3 - The Election regulations today |
  |
3 THE ELECTION REGULATIONS TODAY |
3.1 Introduction |
|
In this chapter, we investigate which rules national constitutions and/or legislation provide for public elections and how the basic principles, set forth in the international regulations analysed above, are being concretised.
The analysis will mainly extend to the rules relating to the voting process. It is not at all the intention to make a detailed analysis of this procedure, country per country. In the contrary, this report intends to point out, in general, the requirements, difficulties and restrictions for implementing an online voting system and to point out, in general, which changes in election regulation will have to be made in order an online voting system to be able to be implemented.
The following aspects of the voting process will be important for implementing an online voting system:
1. Voting place
2. Period during which voters can cast their vote
3. Authentication and determination of eligibility of the voter
4. Presentation of the list of candidates
5. Notification of the voting procedure to the voter
6. Way in which votes are cast
7. Transfer of the ballot to the voting authority
8. Tabulation of the ballots and collection of the totals
3.2 The Netherlands |
|
In 1999, the Dutch Minister for Urban Policy and Integration of Ethnic Minorities has started a project "Distance Voting". This project investigates if elections could be made more accessible by applying modern information and communication technologies.
The aim of the project is to modernise the elections and to make them more attractive, to lower the barriers to vote and to enhance citizens' involvement in the democratic process.
The first milestone for the project will be to enable voters to vote at a polling place of their choice, without having to apply for a voter's passport21. This accords with stage 2 of the polling place Internet voting system, as provided by the California Internet Voting Task Force.22 Therefore, a system of "electronic distance voting" is being developed. During the 2003 elections, a major experiment will be organized.
An other object of the project is to investigate if it will be possible in the future to implement a true remote Internet voting system, in which the voter could vote for instance from his home computer.
In regard of the requirements for elections, as described in the Dutch Constitution and Election Law, the project expects the legislation will have to be changed quite substantively. The Election Regulations do prescribe rigorously the way in which elections have to be organized. Accordingly, also the new voting techniques will have to be described in these regulations.
As to the first milestone, the project will develop a new kind of online voter's register, which can be consulted distantly, since it would be impossible to have a paper register of all eligible voters of the whole country at each polling place. The register will be available online, so it can be consulted at any polling place. Such a register should also guarantee that a voter could not cast multiple votes at different polling places. The Dutch "Expert Centre" (consultants for the application of Information Technology for government) has analysed the technical feasibility of such a voter's register, which would enable the implementation of future distance voting systems. In its final report ("Definition Report Distance Voting"23), the expert centre concludes that it would be technically possible to create such a countrywide voter's register and that this online register could be developed for the distance voting experiment in 2003.
A system will also be developed which provides the voter with the correct list of candidates.
Since the identification of the voter is a major aspect of the voting process, an electronic voter identification system (eID) will be developed. Another Dutch project, "new generation of travel documents" investigates the possibilities of such a system. The system will use biometrical characteristics for authentication. The applicability of eID for public elections will be tested in a number of pilots during 2001.
Finally, a virtual polling station will be developed, in which the voter can cast his vote in a secure way, independent, anonymous and user-friendly. It is the intention the virtual polling station to be accessible from a computer in a traditional polling place, in public buildings, libraries, stations and in the future from the voter's home computer.
3.2.2 Traditional Voting Procedure
The following analysis is based on the Dutch Election Law and on the Definition Report Distance Voting of the Expert Centre. The different steps in the voting procedure are described and the requirements in Dutch Voting Regulations are investigated.
The traditional Dutch voting procedure is based on voting at a polling station, with paper ballots.
Voting is not compulsory in the Netherlands.
3.2.2.1 Voting place
The voter has to cast his vote in a designated polling station, which is located in the municipality where the voter is registered (Article J3 and J5 Election Law).
The Election Law however provides some exceptions.24
The Law also prescribes that as many polling stations as possible are positioned and equipped in a way adapted to disabled voters (Article J4/2).
3.2.2.2 Opening and closing of the election
In due time before the beginning of the election, the ballot box is closed, after it is clearly stated that the box is empty (Article J18/2).
Before the election begins, the number of ballots is determined (article J23).
The chairman of the polling station has the key of the ballot box, which he opens at the start of the election.
The Election Law provides (Article J 12) that during the whole time of the election the chairman and two members have to be present at the polling station.
The chairman might be obliged, due to a certain disrupt of the election process, to temporarily close the ballot box.
When the election period is finished, no new voters are allowed inside the polling station. Only those voters, who are inside the station at that moment, are allowed to cast their vote (Article J 30).
After that, the chairman closes the ballot box.
3.2.2.3 Authentication of eligible voters
Since one voter can only vote in an election in which he is eligible to participate, the person who presents at the polling place has to be able to be identified with a certain degree of reliability.
The voter presents at the polling station with his election card (Article J 24), which he has received at least two weeks in advance of the election (Article J 7). This card mentions inter alia which election the voter has access to.
The voter then hands over his election card to the chairman (Article J 24/1).
The election authority subsequently determines the correspondence between the information on the election card and the content of the voter's register. This register contains the identities of all eligible voters for a particular polling station.
Finally, it is marked on the register that the voter has presented.
It is remarkable that the Dutch Election Law does not require the voter to be unequivocally identified. It is argued that this is not necessary because:
· The number of voters per polling station is limited (1500 to 2000).
· The voter's register contains a few biometrical indicators (sex, nationality, age), which have to be judged by the members of the polling station.
The Election Law does however provide that the chairman can ask the voter to identify him/herself (Article J 24). But the Law does not prescribe how this identification has to be done.
3.2.2.4 Presentation of the list of candidates
The list of candidates is made public in due time before the election (Article I 17 and J 9).
The voter receives a ballot, which contains the same list of candidates (Article J 26). A model for the ballot is provided by Ministerial Regulation (Article J 20/2).
The election card allows the voter to vote at only one particular polling station (Article J 24). At each polling station, the voters can cast their vote using only an official ballot, containing only one list of candidates.
3.2.2.5 Publication of the voting procedure
The voter has to know how he has to cast his vote, in order to prevent a voter to lose his voting right due to formal mistakes.
The members of the polling station inform the voter which procedure has to be followed, and they make sure the voter has understood.
A copy of the legal prescriptions concerning the election has to be present at the polling station (Article J17/2).
In each voting booth lies a manual for the voters. A model is provided by a Regulation of the Minister (Article J16/3).
3.2.2.6 The casting of the vote
Article 53 of the Constitution provides that the elections are organised with secret vote.
The polling station has to be organised in a way that guarantees voting secrecy (Article J 15).
The polling station is provided with one or more voting booths (Article J16/1).
The voter receives the ballot and goes to the voting booth in which he casts his vote, by colouring red the white bullet next to the candidate of his choice (Article J26/1).
It is not allowed to mark the ballot other than marking the bullet next to a candidate. It may not be possible to connect a certain ballot with an identifiable voter (Article N7).
Disabled voters who need help are allowed to be accompanied (Article J28).
The table of the members of the polling station has to be placed in a way that voters can see their actions (Article J16/4).
Within the polling station, no activity is allowed which intends to influence voters (Article J36). No political propaganda is allowed inside the polling place (Article J35 and J36). The members of the polling station are not allowed to express their political preference during the execution of their task (article J14).
The chairman is responsible for the maintenance of peace and order during the election and to the prohibition of political advertisement (Article J37).
The voter has to be able to correct his choice, before handing over his choice to the election authority. Article J27 provides the possibility for the voter to receive a new ballot once. The chairman immediately makes the old ballot invalid.
The Election Law provides that an observer is allowed to be present in the polling station during the whole time of the election (Article J39).
The voters are allowed to orally object if they think the election process doesn't comply with the Election Regulations (Article J35/2).
The election has to pass by without major disturbances (Article J38).
The chairman notes the number of ballots issued (Article J 24/6).
3.2.2.7 Transfer of the ballot to the election authority
After the voter has cast his vote, his choice is transferred to the election authority and the connection between voter and vote is cut.
The ballot is folded before the voter leaves the voting booth (Article J26/2).
The election authority at the polling station sees to it that the voter puts the ballot in the ballot box (Article J26/3).
It is marked on the voter's register that a voter has executed his voting right.
3.2.2.8 Tabulation of the ballots
After the end of the election, the polling station determines and informs the voters present of:
· The number of voters who have presented at the polling station;
· The number of ballots distributed;
· The number of voters who refused to put the ballot in the ballot box;
· The number of returned and invalidated ballots;
· The number of ballots not used.
The voter's register, the ballots not used, the returned and invalidated ballots and the election cards are put together and sealed (Article N1and N2).
After this, the chairman of the polling station opens the ballot box and the ballots are removed. The chairman makes sure all the ballots are removed (Article N3).
The ballots are counted manually and the number is compared with the number of voters who participated in the election (Article N4).
The members of the polling station subsequently control if the ballots are valid (Article N7-N8). The chairman has to inform the voters present with the reason of invalidity. The voters present are allowed to see the ballot concerned and to orally object. The invalid votes are put together and sealed and the name of the community and voting district, as well as the number of ballots in the package is marked (Article N9/2).
If a ballot is not valid, this is recorded and the vote is not counted. If a ballot is valid, the vote is recorded under the corresponding candidate (Article N6).
The valid ballots are put together and sealed and the name of the community and voting district, as well as the number of ballots in the package is marked (Article N9/1).
The total of the votes per candidate and per list is determined.
Finally, an official record is made, which inter alia contains all objections and which is signed by all members of the polling station.
3.2.2.9 Gathering of the totals
This step only occurs if the votes for the same election are cast at multiple geographical locations (different polling stations). There are four levels: polling station, municipality, head polling station and central polling station.
The official records and the ballot-packages are gathered on municipality level. The totals are put together per candidate. The total on municipal level per candidate is again written down in an official record.
Dependent on the kind of election (municipality, province, country, Europe), the official record is sent to a higher level, in which the above explained is repeated.
3.2.3 Alternative Voting Procedures
The Dutch Election Law provides a number of particular voting procedures, which might be important for implementing an online voting system: voting at a polling station of choice, mobile polling stations, voting by proxy, voting by mail and voting without paper ballots.
3.2.3.1 Voting at a polling station of choice
Citizens in principle have to vote in their own municipality (Article J3 Election Law), but exceptions are provided.
If requested, a voter can vote in a particular polling station of his choice, as long as he remains in the area of the organ for which the election is organized (article K1).
The request can be done in writing, at the latest 14 days before the beginning of the election (Article K6). The voter has to use a form, which he can find at the municipal secretary.
The request can also be done orally at the municipal secretary (Article K10), after the election card is received, at the latest 5 days before the beginning of the election.
The permission is marked on the election card and the voter receives a voter's passport. The voter can only participate in the election with this passport (Article K4).
On the voter's register, the word "passport" is marked (Article K5).
When the voter presents at the polling station, he has to hand over his voting pass to the chairman. On the voter's register is marked that the voter has presented.
3.2.3.2 Mobile Polling Stations
The election law provides the possibility to install so-called "Mobile Polling Stations" (Article K13 Election Law).
These stations, which are supplementary to traditional polling stations, are intended to provide disabled and older voters, for whom the traditional polling stations are hard to reach or not adapted to their needs, the possibility to vote. These people have to ask for a special passport (which is different than the voter's passport for voting at a polling station of choice).
During the election, the station can be moved from one to another place. During transportation, the ballot box is locked and the key is kept by the chairman. The ballot box is opened again in the presence of the voters present.
3.2.3.3 Proxy-voting
Voters, who expect not to be able to personally participate in the election, can vote by giving proxy to another voter.
A voter can only accept two mandates at the same time. This voter receives a proof of the mandate.
The voter can request to vote by proxy in writing or orally. With the former, the mandate has to be requested free of charges by using a particular form. With the latter, the election card has to be signed and given to the other voter.
The mandated voter has to be eligible to vote in the region for which the election is held.
The name of the voter who gave proxy is marked with the word "proxy" on the voter's register (Article L13).
Because there has been a lot of fraud with this system, the regulation has changed substantially. In order to prevent fraud, a lot of sanctions and a few grounds for refusing a written proxy have been provided.25
3.2.3.4 Vote by mail
A category of citizens are allowed vote by ordinary mail. Citizens residing abroad, permanently or for professional reasons can vote by mail, since a procedure with mandates would become too complicated.
Since the possibility to vote by mail can be very important for an Internet voting system, the conditions and procedure will be overviewed.
From 1983 on, the following persons can vote by mail (Article M1):
· Voters who have their real residence outside the Netherlands on the day the candidates are put forward.
· Voters who reside outside the Netherlands on the day of the elections, because of the profession or activities of themselves or of their husband/wife, partner or parent.
During the law-enacting procedure, the Second Chamber has insisted on enlarging the number of people who are allowed to vote by mail. The proposition was finally not accepted, due to a negative advise of the Election Council26 and the VNG27. Mainly the argument that voting by mail would be very sensitive to fraud (letters could easily be intercepted) convinced the Election Council to give their negative advice.
Voters who reside outside the Netherlands have to request (in writing) to be registered as eligible voter (Article D3). The other voters are registered automatically when they become eligible to vote (Article D1).
In order to be able to vote by mail, voters residing abroad have to request a "vote-by-mail"-certificate, together with their request for registration (Article M3/1). The other voters have to request (written) such a certificate at their municipality.
If the voter complies with one of the conditions mentioned above, he receives a ballot, an envelope, the certificate and an instruction manual. He does not receive an election card.
The voter has to fill out the ballot correctly.
The voter has to fold the ballot in a way that the names of the candidates cannot be seen.
The voter has to sign a declaration on the certificate that he has filled out the ballot personally.
The voter then mails all this to a polling station, which is appointed to particularly count the mailed-in ballots.
At this polling station, first of all the correspondence of the signature on the certificate with the signature on the request form, is controlled by a first member of the polling station. The ballot, which is still folded, is then given to another member of the polling station, who puts the ballot, still folded, in the ballot box (Article M10).
3.2.3.5 Voting without paper ballots
The Election Law provides the possibility the votes to be cast at certain polling stations differently than by using paper ballots.
In general, all the rules for traditional elections analysed above apply, except for the rules that concern the use of paper ballots.
Voting without paper ballots is allowed only when a certificated system is used. A system has to be certificated by the Minister of Interior Affairs.
A system is only certificated, if at least the following conditions are fulfilled:
· The secrecy of the vote is guaranteed, also if the voter does not want to make a choice;
· The material of the system has to be sound, the system has to be easy to use and has to be able to operate without the risk of disturbances or inadequate functioning;
· The lists of candidates, the number of each list and the indication of the political party have to be clearly indicated;
· The voter may not be able to cast more than one vote;
· The voter must have the opportunity to correct a mistake.
The Election Law provides that other Regulations can prescribe additional rules for voting without paper ballots. These rules have to be determined in correspondence with the prescriptions of the Election Law concerning traditional voting by paper ballot.
The Election Regulation and the Regulation Conditions and Approval Voting Machines of 1997 provide such other rules.
As to the voting procedure, the following particularities are to be mentioned.
When a voting machine or a voting computer is used, the votes cast are stored electronically in the memory of the machine or computer. Subsequently, a printout is made of the totals of votes per candidate. The result is written down in an official record.
The official records and the "PC-memories" are gathered on municipality level. The memories are read in particularly designed software and the totals are put together per candidate. The total on municipality level per candidate is again written down in an official record.
3.2.4 Possibilities of Internet Voting in the Netherlands
3.2.4.1 General
As mentioned in the introduction, the final goal of the Dutch project "Distance Voting" is to enable the citizens to vote from any random location (stage 4 of the division proposed by the California Internet Voting Task Force28).
The first step however is to enable citizens to cast a vote from any official polling station. This step corresponds with the stage 1 and 2. But also stage 3 is envisioned: voting from "pillars" that are placed in public places, like community houses, libraries and train stations.
In order to implement this first step, the following activities will have to be developed:
· Modification of the Election Law;
· Building a voter's register which can be consulted country-wide;
· Building a reliable identification system that can determine the identity from a distance;
· Designing, building and testing of a virtual polling station, containing the voting software.
The final report of the study performed by the Expertise Centre states that stage 1, 2 and 3 are realisable in a 2003 election pilot.
However, the Centre finds this only to be executable in a safe way, if a so-called closed network is used. This condition is put forward, because of the risk of intentional overload of public networks like the Internet. If this happens, voters will not be able to cast their votes during a certain period. However, the implementation of such a new network would cost a lot.
The Dutch Minister for Urban Policy and Integration of Ethnic Minorities does not agree with the opinion of the Centre about open networks. He decides that open networks like the Internet will be used, because they are a primary condition for implementing a stage 4 system.
The centre finds it not (yet) feasible to implement stage 4 (voting from any location) by 2003, because of 4 risks:
· The possibility of undue manipulation of the system to illegitimately influence the election result (the use of a home PC is not controlled by the election authorities);
· The possibility of an intentional overload of the network to disturb the election process;
· The big diversity of hard- and software;
· The possibility to coerce voters or to buy votes.
However the Minister recognises these risks, it remains the final goal to implement stage 4, be it on a bit longer run. The Minister finds stage 4 particularly interesting for citizens residing abroad or for organising referendums.
3.2.4.2 Legal issues
As analysed above, the Election Law prescribes very detailed how elections have to be organised. This regulation is mainly based on polling place voting.
The Election Law provides the possibility to implement voting systems that do not use paper ballots.
As mentioned above such a system has to be certificated. A certificate is only issued, if the following conditions are met:
· The secrecy of the voting is guaranteed, also if the voter does not want to make a choice;
· The material of the system has to be sound, the system has to be easy to use and has to be able to operated without the risk of disturbances or inadequate functioning;
· The lists of candidates, the number of each list and the indication of the political party have to be clearly indicated;
· The voter may not be able to cast more than one vote;
· The voter must have the opportunity to correct a mistake.
The Election Law provides that other Regulations can prescribe additional rules for voting without paper ballots. These rules have to be determined in correspondence with the prescriptions of the Election Law concerning traditional voting by paper ballot.
The Election Regulation and the Regulation conditions and approval voting machines of 1997 provide such other rules.
Based on these Regulations, voting computers with touch-screens are allowed.
The parliament has however explicitly stated that the rules for voting without paper ballots do not give the possibility to apply new techniques that differ from voting at a polling station with an election authority. For the moment, Distance Voting Systems thus seem to be excluded.
The Minister proposes to create a separate and temporary legal ground for the pilot elections in 2003.
3.2.4.3 Conclusion
The Dutch Government is seriously considering the implementation of an Internet voting system. Therefore, different studies are carried out as to the modification of the Election Regulations, the realisation of pilot projects concerning the electronic identification (e-ID - pilots in 2001) and concerning a stage 2 polling place online voting system29 (pilot planned in 2003).
It is the explicit intention of the Minister for Urban Policy and Integration of Ethnic Minorities to implement a remote online voting system, which allows citizens to cast a vote from any public place ("voting pillars") or from home or work.
3.3 Belgium |
|
Today, Belgian government has not taken any initiative concerning distance voting yet.
In general, online democracy has only recently been introduced in Belgium.
Last year however, two members of Senate have proposed the enactment of a Law concerning Internet voting. The content of this proposal will be integrated in the analysis below.
Also a proposal has been made as to the development of an electronic identity card, which could also be used for generating a digital signature.
It is to be remarked that the Belgian Election Law in a very detailed way describes how traditional elections are to be conducted.
In 1994, a Law has been enacted to make possible electronic elections, in which voters are able to cast their vote using an election computer.
Finally, it might be important to know that voting is obligatory in Belgium.
3.3.2 Traditional Voting Procedure
In general, Belgian territory is divided into three voting districts: a Flemish and a Walloon district, and a district of Brussels-capital. Each district has a head station. These districts are divided into voting cantons. Each canton has a head station, vote tabulation stations and polling stations.
3.3.2.1 Voting place
The Belgian Constitution prescribes in article 62 that the election is conducted in the municipality. However, a Law may provide for exceptions.
The Election Law provides that the election takes place at the municipality where the voter is registered (Article 4).
Each municipality is divided in departments of 500 to 800 voters (Article 90). Each department votes in a different voting room (Article 91).
3.3.2.2 Opening and closing of the election
At the latest 15 days before the election, the day of the election and the moment of opening and closing of the polling stations have to be published in the Official Publication of Belgian Laws and Statutes (Article 107).
The day before the election, the ballots needed are sent to the chairman of the polling station. The envelope is opened in the presence of the election staff. The ballots are counted immediately and the number is written down in an official record.
The voters are allowed to vote form 8 a.m. till 13 p.m. Voters who are present in the voting room at 13 p.m. are allowed to cast their vote (Article 142).
3.3.2.3 Authentication of eligible voters
Every municipality makes a voter's list, which mentions the first name and surname, date of birth, gender and place of main residence (Article 10).
The municipal council makes public that citizens are able to check if she him/herself or anyone else is on the list and with the correct references (Article 16). The list of eligible voters is posted at the polling station (Article 112).
The municipality is obliged to give copies of the voter's list to the political parties who demand this. The municipality is not allowed to give copies of the voter's list to other persons (Article 17).
Each eligible voter receives an election card. This card states the day of the election, the voting room and the moment of opening and closing of the polling station. The election card mentions the first name and the surname, the gender and the main residence of the voter, the name of his/her wife/husband and his/her number on the voter's register (Article 107).
The voter has to present with his/her election card and his/her identity card. The chairman or designated member of the polling station checks if the elements on the voter's list correspond with the elements on the election card and the identity card (Article 142). His/her name is marked on the voter's register.
It is not allowed to present at the polling station for another voter (Article 201) (unless proxy-voting30).
3.3.2.4 Presentation of the list of candidates
When the candidates are determined, the list of candidates has to be posted immediately in each municipality (Article 127).
The ballot has to be designed in conformity with a model (article 127).
The Election Law provides a lot of details about the ballot: the lists of candidates have to be placed next to one another on the ballot, on top of each list of candidates has to be placed a voting box and a number (at least one cm high and 4 mm wide), as well as the abbreviation of the political party. A little voting box has to be inserted next to each candidate. Etc. (Article 128)
The ballots are printed, with black ink, on voting paper (Article 129).
The ballots for the Senate are pink, those for the Chamber white. The size of the ballots is determined according the number of mandates and the number of lists of candidates.
3.3.2.5 Publication of the voting procedure
A manual for the voters (according to a model) is posted in the polling station (Article 112). The same manual has to be posted in the municipalities prior to the election (Article 127).
A copy of the entire text of the Election Law is placed on the table of the polling station; another copy is placed at the disposal of the voters (Article 113).
3.3.2.6 The casting of the vote
The votes are cast at a polling station. This station is composed of a chairman, four members and a secretary. The chairman of the head station of the canton appoints the chairman and members of the polling station.
The chairmen and members of the polling stations have to declare on oath that they will preserve the secrecy of the vote (Article 104).
The voting room and the voting booths have to be organised according to a model (Article 138).
There has to be at least one voting booth per 150 voters.
The head station of the canton sees to the election process in his canton (Article 95).
The chairman of the polling station takes the necessary measures to preserve peace and order in the voting room and in the neighbourhood of the building in which the election takes place (Article 109).
It is not allowed to cause any disrupt on the day of the election (Article 203).
It is not allowed to post armed forces in the vicinity of the voting room, unless on demand of the chairman of the polling station (Article 109).
It is not allowed to gather people, even if they are unarmed, in a way that fears the voters or disrupts peace and order (Article 188).
It is not allowed to hinder one or more citizens to exercise their voting right (Article 189).
It is not allowed to, in the voting room, give signs of approval or disapproval openly or to cause disorder in any way. The chairman is allowed to demand the removal of the voter (who still is allowed to vote later on).
Voters are not allowed to reside inside the voting room for a longer period than necessary for filling out the ballot and deposing the ballot into the ballot box (Article 109). Citizens, who enter a voting room without being eligible to vote in that particular room and without being a candidate or member of the polling station, are removed from the room on demand of the chairman of the polling station (Article 110).
No one can be forced to breach the secrecy of his/her vote, not even in a judicial enquiry, a dispute or a parliamentary investigation (Article 114).
No chairman, member or secretary of the polling and no witness is allowed to breach the secrecy of the vote (Article 199).
It is forbidden to offer or promise, directly or indirectly, money, values, any advantage or support, in return for a (non-) vote or a proxy or under the condition the election to have a particular result (Article 181). It is also not allowed to accept such an offer or promise.
It is not allowed to use violence against or threaten anyone or to make someone fear for the loss of a position or for any disadvantage for himself, his family or his property (Article 183).
It is not allowed to give, offer or promise money or any other value under the pretext of a reimbursement of travel or accommodation costs (Article 184). The same counts for giving, offering or promising food or drink. Neither it is allowed to accept such a gift, offer or promise.
The candidates in the election are allowed to appoint a witness to attend the voting process (Article 131).
The voter receives a ballot(s)31 from the chairman. The ballot is folded in four, in a way that the voting boxes on top of the lists are faced inside. The ballot is opened and placed in front of the chairman, who subsequently folds the ballot again and marks the ballot on the outside with a stamp, containing the name of the canton in which the voting takes place and the date of the election.
The voter immediately goes to one of the voting booths and casts his vote.
Only if a voter is, because of a physical deficiency, not able to go to the voting booth by himself or to vote by himself, she may be assisted, but only with permission of the chairman. Both names have to be written down in the official record of the election (Article 143).
If she has damaged the ballot, the voter is allowed to ask the chairman for a new ballot. Accordingly the chairman marks in the official record of the election the number of ballots that have been withdrawn (Article 145).
3.3.2.7 Transfer of the ballot to the election authority
The voter shows the chairman the properly folded ballot (with the stamp on the outside) and deposes the ballot in the ballot box.
The voter is not allowed to unfold the ballot when leaving the voting booth in a way that the vote becomes public. If the voter does so anyway, the chairman collects the ballot, makes it invalid it, and obliges the voter to vote again (Article 143).
The voting mark, even if not perfectly filled out, is valid, unless the intention to make the ballot recognisable is clearly present (Article 144).
3.3.2.8 Tabulation of the ballots
After the closing of the election, the polling station determines the number of ballots that have been put in the ballot box, the number of ballots that have been withdrawn and the number of ballots that have not been used. Those numbers are written down in the official record of the election (Article 147).
The votes are tabulated at a vote tabulation station. This station is composed of a chairman, four members and a secretary.
The chairman of the tabulation station receives a form, which she has to fill out (Article 129).
The candidates can appoint a witness to attend the tabulating process (Article 131).
It is possible that the polling station is also the tabulation station. In that case, after the number of ballots is determined, the ballot box is sealed until the tabulation station is installed.
In the other cases, the ballots are put in an envelope, which is sealed with the seals of all members of the polling station. The number of ballots is marked on the envelope. The same takes place with the withdrawn ballots or the ballots not used and with the official record of the election.
Accompanied by the witnesses, the chairman or appointed member of the polling station immediately transports all the envelopes to the tabulation station (Article 147).
The tabulation station collects the ballots from the polling stations. One polling station cannot be responsible for the counting of the votes of more than 2.400 voters (Article 149).
Five days before the election, it is drawn at random which tabulation station has to tabulate the ballots of which polling stations (Article 150).
Tabulation starts when all envelopes are received (Article 154).
In presence of the members of the tabulation station and the witnesses, the chairman opens the envelopes and counts the ballots, without unfolding them (Article 155).
All ballots are mixed and unfolded.
Subsequently they are classified into the following categories:
(1) Valid ballots for list 1, 2, 3, etc.;
(2) Doubtful ballots;
(3) Blank ballots and non-valid ballots;
The witnesses are allowed to investigate this division. Their complaints, advises and decision of the station are written down in the official record of the tabulation (Art 158).
Two members of the station tabulate the ballots for each classification, the totals are determined and all ballots are deposed into envelopes according to above division (Article 156-159).
An official record is made of these actions, which also contains a table of the result of the tabulation. This table is made up in twofold. The record is signed by the members of the stations and the witnesses (Article 161).
It is allowed to use computer programs for the tabulation, but only if the software is recognised by the Minister of Internal Affairs (Article 165).
3.3.2.9 Gathering of the totals
The head station of the canton collects the results of the voting in the canton (Article 95). This station is composed of a chairman, four members and a secretary.
The official record containing the table of tabulation results is brought to the chairman of the station of the canton.
The chairman puts the tables of the tabulation results in a sealed envelope and sends it to the chairman of the voting district.
On district level, the envelopes are opened (in the presence of the members of the district station and the witnesses) and the votes are tabulated (Article 164).
It is allowed to use computer programs for the tabulation, but only if the software is recognised by the Minister of Internal Affairs (Article 165).
The ballots, the voter's registers and the withdrawn ballots have to be deposed at the Justice of Peace until two days after the election is declaration valid (Article 179).
3.3.3 Alternative Voting Procedures
3.3.3.1 Proxy-voting
The following voters are allowed to give mandate to another voter to vote for them:
(1) Voters who reside abroad permanently (Article 147ter);
(2) Voters who are unable to go to the polling station due to illness or disability;
(3) Voters who, due to their profession or service:
(a) reside abroad, as well as the members of his family;
(b) are unable to go to the polling station;
(4) Voters who are mariner, market vendor or fair traveller and their family;
(5) Voters who are in custody;
(6) Voters who cannot go to the polling station due to their religion;
(7) Students who cannot go to the polling station;
(8) Voters who temporarily reside abroad and therefore cannot go to the polling station.
The voter who gives proxy has to be able to prove his condition with a certificate.
The voter may only appoint his/her wife/husband or a close relative, who is eligible to vote too.
A voter can only receive one mandate.
The mandate has to be written down in a form, which is, according to a model, available at the municipal secretary. The form mentions the election, the first name and surname, date of birth and address of both the voter who gives and the voter who receives the proxy. This form has to be signed by both voters.
In order to be able to vote by proxy, the authorised voter has to give to the chairman of the polling station (at which the voter who has given the mandate should have voted) the above mentioned form, the above mentioned certificate, his/her identity card and his/her election card. On the election card, the chairman notes: "has voted by mandate".
3.3.3.2 Electronic Voting
3.3.3.2.1 Introduction
The organisation and evaluation, both practical and legal, of the computer automated voting systems might be important for assessing the requirements for and limitations of an Internet voting system.
Therefore, and since Belgium has a profound experience in using computers for conducting public elections, the evaluation of the Belgian automated voting systems will constitute a substantial part of present report.
3.3.3.2.2 General
The Law of 11 April 1994 provides the possibility for municipalities to conduct elections using automated voting systems.
An "automated voting system" exists on polling station level and is made up of:
(1) An electronic ballot box;
(2) One or more voting machines, which include a screen, a unit to read and register a magnetic card and an optical pen.
On canton level, one or more electronic systems for the tabulation of the votes exist.
Those systems, electronic voting systems and electronic tabulation systems, in any case have to guarantee reliability, security and vote secrecy.
The systems have to be in conformity with the approval conditions, determined by the Regulation of 18 April 1994. The Minister of Internal Affairs has to decide on this conformity.
The municipalities have to buy the systems, which become their property.
The Minister of Internal Affairs provides the election software, the safety-codes, the magnetic cards and the boot-discs.
After a selection procedure in 1992, two systems have been found suitable for automated voting: the DIGIVOTE-system (Bull-company; 85% of the market) and the JITES-system (companies Philips and Stesud). This does not mean that other suitable systems may not be approved in the future.
The municipalities have the freedom to choose which system they prefer. Since both systems are not compatible however, a problem arises if the municipalities within one canton use different systems.
3.3.3.2.3 Procedure
The day before the election takes place, the chairman of the polling station receives two sealed envelopes. The first one contains a unique password for the polling station, the second one a floppy disc that activates and operates the hardware (the voting machines and the ballot box).
The floppy disc is a boot-disc that can only be used in combination with the correct password. The combination of the password with a code on the boot-disc constitutes the encryption key for the further operations. This key is for example used for calculating the control figure that guarantees the integrity of the software and the data. Alterations in the program or the lists of candidates, caused for example by a virus, can be detected in this way.
The boot-disc is first used to activate the electronic ballot box. The chairman has to introduce the password, which is copied on a magnetic card too.
That magnetic card then is imported into the voting machine (which does not have a keyboard). The voting machine is booted with the boot-disc.
After the voting machines have been booted, the boot-disc is again imported into the electronic ballot box. The votes cast on the magnetic cards will be introduced in the electronic ballot box and registered on the boot-disc.
Voters who present at the polling station receive a magnetic card on which the voting computer will register the votes cast. However, first the magnetic card has to be initialised. This initialisation is done with the magnetic card writer that is inside the electronic ballot box.
The voter uses an optical pen to cast his vote on the computer screen. The voter is asked to confirm his/her choice. After the confirmation, the vote is definite. If the voter does not want to make a choice, she just has to take back the magnetic card without having cast a vote.
In order to enhance voter's confidence in the system, the Law has been modified in order to allow the voters to reinsert the magnetic card in the voting computer and to control the card's content, after they have cast their vote and collected their magnetic card.
After the casting of the vote (and possibly after checking the card's content), the voter puts the magnetic card into the ballot box computer. The magnetic card reader registers the vote on the boot-disc, after having verified if the magnetic card is valid. This verification is based on the control number that is registered on the magnetic card, both when initialising the card and when the vote is cast on the voting computer. The control number is calculated based on the content of the vote cast and based on the encryption key. The ballot computer recalculates this control number. If this number does not correspond with the control number on the magnetic card, this indicates that either the vote has been altered after the registration of the vote by the voting computer, or the control number has been calculated with another encryption key than the key of the polling station.
After the closing of the election, the chairman terminates the voting activity and the machines are turned off.
The software on the ballot box computer has automatically tabulated the votes for each list of candidates and for each candidate. The information is registered on the boot-disc and on a back-up copy in encrypted form.
The magnetic cards remain inside the ballot box computer until after the elections are declared valid. The ballot box computer is not opened unless a recount is necessary.
The chairman puts the boot-disc (on which the votes have been registered) and the back-up copy in a sealed envelope and takes them to the canton head station. The totals of the votes are gathered at this station.
The chairman of the canton head station inserts the boot-discs in a computer that gathers and calculates the totals. The back-up disc is used when there is a problem with the boot-disc. If none of both discs are readable, the chairman claims the ballot box computer. The magnetic cards will then be recounted and registered. This would not be necessary with the JITES-system: when using particular software, it is possible to recover the content of the memory of the ballot computer and register it on a new disc.
3.3.3.2.4 Audit of the election process by experts
First in 1998 it was considered to be necessary the use and functioning of the system of automated voting to be controlled and surveyed by experts. It was argued that it was necessary, in a democratic society, to be able to control the elections: the democratic parties have to be able to control the reliability of the machines, the software and other carriers that are part of the automated voting system.
Since 1998, the Parliament, the Senate and the regional legislative bodies are allowed (but not obliged) to designate the experts.
The experts have reported on the elections of 13 June 1999 and 8 May 2000.
For example the experts compile the software's source code to their object code and on the day of the election, compare this result (the "reference") with the object code of the software supplied for use in the election.
They also analyse the programming process and perform random checks on the import and export of votes, the secrecy of the vote, tabulation and security against external threats.
No audits are performed during the election itself, in order not to disturb the course of the election. However, the experts cast several test votes on the voting computers at the polling stations before the start of the election. The magnetic cards used for the test are read by a computer, different from the official ballot box computer (in order to avoid the test votes to be mixed with the real votes).
The findings of the experts will be summarised under the evaluation of the automated voting system.
3.3.3.2.5 Evaluation
The automated voting system as described above has been subject to some critiques and evaluation by the public (press, university, etc.), jurisprudence, Belgian government itself and the experts.
3.3.3.2.5.1 General
The University of Brussels (VUB) has done a study on the subject, which shows that electronic voting does not have any influence on the result of the election. Nevertheless a few differences are found, inter alia that the number of abstentions has diminished with 50%. This is explained with the fact that - however it is still possible not to cast a vote - it is not possible anymore to cast an invalid vote. Furthermore, the study shows that the position of the candidate's name on the screen of the voting computer is important. The study also remarks that electronic voting has proven not to have any influence on voter turnout.
The Belgian press has referred to a number of court-decisions about electronic voting. A court has acknowledged that confusion is possible when a list of candidates is shown on three consecutive screens instead of on one screen. In another case, the judge decided that the system of electronic voting was insufficiently reliable and the Ministry of Internal Affairs was reproached that it could not guarantee its independence concerning the system and its control.
3.3.3.2.5.2 Report of Parliament
Parliament has drafted a report concerning the evaluation of automated voting and tabulation systems32.
The report sums up the main positive aspects and guarantees of the automated system: the end of manual tabulation, the speed of the distribution of the results, the simplification and modernisation of the voting procedure, etc.
The main critique concerns the lack of reliability, in spite of existing control mechanisms that have been elaborated to strengthen voter's confidentiality in the system. The Minister of Internal Affairs considers the lack of transparency for the voter to be that his/her vote is registered on floppy discs and magnetic cards in invisible, magnetic fields.
When interrogated, the experts find the electronic voting system certainly not less reliable than the traditional way of voting. They argue that an absolute guarantee for the security of a system does not exist. Fraud cannot be excluded, not even with a traditional voting system. The experts conclude that an automated voting system has to achieve a level of reliability which is at least as high as in a traditional voting system.
3.3.3.2.5.3 Jurisdiction: "Arbitragehof"
The "Arbitragehof" is the Belgian court that judges on violations of the principle of equality and non-discrimination.
In June 2000, a complaint had been filed arguing that undue discrimination is caused between those voters who are able to vote traditionally (and whose votes are counted by randomly appointed neutral citizens) and those voters who had to vote electronically (and whose votes are counted by an anonymous, virtual system which can not be controlled by the voter).
Unfortunately, due to formal reasons, the case has been dismissed without the Court ruling on the essence of the case.
The findings of the experts (see next paragraph) however show that the electronic voting system was not infallible. Therefore it would have well been possible a complaint like this could have persisted.
3.3.3.2.5.4 Experts Report
The election-experts have reported on their findings and have made some recommendations.
(1) Findings
· Exhibition of the voting, ballot and totalling computer
A number of solutions for practical problems were tested, like the non-functioning if the boot-disc, etc.
· Reference compilation
As mentioned before, the experts have compiled the software's source code to their object code (called the "reference").
No problems arose when compiling the source code of the JITES system.
The compilation of the source code of the DIGIVOTE system proved to be more difficult, but was achieved in the end.
· Audit of the source code
The experts found that an analysis of the boot-disc after the election made it possible to know the voting behaviour of one single polling station. This could violate the secrecy-requirement of the Election Law.
· Audit on election day
No failures of the systems were found.
· Audit after election day
The reference object code was found to be identical with the object code of the software supplied by DIGIVOTE. With the JITES system however, the experts found that some polling stations used later versions of the software then other stations.
(2) Recommendations
· User friendliness
The system could be more friendly to the user: requiring a double confirmation could avoid accidental confirmation of the vote, voters should be able to revote without having to ask for a new magnetic card, larger screens, etc.
· Technical improvements
The computers are not able to handle more than one task at a time. This causes the ballot computer to block when a magnetic card is initialised while another card containing a vote is inserted in the computer. The ballot computers should also be secured against a power breakdown (emergency supply).
· Transparency and verifiability for voters
Voters should be able to control the vote registered on the magnetic card. This recommendation has led to a modification of the Law: today the voter is able to visualise his vote cast by reinserting the magnetic card in the voting computer.
Also the source code should be released, in order for everybody to be able to verify the election system. After the election of 13 June 1999, the Ministry of Internal Affairs has released the source code.
Another problem is that voters can not be sure, after the magnetic card has been inserted in the ballot computer, that the content of the card corresponds with the content on the memory of the ballot computer (the floppy disc). Therefore, the experts think it's advisable to allow other companies to develop totalisator software in order to allow a recount with other software.
· Independence
The audit has shown the Ministry of Internal Affairs to be fully depending on the suppliers of the voting systems. Therefore, the experts recommend the Ministry to constitute an own department with specialised computer engineers.
· Procedure
The experts consider a stringent procedure should be developed for last minute modification of the software. Such modifications should be restricted to what is absolutely necessary and should only be allowed through a transparent procedure.
· External audit
The experts are convinced of the necessity of their independent and external audit. The independent audit of an election is a basic condition for democratic elections.
3.3.3.3 Voting by mail?
Contrary to the Netherlands, in Belgium it is not possible to cast a vote by mail, not even for citizens residing abroad. The only way for them to vote is by proxy (see above).
3.3.3.4 Proposal for a Law on Distance Voting
3.3.3.4.1 Introduction
The proposal of 20 April 2000 (2-410/1) aims to modify the Law on automated voting in order to legitimise distance voting.
The goal of the proposal is to enable the voter to cast a vote through the Internet.
The submitters consider Internet voting to be a way of enhancing citizen's interest in politics.
They find the existing automated voting system in Belgium to have a lot of advantages, as there are: the speed of the availability of the election results and the statistic forecasts, as well as the reduction of human mistakes. However, they consider Internet voting to be a logical improvement of the automated voting, which is not yet perfect.
The proposal considers the advantages and tries to look forward to the potential problems of an Internet voting system.
3.3.3.4.2 Advantages
· Facilitate the casting of the vote
In Belgium voting is compulsory. However, in the 1999 elections, 9.4% of the eligible voters did not cast their vote. The Internet would constitute an additional means for citizens to fulfil their voting duty and would therefore facilitate citizen's participation.
· Facilitate disabled voters to vote
People who are disabled will be enabled to vote through the Internet instead of being discriminated against because they are not able to go to a polling station.
· Facilitate voters residing abroad to vote
Citizens who reside abroad today have to fulfil formalities which take a lot of time and which are quite expensive. They could however be allowed to vote directly from a PC of their choice or from a PC in the consulate or embassy. This would make the casting of the vote a lot easier and cheaper.
· Enhanced processing of the results
The advantages are the same as for the automated voting.
· Enhancing the development of the use of Internet
The development of the Internet is considered to be of absolute priority in Belgium, considering its importance for the economy and the employment. Enabling Internet voting would serve this goal.
3.3.3.4.3 Potential problems
· The vote has to be cast in the municipality in which the voter is registered
This is prescribed in the Election Law and in the Constitution. The proposal wants to insert an exception which allows voters to cast a vote using a PC, regardless the geographical position of the voter.
· The vote is secret
The submitters consider vote secrecy and undue pressure and influence not to be an actual problem, because Belgian citizens generally accept the principle of vote freedom, even within the family. In addition, the submitters argue that a lot of democratic countries do not require absolute secrecy at the moment of the casting of the vote, for instance countries where voting by mail is possible.
3.3.4 Possibilities of Internet Voting in Belgium
As we have seen, Belgian election rules provide stringent conditions for conducting public elections.
It has to be seen to which extent Belgian lawmakers will be prepared to modify these stringent rules to allow an Internet voting system to be implemented.
We do know however that Belgium in fact has a profound history on the use of electronic voting systems, which have been monitored, modified and finally generally accepted by the public to generate a reliable voting procedure. This - mainly positive - experience may enhance confidence in the opportunities that an Internet voting system provide.
Finally, as mentioned before, two members of Belgian Senate have filed a proposal for a particular law on Internet voting. We shall be able to assess the Belgian attitude towards Internet voting when this proposal will be discussed in Parliament.
3.4 France |
|
In France, legal issues form the main obstacle for Internet voting. Actually, French laws are not adapted to introduce online voting for public elections. An Internet voting process does affect different legal issues: from traditional electoral laws to Internet and communication laws.
In 1998, the State Council (Conseil d'Etat) announced that there are no specific laws applicable to the Internet and other networks and that there is no need for specific laws, since the Internet is considered only to be a new media on which current laws should be applicable. The law could however be subject to modification regarding for instance, the security of transactions and the rapid evolution of the standards. Since 1998, different programs have been put in place in order to strengthen the legislative and regulative actions of the French Government.
The most important problem in France for the introduction of online voting is caused by the electoral laws. An Internet voting process raises different technical and ethical questions that have to be accompanied by appropriate laws. Most of the existing laws could cover online voting, but modifications will have to be made in order to guarantee a perfectly secured system.
The entire voting procedure is regulated in the French electoral Code, from the registration on the electoral rolls to the count of the ballots. The Electoral Code is divided into a Legislative Part and a Statutory Part.
3.4.2 Traditional Voting Procedure
This part defines the French voting process for public elections, which is based on the French Constitution of 1958 and on the electoral Code.
The traditional voting process is based on voting at a polling place with paper ballots.
3.4.2.1 Voting place
Voters cast their votes in a predetermined place which generally is the county town. However, according to the number of inhabitants, several public places (like schools for example) can be used as polling places (Article R40 of the Electoral Code).
3.4.2.2 Opening and closing of the election
The voting period only lasts one day (Art L54). The vote takes place on a Sunday (Art L55) in a predetermined public place.
3.4.2.3 Authentication of eligible voters
After being registered on the voter's register, the voter receives his election card. This card gives him/her the right to vote. During Election day, when the voter enters the polling place, he/she has to show his election card to the election official in charge. (Article L62)
Voters living in municipalities with more than 5.000 inhabitants also have to show their identity card. (Article R60).
Each polling station is composed of a chairman, four assessors and one secretary. The election officials have to assure that all the rules are obeyed (Article R42). The voter has to present at the polling station with his/her electoral card (and his identity card for municipalities of more than 5.000 inhabitants). Article R58 provides that the right to vote is conditioned by the identification of the voter.
When he/she enters the polling place, the voter has to hand over his election card to the Chairman who verifies the correspondence of the card's content with the content of the voter's register. (Article L62).
3.4.2.4 The casting of the vote
Voting is secret (Article L69).
After the voter is identified by the election staff, he/she has to take an envelope and one (or more) ballot(s). Subsequently, he/she goes to the polling booth in order to cast his/her vote in absolute secrecy (Article L62).
After the ballot has been put in the envelope, the voter shows the chairman he only has one envelop. The Chairman observes the envelop without touching it. Finally, the voter introduces the envelop in the ballot box (Article L62).
During the whole electoral period, a copy of the voter's register, which is certified by the Mayor, is placed on the voting authority's table. This copy constitutes the attendance sheet and is signed by the voter (with his/her hand-written signature) (Article L62.1).
The French Electoral Code reserves a significant role for polling booths in the election process: the integrity of the electoral process is based on the polling booths. Actually, polling booths allow voters to cast their vote secretly: no one can see the choice they make and no one can influence that choice.
Polling place Internet voting could preserve this vote secrecy by requiring the voting computer to be placed inside a polling booth.
Today, article L62 of the French Electoral Code compels voters to cast their vote in total confidentiality. Nobody can see the voters putting their ballot into the envelop. Moreover, at each polling site, one polling booth per 300 voters has to be provided.
This article constitutes a real problem for implementing a remote Internet voting system, because polling booths are actually a basic requirement for conducting any public election. It is impossible to ensure that voters, who would be allowed to cast their votes from a home or office computer, will cast their vote anonymously, out of anyone's sight.
Therefore, in the worst case we could imagine that remote Internet voting systems could be forbidden in France, considering the requirement set forth in article L62 of the French electoral Code.
3.4.3 Alternative Voting Procedures
3.4.3.1 Voting by mail?
Mail-in voting procedures allow a voter to cast a ballot by using ordinary postal services. It allows people that are unable to move to express themselves without having to go to the polling place physically.
Until 1975, the mail-in vote was allowed by French law. Subject to several cases of fraud, the Act n° 75-1329 of December 31, 1975 (Official Journal of January 3, 1976), which modified certain provisions of the electoral code, removed the possibility to vote by mail. Instead, the application field of the vote by mandate was extended.
The suppression of the mail-in voting system in 1975 constitutes a real problem for an Internet voting system, especially a remote Internet voting systems.
3.4.3.2 Proxy-voting
Voting by proxy is called the procedure in which a voter is permitted, on the day of the election, to be represented at the polling station by another voter of his choice to whom he gives mandate to vote in his place.
French law is particularly restricting regarding the vote by proxy. This system is not allowed for all eligible voters, but only for:
· Voters who can prove that their profession compels them to be in an other place on the day of the election;
· Voters who are not able to go to the polling place due to medical reasons;
· Voters who do not reside in their municipality because they are on holidays (Article R72, R73).
The mandated voter has to be registered in the same municipality.
Section III of the Statutory Part of the Electoral Code provides all the requirements for issuing a mandate.
3.4.3.3 Electronic voting
Since 1969, the French Electoral Code authorises the use of electronic voting machines for private or public elections. The decree of the 27th December 1972 allowed municipalities of at least 30.000 citizens to use electronic voting machines. In 1988, this number was lowered to 3.500 citizens.
Although these laws do exist, this does not mean that electronic voting systems are also actually used.
Article L57-1 of the Electoral Code prescribes that, in order to be authorised, an electronic voting machine must be certified by the Home Office to satisfy the security standards and in particular to guarantee the secrecy of the vote.
These constraints are one of the reasons why electronic voting machines fell into disuse. They also constitute a major obstacle for implementing Internet voting systems. Moreover, several technical failures and the high maintenance costs explain why this system has not further been developed.
Since 1986, although allowed by law, electronic voting has completely been abandoned.
3.4.4 Other Important Regulations
Several French laws, including some that implement European Directives, particularly apply to protect individual and public interests on the Internet. Since 1998, the French legislator has followed the proposals of the Council of State concerning for instance the liberalisation of cryptography, the strengthening of private life protection on networks, the fight against "cyber-criminality" and in general the identification of the importance of the world wide dimension of networks.
This part focuses on the different French laws which could interfere with online voting. Although these rules concern the Internet as a whole, they can also be applied to online voting.
3.4.4.1 Online voting within companies
A future Bill on the Regulation for Economic Issues ("Regulations Economiques") concerns the use of electronic voting systems for shareholders' meetings. This Bill could be considered to be a real trial for electronic voting process. Actually, article 59 of this Bill allows the use of videoconferencing for boards of directors. Article 63 of the Bill will allow the use of electronic voting systems for shareholders' meetings.
Today however, the French law still imposes all the members of a board of directors to be physically present in the same place. This constraint raises some difficulties for several companies which have offices all around the world. When this Bill will be adopted, the members of the board of directors will be able to deliberate without being physically present. It will be therefore possible for them to hold their meetings through a videoconference.
3.4.4.2 Electronic signatures
The March, 13th 2000 Act implements the December, 13th 1999 European Directive. It introduced the definition of the electronic signature in the Civic Code and the functional equivalence to hand written signature.
Article 1316-4 of the French Civil Code defines the electronic signature as "the use of a reliable identification process guarantying its connection with the Act it is referred to. This process is presumed to be reliable unless the contrary is proven. The conditions of the digital signature are fixed by decree of Council of State.
3.4.4.3 The March, 17th 1999 Decree on cryptography
The January, 19th 1999, the French Prime Minister announced the idea to raise the threshold of cryptography utilisation from 40 to 128 bits. A Decree has been adopted in March 1999. At present, the legislative layouts completing this decree are under consideration in order to allow a complete liberty in the use of cryptography software. These layouts will also allow public authorities to fight against the use of data encryption process for dishonest purposes. French Government will be able to take penal sanctions in case of obstruction to decrypt data.
3.4.4.4 The protection of personal data and privacy
In France, private life protection is ensured by a Government Committee under the Prime Minister's responsibility, the National Commission on Information and Privacy ("la Commission Nationale de l'Informatique et des Libertés" (CNIL)), and the Information and Privacy Act ("Informatique et Libertés") adopted on January 17th, 1978.
This Act was adopted in order to prevent the centralisation by Government of citizens' information. Internet and its effect on personal data have expanded the role of this Act and of the CNIL. The CNIL is currently taking into consideration a new "Informatique et Libertés" Act adapted to the Internet, which will implement the October 24th 1995 European Directive on the protection of personal data. The new "Informatique et Libertés" Act will be submitted to the French Parliament within the next months.
3.4.5 Possibilities of Internet Voting in France
From a legal point of view and regarding the different French laws mentioned before, polling place online voting could be achievable. At the moment, the French Electoral Code authorises the use of electronic voting machines and this can be generalised to Internet voting, on the condition that absolute secrecy and security of votes can be preserved.
A remote Internet voting process is faced with a major obstacle, being the outlawing of mail-in voting systems. Due to the fact that voting from home (or any place which is not a polling place) is assimilated to a mail-in vote, French laws have to be modified in order to authorise this kind of voting processes. At present, a bill is under consideration to reform the Electoral Code in order to allow the mail-in votes, to enable the use of Internet voting machines and to strengthen the repressive measures against frauds.
3.5 Sweden |
|
Swedish activities on the Internet of course follow normal Swedish legislation. If not stated differently, online activities are subject to existing law in all relevant fields: legislation concerning the freedom of expression, availability of public information, privacy, personal integrity etc.
Swedish election procedures are described in the Swedish Law SFS1997:157 entitled "Vallagen" ("election law"). There are actually no prescription in this law that directly concern electronic voting, since the election law was drafted at a time when Internet could not yet be used for voting. The current voting procedure for political elections is based on the use of paper ballots.
Today, at the change of the millennium, there is a clear increased public concern about democracy in general. This increased interest started off locally (Sweden has 289 municipalities) during the early 1990s. As a result, in 1998 a public Democracy Committee was appointed with the aim of analysing the state of the democracy in the country. This committee arranged numerous public seminars, invited prominent foreign guests, published a large amount of analysing reports and a number of research texts. The Committee delivered its final proposal to the government in the year 2000. This proposal was sent for consideration to 1200 organisations plus 501 randomly chosen citizens. The time for consideration ended in the beginning of 2001. After that, government started considering its conclusions, and is preparing reforms.
Although this was not the main interest of the Democracy Committee, its proposal did also consider the use of Information Technology in the democracy process. The use of the Internet for election purposes was however considered to be somewhat of an exceptional democracy activity, and the analysis pointed out several risks and unbalances that are closely related to the use of the Internet in democratic processes (among which were voting).
Many other aspects of democratic development were also discussed. There seemed to be a lot of interest in the Internet as a new medium. Almost all municipalities were interested in the use of web sites on the Internet as platforms for public debate and political dialogue. However, less concern was shown for rationalising the voting process as such. Similarly, another public Committee (concerning Communal Democracy) decided to not specifically address topics concerning new means for increased citizen participation in elections and communal citizen initiatives. Instead, this committee decided to focus more on the precise conditions for the representative system.
With this Swedish background, it was with much interest that the results of the work of the Election Committee was awaited. Its proposals will be commented on below.
But first, the characteristics of the existing procedures for general elections will be described.
3.5.2 Existing Voting Procedures
3.5.2.1 General
In general, elections in Sweden are to a high level administrated manually.
The Swedish election law ("Vallagen") has the following structure:
· General election principles
· Who is entitled to vote?
· Who can be elected?
· When are elections to be carried out?
· Elections concerning the European Parliament
· Election authorities
· Election form and general procedures
· Member structure (parliament, region, community)
· Registration of political parties and candidates
· Rules for ballot papers
· Electoral registers
· General voting procedures
· Voting at postal offices
· Voting at special environments (hospitals, homes for elderly, prisons etc)
· Voting at foreign authorities
· Voting by special voting carriers (messenger, mailmen etc)
· Formal treatment of received votes
· Principles for and calculation of voting results
· Appeal against elections
The election law describes in detail the practical organisation of general parliamentary elections. These elections are held in Sweden every four years. A detailed description of the election law in this document would be space demanding, therefore short characteristics are chosen below.
Participation in Swedish political elections is generally around 80 percent of the citizens who are entitled to vote. When compared internationally, this is a very high score. During the last years of the twentieth century, voting participation in general has tended to decrease, and measures to try to counteract this development are planned.
3.5.2.2 Voting place
The voting usually takes place in polling stations, situated close to where the voters are living. This can be in schools, in libraries, and in other public places. Voting places can also be installed at certain hospitals - for people who are seriously ill - and at prisons. Special transportation is arranged for the elderly, and - in certain cases - messengers are used for voting by mandate.
It is also possible to vote at postal offices. This is done by personally casting a ballot at a postal office at a day chosen out of a previously defined number of days before election day. For those who vote at postal offices, it is possible to change the vote later, by personally casting a new ballot at the election day. An increasing number of voters use postal voting.
There are forms (courier mail) for voting by citizens working on boats abroad, for people who are not able to get in contact with other forms for giving their vote. There are also forms for casting of votes at foreign embassies for Swedish citizens who temporarily live in foreign countries.
3.5.2.3 Authentication of eligible voters
A number of weeks before each election, to every Swedish citizen who is entitled to vote, a voting card is sent by ordinary mail, with which the citizen can identify him/herself at the election.
The personal data of all Swedish citizens is kept in secured files at the Central Bureau of Statistics. Local extracts from these files are distributed to all municipalities before the election.
3.5.2.4 Opening and closing of the election
It is allowed to vote during the complete daytime at the election day (until 8 p.m.).
3.5.2.5 The casting of the vote
Normally the voter has to cast three votes: one for the government, one the municipality, and one for the county (which - historically motivated - administers health care and public transport). It is unusual to combine political voting with other pursuits.
Paper ballots are used, usually in three different colours. These ballots are by the voter placed in envelopes in the election room. The envelops are handed over to the voting official, and this person markes that the by the voting card identified voter has voted.
There are clear formats for the presentation of the political alternatives on the ballots.
Voting secrecy is considered extremely important. Political alternatives are by the voter normally chosen behind special booths.
3.5.2.6 Tabulation and gathering of the totals
When the voting room is closed, every local voting responsible officer organises the local counting of the votes, and reports this to the central Election Authority.
The counted ballots then are sent by carrier, to be double-checked centrally the next day.
There are specific regulations for those votes that are not the result of traditional voting (hospitals, prisons, foreign places etc). Normally, this however concerns only a very small percentage of the votes.
However, a larger amount of ballots are handled by the Postal service. These cannot be counted normally until one or two days after the election day, since a check against the centrally collected manual voting lists has to be done (to ensure one person - one vote). Therefore, it is not possible to arrive at a complete total election result until all postal votes have been counted. Arrival at the complete election result thus takes a few days.
3.5.3 Other Important Regulations
Apart from Swedish legislation that directly concerns the voting process, there is of course other relevant legislation. The interest in the use of well defined Digital Signatures is expanding and there is the Personal Data Act, and the Bulletin Board System law ("BBS-law" - SFS 1998:112). The latter, which has been in force since 1998, regulates the different responsibilities for a Bulletin Board Systems (including public databases). This law aims to prohibit the use of a BBS for criminal and unlawful dissemination of information.
3.5.4 Possibilities of Internet Voting in Sweden
3.5.4.1 General background
As mentioned above, the issue of Internet voting was analysed by the public Election Committee in the year 2000. Its proposals were published in January 2001. After public consideration and, possibly, analysis by legal experts, parliament and government will take position. This is likely to be concluded in 2002.
The scope of interest of this Committee's investigation is expressed in Committee Directive nr 2000:10: "A special investigation is to be carried out with the purpose to technically and administratively review certain parts of the election system. Proposals are to be given concerning relevant constitutional changes and other measures that can be considered to be needed."
Specifically, in this directive it is mentioned that the investigation is to "formulate an overview of the possibilities and problems concerning Internet voting." Also, it is to shed light over "whether Internet voting can be combined with election secrecy." Experiences from foreign countries are also considered.
3.5.4.2 The Election Committee's proposals
This Committee presents the following reasoning.
The prerequisites for electronically supported elections must be that it has to be possible to carry out the voting process in such a way that the basic principles for the "election system" are not set aside. Electronic voting has to be at least as secure as comparable traditional voting, and it has to be simple and flexible for the voters.
An overall aim has to be that electronic voting has to make the voting more accessible for the voters.
New election technology can have several advantages, it is said: it can make it increasingly easy for the voters to vote; the counting of the result can be faster; the election result can be distributed more efficiently; the risk for pure calculation mistakes at the result counting can be eliminated; etc.
But there are also disadvantages: it is difficult to guarantee election secrecy with complete security; the system must be reliable and function completely predictably; etc. Other disadvantages concern costs for development and maintenance. Mainly security and reliability raise most concerns.
The Election Committee further provides reasoning about what should be demanded of an electronic voting system. Here, it refers to proposals by the earlier Democracy Committee, about the carrying out of some experiments "in some municipality or in some school".
The Committee continues with a presentation of system demands for electronic voting via the Internet:
· The election system must fulfil high availability demands;
· It must be guaranteed that the election is carried out in a reliable way as to the election secrecy;
· The election procedure must be simple and flexible.
This means that voting via the Internet must fulfil the following five demands:
· Only eligible voters may be able to vote;
· It may only be possible to vote once;
· The election secrecy has to be absolute;
· It may not be possible for outsiders to change a vote cast;
· Tabulation and calculation of the election result has to be correct on all system levels.
There are also other demands. The voters' personal integrity must be protected, and the sale of votes "on a market" must be prohibited.
The Committee concludes that these principles demand secure voter authentication, secrecy and reliable and well protected vote administration. Also, reliability and legitimacy are basic requirements for an electronically supported voting system.
An international overview was asked for in the Committee Directive. Therefore, information was collected from all EU countries, plus Iceland, Norway and Switzerland. The investigation showed that none of these countries had tried Internet voting at general elections or referenda. Nevertheless, plans do exist - amongst others - in Ireland and in the Netherlands (see above). Also Norway is preparing relevant legislation.
Certain countries (mentioned are: Belgium, France, Spain and Japan) are said to start experimenting Internet voting for local elections within the next few years. The experiments in the US are also well known.
The Committee continues by suggesting that more detailed technical and functional requirements should be provided for an Internet voting system.
Finally, the Election Committee underlines that substantial trials should be conducted before Internet voting could be used "in reality". It is suggested an Internet voting system to be tried out in a school election during 2002. Such a trial election could concern up to 400.000 pupils.
Generally it is recommended that when Internet supported voting may be introduced, it is done in different stages. First, a system should be tried out in the normally used official local voting rooms, then it should be tried out in larger numbers of for this purpose dedicated voting rooms, then at well defined public voting places without official voting personel (like public libraries), and finally - as a last step - from any Internet connected computer. Apparently, experiments are needed.
In the beginning of 2001, a decision was taken to carry out a student election with Internet support at the University of Umeå in May, 2001. The project will be financially supported from public sources. It will concern 12 500 students, and it will be carried through with the use of software from Safevote. The Internet will be used as a complementary medium for voting, additional to ordinary manual voting. Detailed evaluations are planned.
3.5.4.3 Conclusion
The Election Committee chose to concentrate its work on the refinement of the existing election procedures. It did not analyse the legal implications of Internet voting in detail.
It did discuss such voting systems, but mainly recommended to conduct "practical trials". One such trial will be carried through at the University of Umeå in May, 2001.
A more complete legal analysis for Internet voting is today still to be done in Sweden.
However, there is a lot of interest, and local election trials are expected. These trials will be of types that do not demand new legislation, since they will concern decision making within business organisations and other non-political organizations.
3.6 Germany |
|
Initiative D 21 was launched by private-sector companies and government in order for Germany to take a leading position in the global Information Age. The goals of the initiative are to optimise the conditional framework for transition to the Information Age on the part of politicians, the business community, the scientific community and society in general. Government and business aim to promote the acceptance of technology and the new information and communication technologies.
Within the "Deutschland 21 - Aufbruch in das Informationszeitalter" ("Germany 21 - Joining the Information Age") initiative, many projects are being conducted to investigate the range of influence exerted by information technologies on German society and to define perspectives for political action.
Working Group 2, "Government's Role as Trailblazer", defines changes in state activity. At the initiative of several federal departments, subgroup 2.4, "Public Participation in Political Processes", met for a kick-off workshop on 1 September 2000. In a network established for two years, the subgroup will organise not only exchange of experience from various projects concerned with Internet voting, but also dialogue between legal experts, technology experts and election organisers. The aim is also to feed all the experience gained from the projects into public administration and federal policymaking. Through the Working Group, the legal modifications necessary for implementing online elections on a broad scale will be identified and essential specifications of the technical systems defined. Another objective of the network is to inform the general public, politicians and public administrators about the technical options and in t
