Usually fighting for public rights and observable elections is just like running on a hamster wheel -- constant battles about uncertified, defective voting machines, hiding freedom of information documents, and quibble, quibble, quibble about hand counts, spot checks, digital signatures, cryptography, certifications, testing...but Germany just took a big short cut and got off the hamster wheel altogether! We can learn a lot from what Germany just did.
What's important is WHY Germany banned computerized voting. Newspapers gave the impression that Germany banned e-voting due to "security issues" or bugs. NOT SO: The ban was based on HUMAN RIGHTS VIOLATIONS. This stopped e-voting dead in Germany. No more hamster wheel.
This decision represents spectacular progress for the US voting rights groups who believe computerized, secret vote counting violates inalienable rights. Germany gave us effective argumentation for this. It starts with reframing the issue of computerized voting into basic human rights.
The details of Germany's knock-out punch arguments are below. If you feel uncomfortable about computerized voting, the controversial Help America Vote Act (HAVA), and the new 2009 Holt Bill that expands on HAVA, here's real hope for change.
For years now, leaders like voting rights lawyer Paul Lehto, Nancy Tobi (Democracy for New Hampshire/Election Defense Alliance), New York's Andi Novick, and Bev Harris of Black Box Voting, and have been examining these issues from the standpoint of human rights. We believe that counting votes on computers controlled by insiders violates inalienable rights, specifically the right to public scrutiny of public elections.
Last week, Germany's Supreme Court equivalent, its federal constitutional court, issued a decision that computerized vote counting is unconstitutional.
HEY, AMERICA IS NOT GERMANY
But the principles in the German decision are very much in line with the principles underlying our own democratic structure.
As Paul Lehto explains, "We [the USA] insisted on the human rights provisions as a condition of approval of the post-war German Constitution. The Universal Declaration of Human Rights came out in December 1948, and the German Constitution was signed off by Allies and went into effect May 23, 1949. We insisted on human rights, including free, genuine public elections, for post-war Germany. We conditioned our approval specifically on these human rights being 'inviolable and inalienable.' Meaning, they can't be violated and they can't be lost, waived or forfeited."
WHAT WOULD GERMANY DO ABOUT COMPUTERIZED VOTING MACHINES?
Last week's decision by Germany's high court ultimately prohibits voting machines from further use. Reasoning behind the decision is not about "security" or "bugs", but is specifically about human rights violations:
"The use of voting machines which electronically record the voters’ votes and electronically ascertain the election result only meets the constitutional requirements if the essential steps of the voting and of the ascertainment of the result can be examined reliably and without any specialist knowledge of the subject. "
It goes on to state that such examination must be available to the public; in fact it says "A complementary examination by the voter, by the electoral bodies or the general public";
"The use of electronic voting machines requires that the essential steps of the voting and of the determination of the result [the count] can be examined by the citizen reliably and without any specialist knowledge of the subject. This requirement results from the principle of the public nature of elections"
WHAT WOULD GERMANY DO ABOUT THE HELP AMERICA VOTE ACT and THE HOLT "VOTER CONFIDENCE" BILL (1) (WHICH EXPANDS ON HAVA)?
Germany had its own version of something similar to HAVA. This court decision declares that legislation to be unconstitutional.
"The Federal Voting Machines Ordinance is unconstitutional because it infringes on the principle of the public nature of elections.
"The Federal Voting Machines Ordinance (Bundeswahlgeräteverordnung) is unconstitutional because it does not ensure that only such voting machines are permitted and used which meet the constitutional requirements of the principle of the public nature of elections. "
In various parts of the decision, it makes it clear that the right to public scrutiny cannot be removed in order to make sure voters don't make a mistake on their ballot, cannot be removed for speedy results, cannot be removed and
replaced with something else that does not involve the citizens themselves.
WHAT WOULD GERMANY SAY ABOUT CERTIFICATION AND TESTING OF VOTING MACHINES?
The USA has a decades-long history of inept and corrupt certification and testing processes. Just last week, the EAC admitted that it doesn't understand its own technical reports (leading us to wonder how "the public" is supposed to make sense of any of this.)
Here's what the German decision says about certification and testing:
"Limitations of the possibility for the citizens to examine the voting cannot be compensated by an official institution testing sample machines in the context of their engineering type licensing procedure, or the very voting machines which will be used in the elections before their being used, for their compliance with specific security requirements and for their technical integrity."
WHAT DOES GERMANY HAVE TO SAY ABOUT TRYING MITIGATING SECRET VOTE-COUNTING WITH AUDITS AND OTHER PROCEDURES?
What Americans have been calling an "audit" is mislabeled, because measures called election audits are actually spot checks, and missing the management report component of real audits; no effort is made to evaluate chain of custody as part of the spot check. But the German court decision correctly pointed out that Government substitution of public scrutiny with its own check is no substitute at all.
"Also an extensive entirety of other technical and organizational security measures alone is not suited to compensate a lack of the possibility of the essential steps of the electoral procedure being examined by the citizens."
The German decision should bring encouragement to Americans who just knew something was wrong. It's not just you. A whole nation agrees! Now, to get our own country to protect and defend our rights. This starts by clearly stating what we really want: public scrutiny of all phases of public elections.
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(1) 2009 version of Holt "Voter Confidence" bill:
(2) Official English translation of the government statement on the German decision:
(3) German version: http://www.bundesverfassungsgericht.de/pressemitteilungen/bvg09-019.html
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