November 17, 2022,
“The opinion of the German Constitutional Court is that the voting machines are not reliable. And they don’t comment on whether or not there are forged ballots.”
This is what the chairwoman of the Bulgarian Socialist Party (BSP) Korneliya Ninova says in the program “Face to face” on BTV.
In the same interview, she claimed that the party’s position had always been for mixed voting and its proposals were “from start to finish, yes, machines, it’s nice, but also the right to choose”.
Factcheck.bg collected the facts on the subject.
Germany’s Constitutional Court ruled on the subject of machine voting in the country in March 2009, and its decision related to the 2005 federal elections. The court’s decision does not state that the machines are “unreliable”, as the chairwoman of BSP claims.
According to the decision, the machine voting in the federal elections in Germany in 2005 contradicted the Constitution of the country because the organization of the electoral process itself did not comply with the requirements for transparency and publicity.
The Constitutional Court in Germany says that the electoral process by machines should be as transparent as possible for all citizens, including those without technical knowledge in the specific matter. This is precisely the requirement for the publicity of elections, which is written in Article 38 of the Basic Law of the Federal Republic of Germany.
This requirement was not met in the 2005 elections as citizens’ votes were counted only in electronic form. The machines did not provide control receipts, only reports with summarized data. In this way, no comparison can be made, nor can the voter check for himself whether his vote has been counted correctly.
According to the court, machine voting is possible and acceptable as long as it is performed in a way that allows the election process to be auditable. As an example, the preservation of the submitted votes in some form other than electronic is indicated.
The Constitutional Court in Germany specifies that there is no evidence of manipulation and fraud that occurred during the 2005 machine elections, which is why it is not necessary to cancel the elections and dissolve the Bundestag.
Although the Constitutional Court in Germany does not prohibit or deny in principle machine voting, so far no other elections with machines have been held in the country. Voting through the post is gaining more and more popularity, and in the 2021 federal elections nearly half of the voters chose to cast their vote this way.
The Bulgarian Constitutional Court on the German decision
The decision of the German Constitutional Court is not the first time that it has been used as an argument against machine voting in Bulgaria. In May 2021, GERB attacked before the Constitutional Court the then fully electronic voting in all sections with over 300 voters.
Their arguments were that the principles of general, equal and direct suffrage with secret ballot, the principle of publicity and transparency, as well as the requirement for control over the electoral process were violated. In the public space, the party representatives highlighted the German case as an argument for their position:
Boyko Borisov: “And the German parliament categorically and their Constitutional Court prohibited this type of voting. We are the only ones in Europe.”
Dani Kanazireva: “If the colleagues had familiarized themselves with the decision of the German Constitutional Court regarding machine voting in advance, they would have seen that the machine vote was categorically declared unconstitutional.”
The Bulgarian Constitutional Court rejects these arguments and points out that machine voting is not unconstitutional and does not violate the principle of equal suffrage, and the legislation meets the requirement for publicity, transparency and control over the electoral process. The voter can check the way the electronic system registers the vote through the control receipt that the machine prints on the paper. This is also the main difference with the German case, where there is no paper copy of the cast vote:
“Both the act of voting and its external reporting can be observed and verified by the voter himself, without requiring special technical knowledge and skills”.
Therefore, the court believes that the arguments of the decision of the German Constitutional Court are “irrelevant” to the Bulgarian case.
The theoretical possibility of voting machines experiencing software errors or being manipulated is not basis for establishing the unconstitutionality of the contested provisions, the Bulgarian Constitutional Court believes.
BSP and the machine voting
Although currently BSP, alongside with GERB and DPS, supports the return of the paper ballot in every section, this was not always the case.
In September 2020, when the return of mixed voting – with paper ballot and machine voting, was discussed, Korneliya Ninova said in the parliament:
“I urge you: accept our proposals for one and only machine voting as a guarantee for the integrity of elections and do not give in to the introduction of paper ballots”.
In 2021, in the 45th National Assembly, BSP supported the introduction of fully machine voting in sections with over 300 voters. And in the elections in April last year, the party called on its voters: “Vote by machine – save a tree”.
A 2009 decision by the German Constitutional Court found unconstitutional only machine voting during the 2005 German federal elections, not machine voting in general. The court did not define the voting machines as “unreliable”. BSP’s position on the issue of machine voting has changed over the years. The party has supported both “one and only” machine voting and the return of the paper ballot as an option.
Translated by Vanessa Nikolova