Académique Documents
Professionnel Documents
Culture Documents
Consiliul tiinific:
Profesor emerit Rafael Lpez-Pintor Universitatea Autonom din Madrid
Consilier internaional Paul DeGregorio Asociaia Mondial a Organismelor Electorale
Dr. Pierre Garrone eful Diviziei Alegeri i partide politice, Secretariatul Comisiei de la Veneia
Prof. univ. dr. Robert Krimmer Ragnar Nurkse School of Innovation and Governance, Tallinn
University of Technology
Conf. univ. dr. Toby James School of Politics, Philosophy, Language and Communication Studies,
University of East Anglia
Prof. univ. dr. Ioan Alexandru coala Naional de Studii Politice i Administrative
Prof. univ. dr. tefan Deaconu Facultatea de Drept, Universitatea din Bucureti
Prof. univ. dr. Cristian Ionescu coala Naional de Studii Politice i Administrative
Prof. univ. dr. Ioan Vida coala Naional de Studii Politice i Administrative
Prof. univ. dr. Irina Moroianu Zltescu coala Naional de Studii Politice i Administrative
Conf. univ. dr. Sergiu Micoiu Facultatea de Studii Europene, Universitatea Babe-Bolyai
Cercettor tiinific dr. Aristide Cioab Academia Romn
Cercettor tiinific dr. Constantin Nica Academia Romn
Preedinte, Autoritatea Electoral Permanent Ana Maria Ptru
Vicepreedinte, Autoritatea Electoral Permanent Marian Muhule
Vicepreedinte, Autoritatea Electoral Permanent Constantin-Florin Mituleu-Buic
Secretar general, Autoritatea Electoral Permanent Dr. Csaba Tiberiu Kovacs
Consiliul editorial:
Cristian Petraru eful Departamentului pentru coordonarea filialelor i relaia cu autoritile locale
Cristian-Alexandru Leahu eful Departamentului legislativ
Iulian Ivan director, Direcia pentru organizarea proceselor electorale n strintate
Daniel Du director, Direcia management electoral
Colegiul redacional:
Asist. univ. dr. Alexandra Iancu consilier, Direcia management electoral
Oana Iancu consilier, Direcia management electoral
Loredana Luca consilier, Direcia pentru organizarea proceselor electorale n strintate
Bogdan Fartunic consultant, Departamentul legislativ
Octavian Mircea Chesaru expert, Filiala Bucureti-Ilfov
Redactor-ef Daniel Du
Redactor-ef adjunct Dr. Andrada-Maria Mateescu consilier, Direcia management electoral
Ana Maria PTRU, President of the Permanent Electoral Authority Foreword .......... 5
Pierre GARRONE, Head of the Division of Elections and Political Parties, Venice
Commission Opening session .......................................................................................... 8
Csaba Tiberiu KOVACS Secretary General of the Permanent Electoral Authority
Opening session .................................................................................................................. 14
Ardita DRIZA MAURER New Technologies: Inescapable but Challenging ............... 20
Robert KRIMMER Constitutional Constraints for the Use of Information and
Communications Technology in Elections ......................................................................... 28
tefan DEACONU Stability and Predictability of Electoral Law, Necessary Conditions
for Fair Elections ................................................................................................................. 36
Cristian PRVULESCU, Arpad TODOR Opportunities and Threats due to the Changes
of Romanian Electoral Legislation ..................................................................................... 45
Tudorel TOADER, Marieta SAFTA Constitutional Requirements in Electoral Legislation 54
Ardita DRIZA MAURER Legality, Separation of Powers, Stability of Electoral Law:
The Impact of New Voting Technologies ............................................................................ 68
Uwe SERDLT, Michele McARDLE, Thomas MILIC, Jonathan WHEATLEY
New Voting Technologies and Elections in Federal and Regional States in Practice ......... 79
Gregor WENDA International Organisations and New Voting Technologies in the
Electoral Field ..................................................................................................................... 93
Jordi BARRAT ESTEVE The Role of the Judiciary in the Oversight of Electronic
Aspects of the Voting Process ............................................................................................. 111
Septimius PRVU Being on the Right Side of the Tracks: Why the Transparency of
Political Funding Should Be the Rule ................................................................................. 120
Sebastian SEEDORF Electoral Law and New Technologies: Legal Challenges.
The Case of Germany: The Road Not Taken ....................................................................... 131
Gregor WENDA E-Voting in Austria: A National Case Study ...................................... 139
Oliver KASK National Case Study: The Estonian Case ................................................ 150
Elena Simina TNSESCU, Ramona Delia POPESCU, Bogdan DIMA Voting
Technologies and Electoral Rights: The Case of Romania ................................................. 155
Augusto Tavares Rosa MARCACINI National Case Study: The Brazilian Case ............. 168
Oliver KASK Conclusions of the 1st Scientific Electoral Experts Debates .................... 178
SOMMAIRE
PREMIERS ENTRETIENS SCIENTIFIQUES
DES EXPERTS LECTORAUX
DROIT LECTORAL ET NOUVELLES
TECHNOLOGIES : DFIS JURIDIQUES
BUCAREST, LES 12 13 AVRIL 2016
The thundering technological evo- addressed in the first edition of the scientific
lution, specific to the contemporary world, debates of experts in the electoral field organized
has a great impact on human society, by the Venice Commission in partnership with
generating fundamental changes at all levels the Permanent Electoral Authority (AEP).
and in all fields. If there is a good approach The event, entitled Electoral law
and a proper management, the new tools and new technologies: legal challenges,
and functionalities bring extra value to the brought together renowned experts from 15
systems where they are implemented. countries and representatives of prestigious
Basically, the success depends on
international organizations active in the
the ability of the organization to concentrate
electoral field enabling the publication of
resources for implementing technological
this special edition of the Electoral Expert
tools appropriate to the specific activities,
related to ensuring balance between the Review.
technological component and the human The publication comprises all the
resources, in relation to legislative provisions, presentations delivered by the participants,
which are often limiting, if not restrictive. the conclusions of the debates, as well as
Their compatibility and a wide range the main conceptual landmarks related to
of issues related to the obstacles that should the electoral field, representing a valuable
be overcome in the implementation of new source of knowledge both for academia and
technologies in the electoral process were practitioners.
5
AVANT-PROPOS
6
CUVNT-NAINTE
Ana Maria PTRU
Preedintele Autoritii Electorale Permanente
7
1ST SCIENTIFIC ELECTORAL EXPERTS DEBATES
ELECTORAL LAW AND NEW TECHNOLOGIES:
LEGAL CHALLENGES
BUCHAREST, 12 13 APRIL 2016
OPENING SESSION
Pierre GARRONE
Head of the Division of Elections and Political Parties
Secretariat of the Venice Commission, Council of Europe
8
Expert electoral Special Edition 2016
This is why the discussions comprised and in order to ensure that irregularities can
in Electoral Expert are intended to be be detected and corrected, the system should
perennial. It is desirable that the debates be at least as secure as the classic system.
should take place regularly, i.e., annually. These are challenges that we will
The commitment of the Permanent Electoral analyze. We have here a precious opportunity
Authority of Romania team should allow for to bring together specialists in the field,
the achievement of this objective. theoreticians and practitioners, coming from
But coming back to the topic of our different horizons, not only professional,
discussion: electoral law and new technolo- but also geographical. Although most parti-
gies. The first conclusion: to the already large cipants come from Europe, we have among
multitude of professions concerned with the us several rapporteurs who have already
electoral matters henceforth, another one is addressed and will address today this
added, again from science: we do not only have topic even outside our continent. We will
mathematicians thoroughbred concerned emphasize the Brazilian experience.
with electoral systems, statisticians who are We will see that traditional constitutio-
focused more on identifying fraud, a topic to nal principles are applicable to the use of new
be developed, but also computer scientists. electoral technologies. So far, the emphasis
A second observation: the applications the was especially on the implementation of the
latter develop do not operate in a legal vacuum. specific principles of the electoral law to
Once again, the Rule of Law principle applies. electronic voting. This is true in particular
Clearly, it is applied to the detailed rules of the for constitutional courts, and we will see
process of registration or electronic voting, for that their attitudes do not converge but
example, but also to fundamental principles of what connoisseur of constitutional justice
constitutional value. might wonder? At the same time, we must go
The debates are dedicated to examining further than the electronic voting especially
the application of these fundamental principles to go beyond the principles of electoral law.
in the use of new technologies in electoral The issues of constitutional law shall be
matters. Of course, this is not the first time that addressed regarding the topic of our study:
this issue is addressed. The Council of Europe legality, separation of powers, and vertical
was among the first in the field of electronic distribution of powers within the federal
voting with the recommendation adopted in and regional states. In our globalized world
2004. This recommendation begins with the we must examine the role of international
principles of electoral law. At the same time, law, where the Council of Europe proved to
our conference and the future publication be a pioneer of course in the form of soft
is devoted specifically to the application law via the Recommendation of 2004,
of principles to new technologies, and is, today under review.
therefore, deeply original. This gathering would not have been
If the subject is not new, what possible without the involvement of the
will we talk about then? Firstly, about the Permanent Electoral Authority of Romania
fundamental principles of the electoral and its representatives present here. I am
law. In particular, the universality, equality, not referring only to the organization of the
freedom and secrecy of ballots required for current event, but especially to the hard
electronic voting, and also other aspects of work that has been accomplished in the
new technologies in elections: for example, past four years in order to make possible
the correct registration of voters is an the publication of the Electoral Expert
essential element of universal suffrage and Review, a journal devoted to the electoral
the free suffrage does not make sense without law. I would like to warmly thank the
proper transmission of results. We know that Permanent Electoral Authority for having
many irregularities occur in these stages allowed us to launch this cycle of debates.
of the electoral process. As for electronic I equally thank all rapporteurs, who will
voting, the challenge is that computerization share their vast experience on a subject still
increases the risks instead of decreasing them, quite new.
9
PREMIERS ENTRETIENS SCIENTIFIQUES
DES EXPERTS LECTORAUX
DROIT LECTORAL ET NOUVELLES
TECHNOLOGIES : DFIS JURIDIQUES
BUCAREST, LES 12 13 AVRIL 2016
SANCE DOUVERTURE
Pierre GARRONE
Chef de la Division lections et Partis Politiques
Secrtariat de la Commission de Venise, Conseil de lEurope
10
Expert electoral dition spciale 2016
cohorte, dj nombreuse, des professions Ce sont ces dfis que nous allons
intresses aux questions lectorales sen examiner. Nous avons ici une prcieuse
ajoute dsormais une autre, et encore dans occasion de runir des spcialistes de la
le domaine scientifique : non seulement question, la fois du point de vue thorique et
nous avons les mathmaticiens purs pratique, en provenant dhorizons divers, non
proccups des systmes lectoraux ; les seulement professionnellement, mais aussi
statisticiens plus ports sur lidentification de gographiquement. Mme si la plupart des
la fraude, un thme dvelopper ; mais aussi participants proviennent dEurope, nous avons
les informaticiens. Deuxime constatation : parmi nous plusieurs rapporteurs qui ont
les applications que ceux-ci dveloppent dj abord et vont aborder aujourdhui
ne sexercent pas dans un vide juridique : l la question bien au-del de notre continent.
encore, le principe de ltat de droit sap- Nous mettrons ainsi particulirement laccent
plique. Cela concerne videmment les rgles sur lexprience brsilienne.
de dtail sur le processus denregistrement ou Nous verrons que les principes con-
de vote lectronique, par exemple ; mais cela stitutionnels classiques sont applicables lu-
concerne aussi les principes fondamentaux, de sage des nouvelles technologies dans le do-
valeur constitutionnelle. maine lectoral. Laccent a surtout t mis
Cest lexamen de lapplication de jusqu prsent sur lapplication au vote lec-
ces principes fondamentaux lusage des tronique des principes spcifiques au droit
nouvelles technologies en matire lectorale lectoral. Cela est vrai en particulier pour les
que les prsents entretiens sont consacrs. cours constitutionnelles, dont nous verrons
Ce nest certes pas la premire fois que la que les attitudes ne convergent pas mais
question est traite. Le Conseil de lEurope quel connaisseur de la justice constitutionnelle
a ainsi t la pointe dans le domaine du sen tonnerait ? Cependant, il faut aller bien
vote lectronique, dans sa recommandation
au-del du vote lectronique et surtout, bien
adopte en 2004 dj. Cette recommandation
au-del des principes du droit lectoral. Les
commence par les principes du droit lectoral.
grandes questions du droit constitutionnel
Cependant, notre confrence comme la
se posent lobjet de notre tude : lgalit,
publication qui suivra est spcifiquement
sparation des pouvoirs, rpartition verticale
consacre la question de lapplication des
des comptences au sein des tats fdraux et
principes aux nouvelles technologies, et, en
cela, elle est profondment originale. rgionaux. Dans notre monde globalis, il faut
Si la question nest pas nouvelle, aussi examiner le rle du droit international,
de quoi allons-nous donc traiter ? Dabord, domaine dans lequel le Conseil de lEurope
des principes fondamentaux du droit lec- sest montr pionnier certes sous forme de
toral. En particulier, le caractre universel, soft law par sa recommandation de 2004,
gal, libre et secret du suffrage simpose au aujourdhui en cours de rvision.
vote lectronique, mais aussi aux autres as- Cette rencontre naurait pas t possi-
pects des nouvelles technologies dans le ble sans linvestissement de lAutorit lec-
domaine lectoral : par exemple, lenregistre- torale Permanente de Roumanie et de ses
ment correct des lecteurs est un lment reprsentants ici prsents. Je ne parle vi-
fondamental du suffrage universel, et le demment pas seulement de lorganisation du
suffrage libre ne peut se comprendre sans prsent vnement, mais aussi et surtout du
transmission correcte des rsultats. Or, il travail de longue haleine qui a t men ces
est bien connu que nombre dirrgularits quatre dernires annes pour rendre effective
se produisent ces stades du processus lambition de publier l Expert lectoral ,
lectoral. Comme pour le vote lectronique, une revue ddie au droit lectoral. Je tiens
le dfi est que linformatisation minimise les remercier chaleureusement lAutorit lec-
risques plutt quelle ne les augmente, et de torale Permanente davoir permis le lance-
sassurer que les irrgularits puissent tre ment de ce cycle dentretiens. Je remercie aussi
dtectes et corriges : le systme doit tre tous les rapporteurs, qui vont nous faire part
au moins aussi sr et fiable que le systme de leur grande exprience sur un sujet malgr
classique. tout encore assez neuf.
11
PRIMA EDIIE A DEZBATERILOR TIINIFICE
ALE EXPERILOR DIN DOMENIUL ELECTORAL
LEGISLAIA ELECTORAL I NOILE
TEHNOLOGII: PROVOCRI LEGISLATIVE
BUCURETI, 12 13 APRILIE 2016
SESIUNEA DE DESCHIDERE
Pierre GARRONE
eful Diviziei Alegeri i partide politice
Secretariatul Comisiei de la Veneia, Consiliul Europei
12
Expert electoral Ediie special 2016
aplic. n mod evident, se aplic regulilor de raportori care au abordat deja i vor aborda
detaliu ale procesului de nregistrare sau de i azi subiectul chiar din afara continentului
vot electronic, de exemplu, dar i principiilor nostru. Vom pune n mod particular accentul
fundamentale, cu valoare constituional. pe experiena brazilian.
Discuiile de fa sunt consacrate Vom vedea c principiile constituio-
examinrii modului de aplicare a acestor nale clasice sunt aplicabile utilizrii noilor
principii fundamentale la domeniul utilizrii tehnologii n domeniul electoral. Accentul
noilor tehnologii n materie electoral. a fost pus, pn acum, pe aplicarea n cazul
Desigur, nu este prima oar cnd acest votului electronic a principiilor specifice
subiect este abordat. Consiliul Europei a fost
dreptului electoral. Acest lucru este adevrat
n prima linie n domeniul votului electronic
n mod special pentru curile constituionale,
prin Recomandarea adoptat deja n 2004.
ale cror abordri vom vedea c nu
Aceast recomandare ncepe cu principiile
dreptului electoral. n acelai timp, conferina converg dar care cunosctor al justiiei
noastr precum i publicaia care va urma constituionale s-ar mira? n acelai timp,
este consacrat n mod specific subiectului trebuie s trecem dincolo de votul electronic
aplicrii principiilor fundamentale la noile i chiar de principiile dreptului electoral.
tehnologii i este, din acest motiv, profund Marile ntrebri ale dreptului constituional
original. se pun n ceea ce privete obiectul studiului
Dac subiectul nu este nou, despre nostru: legalitate, separarea puterilor, reparti-
ce vom discuta atunci? nti, despre aceste zarea vertical a competenelor n statele
principii ale dreptului electoral. n particular, federale i regionale. n lumea noastr globa-
caracterul universal, egal, liber i secret al lizat trebuie s examinm i rolul dreptului
sufragiului se impune votului electronic, dar i internaional, domeniu n care Consiliul
altor aspecte ale noilor tehnologii n domeniul Europei s-a dovedit a fi pionier desigur, sub
electoral: de exemplu, nregistrarea corect a form de soft law prin Recomandarea din
alegtorilor este un element fundamental al 2004, care la momentul actual este n curs de
sufragiului universal, iar sufragiul liber nu are revizuire.
sens fr transmiterea corect a rezultatelor. Se Aceast ntlnire nu ar fi fost posibil
tie faptul c numeroase iregulariti se produc fr implicarea Autoritii Electorale Perma-
n aceste stadii ale procesului electoral. Ca nente din Romnia i a reprezentanilor ei
i pentru votul electronic, provocarea este
prezeni aici. Nu m refer doar la organi-
ca informatizarea mai degrab s reduc
zarea propriu-zis a evenimentului de fa,
riscurile dect s le creasc i s ne asigurm
ci mai ales la munca susinut care a fost
c iregularitile pot fi detectate i corectate,
astfel nct sistemul s fie cel puin la fel de realizat n ultimii patru ani pentru a face
sigur ca sistemul clasic. posibil publicarea revistei Expert electo-
Acestea sunt provocrile pe care le ral, dedicat dreptului electoral. in s mul-
vom analiza. Avem aici o ocazie valoroas umesc clduros Autoritii Electorale Per-
de a reuni specialiti n acest domeniu, att manente pentru c ne-a permis s lansm
din punct de vedere teoretic, ct i practic, acest ciclu de dezbateri. Le mulumesc n
provenind din arii profesionale i geografice egal msur tuturor raportorilor, care ne vor
diferite. Chiar dac majoritatea participanilor mprti vasta lor experien n legtur cu
sunt din Europa, avem printre noi mai muli un subiect totui destul de nou.
13
1ST SCIENTIFIC ELECTORAL EXPERTS DEBATES
ELECTORAL LAW AND NEW TECHNOLOGIES:
LEGAL CHALLENGES
BUCHAREST, 12 13 APRIL 2016
OPENING SESSION
Csaba Tiberiu KOVACS
Secretary General
Permanent Electoral Authority
14
Expert electoral Special Edition 2016
at the level of electoral management bodies Romania is the subject of the presentation
and of profile organizations, such a debate wich will be held by Mrs. Elena Simina
platform launches challenges, it proposes Tnsescu, presidential counsellor at the
courageous solutions and, the most important, Presidential Administration of Romania.
it encourages reform, innovation and crea- The study concerning Austria will be
tivity in a vital domain for democracy, such presented by Mr. Gregor Wenda, the Deputy
as the elections. Head of the Department for Electoral Affairs
It is not by accident that this first from the Austrian Federal Ministry of the
debate has the theme: Electoral law and Interior, the president of Ad Hoc Committee
new technologies: legal challenges. At of Experts on Electronic Voting from the
this stage, the electoral management must Council of Europe.
reconcile the tendency and the need of re- Mr. Oliver Kask, judge at the Court
technologization of the electoral process of Appeal from Tallinn, will talk about
with the specific legislation, in order to the electoral situation from Estonia, Mr.
cope with the technological progress, but at Sebastian Seedorf, the Deputy Head of
the same time to ensure the enforcement of Interior Policy Division from the German
the electoral rights and of the constitutional Federal Chancellery, will talk about the
provisions. electoral situation in Germany. Mr. Augusto
It is my great pleasure to share
Tavares Rosa Marcacini, a professor from
with you that, in this first scientific debate,
So Paulo, is going to present an electoral
amongst the participants, we have famous
radiography of Brazil.
specialists from more than 15 countries
I want you to know that, when we
and representatives of certain prestigious
have committed to collaborate with the
international organizations with an activity
Venice Commission for the organization and
in the electoral domain, such as the Orga-
nization for Security and Cooperation in the accommodation of this event, we knew
Europe/the Office for Democratic Institutions that the year 2016 will be an electoral one
and the Human Rights (OSCE/ODIHR), with two rounds of general elections: local
the Network of Francophone Electoral and parliamentary. Two years after the use,
Competences (RECEF), the Community of in premiere, of the Electoral Register for the
Democracies and the International Center for European Parliament elections in 2014, we
Parliamentary Studies. can at last use a software program which
During these two days, we will try helps us block any attempt of multiple voting
to show to what extent and how the new and have turnout data in real time.
technologies in elections can be used, what You are, therefore, in a country recep-
are the inherent risks in opening up the legis- tive to novelty, in which the electoral manage-
lation to new technologies, what is the role ment body is, from various points of view,
of justice in supervising the technological leading the way. Together, we hope to find the
instruments used in the electoral processes. best technological solutions which meet the
The second day of discussions will demands of free, correct, transparent elections,
be mainly dedicated to the presentation of trusted by all people that cast their vote.
some national case studies concerning the Thank you for your attention and I
use of new technologies in elections. Thus, wish you successful debates.
15
PREMIERS ENTRETIENS SCIENTIFIQUES
DES EXPERTS LECTORAUX
DROIT LECTORAL ET NOUVELLES
TECHNOLOGIES : DFIS JURIDIQUES
BUCAREST, LES 12 13 AVRIL 2016
SANCE DOUVERTURE
Csaba Tiberiu KOVACS
Secrtaire Gnral
Autorit lectorale Permanente
16
Expert electoral dition spciale 2016
17
PRIMA EDIIE A DEZBATERILOR TIINIFICE
ALE EXPERILOR DIN DOMENIUL ELECTORAL
LEGISLAIA ELECTORAL I NOILE
TEHNOLOGII: PROVOCRI LEGISLATIVE
BUCURETI, 12 13 APRILIE 2016
SESIUNEA DE DESCHIDERE
18
Expert electoral Ediie special 2016
19
NEW TECHNOLOGIES: INESCAPABLE
BUT CHALLENGING
20
Expert electoral Special Edition 2016
21
Expert electoral Special Edition 2016
22
Expert electoral Special Edition 2016
At the turn of the millennium, the a secret vote is respected.19 The challenge is to
preoccupation of MPs was to develop an develop solutions for sight-impaired without
information society identified as a value added lowering security standards. MPs have also
to the countrys competitiveness, a way to called for the development of e-votings
reinforce and personalize the relation between potential to improve other democratic pro-
the State and citizen and a possibility to cesses, such as the collection of signatures in
amplify voters involvement in governance.16 popular referendums and initiatives.20
An e-government strategy was introduced and The Governments strategy of a
e-voting was part of that development. step-by-step introduction of e-voting was
As e-voting started to function on a reg- occasionally challenged by MPs. The pace
ular although restricted basis, parliamentarians of its introduction21 and the limitations in
looked at it as a solution for all sorts of identified place (of 10% of federal electorate) were
needs. For instance, the Government was invited questioned in particular with a view to its
to promote e-voting and to add other interactive costs.22
tools as a way to promote youth participation.17 Around 2007/2008, several e-voting
No significant increase in youth participation initiatives in Europe experienced difficulties
through e-voting has been registered so far, and were stopped for example in Ireland,
however other improvements were made. the United Kingdom, the Netherlands
Easyvote.ch, a voting information platform, or Germany.23 Swiss MPs became more
was created. It targets youth and explains attentive to the constitutional conformity
complex questions submitted to popular vote of e-voting, which was also reflected in
in plain, youth-like, language. In particular, on their interventions. E-voting triggered a
the eve of federal elections it creates events to reflection on voting procedures, especially
mobilize youth vote. on distant voting. Issues such as transparency
Another target group that mobilizes of procedures,24 risk of electoral fraud,25
MPs attention is the Swiss abroad, a reliability of the results of voting from
constantly growing group of an increasingly uncontrolled environments26 were brought
forward.
mobile population. They are allowed to
Since, e-voting risks and related
participate at least at federal votes and
security measures have taken central stage
elections and, depending on the canton,
at cantonal and even local voting events. 19
For an example see Interpellation 07.3630, Pascale
Government has been regularly asked to Bruderer, Accessibilit des sites Internet. Mettre en
invite cantons to develop e-voting solutions oeuvre la loi sur lgalit pour les handicaps.
for this part of the electorate.18 The alterna- 20
For an example see Motion 08.3908, Jacqueline
tive postal voting does not ensure that their Fehr, Renforcer la dmocratie. Autoriser la rcolte
vote arrives in time and there is no voting at lectronique de signatures.
21
For an example see Question 07.5076, Guisan
the embassy possibility for Swiss expatriates.
Yves, Vote lectronique. Introduction aux calendes
A third group with a major interest in grecques?
the development of e-voting platforms are 22
For an example see Question 07.5237, Graf-Litscher,
the sight-impaired. Here again, the federal Vote lectronique.
Government has been asked to find means, 23
For a summary of developments at the regional level
among them e-voting, to ensure that they see Driza Maurer, A., Report on the possible update of
the Council of Europe Recommendation Rec(2004)11
can participate in voting and their right to on legal, operational and technical standards for
e-voting, 29 November 2013, 2013.
16
For an example see motion 00.3298, E-Switzerland. 24
For an example see Parliamentary Initiative 08.486,
Modifications lgislatives, calendrier et moyens. Joseph Zisyadis, Inscription de la transparence de
17
Parliamentary initiative 06.3538, Hberli-Koller, vote dans la Constitution fdrale.
Stimmbeteiligung Jugendlicher. 25
See Postulat 09.3174, Rennwald, Votations et
18
For an example see Motion 07.3197, Leutenegger lections. Attention la fraude.
Oberholzer, Vote lectronique, notamment des Suisses 26
See Interpellation 09.3573, Baettig, Lgitimit et
de ltranger. fiabilit du vote par correspondance et du e-voting.
23
Expert electoral Special Edition 2016
in parliamentary debates.27 The Government a public voting system and its transparency,34
has been invited to reflect on the introduction or the fact that some private providers are
of open source solutions,28 transparency of based abroad.35
audit reports, publication of source code, A decision of the federal Court
etc. Most issues are of cantonal competence, basically leaving it to the political system,
however federal guidance and minimum informed by academia, to decide on the merits
common requirements are needed. of e-voting36 has prompted parliamentary
More recently, alleged hacking and reaction.37 It was suggested that cantons set-
other incidents have been questioned.29 In up bodies for reviewing appeals related to the
addition to transparency, open source,30 way an e-voting system is designed.
verifiability has entered the debate.31 There Costs remain an issue38 as well as
is even an invitation to the Government to offering e-voting to all Swiss abroad in the
organize a mock vote and invite the com- near future.39 The Government has been
munity to hack the systems.32 The imple- reticent to force the hand of cantons and to
mentation of the OSCE/ODIHR recom- oblige them to introduce e-voting for specific
mendations following the 2011 and 2015
groups. It has instead put the accent on
federal elections is also discussed.33
improving the federal regulatory framework
Cooperation with private actors that
and on supporting cantons willing to do
provide e-voting services (and trust placed in
e-voting (half of them) to develop their
them) gained momentum last year. A number
systems towards second-generation ones that
of interventions question the meaning of
offer individual and universal verifiability.
27
Examples are Interpellation 10.3251, Luc Recordon,
The Government is now examining condi-
Risques dmocratiques inhrents au vote lectronique; tions for putting an end to the long period
Interpellation 12.3262, Luc Recordon, Fiabilit et of trials (with binding results) of e-voting
crdibilit du vote lectronique. which started in 2002. As an MP recently put
28
For examples see Interpellation 12.3288, Jean-
it, e-voting will eventually come, no use then
Christophe Schwaab, Vote lectronique. Stimuler
linnovation pour garantir la scurit; Interpellation of making it compulsory.
09.3495, Christian Wasserfallen, Projets de cyber-
administration. Utilisation de logiciels libres. 4.Futures Yet to Come
29
For a summary of developments and related Very much depends on how e-voting
parliamentary interventions in 2013, see my post
http://www.electoralpractice.ch/2013/09/client-
will be framed and controlled by Parliaments,
side-viruses-and-internet-voting. For a more recent
example see Question 15.5151, Maximilian Reimann, 34
Motion 15.3492, Christian Darbellay, Pour un
Votation populaire fdrale du 8 mars 2015. Panne systme de vote lectronique public et transparent;
lors du dpouillement des suffrages lectroniques Question 15.5466, Cdric Wermuth, Engagement de
exprims par des Suisses de ltranger. la Poste dans le dveloppement dune plate-forme de
30
See Motion 15.4237, Lukas Reimann, Vote vote lectronique.
lectronique. Transparence indispensable. 35
Question 15.5463, Peter Keller, Le Conseil
31
See Motion 13.3808, Jean Christophe Schwaab, fdral doit-il vraiment subventionner un systme
Pas de prcipitation en matire dextension du de vote lectronique supplmentaire ralis avec des
vote lectronique, and Motion 13.3812, Balthazar collaborateurs trangers?
Glttli, Kein unsicheres E-Voting. Nur Systeme mit 36
See the discussion on this case in the chapter on
Verifizierbarkeit und offenem Source Code zulassen. Switzerland, by Beat Kuoni in E-Voting Case Law
32
Question 15.5372, Jean-Christophe Schwaab, Pour (footnote 9).
un test grandeur nature blanc du vote lectronique. 37
Parliamentary initiative 15.412, Reimann Lukas,
33
For a recent example see Interpellation 15.4167, Les modalits du vote lectronique doivent pouvoir
Masshardt Nadine, Missions dobservation lectorale faire lobjet dun examen juridique.
de lOSCE. Mise en oeuvre des recommandations. See 38
Interpellation 15.3634, Christian Levrat, Vote
also Interpellation 15.3331, Kiener Nellen, O en est lectronique.
la mise en oeuvre des recommandations de la mission 39
Instead of many, see Motion 15.4260, Filippo
dvaluation lectorale du BIDDH de lOSCE dans la Lombardi, Introduction du vote lectronique pour tous
perspective des lections fdrales de 2015? les Suisses de ltranger dici 2019 au plus tard.
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25
Expert electoral Special Edition 2016
References:
Driza Maurer, A., Barrat, J. (2015) (eds.). E-Voting Case Law. A Comparative Analysis.
Routledge, Ashgate.
Driza Maurer, A. (2013). Report on the possible update of the Council of Europe
Recommendation Rec(2004)11 on legal, operational and technical standards for e-voting,
29 November 2013.
Driza Maurer, A. (2016). Update of the Council of Europe Recommendation on Legal,
Operational and Technical Standards for E-Voting A Legal Perspective. Tagungsband
IRIS.
Hoke, C. (2012). Judicial protection of popular Sovereignty: redressing voting technology,
Case Western Reserve Law Review, Vol. 62.
Jones, D. W., Simon, B. (2012). Broken Ballots Will Your Vote Count?
Krimmer, R. (2012), doctoral thesis. The Evolution of E-voting: Why Voting Technology
is Used and How it Affects Democracy.
Richter, P. (2012). Wahlen im Internet rechtsgemss gestalten.
Saltman, R. G. (2006, 2008). The history and politics of voting and technology In
Quest of Integrity and Public Confidence.
Wenda, G. (2016). CAHVE: Das neue Ad-hoc-Komitee des Europarates fr E-Voting,
Tagungsband IRIS.
The Economist, special report, Technology and politics, Print edition, 26 March 2016.
How to hack an election, featured in Bloomberg Businessweek, 4 April 2016: http://www.
bloomberg.com/features/2016-how-to-hack-an-election/
Motion 00.3298, E-Switzerland. Modifications lgislatives, calendrier et moyens.
Parliamentary initiative 06.3538, Hberli-Koller, Stimmbeteiligung Jugendlicher.
Motion 07.3197, Leutenegger Oberholzer, Vote lectronique, notamment des Suisses de
ltranger.
Interpellation 07.3630, Pascale Bruderer, Accessibilit des sites Internet. Mettre en
oeuvre la loi sur lgalit pour les handicaps.
Motion 08.3908, Jacqueline Fehr, Renforcer la dmocratie. Autoriser la rcolte
lectronique de signatures.
Question 07.5076, Guisan Yves, Vote lectronique. Introduction aux calendes grecques?
Question 07.5237, Graf-Litscher, Vote lectronique.
Parliamentary initiative 08.486, Joseph Zisyadis, Inscription de la transparence de vote
dans la Constitution fdrale.
Postulat 09.3174, Rennwald, Votations et lections. Attention la fraude.
Interpellation 09.3573, Baettig, Lgitimit et fiabilit du vote par correspondance et du
e-voting.
Interpellation 10.3251, Luc Recordon, Risques dmocratiques inhrents au vote
lectronique.
26
Expert electoral Special Edition 2016
27
CONSTITUTIONAL CONSTRAINTS FOR THE
USE OF INFORMATION AND COMMUNICATIONS
TECHNOLOGY IN ELECTIONS
Robert KRIMMER
Tallinn University of Technology
Ragnar Nurkse School of Innovation and Governance
Akadeemia tee 3, SOC-439
12618 Tallinn, Estonia
Abstract: Rsum :
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29
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1 2
PERIODIC GENUINE
POST-ELECTION ELECTIONS
PRE-ELECTION
ELECTIONS
PERIOD PERIOD
8 3
FREEEXPRESSION
FREE EXPRESSION STAND
STANDFOR
FOR
OF THE WILL OF
OF THE WILL OF ELECTIONS
THE ELECTORS
THE ELECTORS
7 4
SECRET UNIVERSAL
VOTE SUFFRAGE
6 5
ELECTION EQUAL RIGHT
SUFFRAGE TO VOTE
TO VOTE
PERIOD
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Today, ICT can be used in any step parts of the Constitution. The legal basis
of an electoral cycle, which is increasingly should describe the principles and electoral
being done. Examples include the use of process in a way that is technologically
sophisticated election management systems neutral. However, as constitutions will have
for election administration, electronic voter been written and modified with paper-based
registers, electronic mark-off systems/poll processes in mind, the first question to be
books, biometric voter identification, elec- addressed is whether new standards are
tronic voting machines, ballot scanners and, required for electronic election processes.
most often, electronic result transmission and While this question has never been
vote tabulation systems. answered definitively, the absence of new
international standards or principles suggests
2. Advantages and Challenges that new voting technologies will be held to
of New Voting Technologies the same standards as paper-based elections.
In this regard, data protection law
The hopes connected with the [e.g., the CoE convention on data protection
introduction of new voting technologies are: comes to mind (Council of Europe, 1981)],
to maintain or increase voter turnout; make which originally dealt with the transition
it easier to involve citizens living abroad; from paper-based to electronic processes, is
lower election administration cost and the best available guide for how to approach
the modernization of an electoral process.
standardization of electoral management;
Unfortunately, this is often neglected. A vote
facilitation of holding several elections at
can be considered sensitive personal data, as
the same time; support the counting of votes
it contains ones personal political opinion.
and improve its accuracy; and increase of the
Therefore, two important principles should
speed of tabulation and publication of results.
be considered:
Supporting voters with disabilities and those
Proportionality: The documen-
that speak minority languages are also often
tation should also include the principle of
cited as advantages of electronic voting proportionality when handling personal data,
systems. Such obvious advantages have led and it should serve as a guiding indicator.
some leaders to ask when can we finally use In other words, the use of ICT in elections
electronics in our electoral process? (Obama, should add value to the groups affected, and
2016) should only then be pursued;
At the same time, the use of such voting Accountability: To provide neces-
technologies presents certain challenges. sary accountability to the voter, as an
Foremost amongst these is the preservation electoral code is often one of the first sources
of voting secrecy, while ensuring the of information that a voter consults. It should
integrity of the election, which is particularly provide any affected individual/group with
problematic for Internet voting processes. the ability to see how his/her/their personal
The introduction of such technology to the data (i.e., vote) is being processed.
voting process presents other challenges, But let us come back to constraints
such as ensuring that election administrators, put forward by the electoral principles, often
judges (courts or election observers) and summarized with universal, equal, free,
laymen (voters without special knowledge) secret and personal elections:
can understand the process. Universality: All eligible voters
without undue restrictions should be able
3. Legal Constraints to cast their vote. This requires the establish-
ment of a voter register, either through active
The use of ICT challenges not only or passive registration; in most countries this
the election process per se, but also the elec- already takes place using electronic means.
tion legislation. Thus, the national discourse The principal problem here is ensuring
around this issue begins by examining relevant all voters are able to participate in the
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Expert electoral Special Edition 2016
election via the electronic channel, avoiding remote voting, the voter has to guarantee
establishing unsurmountable barriers to voter this him/herself. To address this, Estonia
participation (e.g., in cases of ICT illiteracy introduced the possibility for a voter to
or literacy in general). For this reason, the cancel his/her Internet vote by subsequently
CoE recommends that electronic means voting at a polling station on paper, as well as
should only ever be used as an alternative allowing Internet voters to recast their vote
option, rather than replacing paper voting an infinite number of times (one voter in the
completely. This led to some debate in the 2011 Riigikogu elections cast his/her vote
case of Kazakhstans experimentation with 500 times), with only the last cast vote being
electronic voting machines during the early counted. Secret elections also require that no
2000s, should voters be given the choice link can be established between the voters
between electronic voting machines in and their vote.3 In particular, the system
polling stations and voting on paper. When should ensure that no voter can be associated
given the choice, most voters opted to vote to his/her vote using the sequence in which
using the paper method, which ultimately led the votes were cast, the time when the vote
to the abandonment of the system in 2011 was cast, any disclosing information such as
(OSCE/ODIHR, 2011); IP-addresses, or other identifying information
Equality: Each vote should carry such as digital signatures, etc. This is not
equal weight. In the context of electronic technically trivial in remote electronic voting
systems; the electronic voting system used for
voting, equality requires that all voters have
the 2005 Venezuelan parliamentary election
equal chance of their vote counting. This is
included a programming error that allowed
of particular importance in cases of multi-
detection of the sequence of how a vote was
channel elections (e.g., paper-based voting
cast (EU Election Observation Mission to
in polling stations, postal voting and Internet
Venezuela, 2006). In elections where Voter
voting2). For example, electronic voters might Verified Paper Audit Trails (VVPAT) are
have a higher chance to secure a valid vote, kept, these must represent the individual vote
because the system will not allow them to of a single voter, rather than storing all votes
cast an unintentional spoilt ballot (which together on one roll of paper and thereby
cannot be prevented in paper-based systems). revealing the sequence of how the votes were
Also, the display of ballots should be similar, cast. This could consequently endanger the
giving each candidate equal possibilities secrecy of the vote;
to be elected. This can be bothersome, as Integrity of the election/Personal
the equidistance between candidates on a elections: To ensure the integrity of an
ballot (often referred to as an Australian election, only eligible voters should be able to
ballot) cannot be guaranteed on a technical participate. For this, polling stations require
device. Also, it cannot be guaranteed that all voters to show identification documents,
candidates will be displayed at the same time; and electronic mark off systems help to
Secret election: The requirement ensure that no voter can vote more than
for secrecy ensures that a voter does not once (particularly important for elections
have to fear coercion or intimidation, and involving multiple channels).
can therefore vote freely. The voting booth In addition to the traditional election
under supervision of the polling station principles, there are three additional princi-
committee is normally a reliable protection ples that are important for the credibility of
from such undue influences, however, in an election: transparency, accountability and
2 3
For a more in-depth discussion of postal voting vs. For an overview of technical means on how to ensure
Internet voting, see Federal Constitutional Court, the secrecy of the vote, see Krimmer, R., Triessnig, S.,
2009, Use of Voting Computers in 2005 Bundestag Volkamer, M. (2007), The Development of Remote
election unconstitutional, available at: http://www. E-voting Around the World: A Review of Roads and Di-
bundesverfassungsgericht.de/pressemitteilungen/ rections, in Alkassar, A., Volkamer, M. (eds.), E-Voting
bvg09-019en.html and Identity. Springer.
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Expert electoral Special Edition 2016
public confidence, all of which are political the case of the Austrian elections, where
commitments of the Copenhagen and the Constitutional Court demanded full ac-
Maastricht documents of the OSCE; countability of the process, which can also
Transparency: Janez Lenari, be assessed without the help of experts.
former OSCE/ODIHR director, once said Again, a system that allows both individual
that one can touch, see and feel paper but verifiability and universal verifiability (that
not bits & bytes (OSCE/ODIHR, 2011). all votes that have been recorded are also
This essentially outlines the challenge that counted and tabulated) is required;
e-voting poses for elections. By introducing Public confidence: Public confi-
advanced technology one removes the dence in an election is particularly difficult
essential possibility for the average person to achieve because it is not based on facts
to understand the electoral process from or measurable items, but on understanding
casting the vote to entering the overall and perception of individuals that form the
election results. Such increased requirement collective trust in a given election system.
of knowledge is disadvantageous in general, Here the German Constitutional Court (2009)
but particularly bothersome for elections, also differentiates between blind trust and
where nobody should be excluded. The established trust. Blind trust refers to the
German Constitutional Court argued in unverified trust in a technology because
its judgement from 2009 that any election one cannot understand it, whereas verified
technology needs to be verifiable without or established trust refers to cases in which
any prior specific knowledge and thereby the election stakeholder has challenged the
introduced a new principle of publicity.
system, verified its proper functionality and
This basically requires voting technology
built their confidence in the system over time.
to provide a means of voter-verifiability,
whether on paper (e.g., ballot scanners)
4. Conclusions
or e-voting machines (with VVPAT). For
Internet voting, this probably mandates the
To date, most e-voting studies discuss
introduction of individual verifiability, which
approaches for developing more sophisti-
is the use of cryptographic means to verify
cated algorithms to solve the problems of
that the vote was essentially recorded as cast,
and cast as intended; unequivocally identifying voters, secretly
Accountability: This principle com- casting votes, and counting them honestly
plements the requirement for election inte- and accurately. Few authors have addressed
grity, as it fosters the overall trust in an how the technology influences the legal basis
election. If every step of the elections pre- or provided actual guidance on how to use
paration and completion is properly docu- such a system (Krimmer, 2012). However,
mented, one is always in a position to following recent high-profile courts decisions
precisely determine what has happened. on this issue, collaborations between technical
While electronic systems can help with and legal sciences are emerging, leading to
accountability, such systems cannot document more sustainable electronic election projects.
everything, so that some aspects must be While there is no definite solution to
left to the human observer and the election the problem of whether technology depends
commission (e.g., the setup of such systems on law or law depends on technology, it is
and interactions beyond the command level). clear that single-disciplinary approaches are
For this purpose, some election authorities insufficient, and that integrated, collabo-
are engaging with professional IT auditors rative efforts are required to deliver legis-
that are in the position to document every lation for electronic elections, as well as the
interaction with the system and conformity procurement of such systems.
with a pre-defined set of commands/oper- Security is the ultimate concern when
ating manual. Nevertheless, for courts this discussing the use of electronic election. Due
expert rule is not always sufficient, as in to their complexity, important principles are
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Expert electoral Special Edition 2016
sometimes questioned. However, it should systems. While some of the principles need
be made clear that any electronic system interpretation and/or translation into digital
will always have to live up to the exact same realities, this does not necessarily mean that
standards applied to traditional paper-based they should be altered.
Acknowledgements: The work of the author has been supported in parts by Tallinn
University of Technology Project B42 and ETAG IUT19-13.
References:
Braun, N. (2006). Stimmgeheimnis. Eine rechtsvergleichende und rechtshistorische
Untersuchung unter Einbezug des geltenden Rechts, Bern, Stmpfli Verlag.
Council of Europe (1981). Convention for the Protection of Individuals with regard to
Automatic Processing of Personal Data (ETS No. 108). Available at: http://conventions.
coe.int/Treaty/en/Treaties/Html/108.htm
Council of Europe (2004). Legal, operational and technical standards for e-voting.
Recommendation Rec(2004)11 and explanatory memorandum, Strassbourg, Council of
Europe.
Council of Europe (2011a). Guidelines of the Committee of Ministers of the CoE on
Certification of E-voting Systems (2011). Available at: http://www.coe.int/t/dgap/
democracy/activities/ggis/E-voting/E-voting 2010/Biennial_Nov_meeting/Guidelines_
certification_EN.pdf
Council of Europe (2011b). Guidelines of the Committee of Ministers of the CoE on
Transparency of E-enabled Elections (2011). Available at: http://www.coe.int/t/dgap/
democracy/activities/ggis/E-voting/E-voting 2010/Biennial_Nov_meeting/Guidelines_
transparency_EN.pdf
EU Election Observation Mission to Venezuela (2006). Final Report of the December
4th 2005 Election in Venezuela. Caracas. Available at: http://eeas.europa.eu/eueom/pdf/
missions/finalreportenversion.pdf
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Expert electoral Special Edition 2016
35
STABILITATEA I PREDICTIBILITATEA
LEGISLAIEI ELECTORALE, CONDIII
NECESARE PENTRU ALEGERI CORECTE
Abstract: Rsum :
36
Expert electoral Ediie special 2016
37
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38
Expert electoral Ediie special 2016
8
Comisia European pentru Democraie prin Drept 11
Comisia European pentru Democraie prin Drept
(Comisia de la Veneia), Codul bunelor practici n (Comisia de la Veneia), Codul bunelor practici n
materie electoral, adoptat n cadrul celei de-a 52-a materie electoral (v. nota 6).
Reuniuni Plenare la Veneia n 18 19 octombrie 2002. 12
Comisia European pentru Democraie prin Drept
9
Ibidem. (Comisia de la Veneia), Raport privind stadiile i
10
Comisia European pentru Democraie prin Drept criteriile politice de evaluare a alegerilor, adoptat n
(Comisia de la Veneia), Declaraia interpretativ cadrul celei de-a 84-a Reuniuni Plenare la Veneia n
privind stabilitatea dreptului electoral, adoptat n 15 16 octombrie 2010.
cadrul celei de-a 65-a Reuniuni Plenare la Veneia n
16 17 decembrie 2005.
39
Expert electoral Ediie special 2016
n ceea ce privete alegerile pentru cteva luni dup adoptarea legii electorale de
Camera Deputailor i pentru Senat, s-au ctre Parlament, ceea ce demonstreaz faptul
adoptat 4 legi n anii electorali, iar acestea c Parlamentul adopt astfel de legi fr o
au fost modificate de fiecare dat, tot n anii atent analiz, din moment ce ele au nevoie
electorali, i cu precdere prin ordonane de corecturi fcute prin ordonane de urgen
de urgen. Uneori, aceste modificri prin (a se vedea Anexa nr. 2).
ordonane de urgen au avut loc la doar
40
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41
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42
Expert electoral Ediie special 2016
Despre autor:
tefan Deaconu este profesor de drept constituional i sistem normativ al Uniunii
Europene la Facultatea de Drept a Universitii din Bucureti i Preedinte al Curii de Arbitraj
Comercial Internaional de pe lng Camera de Comer i Industrie a Romniei. n perioada
2005 2012 a deinut funcia de consilier prezidenial pe probleme juridice i ef al Departamentului
Legislativ al Administraiei Prezideniale, iar anterior (2004 2005) a fost director n cadrul
Senatului Romniei. Are o experien profesional de peste 15 ani, este un reputat specialist
n domeniul dreptului public, deinnd o foarte bun nelegere i cunoatere a modului de
funcionare a instituiilor publice naionale i a instituiilor Uniunii Europene. Este membru al
Asociaiei Internaionale de Drept Constituional (IACL), secretar tiinific al Centrului de Drept
Constituional i Instituii Politice (CDCIP) i membru n colegiul de redacie al unor reviste
tiinifice de prestigiu precum Dreptul, Revista Romn de Parteneriat Public Privat sau
Curierul Judiciar.
16
A se vedea n acest sens considerentele din Deci-
zia Curii Constituionale nr. 1 din 11 ianuarie 2012
referitoare la obiecia de neconstituionalitate a dis-
poziiilor Legii pentru modificarea i completarea
Ordonanei de urgen a Guvernului nr. 155/2001
privind aprobarea programului de gestionare a cinilor
fr stpn, astfel cum a fost aprobat prin Legea
nr. 227/2002, precum i, n special, ale art. I pct. 5
[referitor la art. 4 alin. (1)], pct. 6 [referitor la art. 5
alin. (1) i (2)], pct. 8, pct. 9 [referitor la art. 8 alin. (3)
lit. a) d)], pct. 14 [referitor la art. 131 i 134],
pct. 15 [referitor la art. 14 alin. (1) lit. b)] din Legea
nr. 1/2012, publicat n Monitorul Oficial al Romniei,
Partea I, nr. 53 din 23 ianuarie 2012.
43
Expert electoral Ediie special 2016
Referine bibliografice:
Deaconu, t. Calitatea legislaiei i consecinele asupra activitii justiiei. Despre
neretroactivitate. Disponibil la: http://www.juridice.ro/272991/calitatea-legislatiei-si-
consecintele-asupra-activitatii-justitiei-despre-neretroactivitate.html
Comisia European pentru Democraie prin Drept (Comisia de la Veneia). Codul
bunelor practici n materie electoral, adoptat n cadrul celei de-a 52-a Reuniuni Plenare
la Veneia n 18 19 octombrie 2002.
Comisia European pentru Democraie prin Drept (Comisia de la Veneia). Declaraia
interpretativ privind stabilitatea dreptului electoral, adoptat n cadrul celei de-a 65-a
Reuniuni Plenare la Veneia n 16 17 decembrie 2005.
Comisia European pentru Democraie prin Drept (Comisia de la Veneia). Raport
privind stadiile i criteriile politice de evaluare a alegerilor, adoptat n cadrul celei de-a
84-a Reuniuni Plenare la Veneia n 15 16 octombrie 2010.
Decizia Curii Constituionale nr. 51 din 25 ianuarie 2012 referitoare la obiecia de
neconstituionalitate a dispoziiilor Legii privind organizarea i desfurarea alegerilor
pentru autoritile administraiei publice locale i a alegerilor pentru Camera Deputailor
i Senat din anul 2012, precum i pentru modificarea i completarea titlului I al Legii
nr. 35/2008 pentru alegerea Camerei Deputailor i a Senatului i pentru modificarea i
completarea Legii nr. 67/2004 pentru alegerea autoritilor administraiei publice locale,
a Legii administraiei publice locale nr. 215/2001 i a Legii nr. 393/2004 privind Statutul
aleilor locali, publicat n Monitorul Oficial al Romniei, Partea I, nr. 90 din 3 februarie
2012.
Decizia Curii Constituionale nr. 334 din 26 iunie 2013 cu privire la obiecia de
neconstituionalitate a dispoziiilor Legii pentru modificarea i completarea Legii
nr. 3/2000 privind organizarea i desfurarea referendumului, publicat n Monitorul
Oficial al Romniei, Partea I, nr. 407 din 5 iulie 2013.
Decizia Curii Constituionale nr. 682 din 27 iunie 2012 asupra obieciei de neconsti-
tuionalitate a Legii privind modificarea i completarea Legii nr. 35/2008 pentru alegerea
Camerei Deputailor i a Senatului i pentru modificarea i completarea Legii nr. 67/2004
pentru alegerea autoritilor administraiei publice locale, a Legii administraiei publice
locale nr. 215/2001 i a Legii nr. 393/2004 privind Statutul aleilor locali, publicat n
Monitorul Oficial al Romniei, Partea I, nr. 473 din 11 iulie 2012.
Decizia Curii Constituionale nr. 61 din 14 ianuarie 2010 referitoare la excepia de
neconstituionalitate a prevederilor art. 48 alin. (17) din Legea nr. 35/2008 pentru alegerea
Camerei Deputailor i a Senatului i pentru modificarea i completarea Legii nr. 67/2004
pentru alegerea autoritilor administraiei publice locale, a Legii administraiei publice
locale nr. 215/2001 i a Legii nr. 393/2004 privind Statutul aleilor locali, publicat n
Monitorul Oficial al Romniei, Partea I, nr. 76 din 3 februarie 2010.
Decizia Curii Constituionale nr. 1 din 11 ianuarie 2012 referitoare la obiecia de
neconstituionalitate a dispoziiilor Legii pentru modificarea i completarea Ordonanei
de urgen a Guvernului nr. 155/2001 privind aprobarea programului de gestionare a
cinilor fr stpn, astfel cum a fost aprobat prin Legea nr. 227/2002, precum i, n
special, ale art. I pct. 5 [referitor la art. 4 alin. (1)], pct. 6 [referitor la art. 5 alin. (1) i (2)],
pct. 8, pct. 9 [referitor la art. 8 alin. (3) lit. a) d)], pct. 14 [referitor la art. 131 i 134],
pct. 15 [referitor la art. 14 alin. (1) lit. b)] din Legea nr. 1/2012, publicat n Monitorul
Oficial al Romniei, Partea I, nr. 53 din 23 ianuarie 2012.
44
OPORTUNITI I AMENINRI
N CONTEXTUL SCHIMBRILOR
LEGISLAIEI ELECTORALE DIN ROMNIA
Conf. univ. dr. Cristian PRVULESCU Lect. univ. dr. Arpad TODOR
Decan al Facultii de tiine Politice Facultatea de tiine Politice
coala Naional de Studii Politice i coala Naional de Studii Politice i
Administrative Administrative
Abstract: Rsum :
This article analyses the historical Dans cet article nous analysons le
context of the Romanian electoral legislation contexte historique de la modification de la
amendment and draws several conclusions on lgislation lectorale de Roumanie et nous
the limits of changes occurring in 2015 and tirons une srie de conclusions concernant les
the factors generating pressure with regard limites des modifications de 2015 et les facteurs
to future amendment of this legislation. The qui vont gnrer des pressions concernant la
first part discusses the constant features of modification de cette lgislation lavenir.
the Romanian electoral process and of the Dans la premire partie on discute sur les
electoral law change; the second part covers caractristiques constantes du processus lec-
the context of amendments to the electoral toral de Roumanie et de la modification de la
law and the legislation with indirect effect loi lectorale ; dans la deuxime partie nous
on the electoral process of 2015. The third discutons du contexte des modifications de
part overviews a series of issues raised by the la lgislation lectorale et de la lgislation
adopted legislative solutions. effet indirect sur le processus lectoral de
2015. Dans la troisime partie nous passons
Keywords: elections, electoral legis- en revue une srie de questions souleves par
lation, electoral system, postal voting, les solutions lgislatives adoptes.
electronic voting, Romania
Mots-cls : lections, lgislation lec-
torale, systme lectoral, vote par correspon-
dance, vote lectronique, Roumanie
45
Expert electoral Ediie special 2016
46
Expert electoral Ediie special 2016
strbat a doua jumtate a secolului trecut, de conserva sau chiar consolida potenialul
la Maurice Duverger pn la Arendt Lijphart, electoral. nc de la nceputul exerciiului
care analizeaz numrul de partide politice i parlamentar n Principatele Unite, imediat
relaiile dintre sistemul de partide i legislaie dup recunoaterea internaional a unirii
i care consider ca variabil independent a celor dou principate n decembrie 1862,
cercetrilor faptul c originea i reziliena dezbaterea privind reforma electoral nce-
partidelor politice sunt influenate de tipul puse. Constantin Aricescu (jurnalist i isto-
alegerilor i de sistemele electorale. ric ce a trit ntre 1823 i 1886) scria n
Pe de alt parte, o abordare funda- 1862:5Toat lumea se ntreab ngrijorat:
mental diferit postuleaz, din contr, c Unde mergem cu legea electoral fcut
partidele aleg sistemele electorale i manipu- de strini n favoarea unui numr mic de
leaz regulile alegerilor. Conform acestei privilegiai i n paguba tuturor romnilor?
abordri, adoptarea diferitelor reguli i pro- Cel puin partidele nu se pot nfri ca
ceduri electorale este impulsionat de con- s nceteze odat aceast stare critic i
curena din ce n ce mai puternic dintre s pim cu toii pe cale naional? Iat
partidele politice. n acest sens, partidele poli- ntrebrile pe care le pun toi i la care vom
tice devin o variabil independent pentru a rspunde n aceast (carte s.n.).
explica apariia i evoluia diferitelor reguli n toate rile sunt partide fiindc n
electorale.3 toate locurile sunt oameni, iar oamenii difer
Dei unii autori, precum Shale n opiniuni, iar opiniunile trebuie respectate
Horowitz i Eric C. Browne, constat c cnd sunt sincere i logice. Adunrile (legis-
instituiile politice sistemele majoritare lative s.n.) reprezint opiniunile partide-
(SMD electoral systems) influeneaz con- lor, n fiecare parlament aflm o dreapt,
solidarea sistemului de partide, dar efectele o stng i un centru: liberalii, retrograzii
lor par a fi mai slabe dect cele datorate i moderaii. () n realitate, la noi exist
gradului de consolidare ideologic,4 autorii numai dou partide, dou tabere distincte:
acestui articol constat, aducnd i o serie retrograzii i liberalii; de o parte trecutul
de elemente mai puin cunoscute din istoria cu privilegiile i cu monopolul, reprezentat
dezbaterii privind alegerile, reformele elec- n Camer prin Dreapta, de alta viitorul, cu
torale i formarea guvernelor din Romnia ideile de libertate i naionalitate, reprezentat
din secolul al XIX-lea i nceputul secolului n pres prin Romnul i n Camer prin
al XX-lea, c modul de apariie a unor noi Stnga.6 Gsim la Aricescu deja majori-
seturi de norme electorale, dei este legitimat tatea ideilor care vor strbate cei 165 de ani
prin prezentarea sa ca reacie spontan a ce ne despart, de la nevoia de reform elec-
comunitii, este de fapt o form prin care toral pentru a termina cu Trecutul (privi-
partidele i (re)creeaz cadrul de existen. legiaii atunci, comunitii acum), nevoia
n ce privete schimbarea legislaiei, unei aproprieri naionale a instituiilor mpo-
teza autorilor acestui articol este c frecvena triva unor imixtiuni strine n favoarea pri-
modificrilor electorale din epoca alegerilor vilegiailor, la mprirea societii n dou
competitive se datoreaz interesului par- categorii clare (dreapta retrograd stnga
tidelor politice aflate la guvernare de a-i novatoare, respectiv vechii comuniti noii
democrai).
3
Josep M. Colomer, Its Parties that Choose Electoral
Systems (or Duvergers Laws Upside Down), n 5
Cartea lui Constantin Aricescu, Reforma legii
Political Studies, vol. 53, Wiley-Blackwell, 2005, electorale, a fost tiprit n alfabetul de tranziie
p. 1 21. chirilico-latin, care era uzual la mijlocul secolului al
4
Shale Horowitz, Eric C. Browne, Sources of Post- XIX-lea, iar pasajele de fa au fost adaptate limbii i
Communist Party System Consolidation: Ideology ortografiei romne actuale.
Versus Institutions, n Party Politics, nr. 11, 2005, 6
Constantin Aricescu, Reforma legii electorale,
p. 691. Tipografia Stephan Rassidecu, Bucureti, 1862, p. 3 4.
47
Expert electoral Ediie special 2016
n acelai timp, tot n aceast peri- Reforma electoral din 18669 vine la
oad, o tem recurent a discursului public pachet cu instaurarea monarhiei constituio-
romnesc, care va legitima schimbarea nale i votarea unei noi constituii dup
legislaiei electorale, va fi frauda n alegeri. abdicarea forat a lui Alexandru Ioan Cuza.
O ilustrare a acestei teme obsesive, frauda- Or, pentru c mecanismul electoral fusese
rea alegerilor, este prezentat n urmtoa- deja modificat ntr-un sens liberal prin legea
rele rnduri. n 1890, Barbu tefnescu din 1866, creterea corpului electoral a adus
Delavrancea publica un volum, Guvern, i o important instabilitate guvernamental
prefeci i deputai, care spune multe despre
prejudecile i stereotipurile prezente n
dezbaterea politic privind alegerile i
9
Alegerile se realizau n patru colegii la Camera
Deputailor, iar la Senat n dou colegii. Colegiile
reprezentarea politic din Romnia de-a erau difereniate dup cens i permiteau o participare
lungul secolelor. Cunoscut mai mult ca electoral mult mai important dect era posibil
scriitor, Barbu tefnescu Delavrancea a conform Conveniei de la Paris. Astfel, la Camer legea
fost un jurnalist incisiv i un politician de diferenia dup cens, astfel c din Colegiul I fceau
tendin liberal. n volumul evocat mai sus, parte cei care aveau un venit de la 300 de galbeni n sus,
n care reunea mai multe articole publicate din Colegiul al II-lea cei care aveau un venit de la 100 la
300 de galbeni inclusiv, iar din Colegiul al III-lea fceau
n Voina naional la sfritul deceniului al parte cei care plteau ctre stat o dare anual de 80 de
optulea al secolului la XIX-lea, i ncepea lei, precum i comercianii sau industriaii care plteau
expunerea cu o diatrib care, dincolo de un impozit de 80 de lei. Erau scutite de condiia de cens
contextul propriu-zis, este ct se poate de toate profesiunile liberale, precum i ofierii n rezerv,
elocvent: n urma triumfului ruinos din profesorii i pensionarii statului. Primele trei colegii
Capital, al guvernului actual, triumf cu se alegeau prin vot direct, iar al patrulea colegiu i
cuprindea pe toi cei ce nu se ncadrau n nicio categorie
patru voturi, i dobndit prin cel puin 100 de mai sus i care plteau o dare mai mic de 80 de lei.
de voturi ale btrnilor orbi, surzi, paralitici Din acest colegiu fceau parte i preoii. Primele dou
i muribunzi, adui de mn, i de subiori, colegii alegeau cte un deputat pentru fiecare din cele
la urn, de ctre agenii electorali, pltii din 33 de districte (adic 66 de deputai), iar cel de-al treilea
fondurile primriei7; n urma acestui triumf- un numr de 58 de deputai ai oraelor, reprezentate
cdere la care a contribuit, pe lng altele proporional n funcie de ponderea lor demografic.
Membrii Colegiului al IV-lea votau indirect, 50 de
multe, i jurisprudena surprinztoare de alegtori nscrii desemnau un delegat, iar delegaii
la Biroul central de a se admite ca valabile desemnai se ntruneau n reedina judeului, unde
buletinele (de vot s.n.) nendoite de loc, dei alegeau un deputat de district. n Bucureti se alegeau
legea electoral prin art. 95 cere categoric i 6 deputai. Toate oraele unui district formau un singur
imperativ ca buletinele s fie ndoite drept colegiu cu oraul de reedin. Numrul deputailor era
n patru; n urma acestui triumf, cu cheie de 157. La Senat, corpul electoral era format din dou
colegii pentru fiecare jude. Din Colegiul I fceau parte
evident, este bine s ne amintim de alte toi proprietarii rurali cu venituri funciare de cel puin
dou alegeri extraordinare, pentru a dovedi 300 de galbeni. Colegiul al II-lea, al oraelor reedin,
opiniei publice cum triumfa guvernul n se compunea din toi proprietarii de imobile urbane cu
alegeri, prin ce mijloace, prin ce prefeci, i un venit sub 300 de galbeni. Colegiile votau separat,
asupra cror soi de alei cad voturile furate fiecare alegnd cte un reprezentant. Universitile din
de administraia unui regim cu desvrire Bucureti i Iai trimiteau fiecare cte un senator ales
dintre profesori. Senatul era compus din 68 de senatori
cinic.8 alei, crora li se puteau aduga membri de drept ai
Senatului: motenitorul tronului de la vrsta de 18 ani,
cu vot deliberativ de la 25 de ani, mitropoliii i episcopii
eparhioi (Mitropolitul Ungro-Vlahiei, Mitropolitul
Primat al Romniei, Mitropolitul Moldovei i Sucevei,
7
Referina este la primarul conservator Emilian Pache Episcopul Romanului, Episcopul Rmnicului,
Protopopescu (primar al Bucuretiului ntre 1888 i Episcopul Buzului, Episcopul Huiului, Episcopul
1891) i la alegerile din 1888. Argeului, Episcopul Dunrii de Jos). Operaiunile
8
Barbu tefnescu Delavrancea, Guvern, prefeci i electorale durau cte dou zile, iar birourile electorale
deputai. Analiz electoral, Bucureti, Tipografia nu erau prezidate de magistrai, ci de alegtori selectai
Voina Naional, 1890, p. 3 4. din rndul votanilor.
48
Expert electoral Ediie special 2016
i parlamentar. Dou dispozitive corective au alegerile din 1919, 1920 i 192211, sistemul a
fost masiv utilizate pentru a conserva sistemul supravieuit tuturor modificrilor electorale,
de partide: rotativa guvernamental i frauda dar efectul su a fost semnificativ afectat.
electoral. De succesul lor va depinde func- Toate reformele electorale succesive (1926,
ionarea bipartidismului romnesc pn la n perioada interbelic, i 1990, 1992, 2000,
reforma electoral din 1918 i introducerea 2008 i 2015, dup cderea comunismului)
sistemului reprezentrii proporionale. vor conserva acelai sistem de repartizare a
Constantin Bacalbaa, n Bucuretiul mandatelor. Diferenele vor consta n apariia
de altdat, martor i victim a practici- primei electorale n 1926, respectiv a pragului
lor electorale de la sfritul secolului al electoral de 3% n 1992 i de 5% n 2000.
XIX-lea i nceputul secolului al XX-lea, n 2008 s-a introdus un sistem de repartizare
descrie utilizarea la roumaine a agenilor a mandatelor de tip german, care ar putea
electorali, n fapt btui pltii s mpiedice fi eventual asimilat celui mixt, dar era, n
electorii recunoscui ai partidului advers fapt, un sistem al reprezentrii proporionale
s-i exercite dreptul electoral10. Partidul ce personalizate, iar n 2015 s-a revenit la
obinea astfel controlul ct mai multor secii vechiul sistem din 2000, cu mici adaptri.
de vot ctiga alegerile, iar complicitatea Proporionalitatea reprezentrii a fost n cel
autoritilor era mai mult dect transparent. mai mare grad afectat de reforma din 1926,
Mimarea procesului electiv a contribuit la care introducea prima electoral care premia
compromiterea democraiei i a oferit un orice partid care obinea minimum 40% din
alibi micrilor extremiste, naionaliste i voturi, care primea 50% din mandate i o
antisemite, ce vor aprea nc de la sfritul parte proporional cu numrul de voturi
secolului al XIX-lea, dar vor nflori dup obinute din a doua jumtate a mandatelor,
Primul Rzboi Mondial, odat cu introducerea ceea ce asigura o majoritate artificial.
votului universal, n 1918. Unul dintre efectele perverse ale legii
Noua lege electoral, adoptat n din 1926 a fost interesul i mai mare pentru
noiembrie 1918, inspirat de cea belgian, falsificarea rezultatelor, mai ales c rolul
stipula reprezentarea proporional, mai pre- agitatorilor stradali nu mai putea fi, n
cis sistemul dHondt. Era o lege care permitea contextul votului universal, de folos. Formula
reprezentarea proporional absolut, iar, aa folosit a fost utilizarea regimului juridic al
cum rezult din articolele 73 i 24 ale legii, de Legii mariale n regiuni precum Basarabia
atunci i pn astzi, mandatele se vor mpri i Cadrilater, unde victoria guvernului era
dup acelai sistem. Dei Mattei Dogan, asigurat. Candidat rnist exilat ntr-o
bun cunosctor al Romniei interbelice, circumscripie din Cadrilater la alegerile din
susine c sistemul a funcionat doar pentru 1926, Grigore Gafencu relateaz n nsemnri
politice experiena reinerii sale de ctre jan-
10
Vezi Constantin Bacalbaa, Bucuretiul de altdat,
darmeria condus de Ministerul de Interne
Humanitas, Bucureti, 2000, p. 250 251. Ajuni n
strada Carol (astzi disprut, aflat la data faptelor condus la rndul su de Octavian Goga,
relatate, n 1875, n partea dinspre Piaa Unirii a n plin campanie electoral, i eliberarea sa,
bulevardului Ion C. Brtianu), ne ncrucim cu o odat ce rezultatele au fost publicate.
trsur n care se afla Popa Tache i ali trei btui.
Popa venea de la Primrie, unde urma s se fac 2. Contextul schimbrilor
alegerea din ziua aceea; acolo inspectase posturile
de ciomgai. De cum ne-a vzut, Popa Tache ne-a
legislative din 2015
neles cine suntem. De aceea, ridicnd bastonul, ne-a Dup cum s-a putut observa, tentaia
ameninat spunndu-ne: S poftii astzi! Aceast schimbrii electorale este recurent n
vorb nsemna: Ieri la Colegiul I v-ai jucat calul,
dar astzi n-o s mearg aa! Cu alegerea de
Romnia, fiind o tendin grea a sistemului
la Colegiul al 2-lea a nceput teroarea n Bucureti,
teroare ce a culminat n alegerea de la Colegiul al 11
Mattei Dogan, Dansul electoral n Romnia inter-
3-lea. belic, Revista de cercetri sociale, nr. 4, 1995, p. 4.
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Expert electoral Ediie special 2016
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Expert electoral Ediie special 2016
tensiune. De exemplu, Legea nr. 114/2015 Votul electronic pentru alegtorii romni din
privind modificarea i completarea Legii strintate16 din 2010 arat c, n contextul
partidelor politice nr. 14/200313 a condus actual, opiunea pentru votul electronic ar
la eliminarea mai multor bariere pentru fi fost mult mai bun: chiar dac 15% din
nfiinarea de partide, n special cele legate cetenii romni se afl n afara rii, voturile
de numrul de membri, dar nu a condus la lor au reprezentat doar 1,66% din numrul
o ameliorare a accesului la finanare. De total de voturi la ultimele alegeri prezideniale
asemenea, nu au fost crescute atribuiile (tur I 2014). Opiunea pentru votul electronic
i resursele aflate la dispoziia Autoritii a fost aleas n cadrul analizei datorit unor
Electorale Permanente privind monitorizarea avantaje precum: costurile reduse de operare
cheltuielilor pentru finanarea campaniilor n comparaie cu extinderea numrului de
electorale. Legea nr. 208/2015 privind secii de votare sau cu votul prin pot, gradul
alegerea Senatului i a Camerei Deputailor14 nalt de securitate i depistarea oricrui vot
a condus la revenirea la votul pe list i la dublu, creterea gradului de participare, lipsa
meninerea pragului de 5% pentru accesul costurilor suplimentare pentru cei cu acces
unui partid n Parlament soluie dorit la internet, accesibilitatea i atractivitatea,
doar de partidele politice mari. Mai toate economia de timp la numrarea voturilor i
organizaiile societii civile au susinut raportarea rezultatelor, iar rezidenii temporari
reducerea pragului electoral (la 3% sau chiar n strintate pot vota pentru circumscripia
1%) pentru a permite intrarea n Parlament unde i au reedina permanent n cadrul
a unor formaiuni noi. De asemenea, n alegerilor parlamentare.
lege au fost meninute restriciile privind n timp ce considerm c noua lege
organizaiile minoritilor naionale care reprezint un pas important, n actuala form
nu sunt deja reprezentate n Parlament. pot aprea o serie de probleme care vor sub-
O soluie alternativ ar fi fost revenirea mina legitimitatea soluiei n cazul n care:
la soluia propus iniial de Asociaia Pro succesul campaniei de popularizare
Democraia ncepnd cu 2001: meninerea a nscrierii n Registrul electoral nu va fi
circumscripiilor uninominale cu introduce- mare;
rea unei formule prin care o parte din alei s costul de aplicare se va dovedi
fie selectai pe liste proporionale, care s fie foarte mare n raport cu numrul de voturi
votai n mod direct la nivel regional (sistem exercitate prin acest sistem;
de tip german), i nu la nivel de jude. lipsa unui sistem de confirmare a
3. Alegerea pentru cetenii primirii votului de ctre birourile electorale
romni aflai n afara granielor rii pentru votul prin coresponden va conduce
la suspiciuni privind neluarea n considerare
Nu n ultimul rnd, Legea nr. 288/2015 a tuturor voturilor;
privind votul prin coresponden15 reprezint imposibilitatea asigurrii confiden-
un important pas nainte pe calea ameliorrii ialitii votului va conduce la criticarea sis-
accesului la vot pentru cetenii romni cu temului;
domiciliul sau reedina n afara granielor introducerea votului prin corespon-
rii, chiar dac soluia aleas, votul prin den va conduce la creterea numrului de
coresponden, are o serie de dezavantaje fa voturi, dar interesul pentru alegerile parla-
de votul electronic. Analiza GRSP Society mentare poate rmne diminuat n contextul
n care numrul de deputai i senatori pentru
13
http://www.cdep.ro/pls/legis/legis_pck.htp_act?ida= diaspora va rmne foarte sczut n raport cu
130324
14
http://www.roaep.ro/legislatie/wp-content/uploads/
numrul de voturi pentru aceast list.
2015/07/Legea-nr.-208-2015.pdf
15
http://www.roaep.ro/legislatie/wp-content/uploads/ 16
http://www.mygrasp.org/wp-content/uploads/2014/ 11/
2015/11/Legea-288-pentru-completarea-Legii-208-2015.pdf Diaspora-Voteaza-Document-de-politici-publice.pdf
51
Expert electoral Ediie special 2016
Despre autori:
Cristian PRVULESCU este politolog, profesor de tiine politice, decan al Facultii
de tiine Politice din cadrul colii Naionale de Studii Politice i Administrative (SNSPA),
preedinte de onoare al Asociaiei Pro Democraia, preedinte al grupului permanent Integrare i
Imigrare de la Comitetul Economic i Social European. Autorul este doctor n tiine politice i
a efectuat numeroase stagii de specializare n strintate: Institutul de Studii Politice i Fundaia
Naional de tiine Politice din Paris (1995), CESI, Paris (1998), Universitatea Paris XNanterre
(1998, 2001), CEFIPA, Paris (1999), Institutul German pentru Politic i Securitate Internaional,
Berlin, i IGMedien, Stuttgart (2001), Departamentul de tiine Politice al Universitii din
Amsterdam, Olanda (2002), SUA (2003). A publicat cri, articole i studii de specialitate, printre
care amintim: Politici i instituii politice, Partide i sisteme de partide, tiina politic etc.
Arpad TODOR este lector universitar n cadrul Facultii de tiine Politice din cadrul
colii Naionale de Studii Politice i Administrative (SNSPA). A obinut titlul de doctor n tiine
politice i sociale n cadrul European University Institute i doctor n tiine politice n cadrul
SNSPA. De asemenea, a colaborat n calitate de expert cu organizaii neguvernamentale, precum
Asociaia Pro Democraia i Ecopolis, fiind implicat n proiecte ce in de reforma sistemului
electoral, reforma constituional, introducerea unor mecanisme de transparentizare a procesului
decizional sau analiza de politici publice n domeniul mediului i al dezvoltrii durabile. n
perioada 2013 2015 a fost coordonatorul Forumului constituional. Publicaiile lui pot fi accesate
la: https://snspa.academia.edu/ArpadTodor
52
Expert electoral Ediie special 2016
Referine bibliografice:
Duverger, M. (1951). Les parties politiques. Paris, Seuil.
LaPalombara, J., Weiner, M. (ed.) (1966). Political Parties and Political Development.
Princeton, Princeton University Press.
Colomer, J.M. (2007). On the origins of electoral systems and political parties: The role
of elections in multi-member districts. Electoral Studies, (26).
Colomer, J.M. (2005). Its Parties that Choose Electoral Systems (or Duvergers Laws
Upside Down). Political Studies, 53.
Horowitz, S., Browne, E.C. (2005). Sources of Post-Communist Party System
Consolidation: Ideology Versus Institutions. Party Politics, (11).
Aricescu, C. (1862). Reforma legii electorale. Bucureti, Tipografia Stephan Rassidecu.
tefnescu Delavrancea, B. (1890). Guvern, prefeci i deputai. Analiz electoral.
Bucureti, Tipografia Voina Naional.
Bacalbaa, C. (2000). Bucuretiul de altdat, Bucureti, Humanitas.
Dogan, M. (1995). Dansul electoral n Romnia interbelic, Revista de cercetri sociale, (4).
http://www.cdep.ro/pls/proiecte/docs/2015/pr365_15.pdf
http://www.cdep.ro/pls/legis/legis_pck.htp_act?ida=130324
http://www.roaep.ro/legislatie/wp-content/uploads/2015/07/Legea-nr.-208-2015.pdf
h ttp://www.roaep.ro/legislatie/wp-content/uploads/2015/11/Legea-288-pentru-
completarea-Legii-208-2015.pdf
http://www.mygrasp.org/wp-content/uploads/2014/11/Diaspora-Voteaza-Document-de-
politici-publice.pdf
53
EXIGENE CONSTITUIONALE
N LEGISLAIA ELECTORAL
Prof. univ. dr. Tudorel TOADER Lect. univ. dr. Marieta SAFTA
Facultatea de Drept Universitatea Facultatea de Drept Universitatea
Alexandru Ioan Cuza, Iai Titu Maiorescu, Bucureti
Judector Prim-magistrat-asistent
Curtea Constituional a Romniei Curtea Constituional a Romniei
Abstract: Rsum :
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lor, nu pot vota), a celor care au suferit Or, n procedura votului prin coresponden
condamnri, inclusiv la pedeapsa comple- alegtorul este cel care, prin lipirea auto-
mentar a pierderii drepturilor electorale; colantului pe opiunea sa electoral din
egalitatea este reflectat att n buletinul de vot prin coresponden, i
numrul de voturi de care dispune fiecare exprim direct votul, deoarece ntre votul
cetean, ct i n ponderea fiecrui vot n su astfel exprimat i finalul operaiunii,
desemnarea reprezentanilor naiunii: astfel, respectiv alegerea membrilor Camerei Depu-
fiecare cetean are dreptul la un singur vot, tailor sau Senatului, dup caz, nu exist nicio
iar acest vot are aceeai pondere cu a tuturor interpunere din partea vreunei persoane/
celorlalte voturi n desemnarea unei aceleiai vreunui organism electoral18.
autoriti a statului, indiferent de persoana Ct privete sublinierea la care ne-am
celui care a exercitat dreptul la vot; referit, menionm considerente ale Curii
caracterul direct se refer la faptul Constituionale n contextul examinrii con-
c cetenii aleg direct i personal, fr niciun stituionalitii reglementrilor referitoare la
intermediar sau delegat, reprezentanii lor n votul prin coresponden, ntruct acestea
Parlament; reflect i un dialog judiciar n slujba reali-
caracterul secret se refer la faptul zrii unor principii, am spune, general
c votul cetenilor nu este public, ceea ce valabile, ale democraiei. Cu acel prilej,
constituie una dintre cele mai puternice Curtea a invocat staturi ale altor instane de
garanii ale corectitudinii votului; jurisdicie constituional, de exemplu, ale
caracterul liber exprimat se refer Curii Constituionale Federale Germane, n
la faptul c exprimarea voinei cetenilor n sensul c principiul universalitii votu-
alegeri nu trebuie viciat n niciun fel, precum lui asociat cu votul prin coresponden re-
i la faptul c votul nu este obligatoriu. prezint una dintre opiunile constituionale
Legislaia electoral trebuie s res- fundamentale, contrapus ns principiilor
pecte aceste trsturi, care, de altfel, sunt libertii, secretului i publicitii votului de
de esena noiunii de democraie. O serie de natur s justifice restricii n privina altor
decizii ale Curii Constituionale statueaz opiuni fundamentale ale Constituiei19. De
i explic nelesul conceptelor mai sus aceea, legiuitorul are obligaia constituional
prezentate, sancionnd nclcarea cerin- de a configura legea electoral ntr-o manier
elor constituionale n aceast privin ori care s asigure un just echilibru ntre
subliniind necesitatea respectrii acestor opiunile fundamentale aflate n coliziune.
cerine. n context, Curtea a subliniat competena
Astfel, potrivit jurisprudenei Curii sa de a verifica realizarea de ctre legiuitor
Constituionale, pentru ca votul alegtorului a justului echilibru, pe de o parte, ntre
s fie unul direct, acesta trebuie s se pronune principiul universalitii raportat la dreptul
asupra candidatului/listei de candidai; de la vot [art. 15 alin. (1) coroborat cu
aceea, atribuirea mandatelor de parlamentar art. 62 alin. (1) din Constituie] i principiul
ctre persoane de pe o list care nu este votat suveranitii naionale, caracterul liber i
de alegtori contravine caracterului direct al corect al alegerilor, caracterul direct, secret
votului reglementat de art. 62 alin. (1) din i liber exprimat al votului, pe de alt parte.
Constituie17. n schimb, procedura votului Aceste considerente sunt aplicabile, mutatis
prin coresponden nu contravine acestui mutandis, i n privina altor modaliti
caracter, ntruct el se refer la opiunea de exercitare a votului, de exemplu, prin
nemijlocit a alegtorului de a alege el nsui mijloace electronice.
un anumit candidat/o anumit list electoral,
i nu de a introduce buletinul de vot n urn. 18
Decizia nr. 799 din 18 noiembrie 2015, publicat n
Monitorul Oficial al Romniei, Partea I, nr. 862 din 19
17
Decizia nr. 1.177 din 12 decembrie 2007, publicat noiembrie 2015.
n Monitorul Oficial al Romniei, Partea I, nr. 871 din 19
Decizia Curii Constituionale Federale din 9 iulie
20 decembrie 2007. 2013 BverfG, 2BvC 7/10.
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pentru a rectifica legislaia electoral, acolo vr, legea analizat aduce o modificare de
unde aceasta ar aduce atingere drepturilor substan n ceea ce privete exercitarea
recunoscute la nivel internaional. dreptului de vot, respectiv introduce sistemul
ntr-o jurispruden constant, Curtea votului prin coresponden, sistem care
Constituional a subliniat necesitatea reexa- nu a mai fost aplicat n cadrul sistemului
minrii ntregii legislaii electorale, eviden- constituional stabilit n anul 1991. De aceea,
iind aspectele care trebuie supuse reexa- ea a trebuit adoptat cu cel puin un an
minrii i principiile pe care legiuitorul nainte de data alegerilor, astfel cum s-a n-
trebuie s le aib n vedere n acest sens i, tmplat n cauz. Motivaiile care au stat la
totodat, a subliniat necesitatea stabilitii baza adoptrii acestei legi nu se constituie n
legii n materie electoral, expresie a prin- impedimente de natur s duc la neaplicarea
cipiului securitii juridice29. Astfel, prin la termen a votului prin coresponden la
Decizia nr. 61 din 14 ianuarie 201030 i Decizia alegerile parlamentare din anul 2016. Desigur,
nr. 51 din 25 ianuarie 201231, observnd c termenul de un an trebuie calculat de la data
modificarea legislativ intempestiv poate intrrii n vigoare a legii, conform art. 78 din
fi de natur s creeze dificulti suplimentare Constituie, astfel nct ntre aceast dat i
autoritilor nsrcinate cu aplicarea sa, sub ziua alegerilor s existe un interval temporal
aspectul adaptrii la procedura nou-instituit de un an32.
i operaiunile de ordin tehnic pe care Impunerea respectrii aceleiai reguli
aceasta le presupune, respectiv c aceast a determinat, de altfel, pronunarea unei
reglementare este de natur s determine decizii, am spune, atipice sub aspectul modu-
dificulti n exercitarea dreptului de vot, lui de individualizare a efectelor, n privina
dificulti care pot avea ca efect, n cele din ur- legii referendumului ns. Astfel, exami-
m, restrngerea exerciiului acestui drept, nnd constituionalitatea reglementrii care a
Curtea a constatat neconstituionalitatea legii schimbat, n esen, cvorumul de valabilitate
criticate. De asemenea, prelund exigenele a referendumului, Curtea a reinut c pentru
Codului bunelor practici n materie electo- a asigura respectarea principiului general al
ral, Curtea a statuat recent, cu privire la stabilitii juridice n materia referendumului,
legea privind votul prin coresponden, n acord cu recomandrile Codului de bune
precum i modificarea i completarea Legii practici n materie de referendum, adoptat
nr. 208/2015 privind alegerea Senatului i a de Comisia de la Veneia, cu Protocolul nr.
Camerei Deputailor, c faciliteaz dreptul 1 adiional la Convenia european pri-
de vot al cetenilor romni cu domiciliul/ vind aprarea drepturilor omului i a liber-
reedina n strintate; de aceea, n principiu, tilor fundamentale i cu Pactul inter-
nu prezint o relevan semnificativ inter- naional cu privire la drepturile civile i
valul de timp n care urmeaz a se mate- politice, dispoziiile Legii pentru modificarea
rializa reglementarea analizat. Chiar i n i completarea Legii nr. 3/2000 privind
aceste condiii, aceasta a fost adoptat la organizarea i desfurarea referendumului
28 octombrie 2015, respectndu-se, astfel, sunt constituionale, ns nu pot fi aplicabile
exigena constituional de a nu se aduce referendumurilor organizate n decurs de
modificri cadrului electoral cu mai puin un an de la data intrrii n vigoarea a legii
de un an nainte de data alegerilor. ntr-ade- modificatoare.33
29
T. Toader, M. Safta, Dialogul judectorilor consti-
tuionali, Editura Universul Juridic, Bucureti, 2015,
p. 148 151.
30
Publicat n Monitorul Oficial al Romniei, Partea I, 32
Decizia nr. 799/2015, precitat.
nr. 76 din 3 februarie 2010. 33
Decizia nr. 334 din 26 iunie 2013, publicat n Mo-
31
Publicat n Monitorul Oficial al Romniei, Partea I, nitorul Oficial al Romniei, Partea I, nr. 407 din 5 iulie
nr. 90 din 3 februarie 2012. 2013.
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34
R.H. Pildes, Elections, n The Oxford Handbook of 36
Decizia Curii Constituionale Federale din
Comparative Constitutional Law, Oxford University 15 februarie 1967, 2 BvC 2/66, BVerfGE 21, 200.
Press, 2012, p. 529. 37
Decizia Curii Constituionale Federale din
35
Ibidem. 24 noiembrie 1981 2BvC 1/81, BVerfGE 59, 119.
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art. 1 alin. (5) din Constituie, concur la principii fundamentale ale democraiei. Din
respectarea principiilor i exigenelor care perspectiva aceluiai principiu al loialitii
trebuie s guverneze procesul electoral38. De constituionale , Curtea Constituional a
asemenea, revine autoritilor competena Romniei a reinut de exemplu c restriciile
i, totodat, obligaia de a veghea n per- bugetare n contextul crizei financiare, nf-
manen la asigurarea att a unui cadru iate n cauz ca motivaie a opiunii pentru
normativ apt s garanteze exigenele anterior procedura angajrii rspunderii Guvernului
artate, ct i a unui mecanism administrativ pentru o lege electoral, sunt de notorietate,
eficient care s rspund la problemele fiind adesea invocate de Guvern pentru
inerente de punere n aplicare a prezentului susinerea unor msuri adoptate n ultimii ani,
act normativ39. Din aceast perspectiv, i persist de o perioad de timp suficient de
considerm ludabil constituirea unui corp lung pentru a permite promovarea pe calea
al experilor electorali i n Romnia, aceast procedurii obinuite a actului normativ n
iniiativ slujind dezideratelor prezentate. cauz. Aceasta cu att mai mult cu ct legea
Nu n ultimul rnd, buna funcionare vizeaz momente definite din punct de vedere
a sistemului electoral ntr-un stat este condi- temporal, perioada alegerilor, att pentru
ionat de colaborarea dintre puterile statului, Camera Deputailor i Senat, ct i pentru
care trebuie s se manifeste n spiritul autoritile administraiei publice locale,
normelor de loialitate constituional, cu fiind determinabil, ntr-o anumit marj de
att mai mult atunci cnd sunt n discuie timp, n raport cu dispoziiile Constituiei.
Despre autori:
Tudorel TOADER este judector la Curtea Constituional a Romniei i membru
n Comisia de la Veneia. Tudorel Toader este liceniat al Facultii de Drept Alexandru Ioan
Cuza din Iai i doctor n tiine juridice. Actualmente este profesor universitar doctor n cadrul
Universitii Alexandru Ioan Cuza din Iai i rector al acestei universiti. De asemenea, a
publicat numeroase studii i articole n reviste de specialitate din ar i strintate, precum
i mai multe cri, printre care: Codul penal i Codul de procedur penal; Hotrri CEDO,
decizii ale Curii Constituionale, recursuri n interesul legii, Reglementare, doctrina, decizii ale
Curii Constituionale, jurispruden; Constituia Romniei reflectat n jurisprudena Curii
Constituionale; Dialogul judectorilor constituionali; Drept penal romn. Partea special etc.
38
Decizia nr. 799/2015, precitat.
39
Ibidem.
65
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Referine bibliografice:
66
Expert electoral Ediie special 2016
Decizia Curii Constituionale Federale Germane din 24 noiembrie 1981 2BvC 1/81,
BVerfGE 59.
Decizia Curii Constituionale Federale Germane din 3 martie 2009 2 BvC 3/07, 2 BvC
4/07.
Decizia Curii Constituionale Federale din 15 februarie 1967, 2 BvC 2/66, BVerfGE 21,
200.
Decizia Curii Constituionale Federale din 24 noiembrie 1981 2BvC 1/81, BVerfGE
59, 119.
Curtea Suprem a Estoniei (2005). Cauza 3-4-1-13-05 din 1.09.2005. Riigi Teataja III
(Journal officiel), 26, 262. Disponibil la: http://www.codices.coe.int
Curtea Constituional din Indonezia (2010). Decizia din 30.03.2010 147/PUU-
VII/2009. Disponibil la: http://www.codices.coe.int
Cauza Hirst mpotriva Regatului Unit, din 6 octombrie 2005.
Cauza Zdanoka mpotriva Letoniei, din 16 martie 2006.
Cauza Yumak i Sadak mpotriva Turciei, din 8 iulie 2008.
www.venice.coe.int
67
LEGALITY, SEPARATION OF POWERS,
STABILITY OF ELECTORAL LAW:
THE IMPACT OF NEW VOTING TECHNOLOGIES
Abstract: Rsum :
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etc.). An example of such a question would require authorisation to act, and act within the
be: is legality respected if Internet voting, an powers that have been conferred upon them,
optional voting channel, suffers a distributed- will be examined under separation of powers
denial-of-service attack and is switched off for (chapter III). The main elements of legality
some time? However, legal discussion of such as defined in the above-mentioned Rule of
problems falls outside the scope of this paper. Law Report and the Rule of Law Checklist
With respect to e-voting legal pro- of Venice Commission and their meaning
visions, reference is made to provisions to e-voting will be sketched in section A,
found in international soft law, namely followed by some examples of e-votings
the following documents adopted by the specific aspects and their conformity with the
Committee of Ministers of the Council of principles (section B).
Europe: The Recommendation of the Com-
mittee of Ministers to Member States on le- A. Elements
gal, operational and technical standards for 1. Supremacy of the Law
e-voting, also known as Rec(2004)11; the Supremacy of the law requires consti-
Certification of e-voting systems, Guidelines tutional and legal conformity of an e-voting
for developing processes that confirm com- regulatory framework and practice. The e-
pliance with prescribed requirements and voting regulatory framework, for example,
standards approved in 2011 (we refer to it as should respect constitutional principles, in
Guidelines on Certification); the Guidelines particular the principles of universal, equal,
on transparency of e-enabled elections free, secret and direct suffrage, election-
approved in 2011 (we refer to it as Guidelines related fundamental rights and procedural
on Transparency). Furthermore, Venice Com- guarantees. Its quality (or clarity) and level
missions 2004 report on e-voting will be of detail are important. Clarity of provisions
mentioned.4
influences their implementation.
The paper highlights some challenges
What does clarity mean? Does it
for ensuring compliance with the principles
mean technical regulations should be as
in an e-voting context. There are close links
clear as to be understood by the laymen
between the three principles and several of
without technical knowledge? Or clear to
their elements overlap. We will discuss in
the competent specialist? The question was
some detail the legality principle (II) and
asked in Germany, Austria and, indirectly,
present an overview of separation of powers
(III) and stability of electoral law (IV) as in Switzerland5 and opinions differ (we will
implemented in an e-voting context, followed come back to this later).
by conclusions (V). In the European heritage, clarity is
linked to implementation. Regulations, for in-
II. Legality and E-Voting stance, should be clear to make implemen-
tation possible. But, implementation by
The law must be respected, not only whom? The civil servant without specific
by individuals, but also by authorities, public technical knowledge or the mandated e-vot-
or private. Lower level e-voting regulations ing expert?
must respect higher level instruments and The normative level of e-voting pro-
decisions must be based on law. Legality visions is important. If the Constitution forbids
also refers to a transparent, accountable and or limits uncontrolled remote voting, as is the
democratic process for enacting the law. case in Austria, e-voting from an uncontrolled
Another aspect, the fact that public officials environment (Internet) can only be introduced
after amending the Constitution.
4
European Commission for Democracy through Law
(Venice Commission)/Grabenwarter, Ch. (2004), Re- 5
For a detailed discussion, see the respective chapters
port on the compatibility of remote voting and elec- in Driza Maurer, A., Barrat J. (eds.), E-Voting Case
tronic voting with the standards of the Council of Law. A Comparative Analysis, Routledge (Ashgate)
Europe. Publishing Ltd., Surrey, England, 2015.
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and technical knowledge is needed. Research recorded truthfully, without any special prior
has developed interdisciplinary interfaces that technical knowledge. The Austrian Court11
enable a gradual technical implementation of arrived at a similar conclusion based on the
legal provisions. The use of such interfaces in principle of legal determination. However,
the e-voting area is of particular interest.7 Estonia and Switzerland do accept the fact
The interpretation of the same consti- that such elements cannot be understood
tutional principles may yield different results by the laymen but only by (democratically
in different countries. When considering appointed) specialists.
the constitutionality of e-voting in its much When assessing the constitutional
commented 2009 judgement,8 the German conformity of e-voting, principles related to
Constitutional Court derived a principle of the automatic processing of personal data and
the public nature of elections from other use of databases (e.g. data protection, right to
constitutional rights. Such principle intro- informational self-determination, telecom-
duces a presumption for public inspection munication secrecy) need to be considered.
in all electoral matters as a way to guarantee In its 2004 report on e-voting, Venice
public trust in the result of elections. This Commission concluded that electronic vot-
(deduced) principle does not exist in Austria, ing is neither generally permitted by human
Estonia or Switzerland, for example, despite rights, nor ruled out a priori. Instead, its
the fact that they share similar constitutional acceptability depends on the legal, opera-
values with Germany.9 tional and technical standards implemented
By applying the principle of the public in the procedure.12 The quality of the regu-
nature of elections to e-voting,10 the German latory framework has a pivotal role in
Court concluded that the layman must be able ensuring its conformity with the Constitution.
to comprehend the central steps of the election Ensuring quality is a challenge for the
and verify reliably that his/her vote has been legislator. Reasoning by analogy with similar
channels (e.g. consider that Internet and postal
7
The method KORA (Konkretisierung Rechtlicher voting both distant voting methods can
Anforderungen = Concretisation of Legal Require- be regulated in a similar way) has shown its
ments) invented in 1993 proposes a four-tier limits.13 The regulatory framework conceived
method for acquiring technical proposals from legal
provisions. Researcher has proposed and tested
for low-tech (mechanical) voting machines is
its use in an e-voting context; see in particular
research from Melanie Volkamer and her team 11
Verfassungsgerichtshof (2011), Decision V 85-
https://www.secuso.informatik.tu-darmstadt.de/en/ 96/11-15, 13 December 2011. Available at: http://
secuso-home/research/publications/?no_cache=1 www.vfgh.gv.at For a detailed discussion, see the
The applicability of KORA to Internet voting was chapter on Austria by Melina Oswald in E-Voting
researched by Philipp Richter in his 2012 doctoral Case Law (fn. 5).
thesis (see Further Reading). One of the latest 12
Based on the analysis of unsupervised postal voting,
contributions on this is from Stephan Neumann and the report proposes similar standards for e-voting.
Melanie Volkamer, A Holistic Framework for the 13
The principle of analogy is developed by Venice
Evaluation of Internet Voting Systems in Zissis, D. Commission in its 2004 opinion (fn. 4) (see in particular
and Lekkas, D. (eds.) (2014), Design, Development, 66). The mechanical application of the principle has
and Use of Secure Electronic Voting Systems, IGI been criticized. See for example Driza Maurer, A.
Global, Hershey, PA. (2014), Ten Years Council of Europe Rec(2004)11
8
Bundesverfassungsgericht (2009), Decision 2 BvC Lessons learned and Outlook in Krimmer, R.,
3/07, 2 BvC 4/07, of 3 March 2009. Available at: http:// Volkamer, M. (eds.), Proceedings of Electronic Voting
www.bundesverfassungsgericht.de. For a detailed dis- 2014 (EVOTE2014), TUT Press, Tallinn, p. 111 117.
cussion, see the chapter on Germany by Sebastian See also Driza Maurer, A. (2013), Report on the possi-
Seedorf in E-Voting Case Law (fn. 5). ble update of the Council of Europe Recommendation
9
For a detailed discussion, see the respective chapters Rec(2004)11 on legal, operational and technical
in E-Voting Case Law (fn. 5). standards for e-voting, 29 November 2013. Available at:
10
The requirement is formulated in broad terms http://www.coe.int/t/DEMOCRACY/ELECTORAL-
covering voting machines as well as Internet voting. ASSISTANCE/themes/evoting/default_en.asp
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not suited to regulate e-voting14 and neither tation of the principles, as the German and
is the regulatory framework of traditional Austrian courts said.
voting channels: they are all insufficient or Judicial review of e-voting is import-
unsuitable to regulate e-voting. ant to control its constitutional conformity.
Courts have sanctioned lack of However, with respect to e-voting regula-
quality of the regulatory framework. The tions, it has not been straightforward. In
German and Austrian decisions mentioned principle, judicial review of administrative
above declared unlawful the e-voting regula- acts (e-voting regulations or decisions) is
tions as insufficiently detailed. Sufficiently possible. In practice, not all courts have been
detailed regulations are necessary. But what prone to proceed to such a review, especially
is a sufficiently detailed regulation? For the
when no irregularities in the voting itself were
Austrian court, provisions must be understood
alleged (or could be proved). The difficulty or
by the members of the electoral commission
even impossibility to obtain evidence is yet
without the assistance of technical specialists.
another challenge in an e-voting context.)17
For the German court, provisions must be
understandable by the layman (see above). Constitutional courts in Germany and
Rules on technical matters and detail Austria did examine the constitutional con-
may go into regulations of the executive formity of administrative level regulations
according to the Code of Good Practice in (and found them unlawful) even in the absence
Electoral Matters (II.2.a). They actually of alleged irregularities. The Swiss Federal
should, in the e-voting context. The Austrian Court did not proceed to such examination
judge in the above mentioned decision said of a cantonal regulation on e-voting. The
that including detailed technical measures in court relied on the authorization procedure
the (higher-level) law could be problematic (and related controls of conformity) that had
in the light of the rapid development of been conducted by the federal government.
technical standards. Modifications in the Debate, however, continues in Switzerland
e-voting regulatory framework in Estonia on this issue.18
and Switzerland also saw the introduction States must ascertain that e-voting
of multiple layers (three in Switzerland) technical requirements fully reflect the
with technical details regulated by lower relevant legal and democratic principles,
layers which are in the competence of the mainly through certification of the system
executive.15 by an independent and competent body as
Some fear that giving the adminis- foreseen in Rec(2004)11 and Guidelines on
tration the competence to regulate the
Certification. Certification is, however, a
technical details may weaken the content
of the principles. Such fear is to be taken 17
See the detailed discussion by lle Madise and Priit
seriously. It supports another conclusion Vinkel in E-Voting Case Law (fn. 5).
which is that of increasing in-house expertise 18
See the recent Parliamentary initiative 15.412,
of administrations on e-voting.16 However, Reimann Lukas, Les modalits du vote lectronique
this risk must not become an obstacle to ne- doivent pouvoir faire lobjet dun examen juridique.
eded updates. Detailed regulations are actu- Prompted by the courts decision, the intervention
proposes to change the federal law on political
ally necessary to ensure correct implemen- rights to require cantons to set-up specific bodies for
considering the constitutional conformity of e-voting
14
See for example the discussion on France by Jordi modalities, independently from its use in a specific
Barrat in E-Voting Case Law (fn. 5). vote or election. Such abstract control of legality was
15
For a detailed discussion, see Driza Maurer, A., so far rejected by the competent commission of the
Update of the Council of Europe Recommendation lower chamber of Parliament which refused a solution
on Legal, Operational and Technical Standards for unique to e-voting. Instead, the commission proposes
E-Voting A Legal Perspective, in Tagungsband to reinforce existing checks: the conditions for issuing
IRIS 2016. the authorization to use e-voting in a federal vote and
16
See Conclusions in E-Voting Case Law (fn.5). for controlling its observance.
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References:
Barrat, J. (ed.) (2016). El Voto Electrnico y Sus Dimensiones Jurdicas: Entre la Ingenua
Complacencia y el Rechazo Precipitado. Ed. Iustel.
Driza Maurer, A., Barrat, J. (eds.) (2015). E-Voting Case Law. A Comparative Analysis.
Routledge (Ashgate) Publishing Ltd., Surrey, England.
Driza Maurer, A. (2016), Update of the Council of Europe Recommendation on Legal,
Operational and Technical Standards for E-Voting A Legal Perspective, in Tagungsband
IRIS 2016.
Krimmer, R., Volkamer, M. (eds.) (2014). Proceedings of Electronic Voting 2014
(EVOTE2014), TUT Press, Tallinn.
Krimmer, R. and Grimm, R. (eds.) (2010). Electronic Voting 2010 (EVOTE10), Lecture
Notes in Informatics (LNI) Proceedings Series of the Gesellschaft fr Informatik (GI),
Volume P-167.
Zissis, D. and Lekkas, D. (eds.) (2014). Design, Development and Use of Secure Electronic
Voting Systems. IGI Global.
European Commission for Democracy through Law (Venice Commission)/Grabenwarter, Ch.
(2004). Report on the compatibility of remote voting and electronic voting with the
standards of the Council of Europe.
Bundesverfassungsgericht (2009). Decision 2 BvC 3/07, 2 BvC 4/07 of 3 March 2009.
Available at: http://www.bundesverfassungsgericht.de
Verfassungsgerichtshof (2011), Decision V 85-96/11-15, 13 December 2011. Available
at: http://www.vfgh.gv.at
h ttps://www.secuso.informatik.tu-darmstadt.de/en/secuso-home/research/
publications/?no_cache=1
Further Reading:
Barrat, J. (ed.) (2016). El Voto Electrnico y Sus Dimensiones Jurdicas: Entre la Ingenua
Complacencia y el Rechazo Precipitado. Iustel.
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Expert electoral Special Edition 2016
Driza Maurer, A., Barrat J. (eds.) (2015). E-Voting Case Law. A Comparative Analysis.
Routledge (Ashgate) Publishing Ltd., Surrey, England.
Krimmer, R. (2012). The Evolution of E-voting: Why Voting Technology is Used and
How it Affects Democracy. Tallinn University of Technology Doctoral Theses Series I:
Social Sciences, No. 19.
Richter, P. (2012). Wahlen im Internet rechtsgemss gestalten. Baden-Baden, Nomos.
Vinkel, P. (2015). Remote Electronic Voting in Estonia: Legality, Impact and Confidence.
Tallinn University of Technology Doctoral Theses, Series I: Social Sciences, No. 24.
Volkamer, M. (2009). Evaluation of electronic voting: Requirements and evaluation
procedures to support responsible election authorities, Series Lecture notes in business
information processing, Vol. 30, Springer, New York.
Zissis, D. and Lekkas, D. (eds.) (2014). Design, Development, and Use of Secure
Electronic Voting Systems. IGI Global, Hershey, PA.
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NEW VOTING TECHNOLOGIES
AND ELECTIONS IN FEDERAL AND REGIONAL
STATES IN PRACTICE
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Expert electoral Special Edition 2016
Rsum : Abstract:
Mots-cls : vote lectronique, vote par Cuvinte-cheie: vot electronic, vot prin
Internet, dpouillement lectronique, collecte internet, numrare electronic, colectare
lectronique, ptition lectronique electronic, petiie electronic
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Expert electoral Special Edition 2016
was surrounded by a lot of political conflict over 3.2 million voters (44% of the total
and disagreement about the usefulness of the electorate) cast their votes electronically.
technology (Krimmer et al., 2010). Following Laws passed in 1999 and 2003 also
the debate, including the Constitutional Court allowed trials of an optical scanning system in
declaring a decree regulating the Internet which votes cast using the traditional pen and
voting not to be in line with underlying legis- paper method were read electronically in the
lation, the Minister of Science and Research electoral districts of Chimay and Zonnebeke.8
decided not to proceed with Internet voting for However, these trials were discontinued.
university elections (Goby and Weichsel, 2012). The Special Law of 13 July 2001
Sub-national elections are governed transferred to the regions competences in
by state law. As these must abide by the
legislation on and regulation and organisation
Constitution, there are currently no trials or
of municipal and provincial elections. The
projects advancing Internet voting at this
2006 and 2007 local elections were the first
level. Furthermore, there are no electronic
counting machines used in Austria. Counting to be organised by the regions on the basis
is undertaken in small voting districts with of this law.
no more than about 700 voters per election Following concerns about the capa-
authority. This setup allows for votes to be city of the automated voting system to verify
cast and counted exclusively in analogue votes and about the overall security of
form (BM.I Wahlrecht, 2016). e-voting, the law on automated voting was
amended in 2003.9 According to the revised
Belgium
law, votes cast electronically were also to be
Belgium was one of the first countries
printed on paper.
to introduce electronic voting machines. It
began in 1991 on an experimental basis in In 2006 the Belgian government com-
two electoral districts, namely in Verlaine missioned a comparative study from a consor-
and Waarschoot. In 1994, a federal law, tium of universities on e-voting systems in
the Law Organising Automated Voting, nine European countries (including Belgium),
was introduced to regulate the procedure.6 in order to decide whether it is appropriate
The law allows electoral districts and to continue the e-voting experiment.10 The
municipalities to use automated voting report recommended what is described as
systems during elections. It is very specific an improved paper based voting system,
about the procedures to be used.7 By 1999, in which the voter casts his or her vote on
6
The original law may be accessed, both in French 8
See also Lecture optique pour les cantons de Chimay
and in Dutch, at this webpage: www.elections. et Zonnebeke, available at: http://www.elections.
fgov.be/fileadmin/user_upload/Elections2009/ fgov.be/index.php?id=434&no_cache=1&print=1,
f r / l o i s / 11 a v r i l 1 9 9 4 _ l o i _ v o t e _ a u t o m a t i s e _ _ accessed on 9 March 2016.
version_010207_.pdf, accessed on 7 March 2016. 9
Act of organizing an automated voting control system
7
The law stipulates that electronic voting takes place by printing the votes cast on paper and amending the
at a polling station, in which there is a voting machine. Act of 11 April 1994 organizing automated voting,
Voters are provided with an electronic card that they the Law of 18 December 1998 organizing automated
insert into a slot in the voting machine. The display vote counting through an optical reading system
screen on the voting machine shows the serial number and amending the Act of 11 April 1994 organizing
and the symbol of all the lists of candidates and the automated voting and the electoral code (11 March
voter uses an optical pen to mark the list of his/her 2003), available at: www.ejustice.just.fgov.be/ cgi_loi/
choice. The voter is then given the opportunity to change_lg.pl?language=fr&la=F&cn= 2003031136&
confirm his/her vote before returning the card for table_name=loi, accessed on 7 March 2016.
inspection to the president of the polling station, and 10
Federal Public Service Interior (Intrieur Binnenlandse
afterwards the card is inserted into an electronic ballot Zaken, IBZ), Direction des Elections. BeVoting: Study of
box, where it will remain after the data stored on it is Electronic Voting Systems (Version 1.1, 15 April 2007),
read. Each polling station sends the data to the main available at: http://www.elections.fgov.be/fileadmin/
office of the town or region, where it is recorded and user_upload/Elections2011/fr/presentation/bevoting-1_
aggregated. gb.pdf, accessed on 10 May 2016.
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Expert electoral Special Edition 2016
electoral commission is not responsible for that only such voting machines are permitted
the implementation of municipal elections. and used which meet the constitutional
Hence, municipalities possess a certain degree requirements of the principle of the public
of autonomy (Elections Canada, 2015). nature of elections 16 in the words of the
Germany citation from the Constitutional Court17. The
In Germany, e-voting effectively came use of electronic voting machines in future
to a halt when the Federal Constitutional German elections thus depends on whether
Court (Bundesverfassungsgericht) ruled it un- transparent control mechanisms for ensuring
constitutional in 2009. Since then (almost)14 an accurate vote count can be provided or not.
no further moves have been made to enable Electoral counting in turn is current-
an electronic voting process meeting those ly allowed and deployed (since 2002) in
constitutional requirements. Before 2009, some municipalities of the three Bundesln-
however, electronic voting was in use. The der Hesse, Baden-Wurttemberg and Bavaria.
first trials on sub-national level were carried In contrast to the voting machines, these
out in 1998 at local elections in Cologne. counting systems are not subject to any
A year later, the city of Cologne used the admission procedure. In Hessen, 48a(8)
electronic voting machines for its European of the municipal election ruling permits the
Parliament elections. In 2002 the same vot- automated (electronic) counting of votes,
ing machines came to use in the federal elec- although the respective municipality law
tions, however only on a small scale. The (Kommunalwahlgesetz) does not provide
national elections of 2005 saw the first large- a corresponding authorisation. In Bavaria
scale deployment of those voting machines. it is 82 of the Wahlordnung fr die Ge-
On that occasion, around two million voters meinde- und die Landkreiswahlen that pro-
in five different German states cast their vote vides a legal basis for electronic counting,
electronically. Soon after, the deployed voting while in Baden-Wurttemberg it is 37 of
machines came under increasing criticism. In the Kommunalwahlordnung that assures
the Netherlands, a similar voting machine was electronic counting. In practice, the electronic
cracked successfully by a group of hackers, counting of votes works as follows: the
which led the Dutch government to decertify ballots are combined with a bar code next
the further use of that system in 2006. That to the candidates names. The bar code is
incident prompted two German citizens to subsequently scanned with a respective
bring a lawsuit before the Constitutional bar code gun (or pen18). The votes are then
Court in Karlsruhe, where they eventually transferred to a connected computer, on
succeeded.15 So far, the last deployment of which the counting process is administered.
voting machines was on the occasion of the On the occasion of the local elections in 2008
Landtagswahlen 2008 in Hesse. in Bavaria, roughly a thousand municipalities
It is, however, important to note that used the above-mentioned system to elec-
the federal electoral law of Germany (Bundes- tronically count the votes.
wahlgesetz) explicitly permits the use of voting
machines ( 35 Stimmabgabe mit Wahlgerten). 16
The latter principle is prescribed by the articles 38
But the Federal Voting Machines Ordinance and 20 of the Basic Law (Grundgesetz).
(Bundeswahlgerteverordnung) is declared
17
Press release of the Federal Constitutional Court
regarding the Judgment of 3 March 2009: https://
as unconstitutional because it does not ensure www.bundesverfassungsgericht.de/SharedDocs/
Pressemitteilungen/EN/2009/bvg09-019.html
14
The Technical University of Darmstadt is devel- 18
Following the 2005 national pilot study, the Senate
oping a system (Easy Vote) compatible with the of Hamburg decided to use a digital pen voting
requirements of the Basic Law. system for the upcoming local elections in 2008
15
The 2005 elections result, however, was deemed (Brgerschaftswahl). However, these plans have
valid by the court since there has not been any evidence ultimately been cancelled due to concerns over the
of fraud or systemic errors. accuracy of voting tallies.
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Expert electoral Special Edition 2016
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Expert electoral Special Edition 2016
result of a vote (Driza Maurer, 2013; Hill, national electoral management body has
2015). only used very soft instruments in order to
Whereas the introduction of Internet achieve a certain harmonisation of e-counting
voting is regulated in a national ordinance20 among the cantons in the form of a handout,
and in great detail, several cantons and cities in 2003, regarding the use of precision scales
have experimented with e-counting without and eventually an additional one coming out
much control from the national level. The in 2016. The imbalance regarding the (lack
cantons Geneva (since 2001) and Basle-City of) regulation for e-counting technology at
(since 2015) as well as the cities Bern (2014), national level in comparison to the detailed
Lausanne and several others in the canton of prescriptions for Internet voting is currently
Vaud (2005), Fribourg (2004) and St. Gallen under review.
(2008) are using electronic means for vote With three to four referendum dates a
counting, such as optical scanners, based on year, the Swiss electorate is called to vote on
cantonal and municipal legislation only. They all three state levels more often than in any
must, however, get approval from the Swiss other polity. For many of these votes a prior
Government.21 collection of signatures is necessary. This is a
For the counting with precision tedious task which is sometimes outsourced to
scales22 and ballot counting machines23, as semi-professional signature collectors. Paying
they are used in banks to count paper money, citizens for signing up for a certain cause is
the votes are first separated and sorted by however forbidden by law.24 It would therefore
hand and only thereafter they are counted by seem obvious to develop a system of e-collect-
the machines. For optical scanners, the degree ing for the direct democratic instruments
of technical complexity is higher because it is requiring a certain number of signatures. Such
actually a software recognising the will of the a system does not exist yet (Serdlt et al.,
voter. So far, the Federal Chancellery as the 2016) and is not foreseen as a priority in the
national e-government strategy paper of the
20
All requirements and the whole legal basis are Swiss government Digital Switzerland25. In
available on the website of the Federal Chancellery in the absence of an official e-collecting portal it
German, French, Italian and also in English: https:// is not surprising to see wild, semi-automatic
www.bk.admin.ch/themen/pore/evoting/07979/index. signature collecting portals appearing such as
html?lang=en, accessed on 3 March 2016. the one set up by middle-left political circles
21
See Federal Act on Political Rights, Art. 84: Use of
technical aids: called www.wecollect.ch. This not-for-profit
1. The Federal Council may authorise cantonal online platform supports initiative committees
governments to enact provisions that derogate from with an online solution allowing to fill in a pdf
this Act for the purposes of ascertaining the results of form which, however, still has to be signed and
elections and popular votes by using technical aids. sent in by snail mail in the end of the process
2. Election and popular vote procedures that use
technical aids shall require the approval of the Federal
for verification.
Council. (See link above for the source.) United Kingdom
22
See for example the municipality of Maur in the
Electoral law in the United Kingdom
Canton of Zrich: http://ch.mt.com/ch/en/home/
supportive_content/know_how/po/service/weighing_ is not enshrined in a single legal act; instead
votes.html there is a large volume of both primary and
23
See for example in the ordinance related to the Law on secondary legislation regulating elections
Political Rights in the Canton of Argovia, in paragraph (separately) in England, Scotland, Wales
30 (1): For vote counting in elections and referendums and Northern Ireland. Overall, the law tends
the use of technical or electronic aids is permitted,
provided these procedures are reliable and approved
to lack detailed provisions on how elections
by the State Chancellery [131.111 Verordnung
zum Gesetz ber die politischen Rechte (VGPR), 24
On campaign regulation regarding financing and
25 November 1992, in force since 1 January 1993 media, see Serdlt, 2010.
(https://gesetzessammlungen.ag.ch/frontend/versions/ 25
http://www.bakom.admin.ch/themen/infosociety/
1622, accessed 6 June 2016)]. index.html?lang=en, accessed on 6 June 2016.
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Expert electoral Special Edition 2016
are to be conducted, and the way to conduct & Research Services (DRS), which won
certain procedures is left to the discretion of the contract to provide the technology for
the returning officer for the constituency. The the electronic vote. Electronic counting was
use of specific technologies in the conduct of used again in the 2004, 2008, 2012 and 2016
elections is not specified in the law. However, Assembly and mayoral elections and the
the 2000 Representation of the People Act technology was once again provided by DRS.
allowed local authorities in England or Wales 2000 was also the year in which
to submit proposals to the Secretary of State electronic voting was first used in the United
to carry out an electoral pilot scheme. Such Kingdom. Five pilots were carried out in
pilot schemes can involve changes to how Bury Metropolitan Borough Council, Sal-
voting at local elections (district, county ford City Council and Stratford-upon-Avon
and borough council level) can take place District Council, in which voters were able to
and how votes cast are counted. The 2002 cast votes using a touch screen voting machine
Scottish Local Government (Elections) Act installed at polling stations. The votes were
granted permission for similar pilot schemes also subsequently counted electronically.
for local government elections in Scotland. Significantly, more pilot schemes were
Both acts allowed voting to take place in rolled out in local elections in 2002 and
other places than the polling stations. The 2003. In 2002, fifteen local authorities used
2002 Scottish Local Government (Elections) electronic counting mechanisms and eight
Act allowed pilot schemes to alter the method of these used various electronic and remote
used to cast votes. This was further reflected voting procedures as well. Electronic counting
in the 2004 Local Governance (Scotland) either occurred automatically, as a result of
Act, which made provision for the election electronic voting, when ballot papers were
of councillors by Single Transferable Vote keyed into electronic scanners, or a semi-
(STV) in Scottish local elections. automated counting method was used whereby
The first trials to be held in the UK an electronic wand was passed over ballot
were carried out in the local elections of papers26. In total, nine local authorities used
2000. Electronic vote counting was used some form of electronic or remote voting: five27
in the Broxbourne Borough Council and used remote online voting (for example, from
Three Rivers District Council (both in a personal computer), seven28 used electronic
Hertfordshire). In the case of Broxbourne, a voting via touch screen kiosks in the polling
specific bar code was associated with each station or elsewhere, while two29 allowed
candidate on the ballot paper and a bar code voting by SMS text messaging.30 In 2003,
reader was used to swipe the bar code next to seventeen pilots also introduced a number of
the name of the candidate that the voter had forms of electronic voting, including Internet
selected. In Three Rivers, optical scanning voting, voting via touch screen kiosks and
machines were used to read the ballot papers. voting by SMS text messaging, while three
Electronic counting was introduced for
London mayoral elections and the simultaneous 26
In Broxbourne and Liverpool.
elections to the Assembly for London in 2000. It 27
Two wards in Liverpool City Council, three wards
was considered expedient to do so as the voting in Sheffield City Council, two wards in St. Albans
City and District Council, two wards in Crewe and
and counting procedures were quite complex; Nantwich Borough Council and nineteen wards in
each voter was asked to cast three ballots: one Swindon Borough Council.
for mayor (ranked in order of preference), 28
Sheffield, St. Albans, Crewe and Nantwich, as well
one to elect a constituency Assembly member as the London Borough of Newham, Stratford-upon-
and one to elect an additional member on Avon, Bolton Metropolitan Council and Chester City
a London-wide basis the result of the Council.
29
Liverpool and Sheffield.
Supplementary Vote system of proportional 30
See The Electoral Commission (2002). Modernising
representation that was used to elect the London Elections: A Strategic Evaluation of the 2002 Electoral
Assembly. Optical scanners to scan the ballot Pilot Schemes, available at: http://tinyurl.com/hhjxhtx,
papers were provided by the company Data accessed on 2 March 2016.
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Expert electoral Special Edition 2016
councils introduced special schemes for In Scotland, STV for local elections
electronic counting. was introduced in 2007 according to the
From 2004, the pace of innovation provisions of the 2004 Local Governance
began to slow down and in 2006 just two lo- (Scotland) Act. Because the counting process
cal authorities trialled the electronic counting for STV is complex and arduous, the Scottish
of ballot papers. The final round of pilots government decided that the traditional
occurred in the 2007 local elections, five local manual counting of ballot papers should
authorities pioneered Internet voting schemes31, be replaced by an electronic vote count
while six used electronic counting of ballot for both the local and Holyrood (Scottish
papers32. In 2008 the Electoral Commission parliamentary) elections, which were held
(EC) recommended that further pilots would simultaneously, on the 3rd of May 2007. The
be unnecessary and the introduction of Internet count took place in 32 counting stations
voting and counting more widely should only across Scotland and electronic scanning
be introduced in combination with a more machines were used. A number of problems
far-reaching plan for modernising elections, were identified with the procedure, including
including a system of individual voter regis- a database malfunction within the electronic
tration (introduced only in 2014), and proce- counting system in some of the count
dures implemented to ensure that e-voting stations, and a disproportionate number of
solutions were secure and transparent. The ballots were rejected. In subsequent elections
EC described the e-voting trials as broadly Holyrood and local government elections
successful insofar as it made voting easier, were held separately and electronic counting
but identified a number of problems involving was abandoned for the Holyrood elections.
accessibility, public understanding of the pre- Electronic counting was used again for the
registration process and (occasionally) technical Scottish local elections of 2012, although
issues. The EC rated electronic counting more another company was contacted to implement
negatively, pointing to significant technical the system (CGI replaced DRS as the main
problems that, on occasions, even made it provider). The 2012 experience was widely
necessary to abandon the electronic count and hailed as successful and the same company
revert to traditional counting methods. Even will be used to implement electronic voting
though the government disagreed with the EC for the 2017 local elections.
report and pledged to continue the schemes, no
United States of America
further such pilot schemes have been held by
The USA is one of the countries with
local authorities.
the oldest traditions and a frequent use of
A rather original method of voting
citizen initiated referendums. More than
was used in September 2006 in the small Scot-
half of the US American states have some
tish town of Menstrie, Clackmannanshire, for
degree of direct democracy mechanisms in
local community council elections. Digital
their constitutions, which in principle could
pens were used to record the votes on special
make use of Internet voting34 and e-collecting
digital paper. There is no evidence, however,
for their respective signature gathering
that the trial was repeated.33
procedures triggering a vote. Indeed, some
US states, such as California and Oregon,
31
Rushmore Borough Council, Sheffield City Council,
Shrewsbury and Atcham Borough Council, South
have vibrant systems of direct democracy
Bucks District Council and Swindon Borough Council.
32
Bedford Borough Council, Breckland District 34
Since the history and legal quarrels in US states on
Council, Dover District Council, South Bucks District electronic voting machines are well-known and do-
Council, Stratford-on-Avon District Council & cumented, we are highlighting here the less commonly
Warwick District Council. known regulations in the field of e-collecting. Regarding
33
BBC News, Electronic Voting World First Internet voting, the general tone in the USA is very
(27 September 2006), available at: http://news. critical. Besides experiments for primary elections and
bbc.co.uk/2/hi/uk_news/scotland/tayside_and_ military personnel overseas, there was not much practice
central/5385086.stm, accessed on 2 March 2016. in recent years (Simons and Jones, 2012).
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Expert electoral Special Edition 2016
involving citizen initiated referendums. the term affix, as used in California law,
Unlike Switzerland, there is, however, no implies a physical signature.37
tradition of direct democracy at the federal Legislative Bill 566 introduced by
level. But, whereas Switzerland has not Nebraska State Senator Paul Schumacher
yet looked into making use of e-collecting, would have allowed proponents to collect
there is noticeable demand for upgrading the signatures online as long as they pay a fee
signature collecting via more efficient online to authorities for operating costs. The Bill
means in several US states.35 died after being referred to government, but
All states wanting to use e-collecting another version (Bill 214) was proposed by
systems connected to referendum votes have Mr Schumacher in 2015 to establish e-collect-
thus far been blocked by the courts. As is ing for initiative and referendum petitions.
typical of the US, there has been a flurry of In April, the Bill was still on hold in the
legal activity surrounding e-collecting as Government, Military and Veteran Affairs
proponents and opponents have mobilised via Committee, but it has since been abandoned.38
the courts. Prominent cases include states such In Nashville-Davidson County, Ten-
as Utah, California, Tennessee and Nebraska. nessee, a proposal was made for a petition
Following a Utah Supreme Court campaign for marijuana decriminalisation
ruling on the validity of e-signatures, the with an intention to use e-collecting. County
Lieutenant Governor issued an interim rule Election Commission said they would not
allowing the collection of e-signatures. The allow electronic signatures. A lawsuit was
interim rule remained in effect for 120 days filed against the Election Commission in
from 8 July 2010; initiators were required January 2014 seeking to require the commi-
to use an electronic packet created by the ssion to accept electronic signatures.Ulti-
Governors office and a signee could only sign mately the initiative did not progress to the
in a petition circulators presence. Following ballot because the group behind the initiative
that period, state officials were scheduled to did not submit any petitions by the deadline
work with the Utah Legislature to establish a on 18 May 2015.
permanent rule in the state code. Opponents As we can see, legislation has been
argued that the rule did not allow for the enacted in some states such as Utah explicitly
chief purpose of electronic signatures to prohibiting e-collecting, while the court in
facilitate signature gathering by allowing it California clarified that a signature implies
to be done online and restricted petitioners. a physical signature, i.e., not electronic. In
In early 2011 Senate Bill 165 a measure Tennessee, the Election Commission has
banning e-collecting was introduced. The prohibited e-collecting. These have all been
Bill was approved in March by the Utah states with instruments of direct democracy.
House of Representatives and enacted into Furthermore, at the state level we found no
law following approval by the Governor.36 evidence of e-collecting being made available
In June 2011, the California First for petitions in the US, a weaker signature
District Court of Appeals issued a ruling in gathering instrument that does not trigger
Ni v. Slocum prohibiting electronic signature the potential for un-mediated policy change.
collection in California. Verafirma founder There is one notable exception, however, at
Michael Ni filed the suit, challenging San the Federal level. Launched by the Obama
Mateo Countys rejection of an electronic Administration in 2011, We the people is
signature in favour of Proposition 19 an e-petition system that provides a platform
(Regulate, Control and Tax Cannabis Act for citizens to petition the US administrations
of 2010). In its decision, the court ruled that
37
http://www.leagle.com/decision/In%20CACO%20
35
For an overview of the debate in the USA, see: 20110630026/NI%20v.%20SLOCUM, accessed on
https://ballotpedia.org/Electronic_petition_signature 3 March 2016.
36
http://le.utah.gov/xcode/Title20A/Chapter1/20A- 38
https://ballotpedia.org/Nashville-Davidson_County_
1-S306.html?v=C20A-1-S306_2014040320140513, Metro_Marijuana_Decriminalization_Initiative_
accessed on 3 March 2016. (August_2015), accessed on 3 March 2016.
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Expert electoral Special Edition 2016
policy experts (see https://petitions.whitehouse. the Internet age. Constituencies with current
gov). The availability of such an instrument, Internet voting trials are usually not early
with a fully-fledged e-collecting system at the adopters and take a very piecemeal trial and
federal level, contrasts vividly with dynamics at error approach to introducing this new voting
the state level, where no e-collecting is possible channel.
for petitions. The big difference is the lower Within a country only a handful of
degree of consequentiality on the national level municipalities or regions typically take the lead
(Serdlt et al., 2016). (Australia, Canada, Switzerland), be it because
3. Conclusions of a certain familiarity with remote voting
such as in Switzerland, where postal voting is
This short overview across some of the generalised and very popular, be it because of
most prominent federated polities confirmed rather pragmatic concerns in constituencies,
that there is a vibrant, ongoing but at the same where the distance to the poll can be very
time very scattered experience with NVTs in long, such as in Australia and Canada, or
all of our cases. Comparing the different NVTs be it because of political leaders wanting to
we looked at (electronic or Internet voting,
be at the forefront of technical development
e-counting, e-collecting to some degree),
seeking a positive image. Except for Austria,
we are not able to detect a clear emerging
all our selected countries show a long-standing
pattern. The way NVTs are regulated is far
from being harmonised and can be founded and rather expanding experimentation with
on an explicit legal basis or just as well the the use of e-counting technologies. Whereas
lack thereof. Explanatory factors such as the e-collecting systems do not seem to make
degree of federalism, the legal system as well any inroads into polities with strong, binding
as political culture certainly play a role, but elements of direct political participation in the
we also observe a very much erratic dynamic forms of referendums. A certain dynamism
over time. Experimentation can come to can be observed by a number of parliaments
a sudden halt by technical failures or the opening up with the help of e-petitions
decision of a court or ministry. including more or less elaborate systems of
NVTs seem to be rather sticky in the electronic signature collection.
sense of a path dependency. Early adopters of Whether the further de-materialisation
electronic voting machines have either fully of the vote will continue and lead to an
or partially abandoned their use (Belgium, alienation of the voter or is even to be
Germany, UK) or continued, but not made expected by a younger generation entering
any serious attempts to make a transition to political maturity is still an open question.
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Expert electoral Special Edition 2016
Serdlt, U., Germann, M., Mendez, F., Portenier, A. and Wellig, Ch. (2015). Fifteen Years
of Internet Voting in Switzerland: History, Governance and Use, IEEE Xplore CFP1527Y-PRT,
p. 126 132.
E-mail: uwe.serdult@zda.uzh.ch
Michele McARDLE joined the Centre for Democracy Studies Aarau (ZDA) at the
University of Zrich, Switzerland, in June 2015 as an assistant researcher. Michele McArdle
studies political science at the University of Zrich and is currently writing his Master thesis on
dominant parties at sub-national level.
E-mail: mcardle.michele@hotmail.com
Thomas MILIC is a researcher at the Centre for Democracy Studies Aarau (ZDA) at the
University of Zrich, Switzerland. He holds a PhD degree in Political Science from the University of
Zrich. He has done empirical research on voting behaviour in Switzerland and recently published
a book on that topic. Among his most recent publications there are:
Milic, T. (2012). Correct Voting in Direct Legislation, Swiss Political Science Review 18
(4): p. 399 427.
Milic, T., Rousselot, B. and Vatter, A. (2014). Handbuch Abstimmungsforschung. Zrich:
NZZ Libro.
Milic, T. (2015). For They Knew What They Did: What Swiss Voters Did (Not) Know
About The Mass Immigration Initiative, Swiss Political Science Review 21 (1): p. 48 62.
E-mail: thomas.milic@zda.uzh.ch
Jonathan WHEATLEY is a senior research fellow at the Centre for Democracy Studies
Aarau (ZDA) at the University of Zrich, Switzerland. He holds a PhD degree in Social and
Political Sciences from the European University Institute in Florence. Subsequently, he was a
Research Fellow at the Osteuropa Institut, Free University Berlin. He is now Regional Director at
the Centre for Democracy in Aarau (Switzerland) with responsibilities for the Commonwealth of
Independent States and the Western Balkans region. His research interests include political parties
and party systems, regime transition and the role of the Internet in democracy. Among his most
recent publications there are:
Wheatley, J., Carman, C. and Mendez, F. (2014). The dimensionality of the Scottish
political space: Results from an experiment on the 2011 Holyrood elections. Party Politics, 20(6):
p. 864 878.
Wheatley, J. (2015). Restructuring the policy space in England: The end of the LeftRight
paradigm? British Politics, 10(3): p. 268 285.
Wheatley, J. (2015). Identifying Latent Policy Dimensions from Public Opinion Data:
An Inductive Approach. Journal of Elections, Public Opinion and Parties, 25(2): p. 215 233.
E-mail: jonathan.wheatley@zda.uzh.ch
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Belgique? Available at: http://tinyurl.com/zelbe2j (accessed on 14 May 2016).
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wahlrecht/start.aspx (accessed on 14 May 2016).
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Driza Maurer, A. and Barrat, J. (eds.) (2015). E-voting case law: A comparative analysis.
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Elections Canada (2014). Technology and the voting process. Available at: http://
www.elections.ca/content.aspx?section=res&dir=rec/tech/tec&document=p5&lang=e
(accessed on 14 May 2016).
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Germann, M. and Serdlt, V. (2014). Internet Voting for Expatriates: the Swiss Case,
JeDEM-eJournal of Democracy&Open Government 6(2), p. 197215.
Goby, B. and Weichsel, H. (2012). Das E-Voting-Erkenntnis des VfGH: Gesetzwidrige
Ausgestaltung der H-Wahlordnung, Zeitschrift fr Hochschulrecht, Hochschulman-
agement und Hochschulpolitik: zfhr, 11(3), p. 118 125. doi: 10.1007/s00741-012-0051-2.
Goodman, N. and Pammett, J. (2014). The patchwork of Internet voting in Canada, 2014
6th International Conference on Electronic Voting: Verifying the Vote (EVOTE), Tallinn:
TUT Press, p. 13 18. doi: 10.1109/evote.2014.7001134.
Goos, K., Beckert, B. and Lindner, R. (2016). Electronic, Internet-Based Voting, in
Lindner, R., Aichholzer, G., and Hennen, L. (eds.). Electronic Democracy in Europe:
Prospects and Challenges of E-Publics, E-Participation and E-Voting. Cham: Springer,
p. 135 184.
Hall, T. (2015). Internet Voting: The State of the Debate, in Coleman, S. and Freelon, D.
(eds.). Handbook of Digital Politics. Cheltenham UK: Edward Elgar, p.103 117.
Hill, R. (2015). Challenging an e-voting system in court, in Haenni, R., Koenig R.E., and
Widstrm, D. (eds.). E-Voting and Identity: 5th International Conference, VoteID 2015,
Bern, Switzerland, September 2 4, 2015, Proceedings. Lecture Notes in Computer
Science 9269. Cham: Springer Science + Business Media, p. 161 171.
Krimmer, R., Ehringfeld, A., and Traxl, M. (2010). The Use of E-Voting in the Austrian
Federation of Students Elections 2009, in Krimmer, R. and Grimm, R. (eds.). Electronic
Voting 2010, LNI P-167. Bonn: GI-Edition, p. 33 44.
Mendez, F. and Serdlt, U. (2014). From initial idea to piecemeal implementation, in
Zissis, D. and Lekkas, D. (eds.). Design, Development, and Use of Secure Electronic
Voting Systems. Hershey PA: IGI Global, p. 115 127.
Pammett, J. and Goodman, N. (2013). Consultation and Evaluation Practices in the
Implementation of Internet Voting in Canada and Europe. Available at: www.elections.
ca/res/rec/tech/consult/pdf/consult_e.pdf (accessed on 14 May 2016).
Poier, K. (2001). Grundrechte und E-Voting, in sterreichische Juristenkommission
(ed.). Grundrechte in der Informationsgesellschaft, Kritik und Fortschritt im Rechtsstaat.
Wien: Neuer Wissenschaftlicher Verlag, p. 102 118.
Prosser, A., Schiessl, K. and Fleischhacker, M. (2008). E-voting: Usability and acceptance
of Two-Stage voting procedures, in Wimmer, M.A., Scholl, J., and Ferro, E. (eds.).
Electronic Government, Lecture Notes in Computer Science 4656. Berlin: Springer
Science + Business Media, p. 378 387.
Serdlt, U. (2010). Referendum Campaign Regulations in Switzerland, in Gilland
Lutz, K. and Hug, S. (eds.). Financing Referendum Campaigns. New York: Palgrave/
MacMillan, p. 165 179.
Serdlt, U. (2014). Referendums in Switzerland, in Qvortrup, M. (ed.). Referendums
Around the World: The Continued Growth of Direct Democracy. Basingstoke, Palgrave
Macmillan, p. 65 121.
Serdlt, U., Mendez, F., Harris, M. and Su Seo, H. (2016). Scaling Up Democracy with
E-Collection?, in Noella, E. and Peter, P. (eds.). CeDem 2016 Conference for E-Democracy
and Open Government 2015, 18 20 May 2016, Danube University Krems, Austria. Los
Alamitos CA: IEEE, p. 25 31.
Simons, B. and Jones, D.W. (2012). Internet voting in the U.S., Communications of the
ACM, 55(10), p. 68. doi: 10.1145/2347736.2347754.
Smith, R. (2016). Confidence in paper-based and electronic voting channels: Evidence
from Australia, Australian Journal of Political Science, 51(1), p. 68 85. doi:
10.1080/10361146.2015.1093091.
Vegas Gonzlez, C. (2012). The New Belgian E-voting System, in Kripp, M. J. (ed.).
5th International Conference on Electronic voting (EVOTE2012), LNI P-205. Bonn:
GI-Edition, p. 200 213.
Volkamer, M. (2010). Electronic voting in Germany, in Gutwirth, S., Poullet, Y., and De
Hert, P. (eds.). Data Protection in a Profiled World. Springer Science + Business Media,
p. 177 189.
92
INTERNATIONAL ORGANISATIONS
AND NEW VOTING TECHNOLOGIES
IN THE ELECTORAL FIELD
Gregor WENDA
Deputy Head of Department of Electoral Affairs
Austrian Federal Ministry of the Interior
Chair of the Council of Europe Ad Hoc Committee of Experts on Electronic Voting (CAHVE)
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Rsum : Abstract:
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We did it rather than talk about it, was standards for e-enabled voting was created5
the conclusion of a British representative3 on within the framework of its 2002 2004
the UKs e-voting pilots at an e-Democracy Integrated Project Making democratic
conference in Brussels in 2004. The trust institutions work (IP 1). Its goal was to
in NVT was surprisingly high and strong craft a Recommendation on e-voting to be
hopes and expectations coined the general submitted to the Council of Ministers. Two
discussion: e-voting was supposed to increase subgroups dealing with legal and operational
the overall turnout, attract young voters and aspects as well as technical ones supported
those otherwise barred from the polls, and the ad hoc group. 13 formal meetings took
become a more integral part of daily life. The place between July 2002 and July 2004; in
publics interest in politics should be regained. addition, the two subgroups and individual
The supposedly high expenses would pay off experts met numerous times to elaborate texts
in the long run. However, Michael Remmert and combine the different worlds of lawyers
noted that modernizing how people vote will and technicians.As there was little to no practical
not, per se, improve democratic participation. experience in e-voting, various assumptions
Failure to do so, however, is likely to weaken had to be made. Some technological changes
the credibility and legitimacy of democratic during the forthcoming decade, such as the
institutions4. Academic papers, legal drafts, enormous rise of hand-held devices and
and pilots showed that there was a strong need the almost universal access to the Internet
for general guidance and commonly accepted throughout the day, were barely imaginable
standards among democratic states in order to in the early 2000s. Both remote e-voting and
continue the e-voting path in a credible and e-enabled voting at polling places should
safe way. be covered in the same Recommendation
against the background of a broad variety of
2. The Council of Europe different legal and administrative cultures
Different international institutions and systems. In March 2004 the European
and fora such as the OSCE, the United Commission for Democracy through Law
Nations or the European Union could have (Venice Commission) presented a report on
dealt with the new phenomenon of electronic the compatibility of remote voting and elec-
voting, but it was eventually the Council of tronic voting with the standards of the Council
Europe that started off first: this international of Europe.6 The Ad Hoc Group eventually
organisation headquartered in Strasbourg, came up with a set of 112 legal, operational and
France, was founded in 1949 and comprises technical standards as well as an explanatory
47 member states. The Council of Europes memorandum. The Council of Ministers a-
focus is particularly on legal standards, dopted them in the form of Recommendation
human rights, democratic development, the Rec(2004)11 on 30 September 2004. The
rule of law, and cultural co-operation. Recommendation outlined some of the rea-
sons for the introduction of e-voting, such
2.1. Ad Hoc Group of Specialists as to enable voters to cast their votes
A multidisciplinary Ad Hoc Group of from a place other than the polling station
Specialists on legal, operational and technical in their voting district; to facilitate the
casting of the vote by the voter and the
3
John W. Stephens, BT Government Unit, talking participation in elections and referendums
about the case study Digital Divide cases from of all those who are entitled to vote, and
Liverpool and Sheffield at the European Commissions
e-Democracy Seminar on 12 and 13 February 2004 in
Brussels.
5
Original ideas for an experts meeting with at least
4
Remmert, M. (2004), Towards European Standards one lawyer and one technician eventually led to the
on Electronic Voting, in Prosser, A. Krimmer, R. (eds.). creation of an ad hoc experts group.
6
Electronic Voting in Europe Technology, Law, Politics http://www.venice.coe.int/webforms/documents/CDL-
and Society, P-47, Gesellschaft fr Informatik, p. 15. AD%282004%29012.aspx
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Expert electoral Special Edition 2016
for consideration.21 Based on the report22, the co-host. 15 countries were present, addition-
the experts workshop demanded an update al countries submitted written reports. The
taking into account the issues listed in this meeting emphasized that an () update
report and the high probability that, in the of CM Rec(2004)11 should be undertaken
medium and long term, the number of electoral in a concentrated way by a special ad hoc
systems will comprise some electronic fea- group of experts, as soon as possible, but at
tures, there are a number of strong and the latest in the intergovernmental structure
valid reasons for updating Recommendation within the next Programme and Budget
Rec(2004)11 and concluded that it must 2016 17. The said group of experts should
be ensured that the necessary legal and be composed of government representatives
technical expertise is available during the from election management bodies supported,
drafting process and that it must be open, as necessary, by other relevant stakeholders
with detailed mechanisms to be determined, such as academia, industry, and civil society.
to the full range of stakeholders, e.g., civil
society actors, e-voting systems providers 2.4. CAHVE
and possibly non-member states.23 The Ministers Deputies/Rapporteur
The exact terms of the update were left
Group on Democracy (GR-DEM) endorsed
to the Council of Ministers. The Ministers
the conclusions of the 5th Review Meeting in
Deputies/Rapporteur Group on Democracy
its meeting on 13 January 2015 and agreed
(GR-DEM) debated the report on 20 May
that experts of the competent Election Mana-
2014, but came to no final decision about
gement Bodies in the different member states
the future of e-voting or whether another
review meeting could be held. Due to a should lead the update process. Similar to
non-paper24 for information in view of the Ad Hoc Group of 2002 2004, work on
the meeting of the GR-DEM on 17 June Rec(2004)11 was not deferred to another
2014, in which several countries25 called existing committee or group, but put in
for another review meeting, the Council of the hands of the very experts in electoral
Europe Secretariat eventually supported the matters.26 The Secretariat was asked to pre-
proposal. On 23 June 2014, official invitations pare a draft for the creation of an Ad hoc
for the 5th meeting to review developments Committee of Experts to be placed directly
in the field of e-voting since the adoption of under the Committee of Ministers. In the
Recommendation Rec(2004)11 were sent out. GR-DEM Meeting on 17 March 2015, a draft
The Review Meeting was organized on of the Terms of Reference was presented
28 October 2014 in Lochau/Bregenz with the by the Secretariat and unanimously adopted.
Austrian Federal Ministry of the Interior as The Ministers Deputies approved the Terms
of Reference on the 1st of April 2015 without
21
The author was Ardita Driza Maurer, an independent further debate.27
lawyer/consultant and former member of the e-voting team Thereby, a new Ad hoc Committee of
in the Swiss Federal Chancellery (see Driza Maurer, A., Experts on legal, operational and technical
Report on the possible update of the Council of Europe
Recommendation Rec(2004)11 on legal, operational and
standards for e-voting (CAHVE)28 was
technical standards for e-voting, 29 November 2013).
22
For a summary of the whole debate see Report of 26
Similar to 2002 2004, e-voting was not regarded as
25 April 2013, DGII/Inf(2014)06, p. 4 6. part of e-governance, but as an entirely separate area.
23
Report of 25 April 2013, DGII/Inf(2014)06, p. 5. IP1 differentiated between two focus points: IP1-S-EE
24
For further details regarding the process on the way (E-enabled Voting) and IP1-S-EG (E-Governance).
to the 5th Review Meeting, see Stein, R., Wenda, G., 27
On 25 November 2015 the terms of reference,
The Council of Europe and E-Voting: History and originally only applicable to 2015, were extended to
Impact of Rec(2004)11 in: Krimmer, R., Volkamer, M., the end of 2016 [CM(2015)131 add.].
Proceedings of Electronic Voting 2014 (EVOTE2014), 28
The acronym CAHVE is deriving from the French
TUT Press, Tallinn, p. 106 109. Comit ad hoc dexperts sur les normes juridiques,
25
Austria, along with Belgium, Estonia, Hungary, oprationnelles et techniques relatives au vote
Latvia, Poland and Switzerland. lectronique.
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Expert electoral Special Edition 2016
created. The Secretariat invited countries on 2014, was asked by the Secretariat to continue
the 13th of April 2015 to nominate experts to her work.29 With the input of this core group,
the committee. CAHVEs goal is to finalize a the Secretariat prepared a questionnaire, which
draft Recommendation updating Recom- was disseminated on the 22nd of June 2015.
mendation Rec(2004)11 of the Committee of Member states had to answer eight questions
Ministers to member States on legal, opera- regarding the future of the Recommendation
tional and technical standards for e-voting (i.e., the definition and scope of e-voting,
as well as the explanatory memorandum to the role of EMBs, risk management and
the updated Recommendation. Members assessment, structure of standards, wishes and
are representatives of highest possible hopes regarding an update).
rank from election management bodies with The first meeting of CAHVE took
direct experience or specialized knowledge place on 28 and 29 October 2015 in Stras-
on e-voting (nominated by the member bourg. Approximately 50 participants from
states). Each state has one voting right. Other 25 countries, organizations, institutions, and
participants without the right to vote include academia were present. Upon a proposal from
the Parliamentary Assembly, Congress of Estonia, Austria (represented by the author)
Local and Regional Authorities of the Council was elected as Chair and Swedens delegate,
of Europe, ECHR, Commissioner for Human Kristina Lemon, upon Austrias proposal,
Rights of the Council of Europe, Conference was elected Vice-Chair.30 The meeting dis-
of INGOs enjoying participatory status with cussed the actual approach regarding the
the Council of Europe, European Committee forthcoming update of Rec(2004)11. The
on Democracy and Governance (CDDG), Lead Expert presented the results of the
European Committee on Legal Co-operation questionnaire31 and the Committee took its first
(CDCJ), Steering Committee on the Media decisions:32 The definition of e-voting should
and Information Society (CDMSI), Ad hoc be extended to include all kinds of optical
Committee of Experts on the Rights of Per- scanners. Provision with a much broader
sons with Disabilities (CAHDPH), European scope should be introduced to remind EMBs
Commission for Democracy through Law of their special responsibilities in e-enabled
(Venice Commission); European Union, elections, taking into account the specific
Observer States to the Council of Europe, features of the electoral administrations
OSCE Office for Democratic Institutions in each member state. Awareness on the
and Human Rights (ODIHR), Organization challenges accompanying the introduction
of American States (OAS), European of e-voting should be stressed more strongly;
Commission/UNDP Joint Task Force on accordingly, the updated Recommendation
Elections, Association of European Election should set out the difficulties that could be
Officials (ACEEEO), International Institute encountered in introducing e-voting. With
for Democracy and Electoral Assistance regard to the actual update, a new multi-
(IDEA). Additional ICT experts, civil society,
other states and organisations could also be 29
A small core group of additional experts, selected by
invited upon request. the Lead Expert in accordance with the Secretariat,
In contrast to 2002 2004, where also contributed to the preparatory work and is
currently involved in the first drafting process.
two subgroups were formed, 13 physical 30
Both the author and Kristina Lemon already part-
plenary meetings were held and considerable icipated in the Ad Hoc Group of experts drafting
resources were available, the time frame and Rec(2004)11 and thereby belong to the longest-
infrastructure for CAHVE are on a smaller serving election officials in CAHVE.
scale. The draft is prepared with the help of a
31
19 national delegations and representatives of three
institutions answered the questionnaire.
Legal expert. Ardita Driza Maurer, who had 32
The details are taken from Report GR-DEM(2016)5,
prepared the first assessments for the Vienna presented at the GR-DEM meeting on 25 February
meeting in 2013 and the 5th Review Meeting in 2016.
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Expert electoral Special Edition 2016
layered structure was decided33: the main academia when assessing plans or the
aspects of e-voting, mostly of a legal and practical use of e-enabled voting. Norway in-
more timeless nature, should be put into corporated most of the Recommendations
a core layer and constitute the actual standards into the regulatory framework for
Recommendation. Complementary layers
could be updated more frequently and the countrys Internet voting trials in 2011
include guidelines, regional issues, and best and 2013.35 A Belgian study on e-voting,
practices. The Committee also considered sponsored by Belgian Federal and Regional
that the updated Recommendation should administrations, referred to Rec(2004)11
formalize a review mechanism comparable and used it as a benchmark for their evalua-
to the previous biannual review meetings. tion efforts.36 Estonias37 Supreme Court con-
Within the framework of this mechanism,
sidered the Recommendation when dealing
complementary layers could be updated
more easily. The review mechanism should with the question of the constitutionality
be based on the experience acquired by of Internet voting.38 For the 2008 e-voting
member states in the field of e-voting and pilot in Finland, where some municipalities
on the examples of best practice identified used voting machines with Internet access
in previous review meetings. Pursuant to the in polling stations, Rec(2004)11 was taken
CAHVE meeting, the Secretariat commenced
into account.39 Standards of Rec(2004)11
the second phase of the update work led by
Ardita Driza Maurer. Following the decisions were also considered in Switzerland40 and
of the Committee, she is currently in the Austria41. The OSCE handbook on the
process of finalizing the first draft along with Observation of New Voting Technologies
a small core group of experts, the Secretariat, (see below) calls Rec(2004)11 the only
and the Chairs. An informal meeting of the specialized international legal document in
core experts group took place in Bucharest this regard and mentions it under Good
on the 13th of April 2016, another one is
scheduled for June. The draft will be put 35
http://www.regjeringen.no/upload/KRD/Kampanjer/
on a newly created online platform before valgportal/Regelverk/Regulations_relating_to_trial_
the summer and CAHVE participants will internet_voting_2013.pdf
receive access to review the proposals and 36
http://www.ibz.rrn.fgov.be/fileadmin/user_upload/
contribute to the text of the final version. Elections/fr/presentation/bevoting-1_gb.pdf
Another plenary meeting is expected to be 37
An in-depth presentation of e-voting in Estonia
held in the autumn of 2016. According to is covered in Solvak, M. and Vassil, K. (2016).
the Terms of Reference, CAHVE will finish E-Voting in Estonia, Technological Diffusion and
Other Developments Over Ten Years (2005 2015),
its update work until the end of 2016.34
University of Tartu.
38
Madise, . and Vinkel, P. (2011). Constitutionality
2.5. Impact of Remote Internet Voting: The Estonian Perspective,
The Council of Europes impact in Juridica International. Iuridicum Foundation, Vol. 18,
the field of NVT is evident. Its expertise p. 4 16.
and reputation in electronic voting are inter- 39
Whitmore K., Congress of Local and Regional
nationally renowned. Rec(2004)11 was drawn Authorities Information Report on the Electronic
Voting in the Finnish Municipal Elections ( https://wcd.
upon by different countries, courts, and coe.int/ViewDoc.jsp?id=1380337&Site=Congress)
40
Concerning e-voting in Switzerland on the federal level,
33
For further considerations, see Driza Maurer, A., see: http://www.bk.admin.ch/themen/pore/evoting/
Update of the Council of Europe Recommendation 41
Ehringfeld, A., Naber, L., Grechenig, T., Krimmer, R.,
on Legal, Operational and Technical Standards Traxl, M., Fischer, G. (2010), Analysis of Recommen-
for E-Voting A Legal Perspective, IRIS 2016 dation Rec(2004)11 based on the experiences of
Proceedings (2016), p. 295 304. specific attacks against the first legally binding
34
The GR-DEM meeting on 25 February 2016 implementation of e-voting in Austria. For additional
explicitly invited the Committee to exhaust all information on the 2009 use of Internet voting in
resources available (both in terms of time and budget) Austria, see the article on E-Voting in Austria in
if needed. this publication.
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for this purpose, to look into e-voting and ment58 and subsequent OSCE commitments
its correlation to OSCE commitments.53 are equally followed when using NVT,
Missions54 to the Netherlands (Parliamentary ODIHR developed a specific methodology
Elections, 22 November 2006), Kazakhstan for the observation of e-enabled elections.
(Presidential Elections, 4 December 2005, In 2010, the first Senior Adviser for NVT
and Parliamentary Elections, 18 August was appointed59, and in 2013 the first OSCE/
2007), Finland (Parliamentary Elections, 18
ODIHR Handbook for the Observation of
March 2007), Estonia (Parliamentary Elec-
New Voting Technologies was published.60
tions, 4 March 2007), or Belgium (Federal
Based on the handbooks finding, main
Elections, 10 June 2007) repeatedly brought
up the question: how to best observe elec- elements for e-voting observation missions
tronic voting55 which poses challenges to should include:
the traditional and broadly accepted con- the decision-making process to
cepts of transparency and accountability of introduce New Voting Technologies (NVT);
election processes. A 2008 OSCE/ODIHR the legal context;
Discussion Paper in Preparation of Guide- the electoral system and NVT;
lines for the Observation of Electronic political parties and civil society;
Voting56 points out that e-voting has become media and NVT;
the subject of public debate in a number procurement and acquisition of NVT;
of countries, thereby influencing public the role of the election adminis-
perceptions and confidence concerning the tration;
security and secrecy of the ballot and the security and secrecy of the vote;
reliability of electronic voting. The obvious integrity of results;
challenge of electronic voting, in terms of usability, ballot design, voter acces-
transparency and accountability, is that it is sibility and reliability;
more difficult to observe. This is particularly public testing;
due to the fact that electronically-enabled evaluation and certification;
processes in elections are sometimes not verification methods (verifiability,
visible or difficult to comprehend without a auditing of results, paper audit trails, etc.);
certain degree of technical knowledge.57 observers access, documentation
In order to ensure that the OSCE and other transparency measures.
principles of the 1990 Copenhagen Docu- While no specific documents, let alone
commitments, concerning NVT have been
53
Report (footnote 51), p. 8. developed by OSCE participating states as
54
All mission reports can be accessed at: http://www. yet, ODIHR and the Council of Europe have
osce.org/odihr/elections
55
For a general overview, see: Vollan, K., Observing
worked closely in reviewing and assessing
Electronic Voting, NORDEM Report 2005 (https:// guidelines and advice for e-enabled voting.
www.jus.uio.no/smr/english/about/programmes/ ODIHRs experiences are currently fed
nordem/publications/docs/Observing%20electronic% into the update of Rec(2004)11 at CAHVE.
20voting_Vollan_2005.pdf).
56
http://www.osce.org/odihr/elections/34725
57
The challenges of the observation of e-enabled elections
were also among the subjects of the 2006 Conference of 58
Document of the Copenhagen Meeting of the Con-
the Council of Europe and the Estonian Foreign Ministry; ference on the Human Dimension of the CSCE of
see also Breuer, F., E-Voting: Lessons Learnt and Future 29 June 1990 (http://www.osce.org/de/odihr/elections/
Challenges, Council of Europe Conference Report, Tal- 14304).
linn (Estonia), 27 28 October 2006 (http://www.coe. 59
Dr. Robert Krimmer, who is now Professor of E-Go-
int/t/dgap/goodgovernance/Activities/E-voting/CoE_Studies/ vernance at the Ragnar Nurkse School of Innovation
Report%20Tallinn%20Conf%20E-voting%2027-28% and Governance (Tallinn University of Technology).
2010%2006%20E%20fin.asp). 60
http://www.osce.org/odihr/elections/104939
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The 2004 Recommendation already featured books 3rd edition, which was published in
some standards dealing with the role of elec- April 2016, further extends the chapter on
tion observers.61 Guidelines on transparency e-voting and also gives reference to other
supplementing the Recommendation were international documents such as Rec(2004)
introduced in 2011.62
11 or the OSCE/ODIHR Handbook.64 Inter
3.2. European Union alia, the publication mentions issues to be
Despite rising e-voting activities in a considered by the EU EOM with regard to
number of member states, NVT did not appear e-voting, such as Is there broad confidence
in the focus of the European Union in the early of the public and electoral stakeholders in
2000s. E-voting was occasionally dealt with e-voting?, Does the e-voting system used
in the wider scope of e-democracy. One of facilitate an election that is in accordance with
the few international EU events in that period international obligations, including emerg-
was an e-Democracy Seminar held by the ing standards for electronic voting and
European Commission on the 12th of February
counting technologies? or Has the e-voting
2004 in Brussels. It provided an overview
of e-voting activities and experts opinions system been certified and tested? What are
in Europe and gave a certain feeling of the the legal requirements?
EUs official opinion on NVT. Commissioner A joint group of the European Com-
Erkki Liikanen, responsible for Enterprise mission and the United Nations has also
and the Information Society in the European shown a stronger interest in NVT for some
Commission, stated in his opening speech years: The European Commission/UNDP
that () to date electronic, mobile and Joint Task Force on Elections65, which is
Internet voting solutions remain expensive based in Brussels, regularly participates in
compared to traditional methods. This is
experts meetings and workshops on NVT
mostly due to immature technology and on-
off infrastructure set-up costs. Nevertheless, issues66 and organized a thematic workshop
as we develop better technological solutions, on Information Technology and Elections
e-voting may become financially more Management from 5 to 9 March 2012 in
attractive than traditional methods. This Mombasa. A comprehensive summary re-
would allow referenda to be more widely port published after the meeting deals with
used than at present. But we will be faced e-voting in greater detail provides advice
with many constitutional challenges.63 for countries when considering the use of
Similar to the OSCE, it was mainly
NVT and summarizes lessons learned and
in the area of election observation that NVT
best practice models.67 Members of the
phenomena eventually received broader at-
tention on the EU level. Whereas the first EC-UNDP Joint Task Force are also invited
Handbook for European Union Election to participate in CAHVE and contribute to
Observation Missions (EOM) in 2002 did not the update of Rec(2004)11. The European
cover any e-voting issues, the 2nd edition of Commission already covered electronic vot-
2008 contained some pages on the challenge ing phenomena in a Methodological Guide
of observing e-enabled elections. The hand-
64
See: http://eeas.europa.eu/eueom/pdf/handbook_eom_
61
For instance, standard 23 states: Any observers, to 2016_en.pdf
the extent permitted by law, shall be able to be present 65
http://ec-undp-electoralassistance.org
to observe and comment on the e-elections, including 66
Representatives of the Task Force were, for instance,
the establishing of the results. present at the 5th Review Meeting of the Council of
62
GGIS (2010) 5 fin. E (https://rm.coe.int/CoERM Europe regarding Rec(2004)11 on the 28th of October
PublicCommonSearchServices/DisplayDCTMConte 2014 in Austria.
nt?documentId=090000168059bdf6). 67
http://www.ec-undp-electoralassistance.org/index.php?
63
The speech is accessible at http://europa.eu/rapid/ option=com_docman&task=doc_download&gid=437&
press-release_SPEECH-04-71_fr.htm?locale=en Itemid=&lang=en
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In December 2011, International IDEA pre- in North and Latin America use NVT,
sented the policy paper Introducing Electro- OAS has accumulated a wealth of practical
nic Voting: Essential Considerations, which insight and technology knowledge both
summarizes guiding principles, overall goals by accompanying specific projects, and by
and recommendations concerning e-voting.78 observing electoral events. The international
Rec(2004)11 is among the essential interna- OAS seminar Comparative Experiences in
tional documents. In 2012, an additional the Implementation of Electronic Voting,
publication specifically dealt with Obser- which was held in Lima, Peru, on the 22nd and
ving E-enabled Elections: How to Implement 23rd of October 2013, summarized the status
Regional Electoral Standards.79 A separate quo of NVT in the Organisations countries.82
Guide on the Use of Open Source Recent NVT-related projects included the
Technology in Elections80 came out in the Audit and Certification of Electronic Vot-
autumn of 2014. It aims at enhancing the ing Solutions in Peru (2011), Technical Co-
understanding of Open Source Technology operation in the use of Electronic Voting in the
(OST) among key electoral stakeholders, State of Jalisco, Mexico (2012), Auditing of
who might already be familiar with IT the Electoral Register and Computer Center in
solutions in elections, but have not yet dealt the Dominican Republic (2012), Electronic
with open source software. The guide takes Voting in Honduras (2013), Technical Co-
up possible misconceptions about OST and operation in the Transmission of Preliminary
presents positive effects which could be Electoral Results in Uruguay (2014), and the
instrumental in enhancing the transparency piloting of e-voting abroad in the Costa Rican
and efficiency of their electoral process. Presidential Elections (2014).83
The OAS has not developed any multi-
3.4. Organisation of American States lateral standards or guidelines on e-voting,
The Organisation of American States but introduced a specific methodology for
(OAS) is considered the worlds oldest regio- the observation of e-enabled elections. The
nal organisation as its roots date back to handbook Observing the Use of Electoral
the late 19th century. The OAS was officially Technologies: A Manual for OAS Election
founded in 1948 in order to achieve among its Observation Missions84 was published by
member states an order of peace and justice, the General Secretariat of the Organisation
of American States in 2010 and has become
to promote their solidarity, to strengthen
widely used in the Americas. Rec(2004)11 of
their collaboration, and to defend their sov-
the Council of Europe and the (then current)
ereignty, their territorial integrity, and their
OSCE/ODIHR Discussion Paper in Prepara-
independence.81 All 35 independent states
tion of Guidelines for the Observation of Elec-
of the Americas belong to OAS; in addition,
tronic Voting, dated 2008, are also mentioned
69 countries and the EU are observers. Within
among the relevant international documents.
the Organisations Secretariat for Strengthe-
ning Democracy, a Department of Electoral 4. Additional Stakeholders
Cooperation and Observation (DECO) pro- and Sources
vides support to EMBs in the design, sup-
port and analysis of systems and processes 4.1. International Foundation for
that involve ICT. Since a number of countries Electoral Systems
The International Foundation for
78
http://www.idea.int/publications/introducing-elec-
Electoral Systems (IFES)85, headquartered
tronic-voting/
79
Author: Jordi Barrat: http://www.idea.int/democracy- 82
http://www.oas.org/es/sap/deco/seminarios/peru/
dialog/ upload/Observing-e-enabled-elections-how-to- 83
For further details on the projects see: http://www.
implement-regional-electoral-standards.pdf oas.org/en/spa/deco/TecELECTORAL.asp
80
http://www.idea.int/publications/open-source-techno- 84
http://www.oas.org/es/sap/docs/Technology%20
logy- in-elections/ English-FINAL-4-27-10.pdf
81
http://www.oas.org/en/about/who_we_are.asp 85
http://www.ifes.org
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Gregor WENDA, born and raised in Vienna, is a graduate of the University of Vienna Law
School (Magister iuris) and the University of Salzburg Management Business School (MBA).
He started to work in the Austrian Federal Ministry of the Interior in 2003. After two years as
a legal specialist in the Department of Legislative Affairs, he transferred to the Department of
Electoral Affairs and became Deputy Head of this Department. In 2006, Gregor Wenda was
also appointed 3rd Vice-Chair of the Austrian Federal Electoral Board. He was a member of the
Austrian delegation in the ad hoc group of experts finalizing the Recommendation of the Council
of Europes Committee of Ministers on legal, operational and technical standards for e-voting
Rec(2004)11 in 2004. Since then, he has frequently published articles and given presentations
and lectures on the issue of e-enabled voting and has participated in all review meetings regarding
Rec(2004)11. In October 2015, he was elected Chair of the newly established Council of Europe
Ad Hoc Committee of Experts on Electronic Voting (CAHVE), which is tasked with updating
Rec(2004)11 through 2016. Aside from his job in electoral affairs, Gregor Wenda also serves as
Advisor to the Director-General for Legal Affairs, particularly in personnel matters. He is a deputy
editor-in-chief of the Interior Ministrys official magazine ffentliche Sicherheit and one of
the editors of the academic journal SIAK Journal. Gregor Wenda is the author of numerous
publications, including articles and commentaries, and holds functions in different associations,
inter alia as the Secretary General of the Austrian Society of Administrative Sciences.
99
http://www.aceeeo.org/en/projects/e-voting
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References:
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Expert electoral Special Edition 2016
Remmert, M. (2004). Towards European Standards on Electronic Voting, in: Prosser, A.,
Krimmer, R. (eds.). Electronic Voting in Europe Technology, Law, Politics and Society.
P-47, Gesellschaft fr Informatik, p. 13 16.
Remmert, M. (2006). The Council of Europe and the Information Society, presentation
at the Meeting to Review developments in the field of e-voting since the adoption of
Recommendation Rec(2004)11 of the Committee of Ministers to member states on legal,
operational and technical standards for e-voting, 23 24 November 2006.
Schwartz, B. and Grice, D. (2013). Establishing a legal framework for e-voting in Canada
(http://www.elections.ca/res/rec/tech/elfec/pdf/elfec_e.pdf).
Stein, R., Wenda, G. The Council of Europe and e-voting: History and impact of
Rec(2004)11 in: Krimmer, R., Volkamer, M. Proceedings of Electronic Voting 2014
(EVOTE2014). TUT Press, Tallinn, p. 105 110.
Solvak, M. and Vassil, K. (2016). E-Voting in Estonia, Technological Diffusion and Other
Developments Over Ten Years (2005 2015), University of Tartu.
Stein, R., Wenda, G. Implementing the ECI: Challenges for the Member States, EDEM
2011, 45 (2011); Stein, R., Wenda, G., Reviewing the Regulation: The Future of European
Citizens Initiatives, in: Balthasar, A., Golob, B., Hansen, H., Knig, B., Mller-Trk, R.,
Prosser, A. (eds). Independence Day: Time for a European Internet, ceeeGovDays 2015
Proceedings (2015).
Volkamer, M. (2009). Evaluation of Electronic Voting, Requirements and Evaluation
Procedures to Support Responsible Election Authorities. Springer-Verlag, Berlin,
Heidelberg.
Volkamer, M., Spycher, O., Dubuis, E. (2011). Measures to establish trust in Internet
voting, in: ICEGOV. ACM International Conference Proceeding Series, ACM.
Vollan, K. (2005). Observing Electronic Voting. NORDEM Report 2005.
Wenda, G. (2015). Alles online, oder was? Europa und das elektronische Whlen.
Kooperation. IRIS 2015 Proceedings, p. 319.
Wenda, G. (2014). Quo Vadis, E-Voting? Rckblick und Ausblick fr Europa. IRIS 2014
Proceedings, p. 309.
Wenda, G. (2011). Good Governance in the Information Society Der Europarat und
E-Voting. IRIS 2011 Proceedings.
Wenda, G. CAHVE: Das neue Ad Hoc-Komitee des Europarates fr E-Voting. IRIS 2016
Proceedings, p. 287 293.
Whitmore K. (2008). Congress of Local and Regional Authorities, Information Report on
the Electronic Voting in the Finnish Municipal Elections, observed on 26 October 2008.
110
THE ROLE OF THE JUDICIARY
IN THE OVERSIGHT OF ELECTRONIC ASPECTS
OF THE VOTING PROCESS
Abstract: Rsum :
Both new electoral technologies and Au cours des dernires annes, les
electoral justice, or electoral dispute resolu- nouvelles technologies lectorales et la
tion (EDR) procedures in broader terms, justice dans le domaine lectoral, ainsi que
have received in depth analysis in recent les procdures de rglement des diffrends
years, but generally speaking their intersec- lectoraux (EDR), dans un sens plus large,
tions remain unexplored. Both topics have ont t analyses de prs, mais, en gnral,
been analyzed only separately, with no spe- les croisements entres elles sont rests inex-
cial attention to their mutual relationships. plors. Les deux sujets ont t analyss exclu-
Once recalled the main features of both sivement de manire spare, sans mettre
notions, the paper highlights up to three laccent sur la relation entre eux. Aprs avoir
aspects where judicial procedures should rappel les principales caractristiques des
be adapted due to the implementation of deux notions, le document met en vidence
new electoral technologies: timeframes will trois aspects o les procdures judiciaires
not be the same anymore, evidence and exigent une adaptation suite la mise en
probatory means would have to be reformu- uvre des nouvelles technologies lectorales :
lated and, finally, the implementation of new les dlais seront diffrents, il sera ncessaire
control mechanisms and traditional judiciary de reformuler les preuves et les lments
tasks might overlap. probatoires et, enfin, les tches de mise en
uvre de certains nouveaux mcanismes de
Keywords: ICT, NVT, e-voting, electoral contrle peuvent se superposer aux tches
justice, electoral dispute resolution (EDR), judiciaires traditionnelles.
evidence, certification
Mots-cls : TIC, NTV, vote lectronique,
justice dans le domaine lectoral, rglement des
diffrends lectoraux (EDR), preuves, certification
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The number and variety of such tools constitutional court assume the resolution of
provide significant information about their these complaints. Both bodies are normally
importance, but a correct approach cannot involved in electoral issues only during short
consider all of them in the same package. periods of time. They have a partial dedication
Each innovation is linked to specific electoral and, as explained below, such discontinuity
principles and thus their impacts differ a lot. could become a problem for e-enabled tools
Social media are important for pluralism that have a different life cycle.
and equality, while electronic voting con- Last but not least, do not forget those
cerns freedom, secrecy or transparency. countries where judiciary is not in charge of
Privacy should be properly addressed by final results (e.g., Norway1) because such an
new biometric means, while a level playing issue belongs to political bodies, normally
field and transparency could be the main the parliamentary assembly. However, other
caveats for alternative finance sources. And, topics, like candidate or voter registration,
finally, sound institutional capacity is needed may be judicialized. The implementation of
for the ICT update of the general election e-enabled tools will have to duly consider
management. such distinctions.
Anyway, most of e-enabled tools
share some features that have a great impact 4. Judiciary and Electoral ICTs
on other electoral players, like the judiciary. 4.1. An Extended Timeframe
They normally need a long preparatory phase, The electoral cycle is closely related
different decision-making procedures and to the judiciary because a successful process,
new information management. Such issues in terms of electoral integrity, rule of law
will be analyzed in 4, but lets first provide and citizen confidence, needs an efficient
a brief overview of what an electoral court is. and effective (electoral justice system) with
sufficient powers, resources and tools to be
3. Key Features of an Electoral
capable of responding adequately to these
Court demands throughout the electoral cycle
An electoral court is a tribunal, that is, (Orozco Henrquez, 2010: 19). Although
a public body entitled to resolve complaints many issues are resolved in the very last stages
using legal grounds and specific procedures (e.g., candidate registration, voters lists,
that guarantee a fair trial. But electoral courts voting, counting), others cover previous
may have specific features (see IDEAs segments of the cycle, such as boundary
Handbook at: Orozco Henrquez, 2010). delimitation or registration of political parties.
Having in mind the normal profile E-enabled tools cover almost all the
of a court, an electoral-based one should electoral cycle and, what is more impor-
be at least independent and stable, but the tant, their implementation needs several pre-
reality provides interesting and contradictory paratory phases that have a clear external
cases. Independence, for instance, might be impact in terms of voting rights and thus
doubtful when the same body assumes both judicial oversight. On the other hand, other
the electoral management and the subsequent electoral procedures may also need prepa-
judicial review (e.g., Costa Rica). Moreover, ratory phases, but only with internal effects
stability rather relies upon specific criteria and without important judicial effects.
that may differ a lot from one country to Certification mechanisms, transpar-
another. Recruitment procedures as well ency regulations or specific procurement prin-
as limitation of mandates, for instance, are ciples are good examples. They are needed
important patterns that would have to be at least for e-voting, biometrics (i.e., voter
scrutinized. Finally, as an electoral court registration and voter identification) and it
may cover electoral issues and also other
topics, what happens when the ordinary 1
Venice Commission Opinion 587/2010. CDL-
administrative branch of the judiciary or the AD(2010)046.
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Expert electoral Special Edition 2016
would be helpful for other e-enabled tools, should extend the period submitted to
such as official media monitoring, boundary oversight and include preliminary stages
delimitation, publication of preliminary results because, when E-Day is approaching, there
or voter information campaigns. In general could be no room for a meaningful control.
terms, these three components are increasingly Consequently, the judiciary will be
important in order to deliver a professional asked to react to this new scenario even in the
e-electoral service, but they cannot be im- early stages of the electoral cycle. Electoral
plemented on a short notice because they entail courts will need to extend their temporal
a complex procedural reengineering, new awareness, temporary ad hoc bodies will not
legal frameworks and strengthened human be appropriate and experienced judges on
resources. As recalled by OSCE/ODIHR, for electoral matters will have to be in place for
electoral observation purposes, many of the a long period or even permanently.
preparations for the use of NVT take place And it is important not to forget that the
before the arrival of a normal full-scale EOM. judiciary encompasses both judges and other
[...] This gives Needs Assessment Missions judicial actors, such as prosecutors, interested
(NAM) an important role when NVT are parties and lawyers. Their responsibilities are
used (2013: 14). Timeframe matters. regulated by the relevant procedural codes,
Moreover, the final acceptance of some whose content needs to be adapted to this new
e-enabled solutions depends precisely on scenario as well. For instance, new appeals
these first implementation stages. Certainly, and new groups of entitled actors will likely
other important aspects are also decided be included in the legal framework since some
at the beginning (e.g., districts, validity of decisions will be initiated even before the call
political parties), but such issues are deemed for elections, where no formal candidates still
irrevocable once they are not being challenged exist, only political parties, parliamentary
in a timely fashion: This procedural feature groups and of course citizens (see Orozco
makes it possible to wrap up each successive Henrquez, 2010: 20).
stage of the election as a clear and firm
basis for the next, and to decide the outcome 4.2. A Procedural Notion of Evidence
of the election in a consolidated manner Transparency is a key word for elec-
(Orozco Henrquez, 2010: 20). And social toral matters. Given that any election consists
acceptance or distrust will likely appear when in formalizing a civic battle among different
the decisions are taken (e.g., interdiction of a contestants, with opposite ideologies and
political party). mutual distrust, a level playing field means at
On the other hand, it would be least a clear procedure commonly agreed and
difficult to apply the same patterns at least namely the chance to supervise each stage by
to some e-enabled tools. If the certification external and independent means.
procedures have been badly designed and Normal electoral procedures create
worse implemented, social confidence will such a scenario, but e-enabled tools introduce
not be damaged at that moment, due to the some doubts. It is the case, for instance, of
technical nature of the topic. If transparency e-enabled tools that need a robust identi-
rules pose disproportionate burdens, distrust fication (e.g., e-voting, biometrics). Identifi-
will increase within a limited group of cation, ballot secrecy and verifiability might
activists, but not in general terms. Finally, not become compatible anymore. While
procurement issues are always technical a sure ID control is needed, a layman will
areas where citizen awareness is very low. have no means to verify how his/her ballot is
Shortly, e-enabled tools need signif- being handled by the e-system. Revealing the
icant preparatory phases that, despite their content of a given ballot and its linkage to a
apparent neutral and technical profile, are given ID would be an easy way to guarantee
crucial elements for a final positive outcome; that there has been no fraud, but such a
in terms of citizen confidence, not only of solution wouldnt be acceptable because it
internal management. Election monitoring breaks the principle of anonymity.
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End-to-End (E2E) verifiability (Benaloh, generate evidence that may plan to reduce
2013; Jones, 2009) intends to overcome such the importance of courts. If we have a real
a barrier, but it cannot provide a system where E2E system, the procedures themselves
the overall supervision remains under the will generate objective (i.e., mathematical)
control of each citizen2. For instance, universal evidence and the discussion would be over.
verifiability of Internet voting systems may There would be no need for a further judicial
entail complex cryptographic controls (e.g., involvement. Unfortunately the reality, and
Zero-Knowledge Proof/ZKP Gjsteen: 2015) the law as well, is much more complex.
that provide enough information for computer For instance, what happens if discrepancies
experts, but such new controls are meaningless arise? What should the judicial reaction be
for a normal voter. Therefore, once assumed for such a situation?
that a voter cannot check the accuracy of the Discrepancies can affect both the
result, as may happen with traditional electoral results and the methodology itself, that is,
solutions, and that the alternative means also one could wonder first whether the system
failing to deliver a meaningful service for is really based on an E2E verification, and
layman, the only way to establish enough second, whether it meets the requirements that
confidence consists in strengthening procedural are legally established for any election. Thus,
guarantees, that is, voters will not understand there could be judicially resolved at least the
technicalities, such as ZKP, but they could be following two types of discrepancies:
informed that such controls will be carried out a) Regardless of what was stated by
in an open, fair and independent manner. the EMB and even by the experts, one can
If only one computer expert conducts understand that the system does not provide
ZKP, one might reasonably wonder whether an E2E verification because some features
such an expert is really independent, namely or elements are excluded from supervision
when she/he has been contracted by the electoral (see the discussion between Jordi Puiggal
management body itself (e.g., Norway in 2011), and Josh Benaloh on the Norwegian system
but, if the systems structure allows for repeti- during a NIST seminar: Benaloh, 2013);
tive controls performed by anybody (i.e., any b) Once conducted an E2E verifica-
computer expert), voters might conclude that tion and once compared the results with
the procedure is fair enough and, even though those achieved by other similar analysis, the
they cannot understand all the details, the fact findings are not the same.
that any expert will have access to the system Obviously, in an academic agora, such
will be sufficient to deter potential frauds and, in discrepancies would lead to a rich discussion,
any case, to discover them. but electoral matters have compelling time-
The so called second generation of frames. Elections must offer accurate results
e-voting systems (i.e., Norway, Estonia, in a short period. There is no time to find
Switzerland) follows this path, but the role of out who is wrong and unfortunately a third
judiciary is often forgotten, which is a clear opinion, even issued by forensic staff, will
weakness because, beyond procedural and not solve the problem either.
computer expertise, from a legal point of view, Supervision of traditional paper-
the transition from a traditional voting system based systems could also lead to similar
to an e-enabled voting one mainly relies upon discrepancies, but they can be resolved
evidence, that is, how facts are being objectively directly by the court itself because no
presented, both to the citizenry and in court. expertise beyond legal science is required.
E-enabled tools provide new forms of For example, invalid ballots often pose
evidence that differ a lot from previous ones. serious problems, but judges themselves can
Moreover, new e-enabled systems intend to analyze the ballots and take the appropriate
decisions. However, if a court must resolve a
2
Traditional electoral procedures may also include dispute over E2E verification, it is likely that
some voting channels with no general supervision. the judges will not have enough experience
Postal voting is, for instance, a clear example. and their opinion will be based on a third
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way to circumvent judicial burdens while is not explicitly covered. However, some
achieving similar outcomes. paragraphs provide interesting approaches:
Certification could be a good example introducing a full-fledged certification
(Barrat, 2008). Initially implemented as a process not only increases the transparency
guarantee that ensures the compliance of the of the election technologies under evaluation,
e-enabled system with a set of previously it also contributes to the division of power
established principles, it could easily become and by that to the democratic nature of the
a legal self evidence, that is, the final certifi- election. Ideally, a certification process will
cate would be the proof that the e-enabled give (almost) all electoral stakeholders a
system is legal, and thus judicially acceptable. higher level of confidence (Barrat et al.,
At the end, a technical means would become 2015, p. 5; emphasis added).
a legal truth. Division of power is a constitutional
A recent publication on Electoral ICT notion that is closely related to parliamentary,
certification provides a definition that could governmental and obviously judicial acti-
be used for such purposes: a systematic vities. A good democratic system should
process (carried out by an accredited third
foresee independent courts and any other
party) to evaluate whether a given election
public administration remains fully liable to
technology satisfies systematically established
their decisions. Rule of law and division of
standards and/or legal requirements (Barrat
et al., 2015, p. 8; emphasis added)3. If the power are two faces of the same coin.
certification already evaluates the compliance The text mentions division of power
with legal principles, one may wonder which without thinking in terms of judiciary acti-
are the remaining tasks to be carried out by vities, but also intends to highlight that
the judiciary. Are they redundant of what certification would provide a more bal-
has already been done? Or, if judiciary adds anced institutional structure. An external
supplementary factors to its decisions, then and independent player (certifier) would be
the previous definition would be partially false involved in a way that previous potential
because certification would not be entitled to discrepancies could be solved through deci-
establish such a definitive legal compliance. sions (certificate) based on objective data.
The text also identifies up to eleven And it is true, but the judiciary has more or
doubts4 that certification procedures might less exactly the same task.
create, but its relationship with judicial bodies Interestingly, the text admits that the
legal requirements have to be transformed
into technical requirements the certifier can
3
The Council of Europe uses a broader definition with use for the evaluation (Barrat et al., 2015,
no specific mentions to legal issues: a process of p. 33) and, although some mutual interre-
confirmation that an e-voting system is in compliance
lations are also analyzed, a symmetric trans-
with prescribed requirements and standards and that
at least it includes provisions to ascertain the correct lation from technical to legal principles is not
functioning of the system (Appendix I. Certification foreseen, that is, how certification outputs
of e-voting systems. Guidelines for developing could influence subsequent legal (judicial)
processes that confirm compliance with prescribed decisions.
requirements and standards). Such situations also appear in other
4
(I) Certification is only a lot of bureaucracy without
contexts. In general terms, when the law faces
added value; (II) Certification lacks the flexibility
needed for an agile IT project; (III) Certification is too important barriers to correctly solve specific
expensive; (IV) There is no such thing as an independent disputes, technical remedies are prompted
third party; (V) Certification takes up too much time to assume a broader role and intend to
in our tight schedule; (VI) Certification is no more substitute the inherent task of any judicial
than rubber-stamping an election; (VII) Certification body. But such technical outcomes (i.e., the
is an insider business anyway; (VIII) Certification is
certificate) can never provide enough data
not applicable to our kind of election technology;
(IX) Our country is too small for certification; (X) One for a final judicial decision. They only pro-
cannot be sure the running system is the one that was vide significant facts, but such information
certified; (XI) Certification might fail. has to be embedded in a broader legal
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Expert electoral Special Edition 2016
context and only legal players, like judges, making procedures and therefore judicial
are entitled to make such assessments, that involvement is much more sensitive, namely
is, to determine whether technical outputs when the requirements of secrecy forbid the
comply with legal principles. The fact that use of explicit evidence, as occurs in many
such assessments are hard to conduct cannot others technical domains, and alternative
justify the exclusion of one component (i.e., procedural means are in use to enhance the
the legal aspect), nor judicial decisions that system trustworthiness and legality.
rely upon technical guarantees only (e.g.,
the certificate). 5. Conclusions
However, that could be the case The paper focuses on three aspects
in certain circumstances, namely when that are considered important for the
judges face new challenges (e.g., e-enabled reformulation of the role of judiciary vis-
electoral tools) and they are not yet familiar -vis the implementation of new electoral
with them. Moreover, self-restraint attitudes technologies. These three pillars show
might be explained by this uncomfortable that a challenge with multiple facets has
situation where judges are forced to deal with to be addressed. Internal procedures as
not ordinary facts and evidence. In USA, for well as substantial criteria for final judicial
instance, the courts are not very proactive decisions would have to be adapted. For
when dealing with e-voting issues and they instance, timeframes and criteria normally
have normally admitted a certain margin used for assessing evidence need to be
of political/technical appreciation. As Tokaji updated. Consideration should also be given
highlights, although U.S. courts have gene- to administrative control mechanisms that
rally taken an active role in policing election could overlap judiciary tasks.
administration since 2000, they have for Given that the judiciary is not nor-
better or for worse mostly left the resolution mally involved beforehand, one can reaso-
of questions involving electronic voting to the nable foresee that the number of judgements
political branches of local, state, and federal on e-enabled issues will increase a lot in
government (2015: 229; and Driza Maurer, the near future, as a normal consequence
2015: 17)5. of the implementation of new electoral
Similar scenarios might be found technologies. New doubts and nuances will
with other closely related topics, where likely appear. An advanced awareness, with
specific expertise is needed and forensic the appropriate critical approach, of such
tasks are used to help judicial decisions, but inputs will be very helpful for a proper
elections are slightly different. Elections deal understanding of the relationship between
with social trust, with collective decision- the judiciary and electoral technology.
5
Different arguments can also justify limited judi-
cial proactivity: Dautres questions dlicates mais
napparaissant pas premire vue essentielles la
constatation du caractre dmocratique du scrutin
ne sont abordes quassez rarement et avec beaucoup
de prudence. On pensera la libre formation de
la volont de llecteur, notamment travers les
mdias, ou encore la rpartition des siges entre les
circonscriptions. (Garrone, 2009: 10)
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Expert electoral Special Edition 2016
Jordi BARRAT ESTEVE (Reus, 1968) is a professor of constitutional law at the University
Rovira i Virgili (Catalonia/Spain) and his research areas focus on electoral matters, namely the
intersection between new voting technologies and the legal framework. He has also served as a
consultant for different international organizations. Latest publications: Ardita Driza Maurer, Jordi
Barrat Esteve (eds.). E-Voting Case Law: A Comparative Analysis. Farnham: Ashgate, 2015; Jordi
Barrat Esteve et al. Certification of ICTs in Elections. Stockholm: International Institute for Democ-
racy and Electoral Assistance (IDEA), 2015; Carlos Vegas, Jordi Barrat Esteve. Overview of
Current State of E-voting World-Wide in Feng Hao and Peter Y.A. Ryan (eds.). Real-World
Electronic Voting: Design, Analysis and Deployment [forthcoming/2016].
http://about.me/jordibarrat|jordi.barrat@gmail.com
References:
119
BEING ON THE RIGHT SIDE OF THE TRACKS:
WHY THE TRANSPARENCY OF POLITICAL
FUNDING SHOULD BE THE RULE
Septimius PRVU
Project Manager
Expert Forum
Abstract: Rsum :
Party financing is one of the most Le financement des partis est lune
sensitive topics related to elections. Many des questions les plus sensibles lies aux lec-
countries still lack transparency if we talk tions. De nombreux pays manquent encore de
about the publicity of the financing and transparence si nous parlons de la publicit du
necessary tools such as open data and financement, et les instruments ncessaires tels
centralized databases represent more of an que les donnes ouvertes et les bases de donnes
exception. If some electoral commissions centralises sont plutt lexception. Mme si
publish the data in an accessible and usable certaines commissions lectorales publient des
manner, the non-reusable document seems donnes dune manire accessible et utilisable,
to be the rule. Civil society organisations le document papier jetable semble tre la
compensated this need and further more have rgle. Les organisations de la socit civile ont
shown the relation between party financing quilibr ce besoin et ont montr la relation entre
and lobbyists, private interests or companies, le financement des partis et les lobbyistes, les
by combining data. Political clientelism intrts privs ou les entreprises, en combinant
during the electoral periods is another type les donnes. Le clientlisme politique en priode
of abuse that completes the landscape. The lectorale est un autre type dabus qui complte
use of open data remains a challenge as le paysage. Lutilisation des donnes ouvertes
politicians oppose the unveiling of their reste un dfi, parce que les politiciens sopposent
financing sources, although in many cases la divulgation de leurs sources de financement,
no significant modifications of the legislation bien que, dans de nombreux cas, il ne soit pas
are needed. ncessaire davoir des changements significatifs
dans la lgislation.
Keywords: party financing, elections,
open data, transparency, accountability, Mots-cls : financement des partis poli-
clientelism tiques, lections, donnes ouvertes, transpa-
rence, responsabilit publique, clientlisme
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Expert electoral Special Edition 2016
groups. For example, non-commercial re- (DNA), have shown how parties use state
strictions that would prevent commercial owned enterprises6, public institutions or any
use, or restrictions of use for certain purposes other means to gather funds.
(e.g. only in education) are not allowed. A study published by the Sunlight
The use of open data can serve Foundation7, comprising 54 countries all
multiple purposes4. Firstly, it can generate over the world, shows some serious issues
transparency and accountability. Although related to the publicity of the financial
many public institutions (and political parties information:
are in such a category) may not want to The public is unable to easily access
become more transparent, open data can be much of the financial information that is
an instrument for those who want to increase reported to oversight authorities. Despite le-
their level of integrity and public trust. The gal requirements enshrining the public avail-
publication of open data can lead to unveiling ability of political finance information, only
corruption cases or abuse in power, as we two countries Australia and the United
will see later in the paper. States make all reported information avail-
Secondly, the public institutions hold able online in machine-readable formats.
in most cases monopolies over the public Many other countries provide some limited
information and either do not want to publish information, or publish details in less accessible
it, or are overwhelmed and do not have formats. Magnifying these issues is the lack of
the capacity to reply to FOIA requests. By standardization in publicly available financial
publishing the information, the institutions reports. Only 13 countries provide relevant
can save resources and time. information in fully comparable formats.
A third reason to publish open data is Recently, the National Democratic
to enhance civic participation. Open data can Institute (NDI) started the Open Election Data
be a useful tool to debate policy proposals, Initiative that has the purpose of increasing
to allow NGOs and citizens to get involved the participation of the citizens, identifying
in the decision-making process and to better what is good and wrong in the electoral proces-
communicate with the business sector. ses or what sort of data should be available.
What is to be understood is that open The initiative is based on nine principles for
data does not necessarily involve major ef- open elections data: the data should be pub-
forts to be produced. In many cases, the data is lished timely, detailed, free, complete, analy-
already in the backyard of the institutions and sable, non-proprietary meaning in a format
just has to be published. Furthermore, it can be over which no entity has exclusive control
reused with very low costs and great results. non-discriminatory, licence-free and perma-
Such an example comes from Indonesia, nently available.
where a parallel elections monitoring website The initiative promotes some good
was set up with just $54 and voluntary work5. practices in terms of open data use. Still,
A special domain in which open data overall, for many electoral institutions, the use
is critical, but is rather rare, is represented by of .pdf format remains the usual way of doing
elections and financing of political parties.
Money in politics is a real issue in many 6
Elin Falguera, Samuel Jones, Magnus Ohman (eds.),
countries and not only during the electoral Funding of Political Parties and Election Campaigns.
campaigns, but also beyond the elections A Handbook on Political Finance, http://www.idea.
period. Recent cases in Romania, prose- int/publications/funding-of-political-parties-and-
election-campaigns/loader.cfm?csModule=security/
cuted by National Anticorruption Directorate getfile&pageID=64347
7
The Money, Politics, and Transparency. Campaign
4
See also OGP principles www.opengovpartnership. Finance Indicators: Assessing Regulation and
org/about/open-government-declaration Practice in 54 Countries across the World in 2014,
5
Auralice Graft, Stefaan Verhulst and Andrew Young, http://assets.sunlightfoundation.com.s3.amazonaws.
Indonesias Kawal Pemilu, January 2016, http:// com/mpt/MPT-Campaign-Finance-Indicators-Key-
odimpact.org/static/files/case-study-indonesia.pdf Findings.pdf
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Expert electoral Special Edition 2016
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Expert electoral Special Edition 2016
information related to donations, declarations fight organized crime. The website is not
and subscriptions. The page contains the lists developed totally from open data, due
of parties, with declarations and original to the fact that part of the information is
documents. The website does not offer users collected manually. Still, the administrators
the possibility to download and reuse data. of the website offer the entire database for
The central register of Statistics of download. The database shows the parties
Norway provides general data about elections budgets (revenues and expenditures), debts
financing17. Information about the money and detailed donations.
of the parties per fiscal year is published The portal www.maplight.org is a
by the Ministry of Local Government and tool that unveils another side of the party
Modernisation here: www.partifinansiering. financing, the relation with interest groups
no/a/english. The parties have to use a and the financing mechanisms. With a less
platform developed by the County Governor strict legislation and practice, in the US
of Sogn og Fjordane in order to report their the interest groups are a significant source
finances18. of financing. The statistics shows that on
The US Federal Electoral Commis- average, in order to win the elections, a
sion19 hosts a detailed database related to pu- member of the US House gathers $2,315 per
blic financing. The website offers information day, for 2 years, while a member of the Senate
about candidate expenses and reimbursements, raises 14,351 per day. They are at the same
contributions, fines or lobbyists. All data can time one of the main sources of lobbying and
be downloaded in open data format. influence of public policy, by gaining special
On the other side, some good portals, decisions in their favour. The datasets are
based on open data, are designed by non- utilised in order to raise the accountability of
governmental organizations or private ini- the elected officials and related donations to
tiatives and they link the spending done by the decision-making process. The website is
the political parties with other registries frequently used by journalists.
such as lobbyists, corporations or public Another United States portal, www.
procurement, which may generate red flags followthemoney.org, publishes data about
when it comes to the integrity of the party parties and candidates financing and makes
financing. connections by showing the influence of
In Brasil, the portal www.asclaras. industries on elections and policy making.
org.br is based on the data obtained from The same purpose is declared by www.influ-
the electoral authority, Tribunal Superior enceexplorer.com, a website that also maps
Eleitoral. The website connects donations lobbying and foreign impact on elections and
and votes, shows the evolution of financing decision-making process.
in time and publishes information about the
financing of political parties and candidates.
3.Putting Open Data to Use
The Czech webpage www.politick-
Clientelism in Romania
efinance.cz shows information about do- A good exercise to put open data to
nations for the political parties. Initially, public use is to show the abuse of public
it has been developed within a project by resources for electoral purposes, one of the
the Ministry of Finance, as a measure to most recurrent issues in party financing and
elections. Generally, it is defined as:
17
Norway Statistics Office, https://www.ssb.no/en/ The misuse of public resources is
valg/statistikker/valgkamp widely recognised as the unlawful behav-
18
Party portal, http://prosjekt.fylkesmannen.no/
partistotte/
iour of civil servants, incumbent political
19
US Federal Election Commission, http://www.fec. candidates and parties to use their official
gov/data/CommunicationCosts.do?format=html positions or connections to government
124
Expert electoral Special Edition 2016
institutions aimed at influencing the outcome campaign. Other politicians have been or are
of elections20. currently under investigation for such abuses.
OSCE Guidelines on Political Party A specific type of abuse of resources
Regulation21 state that: is the use of public funds to support the local
The abuse of state resources is univer- administration, in electoral years. It is a more
sally condemned by international norms. subtle type of abuse, but affects highly the
While there is a natural and unavoid- distribution of resources and the fairness of
able incumbency advantage, legislation must the campaign. Moreover, it is not illegal,
be careful to not perpetuate or enhance such but it is a proof of bad governance. EFOR
advantages. Incumbent candidates and parties has developed the Index of Clientelism that
must not use state funds or resources (i.e., shows how many times a mayor who is a
materials, work contracts, transportation, member of a party in power can get more
employees, etc.) to their own advantage. money than one belonging to an opposition
The phenomenon appears in different party. In some years, a mayor in power had
shapes and it may involve engagement of three times a bigger chance to get money.
human resources, use of official spaces and This happened in 2007 2008, during the
buildings, obligatory attendance of state liberal government in Romania. In 2014
employees at events or rallies, use of goods 2015 the ratio was 2 : 1.
that are owned by different public institutions, The research stems from 2004 to 2016
such as schools buses22. Another form of and it is based on a combination of informa-
abuse is the engagement of state owned tion extracted from open data, as well as on
companies or of other institutions, including requests for public information. The research
the usage of their budgets for electoral is visually illustrated www.expertforum.ro/
campaigns. In Romania, several criminal en/clientelism-map and www.expertforum.
investigations have been opened for this kind ro/clientelism-2016 within interactive maps
of abuse. The former Prime Minister Adrian that have the purpose of better representing
Nstase and heads of institutions have been the impact of the preferential distributions,
condemned for using public money, gathered but also of allowing citizens to understand
from state institutions, in order to finance the the process and get involved.
OTHERS
Figure 1. The map of clientelism, October December 2014 (left) and 2015 (right). The dimension of the dots
is directly proportional with the sums of money per capita that each locality got, excluding county councils.
20
European Commission for Democracy through 22
Marcin Waecki, Illegal funding of politics com-
Law, Report on the misuse of administrative resources bating abuse of state resources and illegal campaign
during electoral processes, http://www.venice.coe. finance, July 2009, http://www.moneyinpolitics.info/
int/webforms/documents/default.aspx?pdffile=CDL- wp-content/uploads/2015/05/Walecki-_July-2009_-
AD(2013)033-e IFES-Combating- Abuse-of-State-Resources.pdf
21
OSCE, Guidelines on Political Party Regulation,
adopted by the Venice Commission at its 84th Plenary
Session,Venice, 15 16 October 2010. http://www.
osce.org/odihr/77812?download=true
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Expert electoral Special Edition 2016
Minorities
Ended/Suspended mandate
23
In September 2014, the Social Democrat position, as the general law provides. A number of
Government produced the Government Emergency 552 mayors switched party, and 436 persons went to
Ordinance no. 55/2014 that allowed local officials the Social Democrat Party (PSD). See more about the
(mayors, councillors, presidents of county councils) to migration, including an interactive map here: http://
switch parties for 45 days, once, without losing their expertforum.ro/en
126
Expert electoral Special Edition 2016
The research has shown that the reduced25. Transparency International Georgia
party in power always took advantage of managed to combine the information regard-
its position and other mechanisms24 and ing financing and companies, in order to see
supported its own mayors. If we look at 2014, which companies support the political parties
for example, when the presidential elections during elections.
took place in Romania (2 and 16 November), The list of data that can be published
we can see that between 70 and 80% of the differs from one country to another, but there
funds dedicated to 2014 were distributed in are sets of data that should be available to
the months before the elections, starting with the public in a general manner. First of all,
August September, a rule that does apply the electoral commission or other institutions
in the same manner to the other years under that manage and monitor the financing
analysis. of the political parties should publish the
Although this instrument is not directly public financial support that the parties
linked to party financing during the elections, receive outside the electoral periods. During
it shows alternative means to support political elections, the most important information
parties and it may be a red flag when it comes is related to donations, contributions, loans,
to the fairness of the elections. It also shows reimbursement or debts. This list can include
the importance of using open data published detailed budgets, income and outcome, acti-
by the government, even though the products vity reports, lists of members and affiliations,
are not completely based on editable data. donors and contributors26.
Also, the oversight data is important,
4.What Do We Need to Publish?
showing if the parties declared everything,
The first step would be to see as many as requested by the legislation, in time and
electoral authorities publishing centralized, correctly, and if fines or other sanctions have
transparent and detailed databases and not been applied. Information about the appeals
just information in succinct files that cannot and the reasons for sanctions should also be
be edited. If the data would be provided in published.
an open format such as .xls or .csv, it would While some countries publish inter-
offer opportunities to a lot more people and ests and assets information27, this comes
NGOs to view and republish it in a more from the public institutions and not from the
accessible and understandable way. proactivity of the parties. Actually, the lack of
This would also allow cross-refer- proactivity of the political parties is one of the
encing with other available information, main reasons people do not trust them and see
such as the company lists, asset declarations them as very corrupt institutions28. According
and declarations of interests, public institu- to the Global Corruption Barometer, 51 out
tions, budgetary execution or public pro- of 107 countries see political parties as the
curement; the combination of data may most corrupt public bodies in those countries.
produce information about illegal financing But as considerable sums of public mo-
of campaign, lobbying or interest groups ney are reimbursed worldwide for political
supporting candidates and waiting for favours
in return. Still, the number of countries that
25
Giorgi Chanturia and Derek Dohler, Which corpora-
tions are connected to which political parties?,
publish all this data in a concomitant manner September 2012, http://transparency.ge/en/blog/which-
is quite low. corporations-are-connected-which-political-parties
Georgia is such an example, even 26
Granickas Karolis, www.europeandataportal.eu/sites/
if the access to the company list has been default/files/library/201404_open_data_as_a_tool_
to_fight_corruption.pdf
24
This is not the only mechanism. Our research also 27
Romania publishes information (asset declarations
includes the National Program for Local Development and declarations of interests) for public officials on the
PDNL, funds for infrastructure, heat, modernization National Integrity Agency website, www.integritate.eu
of infrastructure, etc. 28
http://www.transparency.org/gcb2013/results
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Expert electoral Special Edition 2016
campaigns, the lack of transparency should Romania, this could be a chance to prove
not be an option for the parties29. that things are done in a correct and legal
Although Romanias experience can manner during the elections. Of course,
be considered an example of good practice this does not covers issues related to abuse
from many points of view, when it comes to of public resources or to electoral fraud
the process of opening data, the transparency produced in other manners, but at least raises
of the party financing must be enhanced the credibility of the electoral process and the
when the new legislation is implemented. level of trust of the citizens.
Most of the information is published in
the Official Gazette, but its website has a 5.Why We All Must Be Emilia
limited free archive and it is not editable. The Romagna Administration?
information published on the website of the Ending with the same reference to
Electoral Authority is not editable but under Putnams comparison, we can conclude
the form of .pdf and it is not very detailed. that being like the Northern administration
For example, according to the law, parties means applying transparency rules and pro-
have to publish membership fees, donations, cedures, including publishing the complete
revenues detailed per type. Moreover, the information in an open, editable file or
list of donations includes names, sums, database, while go off the rails means using
personal data, type of donations and sums, paper, not editable .pdfs or not publishing at
if it involves money. The Electoral Authority all. Therefore, the purpose of the electoral
publishes data such as the reports containing authorities and political parties should be to
the revenues and expenses of the campaign go North.
or the results of the controls envisaging the Transparency must not be a choice,
political parties. but a rule. According to OSCEs Guidelines
In 2015, the legislation regarding on Political Party Regulation30:
the financing of the parties was modified by Political parties may obtain certain
Law no. 113/2015, introducing the public legal privileges from registration as political
financing for electoral campaigns. Until now, parties that are not available to other
the campaign was supported by the parties associations. This is particularly true in the
themselves. In order to introduce more area of political finance and access to media
transparency and reduce potential frauds resources during election campaigns. As a
as the legislator himself declared the funds
result of having privileges not granted to
spent during the campaigns, defined by
other associations, it is appropriate to place
strict limits, will be refunded if a party or
certain obligations on political parties due to
independent candidate receive more than 3%
their acquired legal status. These may take
of the votes.
the form of imposing reporting requirements
This could be a significant oppor-
or transparency in financial arrangements.
tunity for the Romanian authorities and
Legislation should provide specific details on
political parties to make the process more
transparent by publishing all the information the relevant rights and responsibilities that
regarding incomes and expenses, as well as accompany the obtainment of legal status as
reimbursement in an open data and detailed a political party.
format. Also, taking into consideration that Therefore, publishing information
political parties and the Parliament are seen in reusable data should be a consequence
as some of the most corrupt institutions in of the advantages the parties get from the
state. This is even more visible in states
29
According to the OECD, in France, in the 2012 where the funding is public. And they are not
presidential campaign, EUR 21,769,895 were
reimbursed for Franois Hollande and EUR 21,339,664 30
OSCE, Guidelines on Political Party Regulation.
for Nicolas Sarkozy. http://www.oecd.org/about/ Adopted by the Venice Commission at its 84th Plenary
membersandpartners/publicaffairs/Transparency%20 Session, Venice, 15 16 October 2010. http://www.
and%20Integrity%20in%20Political%20Finance.pdf osce.org/odihr/77812?download=true
128
Expert electoral Special Edition 2016
a few. According to IDEA party financing pose such provisions, either by law al-
database31, 17 countries out of 44 in Europe though politicians are not eager to show
had both regularly provided funding and in their backyard to everyone or by signing
relation to campaigns, while 20 had regularly international commitments through the OGP
provided funding. This principle should make Action Plans. Still, the best situation is that
the parties even more responsible towards the the legislation doesnt need to be modified
citizens and they should publish according to in many cases, but just to show good will
the legislation, but also from their own will and courage in facing the political pressure.
information related to the way they spent the Practically, this is not about the legislation,
money. but about the way the electoral commissions
Open data may represent one of the understand to ensure transparency and ac-
most useful instruments in order to map countability towards the citizens. And in this
corruption, conflicts of interest, illegal lob- entire situation the civil society must play
bying and influence within the electoral an essential role as an active advocate and
processes and, therefore, states should im- partner for this cause.
31
International IDEA, Political Finance Database,
http://www.idea.int/political-finance/question.
cfm?field=270
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Expert electoral Special Edition 2016
References:
Chanturia, G., Dohler, D. (2012). Which corporations are connected to which political
parties?. September. Available at: http://transparency.ge/en/blog/which-corporations-are-
connected-which-political-parties
European Commission for Democracy through Law. Report on the misuse of administra-
tive resources during electoral processes. Available at: http://www.venice.coe.int/
webforms/documents/default.aspx?pdffile=CDL-AD(2013)033-e
Granickas, K. https://www.europeandataportal.eu/sites/default/files/library/201404_open_
data_as_a_tool_to_fight_corruption.pdf
Falguera, E., Jones, S., Ohman, M. (eds.). Funding of Political Parties and Election
Campaigns. A Handbook on Political Finance. Available at: http://www.idea.
int/publications/funding-of-political-parties-and-election-campaigns/loader.
cfm?csModule=security/getfile&pageID=64347
Graft, A., Verhulst, S. and Young, A. (2016). Indonesias Kawal Pemilu. January. Available
at: http://odimpact.org/static/files/case-study-indonesia.pdf
Putnam, R.D., Leonardi, R., Nanetti, R.Y. (1993). Making Democracy Work: Civic
Traditions in Modern Italy. Princeton University Press, 3 6.
OECD. Transparency and integrity in political finance. Available at: http://www.oecd.
org/about/membersandpartners/publicaffairs/Transparency%20and%20Integrity%20
in%20Political%20Finance.pdf
OSCE (2010). Guidelines on Political Party Regulation. Available at: http://www.osce.
org/odihr/77812?download=true
Sunlight Foundation. The Money, Politics, and Transparency. Campaign Finance
Indicators: Assessing Regulation and Practice in 54 Countries across the World in
2014. Available at: http://assets.sunlightfoundation.com.s3.amazonaws.com/mpt/MPT-
Campaign-Finance-Indicators-Key-Findings.pdf
Waecki, M. (2009). Illegal funding of politics combating abuse of state resources and
illegal campaign finance. Available at: http://www.moneyinpolitics.info/wp-content/
uploads/2015/05/Walecki-_July-2009_-IFES-Combating-Abuse-of-State-Resources.pdf
Global Open Data Index. http://index.okfn.org/dataset
International IDEA, Political Finance Database. Available at: http://www.idea.int/
political-finance/question.cfm?field=270
Open Data Barometer, 2nd edition. Available at: www.opendatabarometer.org/report/
analysis/rankings.html
Open Data Handbook. Available at: http://opendatahandbook.org/
Open Government Partnership. Available at: http://www.opengovpartnership.org/
explorer/landing
The Romanian official portal of open data. Available at: http://data.gov.ro/organization/
autoritatea-electorala-permanenta
Transparency International, Global Corruption Barometer (2013). Available at: www.
transparency.org/gcb2013/results
Corruption Prevention and Combating Bureau. Available at: http://www.knab.gov.lv/en/
financing/
Cmara Nacional Electoral. Available at: www.electoral.gov.ar/financiamientoconsolidado
2015.php
Norway Statistics Office. Available at: www.ssb.no/en/valg/statistikker/valgkamp
Norway Party Portal. Available at: http://prosjekt.fylkesmannen.no/partistotte/
UK Electoral Commission. Available at: www.electoralcommission.org.uk/
US Federal Election Commission. Available at: www.fec.gov/data/CommunicationCosts.
do?format=html
130
ELECTORAL LAW AND NEW TECHNOLOGIES:
LEGAL CHALLENGES
THE CASE OF GERMANY: THE ROAD NOT TAKEN
Sebastian SEEDORF
Deputy Head of Interior Policy Division
German Federal Chancellery
Abstract: Rsum :
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Expert electoral Special Edition 2016
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Expert electoral Special Edition 2016
approximately 2 million voters had cast their The Constitutional Court delivered
votes on 1.850 electronic voting machines its judgment on the 3rd of March 2009. The
(direct-recording electronic voting machines, ruling declared the Federal Ordinance on the
DREs).4 Deployment of Voting Machines in Elections
After the elections, two voters lodged to the German Bundestag to be invalid as
complaints against the use of voting machines it did not ensure monitoring that complies
in the elections. The plaintiffs argued that
with the constitutional principle of the public
the deployment of computer-controlled vot-
nature of elections.
ing machines had violated the principle of
democracy, the principle of the rule of law, However, the Court did not declare
the principle of the public nature of elections the Bundestag election of 2005 to be invalid,
and the principle of the official nature of because there was no indication that there
elections. The plaintiffs did not claim any had been any kind of malfunction of the vot-
manipulation or specific malfunction of any ing machines or manipulation of the result.
of the voting machines. In the Court pro- A remarkable aspect of the judgment
ceedings, the requirement that elections had is the complete absence of any reference
to be held in public turned out to be the key to international legal instruments and a
point. The plaintiffs argued that because the complete lack of international comparisons.
cast votes were stored exclusively on an The Court does not evaluate the German
electronic storage medium and the votes were
law, or the practical operation of the voting
only counted electronically by the voting
machines, against the Council of Europes
machine, there was no way to ascertain that
the votes cast by the voters were inserted into Recommendation on legal, operational and
the ballot box without a change, that the votes technical standards for e-voting.8
were not subsequently altered and that only
the votes from the ballot box were counted at 2.1. The Constitutional Standard of
the end of the election.5 Public Elections
The government, on the other hand, The German Constitution does not
argued that the Constitution certainly did make any explicit reference to elections
not require each distinct act, every little being public or having to comply with
step and procedure of an election, to be publicity requirements. Therefore, the Court
subject to an individual check, as this would deduces the concept of public elections from
overstretch the constitutional principle
the constitutional principles of democracy,
of a public election.6 Instead, as a typical
the republic and the rule of law, as these are
consequence of the advance in technology,
it could be expected that the voter would mentioned in article 20 of the Constitution.9
presume that the systems deployed were Of particular importance here is the
viable, given that they had been examined Courts understanding of the relation between
and certified in a designated procedure prior democracy, trust and elections: The public
to their deployment.7 nature of elections is [the] fundamental
precondition for democratic political will-
4
For a detailed description of the construction and formation. It ensures the correctness and
operation of these machines, see Constitutional Court verifiability of the election events, and
Decision of 3 March 2009, at paragraphs 3 7.
5
Constitutional Court Decision of 3 March 2009, at
hence creates a major precondition for the
paragraph 35.
6
Constitutional Court Decision of 3 March 2009, at 8
Rec(2004)11 of the Committee of Ministers to
paragraph 81. member states, adopted by the Committee of Ministers
7
Constitutional Court Decision of 3 March 2009, at on 30 September 2004 at the 898th meeting of the
paragraphs 58 59; see also below The Constitutional Ministers Deputies.
Standard for E-Voting where this argument is 9
Constitutional Court Decision of 3 March 2009, at
discussed. paragraph 108.
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Expert electoral Special Edition 2016
well-founded trust of the citizen in the correct manipulation can be ruled out or corrected
operation of the elections.10 and unjustified suspicion can be refuted.13
The Court here shows a somewhat Two questions remain open: Who
functional understanding of the publicness should be able to monitor the elections?
of an election. That an election is held in And to what extend should an election be
public is not an end in itself, but rather a controllable? On both questions, the Court is
means to ensure that trust and confidence very strict. In a republic, elections are a matter
can be built and sustained. It is that trust, the for the entire people and a joint concern of all
Court emphasizes, that enables a democracy citizens. Consequently, the monitoring of the
to exist. Elections are crucial in that regard, election procedure must also be a matter for
because elections form the fundamental act and a task of the citizen. Each citizen must
of legitimisation11 of a government. To cast be able to comprehend and verify the central
a vote in an election constitutes the major steps in the elections reliably and without any
element of the transfer of public power from special prior technical knowledge.14
the people to the state bodies; it is the act in On the second aspect (extent of the
which a government of the people, by the public control of elections), the Court em-
people, for the people is created. ploys an all-encompassing principle, too.
Only an elected government can legi- All essential steps in elections have to be
timately exercise power in a democracy. subject to public examination unless other
People have to know that the election, with constitutional interests justify an exception.15
Particular significance is attached here to
its specific outcome result, is a genuine
the monitoring of the casting of the ballot
expression of their will. For the Court, an
(the election act) and the counting and
election without the trust of the electorate is
tabulation of results (the ascertainment
insufficient. It is not enough that an election
of the election result).16 The voter has to
simply is free and fair and that a government
reliably comprehend whether his or her
has been democratically elected the people
vote is unfalsifiably recorded and included in
must also be confident that this has been the
the ascertainment of the election result, and
case.
how the total votes cast are assigned [to the
What is the foundation of such con-
different candidates/parties] and counted.17
fidence? It is the implementation of the
election before the eyes of the public.12 For 2.2. The Constitutional Standard for
the Constitutional Court, individual citizens E-Voting
have no other tool at hand but the possibility In its judgment, the Court only had to
of monitoring whether elections comply deal with voting machines (Wahlgerte) as
with the constitutional requirements. Only they were practically in use at the time and
by transparency can the citizens ensure that consequently only refers to those. But when
their transfer of power has been accurate it starts its reasoning on the constitutional
and does not suffer from a shortcoming. The standard of their deployment, it adds a
democratic legitimacy of elections requires qualifier, which effectively imposes that
that the election events be controllable so that
13
Constitutional Court Decision of 3 March 2009, at
10
Constitutional Court Decision of 3 March 2009, paragraph 109.
at paragraph 107. To use the major precondition 14
Constitutional Court Decision of 3 March 2009, at
instead of a major precondition in my view better paragraph 110.
reflects the German original text. 15
Constitutional Court Decision of 3 March 2009, at
11
Constitutional Court Decision of 3 March 2009, at paragraph 112 (my emphasis).
paragraph 109. 16
Ibidem.
12
Constitutional Court Decision of 3 March 2009, at 17
Constitutional Court Decision of 3 March 2009, at
paragraph 109 (my emphasis, references omitted). paragraph 113.
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Expert electoral Special Edition 2016
conceivable in which the votes are recorded it, which would imply a heavy burden on the
elsewhere in addition to electronic storage. election management body.
This is, for instance, possible with electronic
voting machines which print out a visible 2.4. Secrecy of the Vote and Protection
paper report of the vote cast for the respective Against Manipulations
voter, in addition to electronic recording of Although the main argument in the
the vote, which can be checked prior to the Constitutional Courts decision was the
final ballot and is then collected to facilitate verification of the counting and tabulation of
subsequent checking.25 the votes, the judgment applied this standard
This Voter Verified Paper Audit to other conditions of free and fair elections,
Trail (VVPAT) seems to fulfil all the in particular the secrecy of the vote.
requirements put forward in the judgment. Individual control of the secrecy of
The voting machine does not only store and the vote, however, means that every voter
count the votes, but is equipped with a second, could convince himself/herself that the en-
independent verification system, which every tire technical process of the e-voting system
voter without computer knowledge can un- employed does not allow any breaches of
derstand. With the paper slip at hand, the the secrecy of his/her vote and ensures the
voter can verify that his or her vote was cast security of the election against any other kind
as he or she had intended. of manipulation.
For the individual voter it is easy Such a legal condition requires a
to compare the paper slip with his or her certain design of voting machines with
vote previously cast at the machine. But paper audit trails, which ensure that no
the counting and tabulation procedure is connection could be established between the
still done by the machine. The voter has to paper slip and the voter. E-voting by means
rely on the functionality of and trust in the of the Internet would have to guarantee the
correct working of the machine. Of course, secrecy of the entire transfer of the vote
the polling officials can compare all the paper to a/the central computer system. And it
slips with the result stored in the machine to would have to do so in a manner which the
verify that the votes were counted as cast. voter can understand. Such a system would
The Constitutional Court seems to have had finally have to include the time factor in its
this in mind when it stated that the voter must consideration: that is, it has to make sure that
be able to verify whether his or her vote is the memory module in the e-voting system,
recorded truthfully at least as a basis for a which stored the information during the
subsequent re-count, if the votes are initially vote casting, could not somehow be hacked
counted with technical support.26 or reprogrammed while it is stored after an
But a verification of the automatic election (in Germany up to four years), with
counting by the machine is only possible with more sophisticated technology, to reveal the
a subsequent manual counting. However, if individual vote of a voter.
the result of every machine would have to be In its judgment of 3 March 2009,
counted manually, again there is no point in the German Constitutional Court did not
using voting machines. Every machine count explicitly rule on the standard of public
without manual recount means that again the monitoring or verification of the secrecy of
the vote as this was not necessary for the case
machine has to be trusted.
it had to decide. But the approach taken by the
This means that a manual recount has
Court and the possible consequences outlined
to be done whenever a single voter asks for
above show that the question of secrecy of
the vote, and with it security of the system
25
Constitutional Court Decision of 3 March 2009, at
paragraph 123. against manipulation, carry an enormous
26
Constitutional Court Decision of 3 March 2009, at constitutional weight and involve high legal
paragraph 121. risks which would have to be considered
136
Expert electoral Special Edition 2016
Dr. Sebastian SEEDORF is a senior legal advisor and the Deputy Head of the Interior
Policy Division in the Federal Chancellery in Berlin, Germany. Before that, he worked for some
years in the Electoral Law Division of the German Federal Ministry of the Interior, with a focus
137
Expert electoral Special Edition 2016
on constitutional law matters in elections and comparative electoral law. Sebastian graduated from
Dsseldorf University, earned a masters degree (LL.M.) from the University of Cape Town in
South Africa and received a doctorate from Humboldt University in Berlin. From 2007 to 2008 he
was a senior researcher at the South African Institute for Advanced Constitutional, Public, Human
Rights and International Law.
138
E-VOTING IN AUSTRIA: A NATIONAL CASE STUDY
Gregor WENDA
Deputy Head of Department of Electoral Affairs
Austrian Federal Ministry of the Interior
Chair of the Council of Europe Ad Hoc Committee of Experts on Electronic Voting (CAHVE)
Abstract: Rsum :
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Expert electoral Special Edition 2016
140
Expert electoral Special Edition 2016
legislation according to the wording also a landmark decision in 19859 that the use of
gives little to no room for interpretation and postal voting was in violation with the prin-
experiments in electoral affairs. Authorities ciples of personal and secret suffrage as the
could not even run non-binding pilots casting of the vote took place in an unsupervised
without a proper act a ministerial decree environment. This legal conflict could only
or an electoral board decision would not be be solved by putting postal voting directly into
sufficient. Hence, all attempts to establish art. 26 paragraph 6 of the Constitution and by
e-voting in Austria require a solid basis in the designing it as an exception to the act of vo-
law. With regard to parliamentary elections, ting before an electoral authority.10 Postal voters
municipal elections, mayoral elections, and now have to furnish a reason when applying
referenda, an amendment to the Constitution for a postal ballot and sign an affidavit stating
would be indispensable.5 Concerning elec- that the vote was cast personally, uninfluenced,
tions to self-governing bodies, concrete pro- and unobserved. In 2014, the Constitutional
visions in the respective ordinary laws are Court had to decide about the legality of certain
needed. Such legal provisions, allowing for norms governing the European elections and
the use of e-voting, were first implemented in thereby held that the use of postal voting was
two self-government acts: The Economic in accordance with European law and Austrian
Chambers Act in 20006 and the Federation of laws due to an appropriate constitutional basis.11
Students Act in 2001. In case the legislator would ever consider
Since Internet voting constitutes a re- introducing Internet voting as an additional
mote voting channel, i.e., enables the electo- voting channel in Austria, explicit provisions
rate to cast their vote outside a polling station, would have to be laid down in the Constitution
art. 26 paragraph 6 of the Constitution would aside from postal voting.
have to be amended. The first time such a
constitutional amendment was passed by 2. First Experiences with E-Voting
Parliament was with the introduction of full
Following the wish of the Austrian
postal voting in 2007.7 The creation of this
Federation of Students to allow for a remote
legal basis required a two-third majority in
voting channel, inspired by university elec-
the National Council and put a factual end
tions in Germany12, the legislature passed
to a decades-long case law of the Austrian
a legal basis13 for Internet voting in 2001.14
Constitutional Court.8 The Court, having the
sole jurisdiction in electoral matters, held in 9
VfSlg. 10.412/1985.
10
Stein, R., Wenda, G. Die Wahlrechtsreform 2007.
5
Heindl, P. E-Voting in Austria: Legal Requirements Ausgewhlte Neuerungen, SIAK-Journal 4/2007, 61
and First Steps, E-VOTE 2004 Proceedings, p. 165; (2007).
Heindl, P., Prosser, A., Krimmer, R. (2003). Consti- 11
VfSlg.19.893/2014.
tutional and technical requirements for democracy 12
Otten, D. (2001). Uni Wahl Deutschland wann,
over the Internet: E-democracy. Electronic Govern- wo Uni Osnabrck Februar 2000, in: Holznagel, B.,
ment. R. Traunmller. Berlin, Springer-Verlag Berlin, Grnwald, A., and Hanman, A. Whlen wie im
p. 417 420; 2004 report of the inter-sectoral sub Schlaraffenland? Erfahrungen der Forschungsgruppe
working group on legal matters regarding e-voting: Internetwahlen mit dem Internet als Wahlmedium.
http://www.bmi.gv.at/cms/BMI_wahlen/faq/files/ Elektronische Demokratie: Brgerbeteiligung per
Bericht_UAG_1_Legistische_Belange.pdf Internet zwischen Wissenschaft und Praxis. Munich,
6
Section 73 paragraph 1 of the Wirtschafts- Verlag C.H. Beck, p. 73 85.
kammergesetz 1998 WKG, Federal Law Gazette 13
Amendment to the Hochschlerinnen- und
BGBl. I Nr. 103/1998. Hochschlerschaftsgesetz 1998, passed on 1 February
7
2007 Electoral Law Amendment Act (Wahl- 2001 (Federal Law Gazette BGBl. I No. 18/2001).
rechtsnderungsgesetz 2007), Federal Law Gazette 14
Krimmer, R. (2002). e-Voting.at: Elektronische
BGBl I 2007/28. Demokratie am Beispiel der sterreichischen Hoch-
8
Wenda, G. (2009). Postal voting & voting from schlerschaftswahlen. Working Papers on Information
abroad: The Austrian perspective, 5th European Systems, Information Business and Operations. I. f. I. u.
Conference of Electoral Management Bodies on Informationswirtschaft. Vienna, WU Vienna University
Distance voting, p. 23. of Economics and Business.
141
Expert electoral Special Edition 2016
While initial attempts to apply it for the 2001 card) introduced by the E-Government Act in
students elections could not be realized, a 2004];
first non-binding Internet voting test was creation of a centralized electoral re-
run by the Vienna University of Economics gister and online administration system nec-
in 2003.15 In 2004, the same academic group essary;
organized another test as a shadow election e-voting only as an additional voting
parallel to the federal presidential elections
channel;
in Austria. The goal was primarily to show
no e-voting on the federal, provincial
the feasibility of e-voting and to present a
possible technical solution.16 or local level without previous experiences
In the same year, the Federal Ministry in e-enabled elections of other institutions
of the Interior convened an inter-sectoral (particularly self-governing bodies);
working group in order to research and respect for the Recommendation
document various aspects of e-voting. The Rec(2004)11 of the Committee of Ministers
group included members from different of the Council of Europe on legal, operational,
ministries, scientists, regional authorities, and technical standards for e-voting.
and the private sector. It was launched Awareness-creation was also achieved
regardless of possible later moves by the
through the work of the so-called Austrian
government or Parliament in the direction
Convention (sterreich-Konvent).18 This
of e-voting. Three sub-working groups on
legislative matters, technological matters, advisory body finished its work after one
and international aspects were set up. A and a half year at almost the same time as
final report, dated 15 November 2004, was the Interior Ministrys working group. Under
submitted to the Federal Minister of the the Conventions auspices, a wide range of
Interior.17 It illustrated then the status quo proposals for reforming the Austrian state and
of NVT in Europe and summarized possible the nations Constitution were examined.19
prerequisites for e-voting. The main findings Part of the remit of two of the ten committees
were: was the future of postal voting and e-voting
e-voting appears feasible as long as
on the federal level. The final report was
legal, operational, and technical conditions
published on 31 January 2005 and submitted
are sufficiently met (e.g., amendment to the
Constitution needed, clear responsibilities of to Parliament for further treatment.
electoral authorities, recognition of election While the Austrian Convention again
principles); emphasized the importance of a constitutional
definite identification and authen- basis for e-voting and postal voting, the
tication necessary [then with a smart card Interior Ministrys working group underlined
solution, the so-called Brgerkarte (citizen the importance that e-voting should first be
tested and carried out on a relatively small
15
For more information on the 2003 test, see: http://
scale and a rather low level of representation,
epub.wu-wien.ac.at/dyn/virlib/wp/mediate/epub-
wu-01_574.pdf?ID=epub-wu-01_574; for general especially in unions or associations. Testing
considerations see also: Uhrmann, P. (2003). Das e-voting processes on the nationwide level,
Potential von E-Voting: Welchen Beitrag knnen
Online-Wahlen zur Qualitt der Demokratie leisten,
during real elections, was not considered
in: Prosser, A., Krimmer, R. (eds.). E-Democracy:
Technologie, Recht und Politik; sterreichische 18
The Austrian Convention was founded on 2 May
Computer Gesellschaft (OCG). Wien, p. 163 173. 2003 as a 70 member body responsible to Parliament
16
An additional test, at that time aimed at Austrian (www.konvent.gv.at).
expatriates, was carried out in 2006. 19
Wenda, G. (2012). Was wurde aus dem sterreich-
17
See footnote 2. Konvent?, Verwaltung Innovativ 2/2012, 12.
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Expert electoral Special Edition 2016
an option, particularly due to the lack of an The second self-governing body with
adequate legal basis.20 an explicit provision for e-voting (introduced
In January 2007, a new Austrian in 2000) was the Austrian Economic Cham-
Government came into office21 and put the ber. The introduction of NVT started out
point examination of electronic voting on slowly with interlinking all polling stations
their agenda. This point picked up the threads under the jurisdiction of the Vienna Chamber
from the Austrian Convention and the inter- in 2000 and by installing voting terminals
sectoral working group at the Federal Ministry with a kiosk system at some locations during
of the Interior in 2004 and 2005, respec- the Vienna Chamber elections of 2005.23 In
tively in particularly since the parties SP recent years, no further e-enabled voting
and VP behind the newly formed Grand solutions have been pursued by the Austrian
Coalition government possessed a two- Economic Chamber24, though the respective
third majority in the National Council. The legal provision is still laid down in the
Parliament asked the Federal Government Economic Chamber Act.
to continue research on e-voting in Austria After early elections to the National
and to evaluate experiences with e-voting Council in 2008 and the formation of a new
in other democratic states. The Council of Austrian government, e-voting was no longer
Ministers decided that the Federal Ministry mentioned in the governmental program.25
However, the creation of a new nation-wide
of the Interior was tasked to view different
Central Electoral Register was put on the
e-voting models and to examine whether and
agenda for the 24th legislative period. While
in which period the technical presuppositions
the main goal was specified as improving
of electronic voting could be created while
inspection times for the local voters lists,
guaranteeing the voting principles.
the benefits of a centralized register for
In the wake of these developments,
any future use of NVT were also evident.26
the Federal Minister of Science and Research A proposal for a new centralized database
decided to introduce Internet voting for the was submitted to Parliament in 2013 as
Federation of Students elections. During part of large Democracy Bill27 and the
a speech at the University of Linz on the debates have continued in the 25th legislative
11th of May 2007, Federal Minister Johannes period (since December 2013). Within the
Hahn announced publicly to offer e-voting framework of the bill, the strengthening of
for the first time during the 2009 elections.22 specific participatory tools and the use of
The appropriate legal basis, a technologically electronic solutions for public initiatives
neutral provision, had been in existence were debated for the first time. The start of
since 2001. In section 34 paragraph 4 of the
Federation of Students Law 1998 (HSG), the 23
De Carlo, A. Wirtschaftskammer Wahlen 2005,
use of electronic signatures for identification in: Prosser, A., Parycek, P. (eds.) (2007). Elektronische
purposes in accordance with the Austrian Demokratie in sterreich; EDem 2007; sterreichische
signature law as well as the data protection Computer Gesellschaft (OCG). Wien, p. 79 87.
24
Information provided by senior officials of the
law 2000 (DSG) was regulated. Austrian Economic Chamber.
25
Another agenda point in the governmental program
20
If need be, non-binding tests covering non-political vaguely related to NVT was the goal to organise
issues were regarded as a possible first approach. shareholder meetings [] with the aid of information
21
23rd legislative period from 2007 to 2008. technology.
22
APA News: Wissenschaftsminister Hahn will 26
Stein, R., Wenda, G. (2014). Das zentrale
E-Voting bereits bei H-Wahl 2009, APA0431, Whlerregister Ein skalierbares Instrument zur
11 May 2007; for a more detail description of the Brgerbeteiligung mit 1:1-Verifikation, Informatik
developments see: Krimmer, R., Ehringfeld, A., 2014, p. 1427 1436.
Traxl, M. (2010). The Use of E-Voting in the Austrian 27
Demokratiepaket, Initiativantrag (Initiative Bill)
Federation of Students Elections 2009, in Krimmer, R. submitted to the National Council, 2177/A (24th
and Grimm, R. Electronic Voting 2010 (EVOTE2010). legislative period), with subsequent proposed changes
Bregenz, GI LNI. 167: p. 33 44. (still in the process).
143
Expert electoral Special Edition 2016
European Citizens Initiatives (ECI) in all to the principles of universal, equal, secret and
EU Member States28 created an additional personal suffrage. Similar to all bodies of self-
momentum in the Austrian discussion as ECIs government, the legal basis for elections is laid
can be supported both on paper and through down in a law passed by Parliament. During
an online platform.29 While the introduction the time of the introduction of e-voting, this
of a Central Electoral Register was basically was the Federation of Students Act 1998
undisputed, it was linked right from the start (HSG).33 Further details regarding the elections
to other elements of direct democracy.30 For were laid down in a regulation enacted by the
the whole democracy package, a two-third Federal Minister of Science and Research
majority in the National Council would be (Federation of Students Election Regulation
required. To date, neither the Democracy 2005 HSWO).34 This general administrative
Bill, nor the Central Electoral Register norm had to be in accordance with the law. It
project have moved ahead and the outcome specifically mapped out deadlines, procedures,
is more than uncertain. and prerequisites. The Austrian Constitution
prescribes that organs of self-governing bodies
3. E-voting at the 2009 Feder- are to be established according to democratic
ation of Students Elections principles of their members. These electoral
The Austrian Federation of Students principles, however, are not laid down in the
(H)31 legally represents all Austrian Constitution, but merely in ordinary laws.
students. Representation is carried out at three Hence, the implementation of e-voting in
different levels (federal level, university level, self-governing bodies is possible without any
level of study area). The competent member constitutional amendment. In general, there is
of government for students matters is the a wide margin of appreciation for regulating
Federal Minister of Science and Research. elections in bodies of self-government.35
Students elections, run by the H, ultimately After the Federal Minister of Sciences
come under the lone oversight of the Science announcement to launch e-voting for the
Minister.32 Students vote for the H bodies 2009 Federation of Students elections, a
every two years in general elections according feasibility study was carried out. The project
was divided into four phases:36
28
Regulation (EU) No. 211/2011 of the European initial phase: October to December
Parliament and of the Council of 16 February 2011 2008;
on the citizens initiative, in force since 1 April 2012.
29
Stein, R., Wenda, G. (2011). Implementing the ECI:
pre-voting phase: January to April
challenges for the member states, in: Proceedings of 2009;
EDEM 2011, p. 45. voting phase: May 2009;
30
Zitat Link-Empfehlung Artikel Stein (IRIS). post-voting phase: June 2009.
31
In English, the sterreichische Hochschlerinnen- As the legal basis for e-voting in the
und Hochschlerschaft (H) is also referred to by
the term Austrian National Union of Students or
Federation of Students Act was considered
Austrian Students Union. During the e-voting
project, the translation Federation of Students was 33
Hochschlerinnen- und Hochschlerschaftsgesetz
preferred due to the complex structure and orga- 1998 (HSG 1998), Federal Law Gazette BGBl. I No.
nization of the H bodies, which come closer to a 22/1999.
federation than a union. 34
Hochschlerinnen-und Hochschlerschaftswahlord-
32
The Federal Minister of the Interior plays no role nung 2005 (HSWO 2005), Federal Law Gazette BGBl.
in these elections. He or she heads both the Federal No. II 91/2005.
Ministry of the Interior (with a Department of Electoral 35
Oswald, M. (2015). E-Voting in Austria: Legal
Affairs) and acts as the chairperson of the Federal Determination Matters, in: Driza Maurer, A., Barrat, J.
Electoral Board (Bundeswahlbehrde) being in E-voting case law: A comparative analysis, p. 51
charge of elections of the legislative bodies (both of the et seq.
federation and the provinces), the representative bodies 36
Ehringfeld, A., Krimmer, R., Traxl, M. The Use
at the municipal level, the members of the European of E-Voting in the Austrian Federation of Students
Parliament, and the Federal President, as well as Elections 2009, in Krimmer, R., Grimm, R. (eds.).
referenda and consultations on the federal level. Electronic Voting 2010 (EVOTE10), p. 33 et seq.
144
Expert electoral Special Edition 2016
sufficient, the Federal Ministry of Science and dominated the electoral campaigns and lead
Research prepared the necessary changes to to strong resistance from the Federation of
the Election Regulation HSWO. The system Students, who told students not to use the offered
had to comply with the Data Protection Internet channel during elections, allegedly
Act. The electoral rules referred to security fearing manipulations, voter coercion, and a
standards in Rec(2004)11 of the Committee of breach of the secrecy of vote. Despite the
Ministers. Right from the start, e-voting was students protests and some administrative
only designed as an additional channel aside flaws in the pre-election phase, the first legally
from voting at polling stations, but expected binding use of Internet voting in Austria was
to facilitate participation in the polls and eventually deemed technically successful.39
to increase the generally low turnout.37 The Almost 1% (2,161) of the eligible students
architecture of the elections was gigantic: cast their votes electronically between the
230,749 students were eligible to vote in 50 18th and 22nd of May 2009. The official eva-
polling stations at 21 universities. All over luation report40 published after the 2009 elec-
Austria, 376 different elections were held with tions held that the use of the citizen card was
376 different ballot sheets. 2,500 candidates appropriate because of its associated high
ran in the 2009 elections. While paper-based safety and powerful legal standing but that
voting traditionally took place during the three () the penetration of the citizen card is
day period stipulated by law (i.e., Tuesday to rather low at present. () Main reason to this
Thursday, 26 to 28 May 2009), Internet voting is the general limited number of applications
was designed as advance voting and available aimed at students which make use of this
from 18 to 22 May 2009 (Monday, 8:00, to card. The general acceptance and with it the
Friday, 18:00). For identification purposes, penetration numbers for this smart card will
citizens cards (smart cards) and a suitable only be reached when a wide range and a
smart card-reader device were required from large number of additional services are provi-
all users.38 Anonymity was performed by using ded with appropriate functionality, especially
a cryptographic protocol in the post-electoral for students. Besides, () a more positive
phase, similar to postal voting procedures in a atmosphere amongst the stakeholders has to
paper based system. Certification of the voting be reached.
software took place 60 days prior to e-day, the At the beginning of 2010, there was a
computing center was set up in March 2009. change in the office of the Minister of Science
The servers were placed in two separate and Research. Dr. Johannes Hahn became
data centers of the Bundesrechenzentrum the new Austrian member of the European
Commission and Dr. Beatrix Karl was sworn
(Austrian Federal Computing Centre) for dou-
in as his successor in the Science Ministry.41
ble safety. From 21 to 28 April the voter regis-
In April 2010, she decided not to continue
ter could be checked online. The certification
the use of e-voting for the 2011 elections of
report and source code were reviewed on the
the Federation of Students. The main reason
8th of May 2009, the signing of the encryption
presented was the small diffusion rate of
keys for members of the election committee took
smart cards among Austrian students.42 After
place on the 9th of May 2009. While prepa-
the announcement of the 2009 elections
rations went along, the Federal Minister of
Science and Research and the competent orga-
nizing team were confronted with an 39
See English Summary of the Evaluation Report
unexpected degree of protests among students. (http://www.e-voting.cc/wp-content/uploads/
Discussions around the forceful introduction downloads/2012/05/Evaluierungsbericht_EVoting_
ochschuelerinnen-_ und_Hochschuelerschaftswahlen_
2009.pdf)
37
Ehringfeld, A., Krimmer, R., Traxl, M. The Use 40
Evaluation Report, see footnote 27.
of E-Voting in the Austrian Federation of Students 41
Dr. Beatrix Karl was in office from 26 January 2010
Elections 2009, in Krimmer, R., Grimm, R. (eds.). to 20 April 2011.
Electronic Voting 2010 (EVOTE10), p. 33 et seq. 42
Der Standard (2 April 2010): http://derstandard.
38
During the project, around 15,000 students received at/1269448837562/Ministerin-Karl-Kein-E-Voting-
a smart card for free. mehr-bei-OeH-Wahlen
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Expert electoral Special Edition 2016
final results, several attempts were made by in Germany had to be watched by everyone
campaigning groups to challenge the legal and that complete oversight was impossi-
basis for the elections (HSG and HSWO) ble to guarantee in e-enabled elections. In
before the Constitutional Court. Several Austria, there is no principle of complete
claims were originally rejected for formal publicity as it is the electoral boards task
reasons; one complaint was eventually dealt to represent the public and to control and
with by the constitutional judges in substance. review the electoral process on their behalf.
One central conclusion, however, was not
4. Decision by the Constitu- much different from the German judgment as
tional Court the Austrian Constitutional Court demanded
In a judgment of 13 December 201143, full transparency in all future deployments of
the Austrian Constitutional Court suspended e-voting, both for election commissions, and
some provisions in the HSWO Regulation, the individual voters.
which had provided the basis for the 2009
Federation of Students elections.44 While 5. Conclusions
the Federation of Students Act (HSG) was The 2011 Constitutional Court judg-
considered lawful and the use of e-voting ment on e-voting specifically dealt with
was generally regarded as in compliance with the Federation of Students elections and
electoral principles, the concrete legislative the insufficient legal determination of
implementation of e-voting met the Courts the e-voting procedures in the electoral
disapproval. According to the Court, the regulation. Notwithstanding, the Courts
regulation lacked sufficient determination conclusions gave a certain orientation for
concerning the application of NVT. The any future attempt to implement e-voting
principle of legal determination calls for in the Austrian law at least in bodies of
sufficient specification of procedural rules self-government where no constitutional
on e-voting. From the Constitutional Courts amendment is needed. In principle, the
point of view, members of electoral com- introduction of an e-voting system should still
mission have to completely understand and be possible as the Constitutional Court did
follow the whole process, including all not prohibit e-enabled elections in general.
technical details and steps, in order to carry However, the strict requirements and high
out their sensitive role in overseeing elections. standards demanded for future specifications
This is not least due to the high vulnerability of e-voting systems may be difficult to match
of the system, making it more prone to errors in reality. According to the Court, electoral
and manipulations. In order to tackle these boards should be able to oversee the whole
challenges and to face an e-voting systems election process and assess how the results
unique technical complexity, any legal basis were achieved without specific expert
has to be extremely detailed (determined) knowledge. In areas of highest technical
and allow for full transparency and verifiability complexity such as in e-voting, this seems
of the e-voting system. The Austrian consti- hard to imagine. The inclusion of experts in
tutional judges did not follow the arguments the process will therefore be a challenge for
of the German Constitutional Court of 200945, any future legislation.46
which stated that the whole electoral process For the time being, there is no legal
basis to carry out e-enabled elections on the
43
VfSlg. 19.592/2011, available at: http://www.vfgh.
gv.at/cms/vfgh-site/attachments/7/6/7/CH0006/ 46
Melinda Oswald correctly points out that even the
CMS1327398738575/e-voting_v85-11.pdf Constitutional Court acknowledged the inclusion of
44
For a very elaborate presentation of the Courts technical experts in the e-voting process of the 2009
findings, see Oswald, M. (2015). E-Voting in Austria: Federation of Students Elections as a Confirmation
Legal Determination Matters, in: Driza Maurer, A., Body, composed of specifically assigned experts,
Barrat, J. E-voting case law: A comparative analysis, dealt with the correct handling of electronic signatures
p. 45 64. required for the smart card solution (see Oswald, M.,
45
See Sebastian Seedorfs article in this publication. op. cit, p. 60) .
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Expert electoral Special Edition 2016
Gregor WENDA, born and raised in Vienna, is a graduate of the University of Vienna Law
School (Magister iuris) and the University of Salzburg Management Business School (MBA).
He started to work in the Austrian Federal Ministry of the Interior in 2003. After two years as
a legal specialist in the Department of Legislative Affairs, he transferred to the Department of
Electoral Affairs and became Deputy Head of this Department. In 2006, Gregor Wenda was
also appointed 3rd Vice-Chair of the Austrian Federal Electoral Board. He was a member of the
Austrian delegation in the ad hoc group of experts finalizing the Recommendation of the Council
of Europes Committee of Ministers on legal, operational and technical standards for e-voting
Rec(2004)11 in 2004. Since then, he has frequently published articles and given presentations
and lectures on the issue of e-enabled voting and has participated in all review meetings regarding
Rec(2004)11. In October 2015 he was elected Chair of the newly established Council of Europe
Ad Hoc Committee of Experts on Electronic Voting (CAHVE), which is tasked with updating
Rec(2004)11 through 2016. Aside from his job in electoral affairs, Gregor Wenda also serves as
Advisor to the Director-General for Legal Affairs, particularly in personnel matters. He is the
deputy editor-in-chief of the Interior Ministrys official magazine ffentliche Sicherheit and one
of the editors of the academic journal SIAK Journal. Gregor Wenda is the author of numerous
publications, including articles and commentaries, and holds functions in different associations,
inter alia as the Secretary General of the Austrian Society of Administrative Sciences.
47
The current rise of electronic signatures over the nung 2014 HSWO, Federal Law Gazette BGBl. II
mobile phone as an alternative to the physical smart No. 376/2014).
card might be a chance. 49
Voting by voting card (including postal voting)
48
An entirely new Law (Hochschlerinnen- und is regulated in sections 44 et seq. of the 2014
Hochschlerschaftsgesetz 2014 HSG, Federal Law Federations of Students Act. The provisions were
Gazette BGBl. I No. 45/2014) was passed by Parliament modeled after the rules in the National Council
in 2014. Based on the new HSG, the Federal Minister Elections Act. For further information see Gruber, M.,
of Research enacted an entirely new regulation Stangl, S. Praxishandbuch Hochschlerinnen- und
(Hochschlerinnen- und Hochschlerschaftswahlord- Hochschlerschaftsrecht (facultas 2015).
147
Expert electoral Special Edition 2016
References:
Balthasar, A., Prosser, A. (2012). E-Voting in der sonstigen Selbstverwaltung
Anmerkungen zum Beschluss des VfGH vom 30. Juni 2011, B 1149, und zum Erkenntnis
des VfGH vom 13. Dezember 2011. V, p. 85 96.
Dickinger, A., Prosser, A., Krimmer, R. (2003). Studierende und elektronische Wahlen:
Eine Analyse, in Prosser, A., Krimmer, R. (eds.) (2003). E-Democracy: Technologie,
Recht und Politik; sterreichische Computer Gesellschaft (OCG), p. 145 155.
De Carlo, A. Wirtschaftskammer Wahlen 2005, in Prosser, A., Parycek, P. (eds.) (2007).
Elektronische Demokratie in sterreich; EDem 2007; sterreichische Computer
Gesellschaft (OCG). Wien, p. 79 87.
Ehringfeld, A., Krimmer, R., Traxl, M. The Use of E-Voting in the Austrian Federation
of Students Elections 2009, in Krimmer, R., Grimm, R. (eds.). Electronic Voting 2010
(EVOTE10), Lecture Notes in Informatics (LNI) Proceedings Series of the Gesellschaft
fr Informatik (GI), Volume P-167, p. 33 44.
Ehringfeld, A., Naber, L., Grechenig, T., Krimmer, R., Traxl, M., Fischer, G. (2010).
Analysis of Recommendation Rec(2004)11 based on the experiences of specific attacks
against the first legally binding implementation of e-voting in Austria, in Krimmer, R.
and Grimm, R. (eds.). Electronic Voting 2010 (EVOTE10), Lecture Notes in Informatics
(LNI) Proceedings Series of the Gesellschaft fr Informatik (GI), Volume P-167,
p. 225 237.
Goby, B., Weichsel, H. (2012). Das E-VotingErkenntnis des VfGH: gesetzwidrige
Ausgestaltung der DH-Wahlordnung, Zeitschrift fr Hochschulrecht, p. 118.
Grabenwarter, C. (2004). Briefwahl und E-Voting: Rechtsvergleichende Aspekte und
europarechtliche Rahmenbedingungen, Journal fr Rechtspolitik, p. 70.
Gruber, M., Stangl, S. Praxishandbuch Hochschlerinnen- und Hochschlerschaftsrecht
(facultas 2015).
Handstanger, M. (2009). E-Voting und Wahlrecht, in Poier, K. (ed.). Demokratie im
Umbruch: Perspektiven einer Wahlrechtsreform.
Hausmaninger, H. (2011). The Austrian Legal System, p. 23.
Heindl, P. E-Voting in Austria: Legal Requirements and First Steps, E-VOTE 2004
Proceedings, p. 165.
Heindl, P., Prosser, A., Krimmer, R. (2003). Constitutional and technical requirements
for democracy over the Internet: E-democracy. Electronic Government. R. Traunmller.
Berlin, Springer-Verlag Berlin, p. 417 420.
Krimmer, R. (2002). e-Voting.at: Elektronische Demokratie am Beispiel der ster-
reichischen Hochschlerschaftswahlen. Working Papers on Information Systems,
Information Business and Operations. I. f. I. u. Informationswirtschaft. Vienna, WU
Vienna University of Economics and Business.
Krimmer, R. (2003). E-Voting in sterreich, in E. Schweighofer et al (Hrsg.), Zwischen
Rechtstheorie und e-Government, p. 271 et seq.
Krimmer, R., Ehringfeld, A., Traxl, M. (2010). The Use of E-Voting in the Austrian
Federation of Students Elections 2009, in Krimmer, R. and Grimm, R. Electronic Voting
2010 (EVOTE2010).
Krimmer, R., Lehner, C., Stangl, S., Varga, B., Stein, R., Wenda, G., Kozlik, J. (2009).
E-Voting im Rahmen der Wahlen zur sterreichischen Hochschlerinnen- und
Hochschlerschaft 2009. Jahrbuch Hochschulrecht. W. Hauser and M. Kostal. Wien,
Neuer Wissenschaftlicher Verlag, Wien, p. 539 551.
Krimmer, R., Triessnig, S., Volkamer, M. (2007). The Development of Remote E-Voting
around the World: A Review of Roads and Directions, in Alkassar, A., Volkamer, M.
(eds.). E-Voting and Identity (115). Springer.
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Krimmer, R. (2012). The Evolution of E-Voting: Why Voting Technology is Used and
How it Affects Democracy. Tallinn University of Technology Press.
Kucsko-Stadlmayer, G. (2009). E-Voting und Europischer Grundrechtsstandard, in
Jabloner, C., Lucius, O., Schramm, A. (eds.). Theorie und Praxis des Wirtschatsrechts,
Festschrift fr Ren Laurer.
Marx, G. E-Voting bei den H-Wahlen 2009, in Werner Hauser (ed.). Jahrbuch
Hochschulrecht 2010 (NWV 2010).
Menzel, T. (2001). E-Voting an sterreichische Hochschulen, in E. Schweighofer et al
(Hrsg.), Auf dem Weg zur ePerson, p. 281 et seq.
Oswald, M. (2015). E-Voting in Austria: Legal Determination Matters, in Driza Maurer,
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Otten, D. (2001). Uni Wahl Deutschland wann, wo Uni Osnabrck Februar 2000,
in Holznagel, B., Grnwald, A. and Hanman, A. Whlen wie im Schlaraffenland?
Erfahrungen der Forschungsgruppe Internetwahlen mit dem Internet als Wahlmedium.
Elektronische Demokratie: Brgerbeteiligung per Internet zwischen Wissenschaft und
Praxis. Munich, Verlag C.H. Beck, p. 73 85.
Pabel, K., Sonntag, M. (2012), E-Voting bei den H-Wahlen gesetzwidrig Zeitschrift fr
Energie- und Technikrecht, p. 175.
Pentz, E. (2012). Richtungsweisend nur wohin? Die Judikatur des VfGH zu E-Voting
juridikum, p. 6.
Poier, K. (2013). E-Voting mehr als ein einmaliger Flop? Die Entscheidung des VfGH
zur H-Wahl 2009 und ihre Folgen fr E-Voting in sterreich, in Baumgartner, G. (ed.),
Jahrbuch ffentliches Recht 2013.
Prosser, A., Kofler, R., Krimmer, R., Unger, M. The first Internet-Election in Austria:
The Findings by e-Voting.at, Working Papers on Information Processing and Information
Management, No. 04/2003.
Prosser, A., Steininger, R. (2006). An Electronic Voting Test Among Austrians Abroad;
Nr. 02. Institut fr Informationsverarbeitung und Informationswirtschaft Wirtschafts-
universitt Wien.
Stein, R., Wenda, G. (2014). Das zentrale Whlerregister Ein skalierbares Instrument
zur Brgerbeteiligung mit 1:1-Verifikation, Informatik 2014, p. 1427 1436.
Stein, R., Wenda, G. (2007). Die Wahlrechtsreform 2007. Ausgewhlte Neuerungen,
SIAK-Journal 4/2007, 61.
Stein, R., Wenda, G. (2005). E-Voting: Information on Recent Developments in
Austria, in Joint Workshop on Decision Support Systems, Experimental Economics &
e-Participation, Graz.
Stein, R., Wenda, G. (2005). E-Voting in sterreich. Status Quo und Ausblick, SIAK-
Journal 3, p. 3.
Stein, R., Wenda, G. (2011). Implementing the ECI: challenges for the member states, in
Proceedings of EDEM 2011, p. 45.
Stein, R., Wenda, G. (2014). The Council of Europe and e-voting: History and impact
of Rec(2004)11, Electronic Voting: Verifying the Vote (EVOTE), 2014 6th International
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Stern, J. (2009). Demokratie minus 2.0 Die Distanzwahl ist verfassungsrechtlich
hchst bedenklich, juridikum, p. 72.
Uhrmann, P. (2003). Das Potential von E-Voting: Welchen Beitrag knnen Online-Wahlen
zur Qualitt der Demokratie leisten, in Prosser, A., Krimmer, R. (eds.). E-Democracy:
Technologie, Recht und Politik; sterreichische Computer Gesellschaft (OCG). Wien,
p. 163 173.
Wenda, G. (2009). Postal voting & voting from abroad: The Austrian perspective,
5th European Conference of Electoral Management Bodies on Distance voting, p. 23.
Wenda, G. (2012). Was wurde aus dem sterreich-Konvent?, Verwaltung Innovativ
2/2012, 12.
149
NATIONAL CASE STUDY: THE ESTONIAN CASE
Oliver KASK
Member of Venice Commission
Vice-Chair of the Council for Democratic Elections
Abstract: Abstract :
E-voting has been used in Estonia Le vote lectronique est utilis depuis
for many years over the Internet. This longtemps en Estonie. Ma prsentation ana-
paper discusses the trust in voting over the lyse la confiance dans le vote par Internet, les
Internet, main security mechanisms and principaux mcanismes de scurit et les d-
Supreme Courts decisions on the matter. cisions de la Cour Suprme concernant cette
As a conclusion, Supreme Court of Estonia question. En conclusion, la Cour Suprme de
has supported the e-voting in its 2005 lEstonie a soutenu le vote lectronique dans
judgement and has been reluctant to deal sa Dcision de 2005 et, par la suite, elle a t
with security and secrecy issues of Internet rticente traiter les problmes de scurit et
voting afterwards. All cases brought before de protection du secret du vote par Internet.
it later on are rejected mainly on the grounds Toutes les affaires qui lui ont t prsentes
of being unreasoned, submitted without par la suite ont t rejetes principalement
concrete evidence or being not timely. In parce quelles taient considres comme non
a response, the main criticism has been motives, sans preuves concrtes, ou parce
addressed outside of courts to the public. No quelles ne venaient pas au moment oppor-
proof of falsification is available. Internet tun. Comme rponse, les principales critiques
voting has been widespread, despite the ont t adresses en dehors de la cour, au
extensive criticism, with more than 30% of public. Aucune preuve de falsification nest
votes for the last two elections given over disponible. Malgr les critiques extensives,
Internet. le vote par Internet sest rpandu, avec plus
de 30% de votes par Internet lors des deux
Keywords: Estonia, Internet voting, dernires lections.
electoral justice, electoral principles
Mots-cls : Estonie, vote par Internet,
justice lectorale, principes lectoraux
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allowing personal identification over smart- This restriction makes the hacking more
phones. Chips on ID cards and SIM cards difficult, as the program is made available
with mobile ID contain certificates for remote only just before the Internet voting begins.
authentication and digital signature. These For each election, a new program is provid-
certificates are protected with PIN codes. ed. The code of the program put into the server
The program for the use of ID card is free of for collecting and counting the Internet votes
charge. ID cards are mandatory for Estonian is public and can be assessed beforehand.
citizens and residents.
3. Court Cases on Internet
2. Main Characteristics of Voting
Internet Voting
After the Estonian Parliament adopted
Provisions in Riigikogu Election Act amendments to Local Government Council
have been amended a couple of times since Election Act introducing detailed provisions
2002, with the latest amendments adopted on Internet voting, the President of the
in April 2016. The law providing Internet Republic brought the law to the Supreme
voting since 2005 was adopted in 2002 with Court, which decides on the constitutional
55 votes in favour and 31 against out of 101 cases as well. The President claimed the law
members of Riigikogu. Internet voting was to be unconstitutional because of inequality
provided in addition to ordinary paper voting of votes and unequal suffrage, as votes over
in polling stations with a chance to amend the the Internet may be amended for multiple
vote. Now, it is possible to amend the vote times, but those given in polling stations,
either by another Internet vote or by a vote i.e., on paper ballots, may not. On the 23th of
in polling station. Only the last vote over August 2005 the Supreme Court rejected the
the Internet or the one cast on a paper ballot application,1 stating that through the legis-
counts and previous votes are deleted. In lation concerning the suffrage the legislator
order to vote, the voter has to identify himself has guaranteed all voters the legal possibility
or herself by the ID card. The Internet voting to vote in a similar manner. In the legal sense
program has to be tested and audited, and the system of electronic voting is equally
a report on test results has to be published. accessible to all voters at local government
The key to decrypt the results of Internet council elections.
voting has to be divided between members The court claimed that (see TNS
of Central Election Commission. For each EMOR monitoring survey of 2005 http
election, a new program for Internet voting is ://www.riso.ee/et/?q=node/136) [t]he mea-
available just from the beginning of Internet sures the state takes for guaranteeing the
voting. Internet voting takes place with possibility to vote to as many voters as
10 to 4 days before election day. Votes are possible are justified and advisable. (...)
encrypted before being sent to the server for The ever growing number of Internet users
Internet voting. The voter can check whether among Estonias inhabitants and the spread
the vote was received and as an innovation, of services offered through electronic means
for which candidate the vote was registered as well as the introduction of mandatory
in the main server for 30 minutes after the ID-card have created favourable conditions
submission of the Internet vote. Detailed for the introduction of electronic voting. Also,
explanations are given on the webpage of the the preamble of Standards of e-voting,
Central Election Commission on the voting enumerating the aims of allowing e-voting,
over the Internet from a procedural approach refers, inter alia, to facilitating the casting of
as well as on the security mechanisms and
vote counting procedure. 1
Judgement of the Constitutional Review Chamber
The code of the program in voters com- of the Supreme Court No 3-4-1-13-05, available at:
puters, smartphones or tablets is not public. http://www.nc.ee/?id=381
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the vote by the voter, increasing voter turnout It has to be proved that a violation has taken
by providing additional voting channels, place. One has to make a complaint on the
bringing voting in line with new technologies violation of his or her own rights. Arguments
and reducing, over time, the overall cost of the claimant were not based on proved
of conducting an election. Pursuant to violation of the principles of electoral
this document the members states (of the heritage. In case No 3-4-1-10-113 submitted
Council of Europe) need to take account of by one of the main political parties, the
the new information and communication Supreme Court decided that the complaint
technologies, which are increasingly being was not timely. The provisions on time-
used in day-to-day life, in their democratic limits for submitting complaints against the
practice. The Constitution does not prohibit decisions of Central Election Commission
the modernisation of electoral practices, are clear and uniform for different decisions
and thus it is a legitimate justification of of the Central Election Commission.
the infringement of the right to equality and Complaints sent after 2013 and 2015
principle of uniformity. elections against Internet voting touched
The case was an abstract one only upon limitation of observation. These
without real practice of Internet voting. The complaints did not go into the questions on
arguments of the President of the Republic secrecy of vote or other key principles of
did not touch upon the possibility to observe European electoral heritage and were rejected
the secrecy of voting. So the Court was not in on procedural reasons as the complaints did
a position to decide on the issues of potential contain only suspicions of general nature4,
hacking or fraud by election commission. were not timely5 or did not aim to protect the
Still, the Court described the advantages of rights of the complainant, but were submitted
e-voting and considered the mechanism to be for the general interest.6
constitutionally advisable.
Further cases were brought before the 4. Public Campaign against
Supreme Court the only court to judicate Internet Voting
on the complaints and appeals against A wide campaign against Internet vo-
Central Election Commission in 2011. ting was started in 2013 and 2014 by some
All those cases were rejected on procedural leaders of Keskerakond, one of the main
grounds and not discussed in content. In case political parties in opposition. Some ICT
No 3-4-1-4-11, the Supreme Court decided experts criticized the Internet voting mecha-
on a complaint based on the fact that it is nisms used. Overall, the Central Election
possible to infect the computer of a voter with Commission and Estonian Internet Voting
a virus not letting the vote given with this Committee were active in reflecting on the
computer to be sent to the server of the Central criticism, claiming that Internet voting is
Election Commission, but showing the voter open to manipulation and hacking only in
a confirmation that the vote was given. The extreme cases where many unlikely con-
Supreme Court rejected the case as there was ditions are fulfilled simultaneously. As a
no evidence of such manipulations in any result, Internet voting usage has dropped for
computer, except the one the complainant about 1% for the 2015 elections. No real cases
had intentionally infected. A prerequisite to of fraud have been observed. An independent
satisfaction of an appeal is a violation of committee, not paid by state authorities, tes-
the appellants rights by a resolution or act ted the program for e-voting before 2013
of the election management body. In case elections and said it contained some errors,
No 3-4-1-7-112, the Supreme Court clarified but was safe against falsifications.
that a complaint may not be hypothetical.
3
Similar case No 3-4-1-11-11.
2
Judgement of the Constitutional Review Chamber of 4
Case No 3-4-1-10-15.
the Supreme Court No 3-4-1-7-11, available at: http:// 5
Case No 3-4-1-11-15.
www.riigikohus.ee/?id=1256 6
Case No 3-4-1-17-15.
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Expert electoral Special Edition 2016
Oliver KASK has a degree in Law from University of Tartu, Estonia. He has been an
expert in constitutional law, especially electoral law and human rights as well as administrative
law. He has been a judge since 2004. He has also been an ad hoc Judge at the European Court of
Human Rights since 2010. Mr Kask is a member of the Venice Commission and Vice-Chair of the
Council for Democratic Elections of the Council of Europe.
References:
154
VOTING TECHNOLOGIES AND ELECTORAL
RIGHTS: THE CASE OF ROMANIA
Abstract: Rsum :
New technologies raise legal chal- Les nouvelles technologies lancent des
lenges for electoral systems which have to dfis juridiques pour les systmes lectoraux,
be debated each time an electoral reform is et ceux-ci doivent tre discuts lors de chaque
started. The reform of the electoral system rforme lectorale. La rforme du systme
undertaken in Romania in 2015 provided lectoral en Roumanie, mene en 2015,
for a limited use of new technologies, meant prvoit une utilisation limite des nouvelles
mainly to ensure the correctness of the elector- technologies, destine assurer, en principe,
al process, while giving preference to postal lquit du processus lectoral, en mettant
voting instead of e-voting for citizens living en avant le vote par la poste plutt que le
abroad. vote lectronique pour les citoyens vivant
ltranger.
Keywords: electronic voting, electronic
counting, new technologies, the right to vote, Mots-cls : vote lectronique, depouil-
constitutional guarantees, electoral legislation lement lectronique, nouvelles technologies,
droit de vote, garanties constitutionnelles,
lgislation lectorale
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Expert electoral Special Edition 2016
This paper describes the use of legislation acknowledges the use of modern
new technologies for electoral purposes digital technologies in other ways, at various
in Romania and the main constitutional stages of the electoral process.
challenges it faces, taking into consideration In Romania, any debate about the
constitutional provisions, the case law of the regulation of e-voting and/or e-counting by
Constitutional Court and the new electoral law should have the objective of finding the
legislation. We will first present the main right balance between the aim of enhancing
types of new voting technologies currently in political participation through the use of new
use in various countries, then we will analyse technologies and the aim of respecting the
the constitutional background against which constitutional features of the vote as long as
an evaluation of e-voting technologies has these are regulated at constitutional level,
been undertaken in Romania in order to explained and developed by the case law of
conclude with a presentation of the modern the Constitutional Court.
technologies finally introduced and a brief Moreover, even the Constitutional
appraisal of the legislative provisions making Court in its case law seems to favour those
this possible. legislative incentives aiming at enhancing
Used in a smart manner, modern political participation in electoral processes,
technologies (including e-voting/e-counting) seen as a constitutive element of a healthy
can bring people closer to the political life and democratic society. Therefore, one might say
make them aware of their capacity to induce that we already have all the prerequisites
change and put pressure on public officials, for a more inclusive, detailed and technical
as well as on public institutions, thus making debate concerning the introduction of voting
democratic societies more participative. technologies, in a more or less distant future.
Last year, the Romanian Parliament
embarked upon a broad reform of the elec- 1. A Brave New World
toral and political parties system aimed at The choice made with regard to the
consolidating democracy in Romania by type of electoral system and its specifics
enhancing its representative dimension (pro- offers valuable insights upon the political
viding for a proportional electoral formula regime and the party system in a given
in parliamentary and local elections) and country. Everything matters in elections:
by liberalising the political parties market everything from the electoral formula to the
(some rough criteria in order to register a voting and counting procedures. Who has
political party were eliminated from the old the right to vote, where, when and how a
legislation). voter casts his/her vote, who, at what level
The newly adopted legislation did not and how the votes are numbered, as well as
regulate the use of voting technologies, nei- the formula used to distribute the mandates
ther as a mechanism for expressing electronic to the winning candidates, well, everything
voting, nor as a mechanism for electronic matters in this complex relationship between
counting. However, this infra-constitutional the voter and his agent of representation.
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Expert electoral Special Edition 2016
It is beyond doubt that we are living Duverger was the first scholar pointing out
in a more and more technologized society, that the political party system (the dependent
where the use of computers and Internet, variable) in a given country is influenced by
the easy access to a brave new digital world two major factors: the nature of the political
are all factors of change which have already conflict within the society and the type of the
started to influence and even change not electoral system (both being the independent
only electoral systems, but the whole po- variables)2. The type and the specific features
litical game in many countries. And this is of the political party system are relevant
just the beginning. New, better and highly criteria to understand the level of democracy
sophisticated technologies will be developed in a given country. Considering the massive
and societies will become more and more development of new technologies which
interconnected; the major movement from binds people in a previously unknown online
offline to online will generate major changes existence, thus unprecedentedly influencing
regarding the way we think, we understand the power relations between all political
each other and, of course, we evaluate politics actors within a democratic society, one can
and participate in the public life. The use of argue that the future of the representative
new technologies might become useful for democracy is inherently related to the way
an enhanced participation of citizens to the new technologies will be used in political
electoral process and beyond, to the political processes, especially in electoral matters.
life. According to various documents is-
An enhanced political participation sued by the Council of Europe or the National
and a high level of citizens trust in public Democratic Institute and dealing with elec-
institutions are key issues for a consolidated tronic tools used in elections, one can differ-
democracy. However, modern technologies entiate between e-voting and e-counting.3
by themselves cannot generate a significant Consequently, voting technologies cover a
change in the low levels of trust of citizens wide range of options and basically consist
in public institutions and political life. Nev- of electronic voting (e-voting) and counting
ertheless, used in a smart manner, they can technologies (e-counting). It is possible to
bring people closer to the political life and use these two types of voting technologies
make them aware of their capacity to induce separately or combined. For a comparison,
change and put pressure on public officials, the traditional paper-based voting system
as well as on public institutions, thus making means that a voter is manually marking the
democratic societies more participative. In paper ballot, while the respective ballot is
elections, new technologies can open up and also manually counted by election officials.
speed up the electoral process, meaning Electronic voting means that an elec-
that more people could easily express their tronic device is used by the voter in order
political will in different types of elections to express and record his/her choice. The
and referenda. voters choice is either recorded using the
2. Types of Voting Technologies electronic device itself, or the electronic
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Expert electoral Special Edition 2016
device generates a document which is then (Estonia). There are wide arrays of pos-
used by the elector to express his choice. sibilities to use voting technologies for elec-
Electronic counting involves the use toral purposes. These technologies were used
of an electronic device to count the cast votes. for all kinds of elections (Estonia) or just for
The most common counting devices are local elections (Switzerland). In some coun-
using scanning technologies, such as optical tries, voting technologies were used as an
mark recognition (OMR) or optical character alternative to other ways of voting only to al-
recognition (OCR) in order to count ballots low the citizens living abroad at the time of
that have been manually given by voters. the election to cast their votes (Netherland).
There can be four major types of The main reasons for using voting
e-voting: technologies are: facilitating voting for peo-
1. Remote Voting: an electronic device ple living abroad and for disabled people,
is used to cast a vote. The device transmits the speeding up vote counting, increasing voter
voters choice using a communication chan- turnout and implementing the e-voting on a
nel. The choice is recorded in a central generalized level. For example, Switzerland
location this procedure is also known as the has a special interest in trying to increase
Internet voting and SMS voting; electoral participation due to its low turnout
2. Non-Remote Voting Machines: an compared to other European countries and
electronic device is used to cast a vote. The also considering its tradition of referring
voters choice is recorded on the electronic all sorts of issues concerning public life to
device itself or on a printed ballot; referenda4.
3. Supervised Environments: a voting
machine is used in a location where election 3. The Reform of the Electoral
staff is present to manage the voting process, System in Romania
such as a polling station; Last year, the Romanian Parliament
4. Unsupervised Environments: a vot- embarked upon a broad reform of the elec-
ing device is used in a location where no toral system, enacting important statutes such
election staff is present to manage the as Law no. 115/2015 concerning local elec-
voting process, such as any computer with tions5, Law no. 208/2015 concerning par-
an Internet connection which is used by the liamentary elections6, Law no. 288/2015
voter to express his option. concerning postal voting7, Law no. 113/2015
It is possible to combine remote voting on financing of the political parties,8 Law
with supervised environments technologies, no. 114/2015 on political parties9. This leg-
for instance when Internet voting computers islative package aimed at consolidating
are set up in polling stations. This allows democracy in Romania by enhancing its
polling staff to verify the identity of voters
by using voters lists before allowing them to 4
For a detailed presentation of using voting technol-
vote and to ensure the secrecy of the vote ogies see E-Public, E-Participation and E-Voting
two significant challenges for any form of in Europe Prospects and Challenges, European
remote voting. Parliament Report, November 2011, available at:
Concerning the e-counting, there are http://www.europarl.europa.eu/RegData/etudes/
etudes/join/2011/471584/IPOL-JOIN_ET(2011)
many types, such as, for example, optical
471584_EN.pdf, p. 119 126.
and digital scanning devices. An optical scan 5
Published in Official Gazette of Romania no. 349/
voting system is an electronic voting system 20.05.2015.
and uses an optical scanner to read marked 6
Published in Official Gazette of Romania no. 553/
paper ballots and tally the results. 24.07.2015.
Voting technologies were used at
7
Published in Official Gazette of Romania no. 866/
19.11.2015.
different levels of elections (supra-national, 8
Published in Official Gazette of Romania no. 339/
national or local), as pilot projects (Swit- 18.05.2015.
zerland, Norway) or as binding tools pro- 9
Published in Official Gazette of Romania no. 346/
vided by the legislation of certain countries 20.05.2015.
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Its provisions prevail over national legisla- of electoral laws17. The Venice Commission
tion, except in case of mitior lex, according stated the five principles underlying what
to Article 20 of the Romanian Constitution13. it has called Europes electoral heritage,
According to Article 3 Protocol no. 1 (right namely the universal, equal, free, secret and
to free elections) of the ECHR, the High direct suffrage. Furthermore, elections must
Contracting Parties undertake to hold free be held at regular intervals18.
elections at reasonable intervals by secret With regard to the elections for the
ballot, under conditions which will ensure European Parliament, rules adopted at the
the free expression of the opinion of the level of the European Union and included in
people in the choice of the legislature. In the European treaties, regulations, directives
this respect, the rich and diverse case law
and decisions19 also have to be respected. The
of the European Court of Human Rights on
mandatory EU legislation takes precedence
electoral rights must also be considered14.
over contrary national legislation according
The Court stated inter alia that the right to
to Article 148 of the Romanian Constitution20.
free elections is a complex and important
The Romanian Constitution provides
political right within a participatory demo-
cratic society15. for five features of the vote: universal, equal,
Moreover, the important role played direct, secret and free21. Article 62 and
by the Venice Commission recommendations 17
Decisions no. 61/2010, 50/2012, 682/2012, 80/2014,
concerning electoral matters should also be 460/2014, and 799/2015.
acknowledged16. Some of these recommen- 18
See also Selejan-Guan, B., op. cit., p. 44.
dations have been explicitly taken into 19
http://ec.europa.eu/justice/citizen/voting-rights/
consideration by the Romanian Constitutional index_en.htm
20
(1) Romanias accession to the constituent treaties of
Court while deciding on the constitutionality the European Union with the objective of transferring
certain powers to community institutions and of
13
(1) Constitutional provisions on the rights and jointly exercising with the other member states the
freedoms of citizens shall be interpreted and applied in powers regulated in those treaties shall be decided by
accordance with the Universal Declaration on Human a law adopted by the Chamber of Deputies and the
Rights and with other treaties and pacts to which Senate in joint session, with a majority of two-thirds
Romania is a party. (2) In case of an inconsistency of the deputies and senators. (2) As a result of the
between domestic law and the international accession, the provisions of the constituent treaties of
obligations resulting from the covenants and treaties the European Union as well as the other mandatory
on fundamental human rights to which Romania community rules take precedence over conflicting
is a party, the international obligations shall take provisions of national law, in conformity with the terms
precedence, unless the Constitution or the domestic of the Accession Act. (3) The provisions of paragraphs
laws contain more favorable provisions. (1) and (2) shall apply accordingly to the accession
14
Some of this case law also refers to the Romanian to the acts amending the constituent treaties of the
legislation concerning electoral matters: ECHR, 2 European Union. (4) The Parliament, the President of
June 2010, Grosaru v. Romania; ECHR, 1 July 2008, Romania, the Government and the judicial authority
Calmanovici v. Romania; ECHR, 21 April 2014, guarantee the implementation of the obligations
Danis v. Romania. resulting from the Accession Act and the provisions
15
For a comprehensive analysis of the Court case mentioned in paragraph (2). (5) The Government
law see Selejan-Guan, B. (2015) Les lections dans transmits the draft proposals for mandatory acts
la jurisprudence de la Cour europenne des droits de to the two Chambers of Parliament before they are
lhomme principes et dveloppements, in Tnsescu, submitted to institutions of the European Union for
S.E., Vrabie, G., Constitution, dmocratie et lections. approval. For the relation between national law and
Ed. Institutul European, Iai, p. 43 55. European law, see Tnsescu, E.S., Vrabie, G. (2015),
16
Code of Good Practice in Electoral Matters. op. cit., p. 1428 1441.
Guidelines and Explanatory Report, adopted by 21
Muraru, I., Tnsescu, E.S. (2014). Drept constitu-
the Venice Commission at its 52nd session, 18 19 ional i instituii politice, ediia a 14-a, vol. 2,
October 2002, available at: http://www.venice.coe. Ed. C.H. Beck, Bucureti, p. 93 98, Deaconu, t.
int/webforms/documents/default.aspx?pdffile=CDL- (2015). Instituii politice, ediia a 2-a. Ed. C.H. Beck,
AD(2002)023rev-e Bucureti, p. 95 97.
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Article 81 only refer to national elections, be the expression of his political choice
i. e., to the election of Parliament and of the without external pressure. Consequently, the
President of Romania. However, these features Court emphasized the need for an elector-
have been extended also to local elections (for al conduct from the elector who should bear
mayors, county and local councils) not by the burden of protecting his political option
express provisions of the Constitution, but as (Decision no. 799/2015);
a result of infra-constitutional law. Obligation of voters to respect the
Concerning the direct vote, the political choices of others as they have been
Constitutional Court developed several key expressed through voting; the elector should
ideas in its case law: not exercise any pressure to know, influence
The parliamentary mandates are
or control the electoral options of others
assigned according to the votes cast by the
(Decision no. 799/2015);
electoral body (Decision no. 1.177/2007);
In the particular case of postal
The electoral body should cast
the votes directly by personally choosing voting, the Court stated that the new law
either a list of candidates, either a candidate, offers sufficient guarantees to protect the
depending on the electoral formula used secrecy of the vote: envelopes used for casting
in elections. A law providing for a list of votes have to be sealed, the obligation of
candidates which is not personally voted by the electoral bureau to keep the second
the voters is not constitutional. The direct envelope sealed until the end of the election
vote represents the electors option to cast day, the annulment of the damaged enve-
the vote for a candidate/electoral list and lopes if the integrity of the vote would be
not the introduction of the ballot into the endangered (Decision no. 799/2015). Overall,
ballot box. There should be no other persons/ the Court concluded that the normative pre-
entities interposed between the elector and requisites for the adequate exercise of the
the elected body (Decisions no. 1.177/2007, right to vote must be completed by a respon-
799/2015)22. Consequently, the direct vote sible electoral conduct of the citizen.
is the direct expression of the electors right
Concerning the free vote, two major
to vote; it is a personal expression of his
ideas arose from the Courts case law:
political choice;
Electors cast their votes according
Mandates of organizations of citi-
zens belonging to national minorities shall to their conscience and political options
be distributed according to the principle of (Decision no. 799/2015). The Court empha-
representativeness (Decision no. 682/ 2012). sized the civic conduct of the elector to
The number of mandates depends on the protect his political option from any external
proportion between the national minority pressure. The elector cannot be obliged to cast
and the population of a county, as also on his vote for a specific electoral competitor;
the electors political options within that Voting procedure shall be as simple
county. Therefore, few mandates might result as possible in order to ensure the full freedom
indirectly from the ballot. of electors to express their will and for the
Regarding the secrecy of the vote, the vote to be effective (Decision no. 51/2012).
Court emphasized three major ideas: The Court acknowledged that a difficult vot-
Responsibility of the elector to ing procedure generated by a large number
protect the secrecy of his vote; the vote should of ballot papers may crimp the free character
of vote; alike, the simultaneous organization
22
See also Tnsescu, E.S. (2004). Legile electorale.
Comentarii i explicaii. Ed. All Beck, Bucureti, of elections for different types of public
p. 2 8, 70. authorities (Parliament and local authorities)
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might endanger the free expression of the rather for postal voting instead of e-voting,
political choices of citizens. and this only in parliamentary elections,
Equality of the vote has been taken exclusively for Romanians living abroad.
into consideration by the Court since the Introducing postal voting for Roma-
beginning of the post-communist democratic nian citizens living abroad aimed at en-
regime. Thus, two relevant issues were hancing participation in the electoral process
debated:
in order to underline the universality of
Delineation of electoral constitu-
the vote. According to the Constitutional
encies: according to the Court, this is a
technical matter which does not endanger the Court of Romania (Decision no. 799/2015),
principle of the equality of vote (Decisions universality must be effective and not illusory.
no. 305/2008, 1.248/2008). However, in Since after communism many Romanian
our opinion, the delineation of electoral citizens have chosen to live abroad, the
constituencies is a key element of the electoral Romanian legislator decided to offer them
system. The way a constituency is designed new ways of voting. Adjusting legislation
may influence the principle of equality with to social facts, including by identifying new
regard to one of its elements (Decision no.
modalities of voting in order to enhance
2/1992), respectively equal constituencies
in terms of population for the same number participation in the electoral process, is firmly
of mandates allocated; within the margin of appreciation of the state.
Provision of an electoral threshold: On the contrary, refusing to regulate
the Court stated that a threshold is not such alternative modalities to paper-based
contrary to the principle of equality, if applied
to all electoral competitors (Decision no. 2/
1992). Moreover, the Court decided that a for European Studies, Harvard University, available at:
progressive threshold does not endanger the https://www.hks.harvard.edu/fs/pnorris/Acrobat/New
equality of chances for political entities, as %20technology%20and%20turnout.pdf; Bochsler, D.,
it is granted by Article 8 of the Constitution. Can Internet Voting Increase Political Participation?
Remote Electronic Voting and Turnout in the Estonian
On the contrary, in a multiparty system,
2007 Parliamentary Elections, paper presented at the
the progressive threshold might generate a conference Internet and Voting, Fiesole, 3 4 June
necessary and useful political polarization. 2010, available at: http://www.eui.eu/Projects/EUDO-
As far as it concerns the universal PublicOpinion/Documents/bochslere-voteeui2010.
vote, the Court stressed (Decision no. pdf; Norris, P., Will New Technology Boost Turnout?
799/2015) that it encompasses both legal Experiments in E-Voting and All-Postal Voting in
guarantees to allow all citizens to vote, British Local Elections, in Voter Turnout in Western
save the mentally or morally incapacitated, Europe since 1945: A Regional Report, IDEA
Publication, 2004, available at: http://www.idea.
and viable mechanisms to effectively allow
int/publications/voter_turnout_weurope/upload/
citizens to vote. chapter%206.pdf; Trechsel, A.H., Kies, R., Mendez,
Most often, new technologies are con- F., Schmitter, Ph.C., Evaluation of the Use of New
sidered to enhance participation in elections, Technologies in Order to Facilitate Democracy
thus promoting the effective universality of in Europe. E-Democratizing the Parliaments and
the right to vote, while challenging the direct Parties of Europe, available at: http://cies.iscte.pt/
and secret characters of the vote23. However, en/ destaques/pdf/1.pdf; Macintosh, A., Using Infor-
the choice of the Romanian legislator went mation and Communication Technologies to Enhance
Citizen Engagement in the Policy Process, in
OECD, Promise and Problems of E-Democracy:
23
Norris, P., Will New Technology Boost Turnout? Challenges of Online Citizen Engagement, OECD
Evaluating Experiments in E-Voting v. All-Postal Publishing, Paris, 2004, available at: http://dx.doi.
Voting Facilities in UK Local Elections, paper org/10.1787/9789264019492-3-en; The ACE Ency-
presented at the British Study Group Seminar on clopaedia: Civic and Voter Education, available at:
Friday, 31st October 2003, Minda de Gunzberg Center http://aceproject.org/ace-en/pdf/ve/view
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Expert electoral Special Edition 2016
ballot would affect the right to vote of at constitutional level and interpreted in the
the citizens, and particularly its universal case law of the Constitutional Court.
character. If and when deciding to adopt
Considering the growing use of new e-voting/e-counting, it would be advisable for
technologies in electoral processes, on the the authorities to conduct a comprehensive
one hand, and the main ideas developed by review of the relevant legislation for the
the Constitutional Court pertaining to the implementation of voting technologies. This
constitutional features of the vote, on the other should cover issues such as transparency
hand, one can assess the main (constitutional) mechanisms, security mechanisms, certifi-
risks the legislator would undertake if it were cation requirements, audit requirements and
to adopt e-voting or e-counting in Romania: procedures for challenging results generated
lack of acceptable and sufficient guarantees
by electronic voting or counting procedures.
for ensuring the secrecy of the vote. To this
It may also be relevant to review other
it should be added the inherent potential
security deficiencies that might endanger the legislation that might not be directly related
whole electoral process. Referring especially to elections, such as laws dealing with
to the secrecy of the vote, for example, in information technology; administrative and
the case of remote voting in an uncontrolled criminal codes; data security and protection;
environment, the secrecy of the ballot cannot procurement; and the issue of government
be fully guaranteed. As a matter of fact, even contracts25.
in the case of postal voting the so-called An open and inclusive process before
family vote cannot be fully and totally pre- drafting any legal amendments concerning
vented, this being maybe one explanation e-voting/e-counting is vital in order to win
of the rather limited use provided by the the public confidence in such modern and
Romanian legislator for this alternative still risky voting procedures.
method of voting. As for possible frauds or If electronic voting and counting tech-
errors, complex systems such as electronic nologies are to be trusted by electoral stake-
voting and electronic counting may contain holders, it is important that the security
errors, which should be corrected if they risks inherently raised by the use of the new
are identified, in order to avoid unforeseen technologies to be presented and understood
consequences24. Security issues must be seri- by the public. Also, safety mechanisms must
ously taken into consideration (for example, be in place to mitigate these security chal-
the case of hacking the software or the soft-
lenges, and any security breaches should be
ware blocks or crashes).
easily identified and eliminated26.
5. Striking the Right Balance Trust is a vital component of any
Between Constitutional Guarantees democratic process, and trust in the electoral
and Enhanced Political Participation process is critical for political actors and other
In Romania, any debate about the electoral stakeholders. It is not enough only to
introduction of e-voting and/or e-counting generate trust in the electoral formula used in
should have the objective to identify the elections or even in the technologies used to
right balance between the aim of enhancing cast or count the vote. It is also important for
political participation through the use of new the people to trust that the public authorities
technologies and the aim of respecting the organizing the electoral process, such as the
constitutional features of the vote, as regulated Electoral Management Body, have executed
their responsibilities in a just, impartial
24
See for detailed examples E-Public, E-Participation
and E-Voting in Europe Prospects and Challenges, 25
E-Voting Handbook, Council of Europe Publishing,
European Parliament Report, November 2011, 2010, p. 22; Goldsmith, B., Ruthrauff, H., op. cit.,
available at: http://www.europarl.europa.eu/RegData/ p. 33.
etudes/etudes/join/2011/471584/IPOL-JOIN_ 26
http://www.coe.int/t/DEMOCRACY/ELECTORAL-
ET(2011)471584_EN.pdf ASSISTANCE/themes/evoting/default_en.asp
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Expert electoral Special Edition 2016
and efficient manner, thus safeguarding the enhancing political participation to electoral
integrity of the entire electoral process27. processes, which is seen as a constitutive
When referring to the Romanian case, element of a healthy democratic society.
one should observe that the new electoral laws Therefore, one might say that we already
provide for some infusion of technologies have the prerequisites for a more inclusive,
within the electoral process, even though
detailed and technical debate concerning the
not in the form of e-voting or of e-counting.
Moreover, even the Constitutional Court introduction of e-voting procedures in the
did not promote in its case law a very strict future. In short, our conclusion regarding
and restrictive interpretation regarding the e-voting in Romania would be: probably
secrecy of the vote. In fact, the Court seems to relevant for better political participation,
favour those legislative incentives aiming at highly risky, yet somehow not impossible.
Ramona Delia POPESCU has been a lecturer at the Faculty of Law, University of
Bucharest, since 2012, teaching constitutional law and political institutions as well as legal
methodology. At the same time, she is a legal adviser within the Ministry of Justice, the Department
for the Endorsement of Normative Acts. She has got her PhD degree in 2011 at the Faculty of Law,
University of Bucharest, with the thesis The Responsibility of Parliament in public law.
She is an alumnus of the 2009 Summer school on federalism organized by the Institute of
Federalism in Fribourg. She also attended summer courses organized by International Academy
of Constitutional Law (Tunis, 2008), International Institute of Human Rights (Strasbourg, 2009),
University of Montpellier (Montpellier, 2009), as well as international conferences and congresses
on constitutional topics in Oslo (2014), Dresden (2014), Kishinev (2014), Aix-en-Provence
(2015), Bucharest (2015).
Her topics of study and interest are: electoral procedures, citizens and political parties,
justice and the rule of law, transparency in decision-making processes, the accountability of public
authorities, direct democracy.
E-mail: ramona-delia.popescu@drept.unibuc.ro
Bogdan DIMA has got a PhD degree in Law at the Faculty of Law, University of Bucharest,
where he has also been teaching Administrative Law since 2007. His professional background is
highly diversified, focusing mainly on strategic communication, political and electoral strategies,
legislative analysis and institutional building processes. He worked closely with several political
parties and Romanian politicians, and also with several corporate senior officials as a consultant for
political and electoral strategies, political profiling, strategic communication, risk management,
government relations. He is the author of the Conflict between the Palaces. Power relations
between the Parliament, Government and President in Post-Communist Romania.
E-mail: bogdan.dima@drept.unibuc.ro
27
E-Voting Handbook, Council of Europe Publishing, 2010, p. 23.
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Expert electoral Special Edition 2016
References:
Bochsler, D., Can Internet Voting Increase Political Participation? Remote Electronic
Voting and Turnout in the Estonian 2007 Parliamentary Elections, paper presented at the
conference Internet and Voting, Fiesole, 3 4 June 2010. Available at: http://www.eui.
eu/Projects/EUDO-PublicOpinion/Documents/bochslere-voteeui2010.pdf
Deaconu, t. (2015). Instituii politice, ediia a 2-a. Bucureti, C.H. Beck.
Duverger, M. (1951). Les parties politiques, Paris, A. Colin.
Goldsmith, B., Ruthrauff, H. (2013). Implementing and Overseeing Electronic Voting and
Counting Technologies, NDI. Available at: http://www.eods.eu/library/Implementing_
and_Overseeing_Electronic_Voting_and_Counting_Technologies.pdf
Lijphart, A. (1999). Patterns of Democracy: Government Forms and Performance in
Thirty-Six Countries. New Haven and London, Yale University Press.
Muraru, I., Tnsescu, E.S. (2014). Drept constituional i instituii politice, ediia a 14-a,
vol. 2. Bucureti, C.H. Beck.
Norris, P., Will New Technology Boost Turnout? Evaluating Experiments in E-Voting v.
All-Postal Voting Facilities in UK Local Elections, paper presented at the British Study
Group Seminar on Friday, 31st October 2003, Minda de Gunzberg Center for European
Studies, Harvard University. Available at: https://www.hks.harvard.edu/fs/pnorris/
Acrobat/New%20technology%20and%20turnout.pdf
Tnsescu, E.S. (2004). Legile electorale. Comentarii i explicaii. Bucureti, All Beck.
Tnsescu, E.S., Vrabie, G. (2015). Constitution, dmocratie et lections. Iai, Institutul
European.
Trechsel, A.H., Kies, R., Mendez, F., Schmitter, Ph.C., Evaluation of the Use of New
Technologies in Order to Facilitate Democracy in Europe. E-Democratizing the Par-
liaments and Parties of Europe. Available at: http://cies.iscte.pt/en/destaques/pdf/1.pdf
E-public, E-participation and E-Voting in Europe Prospects and Challenges, European
Parliament Report, November 2011. Available at: http://www.europarl.europa.eu/
RegData/etudes/etudes/join/2011/471584/IPOL-JOIN_ET(2011)471584_EN.pdf
E-voting Handbook (2010). Council of Europe Publishing. Available at: http://www.
coe.int/t/dgap/goodgovernance/Activities/E-voting/E-voting%202010/Biennial_Nov_
meeting/ID10322%20GBR%206948%20Evoting%20handbook%20A5%20HD.pdf
Code of Good Practice in Electoral Matters. Guidelines and Explanatory Report,
adopted by the Venice Commission at its 52nd session, 18 19 October 2002. Available at:
http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2002)
023rev-e
Voter Turnout in Western Europe since 1945: A Regional Report (2004). IDEA
Publication. Available at: http://www.idea.int/publications/voter_turnout_weurope/upload/
chapter%206.pdf
Promise and Problems of E-Democracy: Challenges of Online Citizen Engagement,
(2004). OECD Publishing, Paris. Available at: http://dx.doi.org/10.1787/9789264019492-
3-en
The ACE Encyclopaedia: Civic and Voter Education. Available at: http://aceproject.org/
ace-en/pdf/ve/view
Official Gazette of Romania no. 349/20.05.2015.
Official Gazette of Romania no. 553/24.07.2015.
Official Gazette of Romania no. 866/19.11.2015.
Official Gazette of Romania no. 339/18.05.2015.
Official Gazette of Romania no. 346/20.05.2015.
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Law no. 370/2004 for presidential elections, republished in Official Gazette of Romania
no. 650/12.09.2011.
Law no. 33/2007 for elections for European Parliament, republished in Official Gazette
of Romania no. 627/31.08.2012.
ECHR, 2 June 2010, Grosaru v. Romania.
ECHR, 1 July 2008, Calmanovici v. Romania.
ECHR, 21 April 2014, Danis v. Romania.
Decisions no. 61/2010, 50/2012, 682/2012, 80/2014, 460/2014, 799/2015.
http://ec.europa.eu/justice/citizen/voting-rights/index_en.htm
http://www.coe.int/t/DEMOCRACY/ELECTORAL-ASSISTANCE/themes/evoting/
default_en.asp
167
NATIONAL CASE STUDY: THE BRAZILIAN CASE
Abstract: Rsum :
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Democratic elections, on the other Once each local machine discloses its votes,
hand, are based on the secrecy of individual checking the final and total result of the whole
votes. This is the only way to assure that each election, a lot of work might be required from
voter is free to express nothing but his/her political parties, candidates, press, or anyone
intimate will. Secrecy of vote protects voters else who wants to audit political elections.
from every kind of pressure: from their private Nevertheless, it is just a matter of getting the
or professional circle (family, friends or boss) figures of each voting machine and summing
or from the authorities. Since a voter under them all: it may be difficult, but possible. On
some kind of pressure could be asked to prove the other hand, checking that each voting
who he voted for, the vote must be secret for machine recorded precisely the input given
everybody including the voter himself. This by each voter is a very difficult conceptual
is especially true in developing countries like issue when anonymous votes are a must.
Brazil, where some candidates, mainly in There wouldnt be such a trouble if identified
poorer locations of the countryside, have the votes were an acceptable option. In this case,
bad practice to promise individual benefits e-voting would be, no doubt, an outstanding
to the voters in exchange for their support. means to conduct an election, as there
Anyway, even in the big cities, pressure at the are reliable procedures to audit and track
workplace should not be overlooked. So, the identified digital data. Even digital signatures
secrecy of the vote also means that even the could be used. But anonymous votes are
voter himself should not be allowed to identify one of the most important principles to be
his own vote among all others. observed in a democratic political poll.
Thus, the scenario is not that simple. Computers can do a lot of things better
Everything must be transparent, public, but than humans. From executing complex (or
each vote must be completely anonymous not so complex) maths operations or dealing
and at the same time it must be authentic and with huge amounts of data, their superiority is
prone to be proven as such. Paper ballots are a beyond doubt. But checking the authenticity
good way to accomplish these requirements: and integrity of digital information may be a
it is anonymous and we can still check their big issue. Since computers can work with data
authenticity using special paper, checking at very fast rates, they can also change them
signatures of election officials, or watching instantaneously. At present, no computer sys-
carefully the ballot boxes, but of course these tem may be considered fail-proof, and news-
procedures are not tamper-proof. papers frequently publish some lines about
Would e-voting machines be better criminal attacks directed to online services
than paper ballots? of big companies or important or powerful
In the next title, the opinions of some public agencies. But, even simpler than that,
renowned experts on e-voting or information can voters trust their options were correctly
security will be presented. They offered several recorded by the voting machine in the first
arguments for the use of voting machines, place? Can the software change it until the
at least the ones in which everything is done end of the Election Day? Will the voting
exclusively by electronic recordings. Auditing machine count it right? Who are the bad guys
methods used in Brazil can confirm their to be afraid of: outsider crackers or insider
statements. developers, managers or officials?
Ordinary people usually trust in what
3. What Experts Say about they can see. But whatever a computer makes
E-Voting Systems? or shows is just the result of an activity it was
From the moment a voter chooses programmed for. When someone writes down
his candidate to the end of the tally, a lot of an x on a sheet of paper he can see, that x is
steps need to be done. This paper is focused real and was a direct consequence of his action
on the previous ones: how voter options are with a pen and his hand. When a key is pressed
recorded and counted at the very first step. on the computer keyboard, what appears on
That is the main problem of e-voting systems, the screen is the result of a sequence of soft-
because it involves a conceptual paradox. ware commands. Someone else has previously
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Expert electoral Special Edition 2016
programmed it to show on the screen the same Since there is no way to look inside
key that was pressed, otherwise nothing would and see what voting machines are doing
happen, the computer would do nothing by during the Election Day, there are very
itself! few things inspectors can check or watch
As stated by Rebecca Mercuri: Fully at the polling place. According to Rebecca
electronic systems do not provide any way Mercuris opinion: Electronic balloting and
that the voter can truly verify that the ballot tabulation make the tasks performed by
cast corresponds to that being recorded, poll workers, challengers, and election offi-
transmitted, or tabulated. Any programmer cials purely procedural, and removes any
can write a code that displays one thing on opportunity to perform bipartisan checks.
a screen, records something else, and prints Any computerized election process is thus
yet another result. There is no known way entrusted to the small group of individuals
to ensure that this is not happening inside a who program, construct and maintain the
voting system.6 machines.8
Though this is known by any computer So, her proposal is: It is therefore
professional (or anyone who ever tried to incumbent upon all concerned with elections
learn how computers work and how software to refrain from procuring any system that does
is built), it seems that common people are not not provide an indisputable, anonymous
aware of this fact. paper ballot which can be independently
In 2000, Bruce Schneier published verified by the voter prior to casting, used
some notes about the incidents that happened by the election board to demonstrate the
in Florida elections that year, saying that the veracity of any electronic vote totals, and
also available for manual auditing and re-
greater use of technology wouldnt solve
counting.
those problems. He said that: Certainly
In 2006, a paper written by Rivest and
Floridas antiquated voting technology is
Wack introduced the terminology software-
partially to blame, but newer technologies
independent and software-dependent voting
wouldnt magically make the problems go
systems to describe whether or not the
away. It could even make things worse, by
correctness of election results depends in
adding more translation layers between the
an essential way on the correctness of the
voters and the vote counters and preventing
voting system software. They finally state
recounts. that the ability to prove the correctness of
Thats my primary concern about software diminishes rapidly as the software
computer voting: There is no paper ballot to becomes more complex. It would effectively
fall back on. Computerized voting machines, be impossible to adequately test future
whether they have a keyboard and a screen (and current) voting systems for flaws and
or a touch screen ATM-like interface, could introduced fraud, and thus these systems
easily make things worse. You have to trust would always remain suspect in their ability
the computer to record the votes properly, to provide secure and accurate elections.9
tabulate the votes properly, and keep accurate In a few words, these knowledgeable
records. You cant go back to the paper ballots experts believe that there is no better way
and try to figure out what the voter wanted to to audit an election than using a paper
do. And computers are fallible; some of the trail to provide a way to recount the votes
computer voting machines in this election independently of the electronic system or
failed mysteriously and irrecoverably.7
8
Mercuri, R. op. cit.
6
Mercuri, R. Rebecca Mercuris Statement on Electronic 9
Rivest, R.R., Wack, J.P. On the notion of software
Voting. Available at: http://www.notablesoftware.com/ independence in voting systems. USA: National In-
RMstatement.html stitute of Standards and Technology (NIST) (28 July
7
Schneier, B. Voting and technology. Available at: 2006). Available at: http://people.csail.mit.edu/rivest/
https://www.schneier.com/crypto-gram-0012.html#1 >. pubs/RW06.pdf
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the software. Any other proposed way to c) party inspectors and observers are
audit would be too expensive or practically asked to fill in some simulated paper ballots;
impossible, even for experts, and, of course, d) on Sunday, during the same time
there might not be enough experts available of the poll, the four machines are turned on
to do the task at a huge national election. and used as if they were in its original place;
Moreover, it does not sound democratic then, the simulated votes are inserted in
to prevent common citizens from checking their system during a very formal and slow
e-voting correctness by themselves. procedure, registered step-by-step by a video
During the last two decades, Brazil- camera;
ian electoral authorities rejected the use of e) at the end of the day, the four
paper trail auditing.10 Instead, three different machines disclose their votes and the result
auditing methods were tried, as presented in is compared with the simulated ballots.
the next title. The purpose of this method would be
4. The Brazilian Experiences to prove that any random machine is working
in Auditing E-Voting Systems properly and correctly and sums all votes
inserted in it. In fact, this kind of test may be
4.1. Parallel Voting useful to check involuntary software errors,
The first method used to check elec- but it is very doubtful if it is able to avoid an
tronic voting machines in Brazilian elections insider attack. Since e-voting machines are
was known as parallel voting, a practice as complex as any other computer (in fact,
that started in 200211 and is briefly described they are computers), there are uncountable
below:
ways an insider attacker with enough access
a) two or three days before the
to the code could avoid being caught by this
election, when all the machines are already
kind of test. All the insider attacker would
at the polling places, four of them are chosen
need is a kind of switch (probably designed
at random during a public meeting that takes
by a software) that turns the fraud on and
place at each Electoral Court office located in
off. If the software detects any sign that the
the State Capital (this procedure is separately
machine is not at its poll place, the fraud
executed in each state);
would be turned off. The way this audit was
b) moments after that, electoral offi-
developed makes the tested machines work
cials, together with party inspectors (where
available), go to the polling places where the in very different conditions compared to
chosen machines were installed, grab them their normal environment. For example, as
and substitute them for others to be used it could be observed during all these tests,
there; possibly, the chosen machines may the time lapse between any two votes was
be located hundreds of kilometres far from unreal, because each simulated vote should
State Capital and it takes some hours for the be recorded on video, then it was counted
officials to get there; the four machines are in another computer, following a slow and
brought to the capital and taken to a pub- formal established procedure so that it takes
lic building (normally the State Legislative around three minutes between any two votes.
House or the City Council) where parallel In real conditions, three or four voters would
voting will take place; use the machine in a three-minute interval.
On the other hand, tested machines received
10
In fact, laws ordering paper trail auditing were votes on regular time lapses spread during all
approved and subsequently revoked along these day, while machines in real conditions may be
two decades. See, about this pendulum movement: idle for several minutes, as voters do not flow
Brunazo Filho, A., Marcacini, A.T.R. cited work.
11
Federal Law no 10.408, of January 10th, 2002.
constantly. At least in one of these tests that
Portuguese version available at: http://www.planalto. occurred in So Paulo, the staff started the
gov.br/ccivil_03/leis/2002/L10408.htm audit in the morning using voter names in an
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Expert electoral Special Edition 2016
alphabetical order.12 Of course, in a real poll, The auditing was performed under
theres almost no chance that this happens! very restrictive procedures. According to
On other occasion, no tested machine all over the rules of that auditing, no inspector was
the country received more than 200 votes allowed to take the code away, nor could
during all day (due to this slow procedure), he examine it using his own equipment.
much less than the normal average number The only allowed task was to check lines of
of real voters who attend each polling station, programming code on the screen of some
that is around 400. computers available at TSE headquarters.
In conclusion: knowing how the pa- The code to be examined comprised tenths
rallel voting will be performed, an ima- of thousands of .txt files, so it seemed useless
ginative attacker that can compromise the for the computer professionals working on
software would be able to create dozens of it just to be able to read some of those files
alarms to detect several different signs that on the screen. But even if inspectors could
the machine is not at the real poll place (so, take the code away and try it the most as they
it is under parallel voting audit!) and turn could it must be said it is not a common or
the fraud off. Parallel voting is not efficient easy task, and maybe only experts in security
against a willful and experienced attacker. would be able to detect a more sophisticated
It can, however, detect involuntary errors. fraud checking that the code they review is
Anyway, if errors were detected in just four the same one that generated the final software
voting machines, what could be done? Do was not that simple.
all other machines have the same problem? According to the procedures of this
If they failed, how can we recover the true auditing method:
votes? a) the code would be available for
some weeks (to be read on screen);
4.2. Auditing Code b) at a certain date, in a formal
In 2003, a new law13 established a ceremony with the presence of all inspectors,
second method of auditing and it was put the code would be compiled and the resulting
into practice for the first time during the 2004 executable files produced by compilation
elections. External observers were allowed would be digitally signed by them;
to examine the software used in electronic c) the executable files would be
voting machines and in the tallying systems. installed in every voting machine and after
Until that time, I sincerely believed that this that, inspectors would be allowed to check
method could be a possible and useful way the validity of their digital signatures, testing
to check the reliability of e-voting machines. them directly on voting machines.
These feelings vanished, though, once I took Apart from not having full and direct
part in it.14 The difficulties to check the sys- access to the code, all this auditing work
tems proved to be enormous. seems useless to repeal internal frauds. The
compilation and signing ceremony appears
12
One big issue that will not be discussed here is that to be purely procedural, to repeat the wise
each voting machine is programmed with the list of its words of Professor Rebecca Mercuri. Since
voters, according to electoral sections distribution. To it is impossible to go into the computer or
allow each vote to be inserted, a poll worker needs to
enter inside the silicon chips to look what is
input the voters register number in a keyboard that is
connected to the voting machine. This means a serious happening there, everything inspectors could
risk to the secrecy of vote, if the software, by fail or see was a Court worker operating a computer
by will, links voters identification to the candidates and giving it some orders using the keyboard.
they choose. There is absolutely no way to assure at that
13
Federal Law no. 10.704, of October 1st, 2003. exact moment that the code compiled was the
Portuguese version available at: http://www.planalto.
same that was (briefly) reviewed during the
gov.br/ccivil_03/Leis/2003/L10.740.htm
14
In 2004 and 2006, Brazilian Bar Association pointed previous weeks. When the compilation was
out two lawyers and two computer professionals as its finished, inspectors used their private key to
observers, and I was one of them. sign the executable files, but all the operations
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Expert electoral Special Edition 2016
were done on the same computer. Inspectors experts. In 2009, the winner group captured
had no means to check if the files they signed electromagnetic waves emitted by the voting
were the same ones that resulted from the machines keyboard while typing, and it was
compilation process. Finally, checking if the enough to break the secrecy of the votes.15 In
digital signatures are valid in hundreds of 2012, a group was successful in reverting the
thousands of voting machines, one by one, random order of the digitally recorded votes,
is an almost impossible task. The best thing so that it exposed the chronological sequence
that could be done was to check just a dozen in which the votes were given. The group
of them in one state or another. Even so, published a report about the discovered vul-
checking a digital signature in an unknown nerabilities with suggestions to improve the
computer (the voting machines themselves) security of Brazilian e-voting system.16
is tricky. It seems clear that an attacker with Apart from the security breaches
full knowledge of the system could make detected, their report also points out the
the checks to appear valid on the machine inappropriate attacker model allowed by
screen, even though the digital signatures did electoral authorities, as significant emphasis
not match. Furthermore, checking that the is put on the design of security features
software is the same some days before the resistant only to outsider attackers, when
Election Day does not rationally prove that insider threats present a much higher risk.
the same software will be there during the In fact, insider threats cannot be
poll. detected by these kind of tests. Even if
As a conclusion: inspectors are asked the groups were allowed to execute a free
to digitally sign some executable files that penetration test or to review the whole
cannot be proved to be the true result of the software, there is no way to assure that the
compilation task, that, in turn, was done by software reviewed will be exactly the same
an unknown compiler software, using source one used during the poll by hundreds of
codes that cannot be assured that were the thousands of voting machines.
same ones that were not fully analysed. And, Also, according to the experts who
afterwards, the work of testing the signatures detected this flaw: We presented a collection
on each voting machine (or at least on a of software vulnerabilities in the Brazilian
representative number of machines) was not voting machines which allowed the efficient,
an easy task, especially along the continental exact and untraceable recovery of the ordered
territory of Brazil. votes cast electronically. Associating this in-
formation with the ordered list of electors,
4.3. Public Security Test obtained externally, allows a complete violation
A third auditing method was imple- of ballot anonymity. The public chronological
mented in 2009 and since then it has been record of events kept by the voting machines
used two times. It is a kind of competition in also allows recovering a specific vote cast
which teams of computer experts may apply in a given instant of time. The consequences
to and execute attacks to test vulnerabili- of these vulnerabilities were discussed under
ties that could affect the secrecy of votes, a realistic attacker model and mitigations
the availability of machines and the risks were suggested. Several additional flaws
of failure during Election Day, among other in the software and its development process
security issues. were detected and discussed with concrete
This is not, however, a fully com-
prehensive penetration test, as participants 15
TSE encerra testes do sistema eletrnico premiando
must follow very restricted rules defined by melhores contribuies. Available at: http://agencia.tse.
TSE. In a few words, experts cannot make jus.br/sadAdmAgencia/noticiaSearch.do?acao=get&id=
1255520
any kind of attack but only the ones that are 16
Aranha, D.F. et al. Software Vulnerabilities in the
approved by TSE technical department and Brazilian Voting Machine in Design, Development,
its rules. Even so, in every edition of this and Use of Secure Electronic Voting Systems, IGI
Public Test, something was discovered by the Global, 2014.
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Expert electoral Special Edition 2016
recommendations for mitigation. In par- satisfy minimal and plausible security and
ticular, it was demonstrated how to defeat transparency requirements.
the only mechanism employed by the voting
machine to protect ballot secrecy. 5. Conclusions
In particular, we can conclude Auditing an election is even more
that there was no significant improvement complex than auditing any other kind of
in security in the last 10 years. Inadequate electronic system. Two main characteristics
protection of ballot secrecy, the impossibility make electronic poll a singular challenge so
in practice of performing a full or minimally that auditing it becomes a more difficult task
effective software review and the insufficient than auditing electronic systems used in other
verification of software integrity are still scenarios: the requirement of anonymous
worrisome. Since these three properties are votes and the fact of being held solely on
critical to guarantee the anonymity and inte- the polling day. Brazils experience can be
grity of votes, the authors repeat the con- a perfect example of it. All three methods
clusions of the aforementioned report and described in this paper, that have been used
defend the reintroduction of voter-verified to check the reliability of voting machines for
paper audit trails to allow simple software- more than a decade, proved to be insufficient,
independent verification of results. Paper especially to avoid an insider attack.
audit trails distribute the auditing procedure It seems that there is no way to
among all electors, who become responsible hold an election that simultaneously meets
for verifying that their votes were correctly these three requirements: a) anonymous votes;
registered by the voting machine, as long b) publicly auditable; c) 100% digital. Only
as an audit is done afterwards to check that two of them may be obtained at the same
the electronic and manual vote counts are time. Democracies, however, can not give
equivalent. up the first two requirements. The key for
We believe that, for this reason, achieving security, secrecy and transparency
and in light of the severe security problems is to abandon the use of 100% electronic vot-
discussed in this report, the software used ing systems, and adopt software-independent
in the Brazilian voting system does not voting machines and paper auditing trails.
Augusto Tavares Rosa MARCACINI is a lawyer and professor of Civil Procedure Law and
Law and Technology in So Paulo, SP, Brazil. He is a Bachelor in Law from So Paulo University
USP (1987) and has also the degrees of Master (1992), PhD (1999) and Habilitation (2011) in Law
from the same University. He was the Chairman of the Digital Society Commission of Brazilian
Bar Association, So Paulo Chapter, during three mandates (2004 2006, 2007 2009 and 2010
2012) and member of Information Technology Commission of the Federal Council of Brazilian
Bar Association (2004 2006). Since 2009, together with other lawyers, professors, engineers
and computer professionals, he joined the Brazilian Independent Multidisciplinary Committee,
an informal group whose aim is studying and observing e-voting practices in Brazil. He is a
professor of UniFMU (Laureate International Universities), where he teaches Civil Procedure Law
at the Law College and conducts classes and researches on efficiency of Civil Justice, access to
Justice, e-Justice, digital signatures and cryptography, electronic documents as legal evidence and
other subjects related to law and technology at the Master of Law of Information Society course.
His main books and papers are: Assistncia jurdica, assistncia judiciria e justia gratuita
(Masters dissertation), Estudo sobre a efetividade do processo civil (Phd thesis), Processo e
tecnologia: garantias processuais, efetividade e a informatizao processual (Habilitation thesis),
Direito e informtica: uma abordagem jurdica sobre a criptografia, O documento eletrnico como
meio de prova, Legal aspects of e-voting in Brazil.
E-mail: amarcacini@gmail.com
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Expert electoral Special Edition 2016
References:
Aranha, D.F. et al. (2014). Software Vulnerabilities in the Brazilian Voting Machine in
Design, Development, and Use of Secure Electronic Voting Systems. USA, IGI Global.
Available at: https://sites.google.com/site/dfaranha/pubs/aranha-karam-miranda-scarel-
12-book
Brazil. TSE encerra testes do sistema eletrnico premiando melhores contribuies.
Available at: http://agencia.tse.jus.br/sadAdmAgencia/noticiaSearch.do?acao=get&id=
1255520
Brunazo Filho, A., Cortiz, M.A. (2006). Fraudes e defesas no voto eletrnico. So Paulo,
All Print.
Brunazo Filho, A., Marcacini, A.T.R. (2015). Legal Aspects of E-Voting in Brazil, in
Driza Maurer, A., Barrat, J. (eds.). E-Voting Case Law. Surrey, Ashgate Publishing.
Brunazo Filho, A. (2014). Modelos e Geraes dos equipamentos de votao eletrnica.
Available at: http://www.brunazo.eng.br/voto-e/textos/modelosUE.htm.
G1. Justia eleitoral em MT deve gastar at R$ 25 mil para votao em aldeia. Available
at: http://g1.globo.com/mato-grosso/eleicoes/2012/noticia/2012/08/justica-eleitoral-em-
mt-deve-gastar-ate-r-25-mil-para-votacao-em-aldeia.html
G1. Mais de 1,9 mil indgenas votaro nas eleies de domingo em Rondnia. Available at:
http://g1.globo.com/ro/rondonia/eleicoes/2012/noticia/2012/10/mais-de-19-mil-indigenas-
votarao-nas-eleicoes-de-domingo-em-rondonia.html
Mercuri, R. Rebecca Mercuris Statement on Electronic Voting. Available at: http://www.
notablesoftware.com/RMstatement.html
Mercuri, R. Electronic Vote Tabulation Checks & Balances. PhD dissertation, presented
on 27 October 2000 at the School of Engineering and Applied Science of the University
of Pennsylvania, Philadelphia, PA, USA.
Rezende, P.A.D. Devagar com o andor da urna: Comentrios sobre testes de penetrao
no TSE e de sua cobertura miditica. Available at: http://cic.unb.br/~rezende/trabs/
penetracao.html
Rivest, R.R., Wack, J.P. On the notion of software independence in voting systems,
National Institute of Standards and Technology (NIST), USA (28 July 2006). Available
at: http://people.csail.mit.edu/rivest/pubs/RW06.pdf
Schneier, B. (1996). Applied cryptography (2nd edition). New York, John Wiley & Sons.
Schneier, B. Designing Voting Machines to Minimize Coercion. Available at: https://
www.schneier.com/crypto-gram-0707.html#8
Schneier, B. Voting and technology. Available at: https://www.schneier.com/crypto-
gram-0012.html#1
Schneier, B. Internet Voting vs. Large-Value e-Commerce. Available at: https://www.
schneier.com/crypto-gram-0102.html#10
Seedorf, S. (2015). Germany: The Public Nature of Elections and its Consequences
for E-Voting, in Driza Maurer, A., Barrat, J. (eds.). E-Voting Case Law. Surrey, Ashgate
Publishing.
177
CONCLUSIONS OF THE 1ST SCIENTIFIC
ELECTORAL EXPERTS DEBATES
BUCHAREST, 12 13 APRIL 2016
Oliver KASK
Member of Venice Commission
Vice-Chair of the Council for Democratic Elections
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Expert electoral Special Edition 2016
institutions and representatives of those as banking systems may raise the trust of
countries, having solid practice with the use public. If we see a large scale trust in these
of e-voting. The updating is still not an easy areas, there might be more bases to go further
task, while the number of issues to be further and discuss the use of new technologies in
discussed does not seem to decrease, as the electoral matters, up to Internet voting.
technical possibilities as well as the loopholes For elections, the governments should
continue to broaden and get more advanced be advised to start first by updating and keep-
with the development we can continuously see ing electronic voter registers. New technol-
in ICT sector. ogies are the best means to control spending of
The tendency to broaden the use of public finances for campaign reasons, to fight
e-voting that we faced ten years ago has against misuse of administrative resources
mainly stopped and, in the case of many and to evaluate the neutrality of public or
countries, this tendency is going backwards, private media, where such requirements are
as we could find out from many country present. Professor Jordi Barrat Esteve offered
reports and the presentation made by Mr. us a refreshing view upon the role of judiciary
Uwe Serdlt. It has its roots in the discredit in the oversight of electronic aspects of the
of technologies, as only a few can assure the voting process and its challenges. Having
reliability of any program or application in solid databases for courts and possibilities
our computers or phones. The revelations to collect evidence for judicial disputes with
by hackers with regard to manipulation of the help of Internet, the court proceedings
election results as well as the information can be faster and judgements better justified
revealed on the systemic efforts to have and reasoned. The introduction of new
access to any phone calls and information technologies to elections should be a step-by-
sent over the Internet by state authorities step arrangement, not a leap into the unknown,
have led to the mistrust in governments and as the risk of failed election procedures could
secrecy of e-voting mechanisms on a large lead for certain to less participation and less
scale. There are only few countries which are trust into political actors. Experts in electoral
currently eager to widen the use of e-voting
matters can explain the issues a country
(including Internet voting).
might face if it introduces e-voting. The
Secrecy of vote is one of the main cor-
better the understanding, the more reasoned
nerstones of present definition of democratic
the decision of the authorities will be.
elections. It is expressed in Article 25(b) of the
With a growing usage of smartphones,
ICCPR, Article 3 of the First Protocol to the
computers, Internet and digital signatures,
ECHR and it is more elaborated in respective
case law of the UN Human Rights Committee as Professor Robert Krimmer put it, it is not
and European Court of Human Rights, Co- a question of whether, but when and how
penhagen Document and Code of Good the e-voting shall be introduced or further
Practice in Electoral Matters. Without trust in developed. The obstacles and threats with a
the electoral processes in general concerning reference to big data, revelations by Edward
the use of ICT, clear standards on assessment Snowden and hackers need to be taken into
of the technologies used and clear possibilities account, but we cannot overlook the grow-
to observe the election process in balloting and ing social need. While acknowledging the
counting with the help of technologies, there threats in e-voting, one has to notice the long
is not sufficient trust in democratic governance tradition of fraud with paper ballots and the
in general. Trust in the democratic process and need to tackle against it, as well. The election
elections is assessed in order to assess the level process is always open to fraud and the ways
of democracy in a specific country as well. to manipulate paper balloting might improve
Maybe we should start more from over time, too.
general e-governance, e-petitions, e-registers It is the task of experts to suggest
where the ICT reliability is not so important solutions for trustable e-voting procedures.
and in case of failure on whatever reasons As the scientific electoral experts debate that
the democratic system would not be is coming to the end was the first of this kind,
hampered or paralysed. Efforts to use ICT we are looking forward to a second, third and
in less decisive areas of governance as well even a fiftieth debate session.
179
CONCLUSIONS DES PREMIERS
ENTRETIENS SCIENTIFIQUES
DES EXPERTS LECTORAUX
BUCAREST, LES 12 13 AVRIL 2016
Oliver KASK
Membre de la Commission de Venise
Vice-prsident du Conseil des lections Dmocratiques
180
Expert electoral dition spciale 2016
181
CONCLUZIILE PRIMEI EDIII
A DEZBATERILOR TIINIFICE ALE EXPERILOR
DIN DOMENIUL ELECTORAL
BUCURETI, 12 13 APRILIE 2016
Oliver KASK
Membru al Comisiei de la Veneia
Vicepreedinte al Consiliului pentru Alegeri Democratice
ntrunirea experilor electorali, care se alte ri pentru a evita erorile similare i pentru
apropie de final, a fost prima de acest gen. Exis- a profita de soluiile folosite n alt parte.
t multe organizaii sau instituii internaionale Administraia trebuie s aib contacte
care doresc s se alture dezbaterilor privind strnse cu specialitii din zona academic,
legea electoral, de exemplu, Oficiul pentru pentru a-i ndeplini sarcinile n cel mai bun
Instituiile Democratice i Drepturile Omului mod. Pentru lumea academic, dezbaterea
(ODIHR), Asociaia Oficialilor Electorali experilor din domeniul electoral reprezint
Europeni (ACEEEO) i Fundaia Internaio- un forum de discuii suplimentar, n care se
nal pentru Studii Electorale (FISE), Institutul face schimb de cunotine i idei.
Internaional pentru Democraie i Asisten Am discutat diferite aspecte ale votului
Electoral (IDEA), Centrul Internaional pen- electronic dintr-o perspectiv practic i am
tru Studii Parlamentare (CISP), precum i realizat o analiz tiinific a acestora. n an-
diferite mecanisme de cooperare reciproc, samblu, toate aceste intervenii au n comun
cum ar fi conferinele pentru Organele de faptul c trebuie s ne gndim mai profund la
Management Electoral, grupul de lucru pentru problemele ce decurg din exercitarea votului
elaborarea de amendamente la recomandarea prin mijloace electronice. Exist multe zone
Consiliului European, discutate de ctre nestudiate, mai multe semne de ntrebare dect
rspunsuri bune i clare. Ne putem uita la
domnul Gregor Wenda, colile de var i alte
munca depus pentru actualizarea Recoman-
forme de cooperare din lumea academic ntre
drii Rec(2004)11 a Consiliului Europei cu
experii din domeniul electoral. Am putea s
privire la normele operaionale i tehnice ale
ne ntrebm dac este nevoie de un nou mijloc
votului electronic, care a durat muli ani i
de cooperare. n urma discuiilor, putem s-a desfurat prin colaborarea cu mai multe
concluziona c sarcina a fost ndeplinit. instituii i reprezentani ai rilor cu practic
Comisia de la Veneia i Consiliul pentru solid n privina utilizrii votului electronic.
Alegeri Democratice mprtesc o experien Totui, actualizarea nu este o sarcin uoar,
mai mult din zona academic, dar nu numai. deoarece numrul problemelor care trebuie
Exist membri ai acestor organe cu un abordate nu pare s se diminueze, iar posibi-
background judiciar, politicieni care particip litile tehnice, dar i lacunele continu s se
la alegeri i persoane care urmresc ndea- extind odat cu dezvoltarea pe care o putem
proape practica alegerilor din Consiliul observa ncontinuu n sectorul TIC.
European din statele membre OSCE, prin Tendina de a extinde utilizarea votului
participarea la misiuni de observare a ale- electronic, care a luat amploare acum zece
gerilor. Este nevoie ca practica lumii acade- ani, a ncetat n mare parte, iar n cazul multor
mice i cea a organelor de management ri aceast tendin regreseaz, dup cum am
electoral s devin mai apropiate. Membrii fost informai de rapoartele din alte state i de
managementului electoral trebuie s fie prezentarea domnului Uwe Serdlt. Acest fapt
contieni de problemele cu care se confrunt i are originea n discreditarea tehnologiilor,
182
Expert electoral Ediie special 2016
ntruct numai cteva pot asigura fiabilitatea bune mijloace pentru a controla cheltuielile
oricrui program sau oricrei aplicaii de finanelor publice pentru susinerea campani-
pe calculatoarele sau telefoanele noastre. ilor, pentru a lupta mpotriva utilizrii abuzive
Dezvluirile hackerilor privind manipularea a resurselor administrative i pentru a evalua
rezultatelor electorale i informaiile oferite neutralitatea mass-mediei publice sau private,
n legtur cu eforturile sistematice de a unde astfel de cerine sunt prezente. Profesorul
avea acces la orice apel telefonic i la orice Jordi Barrat Esteve a venit cu o constatare plin
informaie transmis prin internet de ctre de prospeime privind rolul puterii judiciare
autoritile statului au dus la manifestarea n supravegherea aspectelor electronice ale
unei nencrederi pe scar larg n guverne i n procesului de votare i provocrile acestuia. Cu
secretul mecanismelor de votare electronic. baze de date solide pentru instane i posibiliti
Mai sunt doar cteva ri care sunt n prezent de a strnge probe pentru litigiile judiciare
dornice s extind utilizarea votului electronic cu ajutorul internetului, procedurile judiciare
(inclusiv votul prin internet). pot deveni mai rapide, iar judecile mai bine
Secretul votului este una dintre princi- justificate i raionalizate. Introducerea noilor
palele pietre de temelie ale definiiei actuale a tehnologii n domeniul electoral ar trebui s
alegerilor democratice. Acesta este exprimat se ntmple pas cu pas, nu brusc, deoarece
n articolul 25(b) din PIDCP, n articolul 3 din riscul eecului procedurilor electorale ar putea
Primul Protocol la CEDO, fiind n mai mare duce la un numr de participani mai mic i la
msur elaborat n jurisprudena n materie a scderea ncrederii n actanii politici. Experii
Comitetului ONU pentru Drepturile Omului din domeniul electoral pot explica problemele
i a Curii Europene a Drepturilor Omului, a poteniale cu care o ar s-ar putea confrunta
Documentului de la Copenhaga i a Codului dac aceasta decide s introduc votul elec-
bunelor practici n materie electoral. Fr tronic. Cu ct problemele sunt nelese mai
ncredere n procesele electorale, n general, bine, cu att decizia autoritilor va fi mai
n privina utilizrii TIC, fr standarde bine justificat.
stabilite privind evaluarea tehnologiilor utiliza- Odat cu dezvoltarea utilizrii smart-
te i fr posibiliti clare de a supraveghea phone-urilor, a calculatoarelor, a internetului i
demersul electoral n procesul de desfurare a semnturii digitale, dup cum a pus problema
a numrrii voturilor cu ajutorul acestor tehno- profesorul Robert Krimmer, ntrebarea nu ar fi
logii nu exist suficient ncredere n guvernarea dac, ci cnd i cum va fi introdus i dezvol-
democratic n general. ncrederea n procesul tat votul electronic. Obstacolele i amenin-
democratic i n alegeri este evaluat pentru rile cu referire la datele importante, precum
a aprecia totodat gradul democraiei ntr-o dezvluirile fcute de Edward Snowden i de
anumit ar. hackeri trebuie s fie luate n considerare,
Poate ar trebui s ncepem mai degrab dar nu putem trece cu vederea nici nevoia
de la o guvernare electronic general, de la social, care este n cretere. Contientiznd
petiii electronice i registre electronice, unde ameninrile posibile ale sistemului electronic
fiabilitatea TIC nu este att de important i de votare, trebuie n acelai timp s se in cont
unde, n caz de eec oricare ar fi motivul , de lunga tradiie a cazurilor de fraud privind
sistemul democratic nu ar fi blocat. Eforturile numrarea voturilor pe hrtie i de necesitatea
de a folosi TIC n domeniile de guvernare cu abordrii acestei probleme. Demersul electoral
putere decizional sczut i n sistemele este mereu pasibil de fraud, iar modalitile
bancare ar putea spori ncrederea publicului. de manipulare a numrrii voturilor pe hrtie
Dac observm o cretere pe scar larg a ar putea, de asemenea, s se mbunteasc
ncrederii n aceste domenii, s-ar putea pune n timp.
bazele pentru a se discuta despre utilizarea Este sarcina experilor s propun so-
noilor tehnologii n domeniul electoral, pn luii de ncredere pentru procedura de votare
la votul prin internet. electronic. Avnd n vedere c dezbaterile
n ceea ce privete alegerile, guvernele tiinifice ale experilor electorali care toc-
sunt sftuite s nceap mai nti prin actua- mai se apropie de final au fost o premier,
lizarea i inerea unor registre electronice ateptm cu nerbdare o a doua, a treia i
de votani. Noile tehnologii sunt cele mai chiar a cincizecea dezbatere.
183
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ELECTORAL EXPERT REVIEW
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