in Brazil. The authors show that the argument addressing the question of introducing the paper trail to audit the digital poll has swung back and forth like a pendulum in the last 20 years. The latest decision was adopted in November 2013 when Brazil’s Supreme Court declared unconstitutional the law which introduced the VVPAT requirement. The authors criticize both the lack of technical understanding on the part of the Supreme Court judges – the decision being based on a manifest error of interpretation of the law – and their disproportionate reliance on the arguments of the Higher Electoral Court who opposed the VVPAT requirement. The authors argue that the extreme concentration of powers in the hands of members of a single entity, the Brazilian Higher Electoral Court (TSE), is problematic.

Chapter 5 brings us to India, where since 2004 the world’s largest democratic elections have been conducted exclusively with electronic voting machines (EVMs). Rishab Bailey and Rohit Sharma discuss the issue of the vulnerability of EVMs to tampering or hacking as raised after the 2009 national elections. A Public Interest Petition requested the introduction of a paper trail along with EVMs as a necessary component of the legal requirement for free and fair elections. While the Delhi High Court refused to impose the requirement of a paper trail in the absence of concrete proof of the machines’ vulnerability, the Supreme Court of India finally held in October 2013 that the paper trail is an indispensable requirement of free and fair elections. As the authors show, much of the credit for this position goes to the Election Commission which acted in an enlightened manner, admitting the challenges and proactively searching for solutions. The Election Commission took the decision to introduce paper trails before the Supreme Court decided that it was an indispensable requirement.

E- or rather i-voting judicial decisions in Estonia, a pioneer of internet voting, are discussed in Chapter 6 by Ülle Madise and Priit Vinkel. Case law includes two decisions on the constitutionality of e-voting legal acts and several others on more specific issues of a technical or operational nature. The Supreme Court has so far examined only the principle of equality, declaring that multiple voting – an option given to internet voters alone to cast several votes, only the last one being taken into account – is nevertheless constitutional as it offers an essential guarantee to the observance of free elections and secret voting. The authors point, however, to the existence of other potential constitutional issues related to i-voting which have so far not been dealt with by the courts and suggest possible answers. Additional principles, such as the security of online voting, are discussed in the cases related to specific implementations of i-voting. The authors highlight one of the main issues with internet voting: the difficulty or even impossibility of obtaining evidence, an issue which also arises in Switzerland (see Chapter 11).

Chapter 7 examines the role played by the Conseil Constitutionnel – France’s equivalent of a Constitutional Court, in defining the legal requirements for e-voting machines and internet voting. Jordi Barrat shows that the Conseil deliberates on electoral issues with a triple profile. In addition to its role in judging disputes, it also advises the authorities on how to improve their work and it is consulted when new electoral legislation is introduced. The question arises whether this triple profile has somewhat blurred the message. The Conseil has at times situated the debate about e-voting on the field of voters’ psychology rather than on the application of electoral principles. It has been more critical in its advisory role than when judging disputes. By establishing a line of continuity between mechanical voting machines and e-voting, the Conseil shows a lack of awareness of the technological leap. On the other hand, the executive branch responsible for e-voting has been responsive to the challenges of e-voting, both at the regulatory and implementation levels.

José María Pérez Corti, in Chapter 8, outlines the development of e-voting in Argentina, a federal state. This chapter discusses cases decided at the state level between 2003 and 2011. The author shows that legislation as it stands today is not fit for e-voting. Leaving e-voting regulatory powers to the electoral administration is problematic as it results in divergent solutions in different provinces. While federalism has had a positive impact in making sure that e-voting is introduced in a progressive way, the risk exists of splitting up the experiences and transforming the country into a laboratory for different solutions and models. Hence the importance of having some basic guidance in the federal law to harmonize states’ regulations and solutions. Furthermore, the multiple roles assigned to electoral administration bodies may be responsible for inconsistent judgments.

The two judicial decisions of 2009 discussed in Chapter 9 by Jussi Aaltonen focus on problems that occurred during the only experience so far with internet voting terminals in selected polling stations in Finland in 2008. The judicial decisions consider issues of design of the voting interface, the usability of the system and the related information provided by the electoral administration to the voters. The courts found irregularities in all these elements. Given that such irregularity could have affected the result of the election the Supreme Administrative Court decided that the results of the e-voting channel could not be certified. New elections were ordered in the three e-voting municipalities and e-voting was discontinued. A recent proposal suggests the reintroduction of internet voting as a supplementary channel, however only in consultative municipal referenda.

In Chapter 10 Jordi Barrat discusses e-voting case law in Mexico, namely the decision of the Tribunal Electoral del Poder Judicial de la Federación, the court of last resort in electoral matters, on the implementation of internet voting for expatriates. The Court analysed the role of political parties during the implementation of electronic voting procedures and the hierarchical relationship between the Constitution, parliamentary acts and statutory regulations. The Court also addressed how to protect the secrecy of the ballot and the freedom of the voter when using internet voting in uncontrolled environments without, however, examining the multiple vote’s potential – a remedy used to address such concerns in other internet voting countries such as Estonia and Norway. Internet voting was eventually used in the 2012 elections.

Chapter 11 on Switzerland, an early pioneer of internet voting, brings the e-voting debate to the political arena. Beat Kuoni explains that the Federal Supreme Court has dealt with e-voting in several cases, the latest decision dating from July 2014. The Court’s position has been to look for evidence of specific irregularities and to dismiss general criticism. In the absence of such evidence, the Court has so far been supportive of e-voting solutions, stating that it is not its responsibility to go beyond the assessment of a specific vote, leaving it to the political system, informed by academia, to decide on the merits of e-voting. This position has probably been facilitated by the proactive role played by some key players. Recognizing the challenges raised in the appeals and aware of political pressure, federal authorities in charge of e-voting introduced new, detailed federal legislation on e-voting. Minimum requirements on issues such as verifiability and the transparency of e-voting came into force in January 2014. The author presents an interesting international comparison by pointing to the differences between the Swiss approach and the German and Austrian ones.

Daniel Tokaji’s contribution in chapter 12 reviews e-voting related case law in the United States starting with the Bush v. Gore 2000 decision of the US Supreme Court, followed by other important lower court decisions on issues such as the replacement of punch card machines by newer (e-voting) technology, the need for a voter verifiable paper audit trail for electronic voting machines or the implementation of disability access requirements. Federal legislation, as well as state laws relevant to e-voting, are summarized and the chapter provides a clear overview of a complex legal system. The author shows that, although US courts have played – at least since 2000 – an active supervisory role in election administration matters in general, they have so far showed considerable restraint when it comes to voting technology. Faced with calls to accelerate the introduction of newer voting technology to replace older voting systems, or to offer access to the disabled, or with demands to prohibit it because of security concerns, US courts have mostly left the resolution of such questions to the political branches of government.

Greg Taylor discusses Australia’s experience with e-voting in Chapter 13. The Australian federal jurisdiction and several states have introduced a number of electronically backed voting solutions such as voting machines, internet voting or e-mail voting. Fax and telephone voting are also used. Australia offers thus a wide range of solutions in a context of compulsory voting. With some exceptions, e-voting has been introduced on a limited scale, to satisfy the needs of specific groups of voters, mainly the disabled and voters living abroad or in remote areas. Despite being an early adopter of postal voting and despite the large use of electronically assisted counting, Australia has so far avoided an extension of e-voting. The author reports several possible reasons for this, among which the perceived advantage of the public performance of citizens’ electoral duties and the lack of political will to introduce novelty in tried and tested democratic...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Table of Contents
• List of Laws
• List of Cases
• Notes on Contributors
• Foreword by Douglas W. Jones
• Foreword by Geo Taglioni
• Acknowledgements
• Part I: The Principles
• Part II: The Regulations
• Part III: Back to Politics
• Index