PAPERLESS ELECTRONIC ELECTION UPHELD BY GERMAN SUPREME COURT

In a ruling handed down earlier this year, Germany's highest court, the Federal Constitutional Court, upheld the constitutionality of recent elections to the German legislative branch known as the Bundestag (similar to the US Senate). An English translation of the ruling is now available.

Two of the losing candidates sued for "a scrutiny of the election," in the hope of having it invalidated. They first challenged the election in the Bundestag. After the Bundestag rejected their claims, they appealed to the High Court.

The Controlling Law

The Court declared the constitutional principles that it follows in cases like this. These principles are derived from the German Constitution, or "Basic Law." Article 38, section one, of the Basic Law states, in part, that "Members of the German Bundestag shall be elected in general, direct, free, equal, and secret elections." This has traditionally been interpreted to mean that elections should be conducted in ways that are consistent with the highest principles of democracy. Since the end of WWII, German law has developed and articulated these principles.

The Court stated, for example, "The public nature of elections is a fundamental pre-condition for democratic will-formation." Such public elections are also a "major precondition for the well-founded trust of citizens in the correct operation of the elections." (Para 107 et seq)

Public monitoring of elections is necessary "so that manipulation can be ruled out or corrected and unjustified suspicion can be refuted." Trust in elections is best assured only if they are carried out "before the eyes of the public." (Para 108) Hence, the conduct of elections should not require any specialized knowledge on the part of the voters.

The Complaints of the Challengers

The complainants contended, among other things, that the use of electronic paperless "computer-controlled voting machines" in this election violated Germany's Basic Law.