Judgment of 3 March 2009

R e a s o n s :

A. 

1

The electoral complaints concern the permissibility of the use of computer-based voting machines, also known as electronic voting machines or ‘voting computers’, for the elections to the 16th German Bundestag.

I. 

2

1. In the elections to the 16th German Bundestag, approximately two million voters in the Länder of Brandenburg, Hesse, North Rhine-Westphalia, Rhineland-Palatinate and Saxony-Anhalt cast their votes using computer-based voting machines manufactured by the Dutch company Nedap. In Germany, these machines have been distributed by the company H. GmbH since 1999 as a central component of the ‘Integral Voting System’. The designations of the designs of these voting machines consist of a name for the respective generation (ESD1 or ESD2) and a version number for the hardware (HW) and software (SW). So far, designs ESD1 (HW 1.02; SW 2.02), ESD1 (HW 1.02; SW 2.07), ESD1 (HW 1.03; SW 3.08), ESD1 (HW 1.04; SW 3.08) and ESD2 (HW 1.01; SW 3.08) have been used for Bundestag elections.

3

These voting machines are controlled through a microprocessor and software. The votes cast are stored exclusively in an electronic memory and counted electronically by the voting machine at the end of the election day. After the electronic calculation of the result, the voting machine displays the total number of votes cast for each candidate and party; the results can be printed out using a printer integrated in the voting machine. The software that controls the recording of votes and the calculation of results is stored on two electronic memories (so-called EPROM – Erasable Programmable Read-Only Memory), which are built into the device under a screwed cover and secured by two seals applied by the manufacturer. The votes cast on the voting machine – including the link between the first and the second vote – are stored on a removable cassette-shaped storage unit, known as the voting memory module or ‘electronic ballot box’ [(...)]. The data from the ballot papers, the assignment of the individual keys to the respective candidates and parties, as well as the election date and polling station are also stored on the voting memory module.

4

[…] The voting machines are connected to a control unit on the electoral board’s table. The control unit indicates to the electoral board when a voter has cast their votes by increasing the number of voters displayed by one. After a voter has cast their votes, the voting machine is blocked until the electoral board reactivates it for the next voter.

5-6

[…]

7

2. Going back to the 1960s, attempts have been made in Germany to replace the manual counting of votes in the traditional polling process with more efficient methods and the use of voting machines. Pursuant to § 35(3) of the Federal Elections Act (Bundeswahlgesetz – BWG) of 7 May 1956 (Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 383), the Federal Minister of the Interior could authorise the use of officially approved vote-counting machines instead of ballot papers. On this basis, the Ordinance of 24 August 1961 on the Use of Vote-Counting Machines for Elections to the German Bundestag (BGBl I p. 1618) was enacted. The Act of 24 June 1975 Amending the Federal Elections Act (BGBl I p. 1593) repealed § 35(3) of the Federal Elections Act, replacing it with more extensive rules regarding ‘voting via voting machines’, which have been contained in § 35 of the Federal Elections Act since the promulgation of the new version of the Federal Elections Act of 1 September 1975 (BGBl I p. 2325). The Ordinance on the Use of Voting Machines for Elections to the German Bundestag (Federal Voting Machines Ordinance, Bundeswahlgeräteverordnung – BWahlGV) of 3 September 1975 (BGBl I p. 2459) provided, in its § 1, that mechanic or electronic voting machines could be used for elections to the Bundestag, provided that their design had been approved and their use had been authorised.

8

On the basis of the Ordinance on the Use of Vote-Counting Machines of 24 August 1961 (BGBl I, p. 1618) and the Federal Voting Machines Ordinance of 3 September 1975 (BGBl I, p. 2459), voting machines that worked on the basis of (electro-)mechanical counters were initially approved and used in Germany. These voting machines worked mechanically; when a button was pressed or a ballot chip was inserted into an opening assigned to the respective candidate or party, the counter was mechanically increased by one. They were not widely used because they only allowed for relatively small time savings while generating costs in terms of purchase, transport, storage and maintenance, and because they could typically only be used for elections with a small number of candidates and parties (cf. Bundestag document, Bundestagsdrucksache – BTDrucks 8/94, p. 2).

9

These disadvantages were to be addressed by the introduction of electronic voting machines. In 1997, the manufacturer Nedap applied to the Federal Ministry of the Interior for approval of an electronic voting machine. The Federal Voting Machines Ordinance of 3 September 1975 (BGBl I p. 2459), then most recently amended by Ordinance of 15 November 1989 (BGBl I p. 1981), was not suited to the assessment and approval of such a type of machine. While pointing out that fact, […] the National Metrology Institute (Physikalisch-Technische Bundesanstalt) positively evaluated the technical aspects of Nedap’s voting machine. Moreover, a test of the voting machine […] was regarded as satisfactory. The Federal Ministry of the Interior therefore decided that computer-based voting machines could be used for the European elections held in June 1999. In the wake of that decision, amendments to § 35 of the Federal Elections Act and to the Federal Voting Machines Ordinance were prepared with a view to using computer-based voting machines for future Bundestag elections as well.

10

§ 35(1) of the Federal Elections Act, in the version published on 23 July 1993 (BGBl I pp. 1288, 1594), last amended by Act of 1 July 1998 (BGBl I pp. 1698, 3431), which was applicable at the time, read as follows:

11

To facilitate the casting and counting of votes, voting machines with independent counters may be used instead of ballot papers, ballot envelopes and ballot boxes.

12

The words ‘with independent counters’ were deleted by the Act on General and Representative Electoral Statistics for Elections to the German Bundestag and Elections of Members of the European Parliament from the Federal Republic of Germany of 21 May 1999 (BGBl I p. 1023). This amendment of § 35 of the Federal Elections Act was considered necessary to adapt the Federal Voting Machines Ordinance to the technical developments of voting machines (cf. BTDrucks 14/401, p. 5).

13

The Ordinance of 20 April 1999 Amending the Federal Voting Machines Ordinance and the European Electoral Regulations (BGBl I p. 749) entered into force on 24 April 1999; it changed numerous provisions of the Federal Voting Machines Ordinance in order to create the necessary framework for the use of computer-based voting machines. The words ‘including computer-based’ [voting machines] were inserted after ‘electronic’ in § 1 of the Federal Voting Machines Ordinance. Moreover, changes were made in all instances where the term ‘counter’ had previously been used in the ordinance. § 2(6), which requires the manufacturer to provide a declaration of design equivalence, was newly inserted into the ordinance.

14

3. The elections to the 16th German Bundestag were governed by § 35 of the Federal Elections Act in the version published on 23 July 1993 (BGBl I pp. 1288, 1594), last amended by the Eighth Competence Reassignment Ordinance (Achte Zuständigkeitsanpassungsverordnung) of 25 November 2003 (BGBl I p. 2304).

15

The provision read as follows:

16

§ 35

17

Casting votes on voting machines

18

(1) To facilitate the casting and counting of votes, voting machines may be used instead of ballot papers and ballot boxes.

19

(2) Voting machines within the meaning of section (1) must guarantee the secrecy of the vote. The design of the voting machines must be officially approved for use in Bundestag elections – either for specific Bundestag elections or generally. The Federal Ministry of the Interior shall decide on the approval upon application by the voting machine manufacturer. The actual use of officially approved voting machines is subject to a separate authorisation by the Federal Ministry of the Interior. Authorisation can be granted for specific elections or generally.

20

(3) The Federal Ministry of the Interior is empowered to issue, by ordinance not subject to the approval of the Bundesrat, detailed provisions concerning

21

1. the prerequisites for official approval of designs of voting machines and for withdrawal and cancellation of approval,

22

2. the procedure for the official approval of a design,

23

3. the procedure for checking whether a voting machine corresponds to the officially approved design,

24

4. public testing of a voting machine before it is used,

25

5. the procedure for official approval of the use of voting machines and for withdrawal and cancellation of approval,

26

6. particular aspects of an election that result from the use of voting machines.

27

In respect of nos. 1 to 3, the ordinance is issued in agreement with the Federal Ministry of Economic Affairs and Labour.

28

(4) § 33(1) first sentence and § 33(2) apply accordingly for the operation of a voting machine.

29

The provisions of the Federal Voting Machines Ordinance of 3 September 1975 (BGBl I p. 2459), last amended by Ordinance of 20 April 1999 (BGBl I p. 749) – the relevant provisions for the present proceedings – concern the approval of voting machines and their use in elections. The design of voting machines must be approved and their use must be authorised (cf. § 1 Federal Voting Machines Ordinance). Under § 2(2) first sentence of the Federal Voting Machines Ordinance, approval of the voting machine design can be granted if the voting machine corresponds to the guidelines for the design of voting machines pursuant to Annex 1 to the Ordinance. These guidelines set out, in particular, the technical requirements for voting machines and contain detailed specifications for the identification, technical construction and functioning of the voting machines. In this context, the guidelines lay down details regarding the presentation of candidates and parties, operation and usability, the casting of votes, the storage of votes cast and backup functions. It falls to the National Metrology Institute to check compliance of voting machines with these guidelines.

30

Before each election, the use of voting machines of the approved design must be authorised (§ 4(1) first sentence Federal Voting Machines Ordinance). Voting machines may only be used if they have been checked, after the determination of the election day, by the manufacturer or the municipality on the basis of the manuals and maintenance instructions and if they have been found to function properly (§ 7(1) first sentence Federal Voting Machines Ordinance). In the constituencies where voting machines are used, the municipal authority must familiarise the head of the electoral board and their deputies with the voting machines and instruct them as to their operation (§ 7(3) Federal Voting Machines Ordinance). Before the polling process starts, the municipal authority hands over the voting machines to the electoral board, along with the necessary manuals and the manufacturer declarations under § 2(6) of the Federal Voting Machines Ordinance, stating that the machine is of the same design as the checked and approved model (cf. § 8 Federal Voting Machines Ordinance). Before the start of voting, the electoral board must establish, inter alia, that the counter and memory unit are set to zero or have been erased (§ 10(1) no. 3 Federal Voting Machines Ordinance); it must also seal the voting machine (§ 10(2) Federal Voting Machines Ordinance). Before ascertaining the number of votes displayed on the voting machine, the number of voters marked as having voted in the electoral roll and the number of ballot papers collected must be added up and compared with the number of votes displayed (§ 13 Federal Voting Machines Ordinance). Deviations must be documented and explained in the electoral record (§ 13 third sentence Federal Voting Machines Ordinance). If the total of the displayed results of the counter does not match the total of votes cast, the electoral board must describe this disparity and document it in the electoral record (§ 14(5) Federal Voting Machines Ordinance). After the electoral board has completed its tasks and returned the voting machines, the head of the electoral board, the municipal authority and the district returning officer must ensure that the voting machines used or their memory unit and the electoral record, including any annexes, are not accessible to unauthorised third parties until the Land Returning Officer has lifted the blocking and sealing of the voting machines and storage units (cf. § 16(2), § 17(3) Federal Voting Machines Ordinance).

31

4. The Federal Ministry of the Interior issued approvals for the voting machine designs used for the elections to the 16th German Bundestag. On 15 August 2005, the Ministry announced the authorisation of the use of computer-based voting machines manufactured by Nedap for the elections to the 16th German Bundestag, with detailed specifications regarding hardware versions, memory module types and software versions ([…]). However, the Ministry refused to make documents available to the public that Nedap had handed over to the National Metrology Institute for design checks and for the Institute’s inspection reports, arguing that Nedap’s documents contained trade secrets.

32

5. It is up to cities and municipalities to decide whether to purchase voting machines and in which constituencies to use them. Reasons cited for the purchase and use of voting machines are that the results can be determined more quickly and that cost savings can be expected, and that the unintentional casting of invalid votes can be almost completely ruled out; doubts as to the validity of individual votes cast due to ambiguous markings of the ballot paper or unintended errors in counting votes are practically ruled out. ([…]). It is also argued that the recruitment of volunteer election workers becomes considerably easier due to the shorter time required to determine the results ([…]). These advantages become particularly apparent in municipal elections, which have become more complex in many Länder due to the possibilities for cumulating and splitting votes.

II. 

33

1. Both complainants lodged electoral complaints challenging the Federal Elections Act and the Federal Voting Machines Ordinance to the extent that they permit the use of computer-based voting machines.

34

a) aa) Complainant no. 1 lodged an objection against the results of the elections to the 16th German Bundestag in 30 constituencies in Brandenburg, Hesse, North Rhine-Westphalia, Rhineland-Palatinate and Saxony-Anhalt. […]

35-42

[…]

43

bb) Complainant no. 2 likewise lodged an objection against the elections to the 16th German Bundestag.

44-46

[…]

47

cc) The Federal Ministry of the Interior applied for dismissal of the objections.

48-55

[…]

56

dd) By decision of 14 December 2006, the Bundestag rejected the objections. […]

57-63

[…]

64

b) Both complainants lodged electoral complaints with the Federal Constitutional Court.

65

aa) Complainant no. 1 applies for the order of the German Bundestag of 14 December 2006 to be set aside and for the elections to the 16th German Bundestag in the constituencies set forth in the objection proceedings to be declared invalid insofar as computer-based voting machines were used there. The complainant also applies for an order to repeat the elections with ballot papers and ballot boxes. By way of subsidiary application, he applies for a declaration that the use of software-based voting machines for elections to the Bundestag is incompatible with the Basic Law, and/or, subsidiarily, that the use of voting machines is incompatible with the Basic Law insofar as the transparency of the elections for the public, the possibility to verify the accuracy of the results and protection against manipulation are not guaranteed in the same manner as for elections with ballot papers and ballot boxes.

66-73

[…]

74

bb) Complainant no. 2 essentially applies for the rejection of his objection by the German Bundestag to be set aside and for the elections to be repeated in the constituencies set forth in the objection brief of 15 October 2005 and for a declaration of unconstitutionality of § 35 of the Federal Elections Act and of the Federal Voting Machines Ordinance.

75

Complainant no. 2 challenges both the constitutionality of the legal basis for the use of computer-based voting machines (§ 35 of the Federal Elections Act and the Federal Voting Machines Ordinance) and the use of the voting machines manufactured by Nedap for the elections to the 16th German Bundestag. […]

76-77

[…]

78

2. The Bundestag, the Bundesrat, the Federal Government, all Land governments, the federal associations of the parties represented in the Bundestag (CDU, SPD, Die Grünen, FDP, Linkspartei, CSU) and the Federal Returning Officer were notified of the electoral complaints. Pursuant to § 27a of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), the National Metrology Institute and the Federal Office for Information Security were given the opportunity to submit statements on the technical issues raised.

79-83

[The Federal Returning Officer, the Federal Ministry of the Interior, the National Metrology Institute and the Chaos Computer Club (an association of hackers) submitted statements on the electoral complaints.] […]

84-88

3. […]

89

4. At the oral hearing, the Court also heard from Dr. Jörn Müller-Quade, European Institute for System Security Karlsruhe, and Melanie Volkamer, Institute of IT Security and Security Law at the University of Passau, as experts. In particular, Dr. Müller-Quade commented on the question of whether and to what extent hardware or software manipulation can be discovered by checking the voting machines after the elections. Ms Volkamer discussed possibilities of verifying before the elections that the software installed on individual voting machines matches the design.

B. 

90

Insofar as complainant no. 2 directs his complaint against the proceedings before the Bundestag, the electoral complaint is unsuccessful.

91

The electoral complaints are well-founded insofar as they challenge the fact that the Federal Voting Machines Ordinance permits the use of computer-based voting machines without ensuring effective scrutiny of the polling process and effective ex post review of the calculation of the results. In this respect, the Federal Voting Machines Ordinance violates the principle of public elections following from Art. 38 in conjunction with Art. 20(1) and (2) of the Basic Law. The use of the computer-based voting machines manufactured by Nedap was likewise incompatible with the principle of public elections. However, neither electoral error results in a declaration of invalidity of the elections in the constituencies set forth by the complainants.

92

The electoral complaints are well-founded insofar as they challenge the fact that the Federal Voting Machines Ordinance permits the use of computer-based voting machines without ensuring effective scrutiny of the polling process and effective ex post review of the calculation of the results. In this respect, the Federal Voting Machines Ordinance violates the principle of public elections following from Art. 38 in conjunction with Art. 20(1) and (2) of the Basic Law. The use of the computer-based voting machines manufactured by Nedap was likewise incompatible with the principle of public elections. However, neither electoral error results in a declaration of invalidity of the elections in the constituencies set forth by the complainants.

[…]

I. 

93

The electoral complaint lodged by complainant no. 2 is unsuccessful insofar as the complaint is directed against the duration of the proceedings before the Bundestag and the fact that the Committee for the Scrutiny of Elections did not deliberate in public and failed to conduct a hearing. The challenge that the Bundestag did not have a quorum when adopting the recommendation of the Committee for the Scrutiny of Elections is also unfounded.

94

In the context of the complaint proceedings, the Federal Constitutional Court reviews the challenged decision of the Bundestag in formal and substantive terms. Shortcomings in the procedure of the Bundestag, like the ones asserted by the complainant, can only be relevant if they are of fundamental importance and deprive the Bundestag decision of its basis (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 89, 243 249>; 89, 291 <299>). Such breaches of procedure are not ascertainable in the present case.

95

1. Although it took more than a year for the Bundestag to decide after the objection was lodged, this still does not amount to a serious procedural error. The duration of the proceedings alone does not deprive the decision of its basis (cf. BVerfGE 121, 266 <290>).

96

2. It does not constitute a serious error which deprives the Bundestag decision of its basis that the Committee for the Scrutiny of Elections did not conduct a hearing on the objection lodged by the complainant and also did not deliberate in public.

97

a) Under § 6(1a) no. 3 of the Act on the Scrutiny of Elections (Wahlprüfungsgesetz – WahlPrG) in the version of 24 August 1965 (BGBl I p. 977), the version applicable at the time the Bundestag decided the complainant’s objection, the Committee was entitled to refrain from conducting a hearing if it found, in a preliminary assessment, that the objection was manifestly unfounded. § 6(1) of the Act on the Scrutiny of Elections has since been amended by the Act Amending the Act on the Scrutiny of Elections of 6 June 2008 (BGBl I p. 994) and now provides that a hearing must be conducted only in cases where it is found, in a preliminary assessment, that a hearing is expected to further the proceedings.

98

An objection is manifestly unfounded if, at the time of decision, no aspect can be ascertained that could result in its success (cf. BVerfGE 89, 243 <250>; 89, 291 <300>). This does not mean that the unfoundedness of the objection must be obvious; it can also be the result of thorough prior review (cf. BVerfGE 82, 316 <319 f.> regarding § 24 of the Federal Constitutional Court Act, which essentially has the same content).

99

Even though, based on the complainants’ submissions, there may be several factors suggesting that the objection was not manifestly unfounded, in particular with regard to compliance with the rules on the design of voting machines, the failure to conduct a hearing is not so serious as to deprive the Bundestag decision of its basis. The primary finding of the Bundestag decision was that the use of computer-based voting machines did not violate the principle of public elections and its specification in the provisions of ordinary electoral law. In this regard, the Bundestag comprehensively addressed the complainants’ arguments and stated its position regarding the questions raised. Insofar as the Bundestag addressed the question of approval of the voting machines manufactured by Nedap and used in the Bundestag elections, it based its findings on the statements of the Federal Ministry of the Interior, according to which manipulations, while theoretically possible, are ruled out in the same way as for traditional voting by ballot papers due to the combination of technical and organisational safeguards.

100

b) Contrary to the view of complainant no. 2, the Committee for the Scrutiny of Elections was not required to deliberate in public.

101

The Act on the Scrutiny of Elections sets out in its provisions on hearings (§§ 6 ff.) under what conditions proceedings of the Committee for the Scrutiny of Elections must be public. If hearings take place, they must be public. Under § 10(1) of the Act on the Scrutiny of Elections, the Committee on the Scrutiny of Elections deliberates in camera on the outcome of the hearing. Under the systematic approach of the Act, this applies in the same way when no hearing is conducted. No constitutional aspects are ascertainable that could require the legislator to provide for different rules for the scrutiny of elections (Art. 41(3) of the Basic Law).

102

3. The challenge of complainant no. 2 that the decision of the Bundestag of 14 December 2006 was not valid on the grounds that there was no quorum is also unsuccessful. […]

103

[…]

II. 

104

1. In the context of electoral complaints pursuant to § 13 no. 3 and § 48 of the Federal Constitutional Court Act, the Federal Constitutional Court not only reviews whether the competent electoral organs and the Bundestag complied with federal electoral law, but also whether the provisions of the Federal Elections Act are compatible with the Constitution (cf. BVerfGE 16, 130 <135 f.>; 121, 266 <295>). This review also extends to the validity of ordinances.

105

2. In particular, the use of computer-based voting machines must be reviewed on the basis of the standard of public elections (Art. 38 in conjunction with Art. 20(1) and (2) of the Basic Law).

106

The public nature of elections is a basic prerequisite for the democratic formation of the political will. It ensures the proper conduct and transparency of the voting process, thus creating a fundamental prerequisite for citizens’ informed trust in the proper conduct of elections. Parliamentary democracy, a form of government in which the rule of the people is exercised indirectly through elections, rather than being exercised directly, requires that the act of transferring state responsibility to parliamentarians be subject to special public scrutiny. Elections must in principle be public; this applies to the nomination procedure, the polling process (with an exception applying to the casting of votes, i.e. the secrecy of the ballot), and the determination of the results (cf. BVerfGE 121, 266 <291> with further references).

107

a) The fundamental constitutional decisions in favour of democracy, the republic and the rule of law form the basis of the public nature of elections (Art. 38 in conjunction with Art. 20(1) and (2) of the Basic Law).

108

aa) The election of parliament constitutes the fundamental act of legitimation in a representative democracy. The casting of votes in Bundestag elections is the essential element in the process of the formation of the political will from the people to the state organs, and thus forms the basis of political integration. Adherence to the applicable electoral principles and trust that these principles will be observed are therefore prerequisites of a properly functioning democracy. Only through the possibility of scrutinising whether the election complies with the constitutional electoral principles can it be ensured that the delegation of state authority to parliament, which is the first and most important part of the uninterrupted chain of legitimation from the people to organs and officials with state tasks, is not deficient. Democratic legitimation of elections requires that the electoral process can be scrutinised so as to rule out or correct manipulation and to refute unjustified suspicions of manipulation. This is the only way to ensure that the sovereign people can trust that the representative organ is duly formed. The obligation of the legislative and the executive branch to ensure that elections are in line with constitutional law and are properly conducted is not in itself sufficient to provide the necessary legitimation. For a democracy to function properly and for state decisions to be democratically legitimated, it is necessary that the sovereign people trust in parliament’s composition reflecting the will of the electorate. This trust can only be guaranteed if the electorate can reliably see for itself that the act of transferring democratic legitimation is lawful, i.e. only if elections are conducted in public ([…]). (cf. Land Constitutional Court of North Rhine-Westphalia, Judgment of 19 March 1991 ([…]).

109

bb) In a republic, elections are a matter for the entire people and a common interest of all citizens. In line with this principle, the scrutiny of elections must also be a matter and task for citizens. All citizens must be able to reliably verify and understand the key steps of the election without specialist technical knowledge.

110

cc) The public nature of elections is also rooted in the principle of the rule of law. Publicity as required by the rule of law serves to ensure that the exercise of state power is transparent and can be scrutinised. It requires that citizens can obtain knowledge of the acts of state organs. This also applies to activities of the electoral organs.

111

b) The principle of public elections requires that all key steps of an election be subject to public scrutiny, insofar as other constitutional interests do not justify an exception from such scrutiny. The scrutiny of the polling process and of the calculation of the result is of particular significance in this regard.

112

An election fails to meet constitutional requirements if key procedural elements of the election are excluded from public scrutiny, i.e. if voters cannot reliably determine whether their votes have been recorded accurately and included in the calculation of the results and how the total number of votes cast has been allocated and counted.

113

c) Despite the great significance of the constitutional requirement of public elections, this requirement does not mean that all actions relating to the determination of the results must involve the public in order to create informed trust in the proper conduct of the elections. For instance, activities of the district returning officer that serve to prepare the – public – determination of the results by the district electoral committee pursuant to § 76(1) of the Federal Electoral Regulations (Bundeswahlordnung – BWO) do not have to be subject to direct public scrutiny under constitutional law (cf. BVerfGE 121, 266 <291 f.>).

114

d) The requirements regarding the possibility to scrutinise the electoral process apply notwithstanding the responsibility for conducting parliamentary elections of the constituent state organs (cf. BVerfGE 20, 56 <113>; 41, 399 <414> […]).

115

It is primarily for the legislator to set out how to ensure the transparency of the key steps of an election. Art. 38(3) of the Basic Law authorises and requires the legislator to determine the details of electoral law (in particular, the electoral system and the electoral process) and of compliance with the principles of electoral law ([…]). The legislative mandate following from Art. 38(3) of the Basic Law also comprises the design of the technical aspects of the electoral process ([…]), and thus the decision on whether to use voting machines and the determination of the detailed requirements for their use. Details can be set out by way of an ordinance based on a statutory authorisation ([…]).

116

In specifying the principles of electoral law, the legislator has broad discretion, in the framework of which it must decide whether and to what extent deviations from individual electoral principles are justified in the interest of the uniformity of the electoral system and the protection of the public policy objectives pursued by the legislator (cf. BVerfGE 3, 19 <24 f.>; 59, 119 <124>; 95, 335 <349>). The Federal Constitutional Court only reviews whether the legislator remained within the leeway afforded by the Basic Law, or whether it violated a constitutional electoral principle by overstepping these boundaries. It is not for the Court to decide whether the solutions found by the legislator, in the exercise of its discretion, are expedient or politically desirable (cf. BVerfGE 59, 119 <125>).

117

3. In light of the foregoing, the use of voting machines that electronically record votes and electronically determine the results is only compatible with the Basic Law under narrow conditions.

118

a) When electronic voting machines are used, it must be possible for citizens to reliably scrutinise the key steps of the polling process and the determination of the result without any specialist knowledge. The need for such scrutiny arises, not least, in light of the fact that electronic voting machines can be manipulated and are prone to error. When voting machines are used, the collection of votes and the calculation of the results are based on a computational process that cannot be verified from the outside and by persons without specialised IT knowledge. Bugs in the software of voting machines are therefore difficult to detect. Moreover, such software bugs may not only affect an individual voting machine, but all machines used. It is hardly possible under the applicable law, which includes provisions on the public nature of elections, to manipulate or rig traditional elections, i.e. those conducted using ballot papers – doing so would, at the very least, require considerable effort and be subject to a high risk of detection, which has preventive effects. In contrast, interfering with electronic voting machines can generally have significant effects while requiring relatively little effort. Even if only individual voting machines are manipulated, this will not just influence individual votes, but all votes which were cast on the manipulated voting machine. Electoral errors due to manipulations across voting machines and software malfunctions would have even greater consequences. Given that possible malfunctions of voting machines or deliberate electoral fraud would have far-reaching repercussions, special safeguards are necessary to ensure compliance with the principle of public elections.

119

aa) Voters must be able to determine – without in-depth computer skills – whether the vote they cast is included in the calculation of the results or – if the votes are initially counted with the help of technology – whether their unmanipulated vote is at least included in a later recount. It is not sufficient to argue that voters should trust that the system functions properly, without allowing them further scrutiny. It is therefore not sufficient if voters are only informed by means of an electronic display that their vote has been registered. This does not allow for sufficient scrutiny by voters. The electoral organs and the public must be guaranteed this same level of transparency.

120

It follows that votes may not be stored exclusively in electronic form after they have been cast. Voters casting their votes electronically cannot simply be expected to place their trust in the technical integrity of the system alone. If the results are determined through computer-based processing of the votes stored in an electronic memory, it is not sufficient that the result of the computing process on the device can be seen on a summarising paper printout or an electronic display. Voters and electoral organs could then only examine whether the number of votes processed by the voting machine corresponds to the number of voters who were authorised to use the voting machine in the election. In this scenario, it is not readily discernible whether there were programming errors in the software or whether deliberate electoral fraud was committed through manipulation of the software or voting machines.

121

bb) The legislator is not precluded from using electronic voting machines for elections, provided that the constitutionally required possibility of reliable scrutiny of the proper conduct of the election is guaranteed. In particular, this requirement can be met by using voting machines that record votes cast both electronically and in other ways. For example, this is possible with regard to electronic voting machines that, in addition to electronically recording the vote, print out a paper log visible to the respective voter, which can then be checked before the final casting of the vote and is collected to enable subsequent review. It also remains possible to scrutinise an election independently of the electronic recording of votes if systems are used in which voters mark a ballot paper and the vote cast is recorded electronically either simultaneously (for example, using a ‘digital voting pen’ […]) or afterwards (for example, using a ballot scanner […]), so that the votes cast can be determined electronically at the end of the election day.

122

In these cases, it is ensured that voters have control over their vote and that the electoral organs or the public can reliably scrutinise the results without requiring specialist technical knowledge. There is no need to decide here whether there are other technical possibilities of determining the results that allow for levels of transparency enabling voters to trust in the proper conduct of the process and thus satisfy the requirements arising from the principle of public elections.

123

b) Restrictions of the ability of the public to scrutinise elections cannot be compensated by model devices being checked in the context of the procedure of approval, or the specific voting machines to be used in the elections being checked before use by an official institution as to their compliance with certain security requirements and their technical integrity. Scrutiny of the key steps of an election only fosters informed trust in the proper conduct of the election if citizens can reliably follow the polling process themselves.

124

For this reason, other comprehensive technical and organisational measures (such as checks and secure storage of voting machines, ability to compare the machines used with an officially checked model at any time, criminalisation of electoral fraud and decentralised organisation of the election) on their own are not suitable to compensate for a lack of possibilities to scrutinise the electoral process.

125

Thus, neither the involvement of the public in procedures to check and approve voting machines nor the publication of assessment reports or construction features (including the source code of the software of computer-based voting machines) are key factors in guaranteeing the constitutionally required level of transparency and possibilities to scrutinise the elections. Technical checks and official approval procedures, which can only be properly understood by specialists, take place at a procedural stage well before the vote. Therefore, public involvement can only be ensured if supplementary measures are put in place that allow for the required reliable monitoring of the election.

126

c) To a limited extent, the legislator can permit exemptions from the principle of public elections in order to give effect to other constitutional interests, in particular the written electoral principles set forth in Art. 38(1) first sentence of the Basic Law. Restrictions on public scrutiny of voting by postal ballot (§ 36 Federal Elections Act) can be justified by the aim of achieving as high a turnout as possible, thereby giving effect to the principle of universal suffrage (cf. BVerfGE 21, 200 <205>; 59, 119 <125>). However, when it comes to the use of computer-based voting machines, no conflicting constitutional principles are ascertainable that could justify far-reaching restrictions on the principle of public elections, and thus on the possibilities of scrutinising the polling process and the calculation of the results.

127

aa) It is true that, insofar as the use of computer-based voting machines aims to rule out the unintended incorrect marking of ballot papers, unintentional invalid votes, inadvertent counting errors and incorrect interpretations of the will of voters in the counting of votes ([…]), which repeatedly occur in traditional elections with ballot papers, this does serve to give effect to the principle of equal suffrage following from Art. 38(1) first sentence of the Basic Law. However, there is no need to decide here how significant this purpose is, since, in any case, this purpose in itself does not justify a complete lack of transparency of the polling and counting process This is because unintended counting errors or incorrect interpretations of the will of voters can also be ruled out if voting machines are used to electronically record and count the votes, but additional scrutiny by voters, electoral organs or the public is made possible. Such scrutiny is possible, for example, if electronic voting machines are used that do not just electronically record the votes on the voting machine, but at the same time record the votes in another form that is independent of the voting machine (see para. 121 f. above). Apart from that, the use of the voting machines approved for the elections to the 16th German Bundestag does not rule out operating errors – such as the use of the ‘invalid’ key on the assumption that this could be used to correct an unintended input.

128

bb) The principle of secret elections is likewise no conflicting constitutional principle that would allow far-reaching restrictions on possibilities to scrutinise the polling process and the calculation of the results. There is no ‘tension’ between the principle of secret elections and the principle of public elections that could justify such restrictions (BTDrucks 16/3600, Annex 1, p. 20).

129

The principle of secret elections guarantees that only the voter knows who they voted for; it requires the legislator to take all necessary measures to protect the secrecy of the ballot ([…]). The secrecy of elections provides the most important institutional protection of the freedom of elections (cf. BVerfGE 99, 1 <13>). From a historical perspective, secret elections may have been a negation of the public nature of elections, given that it meant giving up openly cast ballots in order to protect free elections ([…]). However, under the Basic Law, which expressly provides for secret elections to protect the freedom of elections, the principle of public elections, from the very outset, does not apply to the act of casting one’s vote. Where the public nature of elections is not restricted to allow for the unobserved casting of one’s vote, elections are governed by the principle of publicity ([…]). Therefore, the principle of secret elections, which applies to the casting of one’s vote, does not result in restrictions on the principle of public elections. The principle of secret elections also does not justify restrictions on public scrutiny when it comes to handing in the ballot – which was previously marked in secret –, or the calculation of the results. This follows from the mere fact that the principle of secret elections does not preclude additional safeguards that allow voters to scrutinise whether their vote has been accurately recorded as the basis for a later recount.

130

cc) Finally, the aim of forming a parliament with the capacity to act in a short period of time does not justify restrictions on the principle of public elections when using computer-based voting machines. Determining the correct composition of parliament within an appropriate amount of time is an aspect that can be taken into consideration when designing the electoral process and the electoral scrutiny process (cf. BVerfGE 85, 148 <159>). That said, the interest in the timely convening of a new Bundestag (cf. Art. 39(2) of the Basic Law) is not jeopardised by sufficient safeguards to ensure the public nature of elections. It is not constitutionally required that the results must be available shortly after the polling stations close. Moreover, past Bundestag elections have shown that the preliminary official results of an election can generally be determined within a few hours, including when no voting machines are used. Therefore, the interest in a swift determination of the composition of the Bundestag is no constitutional interest capable of restricting the public nature of elections.

131

4. The question of what body may enact rules regarding the use of voting machines is determined by the requirement of a parliamentary decision and the requirements applicable to authorisations to issue ordinances (Art. 80(1) second sentence of the Basic Law).

132

a) The requirement of a parliamentary decision, which is rooted in the principles of the rule of law and of democracy, requires that the legislator itself take all fundamental decisions in key legislative areas, especially in the area of the exercise of fundamental rights, insofar as this area can be subject to state legislation (cf. BVerfGE 49, 89 <126 f.>; 61, 260 <275>; 80, 124 <132>; 101, 1 <34>). The obligation to legislate not only concerns the question whether a specific subject matter needs to be regulated by law at all, but also the scope of the individual provisions (cf. BVerfGE 101, 1 <34>).

133

Under Art. 80(1) second sentence of the Basic Law, the content, purpose and scope of the authority to enact ordinances must be specified in the law. The legislator itself must decide which matters are to be regulated by ordinance within which limits and with which objective (cf. BVerfGE 2, 307 <334>; 5, 71 <76 f.>; 23, 62 <72>). The wording of the authorisation does not need to be as precise as possible; it must merely be sufficiently specific under constitutional law (cf. BVerfGE 55, 207 <226>; 58, 257 <277>; 62, 203 <209 f.>). It is sufficient that the limits of the authorisation can be determined through interpretation based on the generally recognised principles of interpretation; in this regard, the objective of the law, the context when seen together with other provisions and the legislative history are relevant (cf. BVerfGE 8, 274 <307>; 23, 62 <73>; 55, 207 <226 f.>; 80, 1 <20 f.>). In the individual case, the specificity requirements depend on the particularities of the subject matter and the intensity of the measure (cf. BVerfGE 58, 257 <277 f.>; 62, 203 <210>; 76, 130 <143>). Less strict requirements apply to circumstances that are multifaceted and subject to rapid changes, while stricter specificity requirements apply when a legislative measure results in more serious interference with legal positions protected by fundamental rights (cf. BVerfGE 58, 257 <278>; 62, 203 <210>).

134

b) Due to the particularities associated with the use of voting machines, provisions governing such use are subject to parliamentary decision to the extent that the key prerequisites for the use of such voting machines are concerned. This includes decisions regarding the permissibility of the use of voting machines and the fundamental prerequisites of their use. These decisions cannot be left to an ordinance-issuing authority.

135

By contrast, the detailed prerequisites for the approval of voting machines and the procedures to be followed in this regard, the details of the use of voting machines in elections and compliance with the electoral principles with regard to the specific use of voting machines do not require detailed parliamentary legislation, but can be regulated by the ordinance-issuing authority. The respective requirements applicable to voting machines greatly depend on the kind of voting machine used and therefore do not need to be set out in parliamentary legislation. For example, the requirements for the use of electronic voting machines differ from the requirements for the use of exclusively mechanical voting machines. Since voting machines are subject to continuing technical development, swift legal adaptation is more reliably ensured when the detailed rules are left to the ordinance-issuing authority.

III. 

136

Based on these standards, the authorisation to issue ordinances in § 35 of the Federal Elections Act does not raise serious constitutional concerns.

137

1. The parliamentary legislator was not required to regulate the use of computer-based voting machines beyond § 35 of the Federal Elections Act, because that provision determines the fundamental issues arising in the context of the use of computer-based voting machines. To the extent that § 35 of the Federal Elections Act authorised the issuance of the Federal Voting Machines Ordinance, the substance, purpose and scope of the authorisation granted are sufficiently specific (Art. 80(1) second sentence of the Basic Law).

138

§ 35(1) of the Federal Elections Act contains the fundamental decision of the parliamentary legislator in favour of the use of voting machines. In limiting the use of voting machines to the purpose of facilitating the casting and counting of votes, the legislator determined the objective of the authorisation in a sufficiently specific manner. By deleting the words ‘with independent counters’ in 1999, the legislator made clear that § 35 of the Federal Elections Act also applies to the use of computer-based voting machines.

139

The basic requirements for the use of voting machines are listed in § 35(2) second to fifth sentence and § 35(3) of the Federal Elections Act; these concern, in particular, the official approval of designs and the official authorisation to use the voting machines. § 35(2) first sentence of the Federal Elections Act only expressly mentions two constitutional electoral principles: the secret casting of one’s vote and the secrecy of the ballot. As the other electoral principles are, however, set out in § 1(1) second sentence of the Federal Elections Act, they, too, readily apply to the use of voting machines in Bundestag elections. Finally, the legislator provided, in § 35(3) first sentence no. 6 of the Federal Elections Act, that the Federal Ministry of the Interior can regulate particular aspects of the use of voting machines in the context of elections. This provision is a sufficient legislative basis that gives effect to the special constitutional aspects that must be taken into consideration when computer-based voting machines are used. Moreover, the provision makes it clear to citizens that an election involving voting machines may be subject to modifications compared to traditional elections with ballot boxes. It is not necessary under constitutional law that all details of the contents of an ordinance can be derived from the respective statutory authorisation. The leeway that can be granted to the ordinance-issuing authority must be determined in consideration of the complexity of the matter and the dynamics of development processes for voting machines. The parliamentary legislator is therefore not required to enact a detailed statutory framework for the use of electronic voting machines.

140

2. § 35 of the Federal Elections Act is compatible with the principle of public elections.

141

a) The fact that § 35(1) of the Federal Elections Act permits the use of voting machines ‘instead of ballot papers and ballot boxes’ does not raise constitutional concerns. This is because the wording of § 35(1) of the Federal Elections Act does not rule out the approval and use of voting machines with monitoring devices, which not only record the votes (electronically) on the voting machine, but also record them in a manner that can be scrutinised by voters. It can be inferred from the systematic position of § 35(1) of the Federal Elections Act that the words ‘instead of ballot papers and ballot boxes’ make reference to the conventional polling process set out in § 34 of the Federal Elections Act, under which only official ballot papers and ballot boxes are used. § 35(1) of the Federal Elections Act does not, however, rule out a framework providing for the possibility to verify the results independently of the electronic recording and counting of votes.

142

b) It is immaterial that the principle of public elections is not expressly laid down in § 35 of the Federal Elections Act as a requirement for the authorisation and use of computer-based voting machines. The relevant requirements arise directly from the Constitution and therefore also bind the ordinance-issuing authority when specifying § 35 of the Federal Elections Act. These considerations notwithstanding, it also follows from other provisions of the Federal Elections Act that the use of voting machines is only permissible if the principle of public elections is observed. § 31 of the Federal Elections Act provides that the polling process is public. § 35(3) first sentence no. 4 of the Federal Elections Act authorises the issuing of rules regarding the public testing of voting machines before they are used.

IV. 

143

The Federal Voting Machines Ordinance is unconstitutional because it violates the principle of public elections under Art. 38 in conjunction with Art. 20(1) and (2) of the Basic Law. The Ordinance does not raise constitutional concerns on the grounds that the extension of its scope of application to include computer-based voting machines by the Ordinance of 20 April 1999 Amending the Federal Voting Machines Ordinance (BGBl I p. 749) exceeded the authorisation in § 35 of the Federal Elections Act. However, the Federal Voting Machines Ordinance does not contain any rules to ensure that only voting machines are approved and used that satisfy the constitutional requirements arising from the principle of public elections.

144

1. Insofar as the Ordinance of 20 April 1999 Amending the Federal Voting Machines Ordinance and the European Electoral Ordinance (BGBl I p. 749), which entered into force on 24 April 1999, sets out the prerequisites for the use of computer-based voting machines, it is within the scope of the authorisation granted by § 35 of the Federal Elections Act in the version applicable on 24 April 1999. This version permitted the use of voting machines ‘with independent counters’ (§ 35(1) Federal Elections Act). It is true that the deletion of the words ‘with independent counters’ was subsequently deemed necessary ‘in order to adapt the Federal Voting Machines Ordinance to technical developments of voting machines’ (BTDrucks 14/401, p. 5). This assumption made during the legislative process that amended § 35(1) of the Federal Elections Act can, however, not be decisive for the interpretation of the provision in its version prior to the amendment. The wording of this previous version did allow to extend the scope of application of the Federal Voting Machines Ordinance to include computer-based voting machines. The term ‘counter’ merely means that quantities, flow rates or other variables are automatically determined and displayed ([…]). According to the wording, this includes electronic or software-controlled counters in computer-based voting machines. According to the view of the ordinance-issuing authority, the element ‘independent counters’ is merely meant to make reference to the requirement that ‘first votes’ (Erststimmen) [votes cast for a candidate in the voter’s constituency] be counted ‘independently from second votes’ (Zweitstimmen) [votes cast for a political party]. This is also possible on computer-based voting machines thanks to electronic counters. Although the legislator could not have taken into consideration the use of microprocessor-based voting machines when enacting the original version of § 35(1) of the Federal Elections Act ([…]), neither the wording nor the purpose of § 35 of the Federal Elections Act in the version applicable when the Ordinance Amending the Federal Voting Machines Ordinance entered into force on 24 April 1999 suggest that computer-based voting machines were to be excluded from the authorisation to issue ordinances.

145

2. The Federal Voting Machines Ordinance violates the principle of public elections under Art. 38 in conjunction with Art. 20(1) and (2) of the Basic Law, because it does not guarantee effective scrutiny of the polling process and possibilities to reliably verify the results when computer-based voting machines are used. These shortcomings cannot be remedied through an interpretation in conformity with the Constitution.

146

a) The principle of public elections requires that, when computer-based voting machines are used, the key steps of the polling process and the determination of the result can be scrutinised reliably and without any specialist knowledge. The Federal Voting Machines Ordinance does not contain any provisions ensuring that this is the case.

147

In particular, it does not follow from the ordinance that only voting machines may be used that allow voters to reliably check whether their vote has been recorded accurately. The ordinance also fails to set specific substantive and procedural requirements regarding reliable ex post scrutiny of the determination of the results.

148

The obligation to seal computer-based voting machines and the memories on which the votes are stored after the determination of the results (§ 15(3) Federal Voting Machines Ordinance) and to ensure that the storage units are not accessible to unauthorised third parties (§ 16(2) Federal Voting Machines Ordinance) is not sufficient in this regard. This is because even though the storage units can be read again at any time after the end of the election day with the help of a voting machine, such a recount is only based on the electronically stored votes – neither voters nor the electoral board can check whether they have been recorded accurately. Citizens cannot scrutinise the key steps of the determination of the results when the recount is done inside the voting machine.

149

The counting of the number of voters marked as having voted in the electoral roll and of the ballot papers collected and their comparison with the total number of first and second votes displayed by the voting machines (cf. § 13 Federal Voting Machines Ordinance) only makes it possible to check whether the voting machines have processed as many votes as there were voters authorised to use the voting machines. This does not guarantee public scrutiny of the key steps of the polling process and the determination of the results.

150

b) The Federal Voting Machines Ordinance cannot be interpreted in conformity with the Constitution to the effect that only voting machines may be used that satisfy the principle of public elections.

151

Applying the Federal Voting Machines Ordinance in conformity with the Constitution – by stipulating that the Federal Ministry of the Interior may only grant approval of the voting machine designs and authorisation to use them if effective scrutiny of the polling process and the determination of the results is guaranteed ([…]) – would require an interpretation of the ordinance in a manner that exceeds the limits of constitutional interpretation. In principle, the ordinance-issuing authority has different possibilities of ensuring that the key steps in the polling and counting process can be scrutinised. Given that it is not ascertainable from the Federal Voting Machines Ordinance in its current version how such scrutiny could take place, there is a lack of constitutionally required regulation, and thus of sufficient indications on which an interpretation in conformity with the Constitution could be based.

152

In this regard, it must also be taken into consideration that the Federal Ministry of the Interior, the ordinance-issuing authority, does not consider that possibilities of scrutiny, which are constitutionally necessary to effectively monitor the polling process and the determination of the results, are required by law or expedient. The Ministry stated this clearly in the present proceedings.

V. 

153

Furthermore, the computer-based voting machines used in the elections to the 16th German Bundestag did not comply with the constitutional requirements applicable to the use of electronic voting machines.

154

The use of the electronic voting machines manufactured by Nedap, type ESD1, hardware versions 01.02, 01.03 and 01.04, and type ESD2, hardware version 01.01, violates the principle of public elections (Art. 38(1) in conjunction with Art. 20(1) and (2) of the Basic Law), because these voting machines do not allow for effective scrutiny of the polling process and possibilities to reliably verify the results.

155

Votes cast were exclusively stored in an electronic memory. Voters, the electoral boards and citizens present in the polling station were unable to verify whether the votes cast were accurately recorded by the voting machines. Members of the electoral board could merely see on the display of the control unit whether the voting machines registered a vote, but not whether the votes were recorded by the voting machines without any changes. The voting machines did not enable the recording of votes in an independent form in addition to electronic storage in the memory, which would have made it possible for voters to verify that their vote was accurately recorded.

156

The public also could not verify the key steps through which the voting machines determined the results. Since the results were only determined based on data processing inside the voting machines, neither the electoral organs nor the citizens present for the determination of the results could verify whether the valid votes cast were correctly assigned to the respective candidates and parties and whether the total number of votes cast for the respective candidates and parties were correctly determined. It was not sufficient that the result of the computing process on the device could be seen on a summarising paper printout or an electronic display. A process of public scrutiny in the context of which citizens could have verified the determination of the results themselves, reliably and without any prior technical knowledge, was thereby ruled out.

VI. 

157

There is no need to decide here whether the other challenges raised are well-founded. […] Ultimately, the complainants challenge the use of the computer-based voting machines used in the elections to the 16th German Bundestag. Even if the other challenges were well-founded, such electoral errors would not be of special significance given that a violation of the principle of public elections under Art. 38 in conjunction with Art. 20(1) and (2) of the Basic Law has already been established.

VII. 

158

The electoral errors found do not result in the electoral complaints being granted and the election in the specified constituencies being repeated.

159

1. The allocation of seats in parliament was not affected by the electoral error which resulted from the approval of specific designs of computer-based voting machines manufactured by Nedap, the authorisation of their use in the elections to the 16th German Bundestag and their actual use in these elections. This is because the approval and use of voting machines despite an inadequate legal basis does not, as such, have an impact on the results.

160

2. The electoral error which arose from the approval and use of computer-based voting machines that were incompatible with the requirements regarding effective scrutiny of the voting process would not lead to a declaration of partial invalidity of the elections to the 16th German Bundestag, even assuming that it affected the allocation of seats in parliament.

161

a) In cases in which an electoral error may have affected the allocation of seats in parliament, the Federal Constitutional Court’s decision in electoral scrutiny proceedings is subject to the principle of minimum interference. The Federal Constitutional Court’s decision may only go as far as is required by the error identified in the electoral process. In principle, the interest in safeguarding the status and stability of an elected parliament (cf. BVerfGE 89, 243 <253>), which is rooted in the principle of democracy, must be balanced against the actual impact of the electoral error in question. Therefore, an election does not become invalid on the grounds that it was influenced in a simple manner that was of no significance. A decision in electoral scrutiny proceedings that interferes with the composition of an elected parliament must be justified in light of the interest in safeguarding the status of the elected parliament (cf. BVerfGE 121, 266 <311 f.> with further references). Where an electoral error that affects the allocation of seats in parliament can be limited to specific seats, meaning that it is not the entire election that would have to be declared invalid, a balancing must be conducted whose outcome may be in favour of the interest in safeguarding the status and stability of parliament.

162

b) In the present case, the interest in safeguarding the status and stability of parliament, whose composition was determined in the expectation that the Federal Voting Machines Ordinance was constitutional, takes precedence over the electoral errors found here. The potential consequences of these errors for the composition of the 16th German Bundestag are at most marginal, as there is no indication that voting machines were faulty or could have been manipulated and consequently, no indication that the results might have been different in the affected constituencies if computer-based voting machines had not been used. Such uncertain consequences are not capable of justifying a declaration of partial invalidity of the elections to the 16th German Bundestag, as requested by the complainants. It must also be taken into account that the violation of constitutional law was not deliberate, but occurred in the context of an unclear legal situation. In light of the foregoing, there is no electoral error under the present circumstances that would make the continuation of the elected parliament appear intolerable.

C. 

163

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