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Germany: Constitutional Court Decision on Electronic Voting

(Mar. 25, 2009) On March 3, 2009, the Federal Constitutional Court issued a decision that may prevent the use of electronic voting machines in future German elections. (Bundesverfassungsgericht, Docket Nos. 2 BvC 3/07 & 2 BvC 4/07, http://www.bundesverfassungsgericht.de/entscheidungen/cs20090303_2bvc000
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(last visited Mar. 23, 2009); Press Release No. 19/2009, Federal Constitutional Court, Use of Voting Computers in 2005 Bundestag Election Unconstitutional (Mar. 3, 2009) [in English], available at http://www.bundesverfassungsgericht.de/pressemitteilungen/bvg09-019en.ht
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.) The case concerned the federal election of 2005 in which 39 voting districts in several states used electronic voting machines instead of paper ballots. Some two million votes were cast in this manner. The Court held that the particular voting machines used in the election did not live up to the constitutional principle of transparency of elections, which requires that voting machines be safeguarded against potential manipulation or error through procedures that are understandable to the average citizen. The Court, however, did not invalidate the election, because there had been no evidence of abuse or error involving the machines.

The Court invalidated the Federal Voting Machine Regulation (Bundeswahlger├Ąteverordnung, Sept. 3, 1975, BUNDESGESETZBLATT I at 2459, as amended, available at http://bundesrecht.juris.de/bwahlgv/index.html). This Regulation failed to require transparent control mechanisms for ensuring an accurate vote count and thereby violated article 38 and article 20, paragraphs 1 and 2, of the Basic Law (the Federal Constitution) (Basic Law for the Federal Republic of Germany (Grundgesetz, GG) [in English translation], http://www.iuscomp.org/gla/statutes/GG.htm#20 (last visited Mar. 23, 2009)). Article 38 guarantees free and equal elections, whereas article 20, paragraph 1, requires that governmental power be based on elections and paragraph 2 guarantees that laws and regulations are in conformity with the Constitution.