Federal Council postpones legal regulation of e-voting as a regular voting channel

There is still time to rethink in Berne

by Dr iur Marianne Wüthrich

On 27 June, the Federal Council decided to “temporarily waive” the introduction of electronic voting as the third regular voting channel (in addition to the ballot box and postal voting). This was due to many critical responses to the consultation process from cantons and political parties following the serious mishaps of the two software systems of the canton of Geneva and the Swiss Post. Shortly before, on 19 June, the Canton of Geneva had announced that it would no longer provide its software for the federal elections on 20 October. However, this does not mean that electronic voting is off the table: the temporary waiver will initially only last until mid-August. Then the Federal Council will decide whether the cantons will be allowed to offer e-voting for the elections despite all uncertainties. It also wants to get the trial operation in the cantons up and running again as soon as possible. Does the Federal Council really want to place total digitalisation of all administrative procedures, including the holding of votes and elections, above the security of democratic voting and the trust of citizens in the state? There is still time to rethink on the foundations of democratic voting and on the fundamental rights of citizens. By signing of the federal popular initiative “For a secure and trustworthy democracy (e-voting moratorium)”, we citizens have the opportunity to demand that the state guarantee our political rights and put an end to questionable experiments.1

“Why take unnecessary risks with the introduction of a new voting operation when there is no surplus value? Our democracy is too valuable, a commodity that must not be jeopardised by the ambitious introduction of e-voting in Switzerland.”

Article 34 of the Federal Constitution guarantees the political rights of citizens (paragraph 1) and protects the fundamental right of citizens to “free decision-making and undistorted voting” (paragraph 2). The draft revision of the Federal Act on Political Rights2 submitted for consultation by the Federal Council would endanger this fundamental right in its foundations. It is therefore to be welcomed that the Federal Council has temporarily decided not to press ahead with this bill. At the same time, however, it instructed the Federal Chancellery to work with the cantons on a “reorientation of trial operations” and to submit a report on this issue by the end of 2020.3 – Continuing on the same track? We urgently advise against this.

“Temporary renunciation is not enough: Pull the plug on E-voting immediately”.

This was the reaction of the initiative committee from 27 June to the Federal Council’s media release.4 And further: “It is incomprehensible […] that the Federal Council still wants to adhere to e-voting, although it has only recently become public that the e-voting system of the Canton of Geneva will be discontinued with immediate effect.” The committee concludes: “Only a moratorium enshrined in the Federal Constitution guarantees that referendums cannot be manipulated”.
The initiative for an e-voting moratorium, for which signatures have been collected since March, calls for a ban on electronic voting for at least five years; this ban may only be lifted by parliament (with the possibility of an optional referendum) under strict conditions listed in the initiative text after the deadline has expired. Overall, it should be ensured that “at least the same level of security against manipulation is provided as for hand-written voting”.5

Geneva pulls back its e-voting system immediately

In November 2018, the Canton of Geneva announced that it wants to withdraw its e-voting system from circulation in February 2020. On 19 June, however, in agreement with the Cantons of Aargau, Berne and Lucerne, which currently still use the Geneva system, it announced the immediate stop.6
This is a clear admission of the failure of e-voting. When the Geneva State Chancellery stresses that 25 votes were “carried out without any problems” with its software, it conceals the fact that the system had to be stopped several times by the Federal Council as a result of security risks. One can only shake one’s head about the fact that, according to the same sda report, the Canton of Berne is considering “cooperation with Swiss Post as the remaining e-voting provider”. Swiss Post recently failed after only a few days with its challenging the global hacker community to try to crack its system within a month.
According to the Aargau State Chancellery, preparations in the cantons could not be made in the required quality in that short space of time if the Federal Council does not decide whether e-voting was permissible or not, until mid-August.
This announcement from Aarau is remarkable: Would it not have made more sense if the Federal Council, in its announcement in June, had deleted the electronic voting operation for good, at least for this year, because it is evident that there are irresponsible security gaps? Even though the FDJP (Federal Department of Justice and Police) has been announcing for years that it will be possible to vote electronically for the first time on a large scale in the 2019 elections, it would make far more sense to put an end to this situation than to postpone it any further.

Clear words in the media: “The end of e-voting is a liberation”

Such is the heading in the “SonntagsZei­tung”, in its remarkable statement and it disproves in a few lines the most frequently mentioned arguments for e-voting: However, if examining the arguments for e-voting, one notices right away that actually everyone should be pleased about the decision of the Federal Council. Thus, e-voting does not mean, as often thought, the end of paper. Voting documents are still going to come by post. Blind persons would need support with e-voting as well.7 The “SonntagsZeitung” then recommends that disabled persons take the opportunity and demand more practical support in voting and that the Swiss abroad enforce the possibility of having their voting documents printed in Swiss embassies.
“20 Minuten” refers to the estimated enormous costs of the failed e-voting mission so far, the amount of which neither the Confederation nor the Post wanted to reveal in response to parliamentary queries.8 Prices are the responsibility of cantons and providers. “20 Minuten” states that Basel-City, for example, paid Swiss Post over CHF 5 million for installation and operation, St. Gall CHF 2.2 million and Aargau CHF 2.3 million.
On top of that, these is taxpayers’ money now messed up twice: Firstly from the cantonal tax coffers and secondly from the federal treasury (Swiss Post is a fully state-owned limited company [AG], regulated by public law).

Worth considering and debatable consultation replies of parties and cantons

The consultation of the Federal Chancellery lasted from 19 December 2018 to 30 April. The answers of the participants are compiled in the results report from 18 June.9
The majority of the parties (BDP, CVP, EVP, FDP, Grünliberale glp, Grüne and SP) “note with reference to the discovery of shortcomings in the postal system that the security requirements for an e-voting system are not fulfilled today and therefore, they do not support the consultation draft at the present time”. The SVP speaks even clearer: “From the SVPs point of view, there is basically no need for action to extend the existing voting possibilities, and the added value of e-voting is, in its view, out of proportion to the risk”. On the other hand, it is incomprehensible that the BDP and FDP are proposing to continue the current trial operation (despite the proven unsuitability of the existing systems!) (results report, p. 8).
In the majority of cantons - even those that support e-voting in principle – the central importance of careful handling of the exercise of political rights by citizens is expressed. The Conference of Cantonal Governments (KdK) and some cantons, on the other hand, are also reeling off mainstream phrases such as: “E-voting is part of the common guidelines of Confederation, cantons and communes respectively cantonal strategies, according to which digital administration is promoted in order to meet the needs of the population” (results report, p. 6). – The needs of the population? Or more the profit motive of IT producers and the plans of the Federal Chancellery in interaction with numerous federal and cantonal administrations?
Some cantonal governments make contradictory demands: “Voting secrecy must be guaranteed while the voting process is fully traceable, and manipulation must be prevented or at least detected as much as possible”. (results report, p. 6) Here we have once again arrived at the squaring of the circle, an apparently common juggling of ideas also in the cantonal administrations. According to IT specialists, the protection of voting secrecy and the simultaneous, complete traceability of voting are fundamentally contradictory. Alexandre Schmidt, former Finance Director of the City of Berne, notes: “The ballots, which were laboriously counted on voting Sunday, guarantee the credibility of the result. Because physically existing ballot papers can be recounted if necessary – no so electronically; the secrecy of the vote cannot be preserved there in the course of a recount.”10

Confidence of the citizens over digitisation with “remaining risk”

The cantons are responsible for ensuring that popular referendums are organised reliably, safely and democratically faultless, including federal level. That is why we are giving the floor to three cantonal governments, which reject the Federal Chancellery’s draft as a matter of principle. (All verbatim answers of the cantons, parties and other participants can be found in the “Comments” on the results report if you patiently search for them).11
Canton of Vaud: “The confidence of citizens in the voting process and the out-coming results is a key element in the functioning of Swiss democracy and must therefore be safeguarded implicitly”. Citizens should be guaranteed, “the strict observance of their fundamental rights, in particular the exercise of political rights and the protection of personal data”. The bill does not meet these requirements (Translation Current Concerns).
Canton Nidwalden: “Only absolutely secure systems are good enough to maintain the confidence of voters in (narrow) results. Due to the well-known new situation (Canton Geneva’s withdrawal from the ‘vote électronique’ project and obvious problems with Swiss Post’s source code), there is currently un-disputably no certainty that this proposal will be promoted. We request, for the time being, not to pursue the proposal any further and therefore to ask the Federal Council to suspend this bill. Security is paramount and non-negotiable.”
Canton Schwyz: “In our opinion, there is no need for legislative action. Voting by letter works very well, even though this voting channel is now been talked ill of by the e-voting turbo promoters. Why take unnecessary risks with the introduction of a new voting operation when there is no surplus value? Our democracy is too valuable a commodity that must not be jeopardised by the ambitious introduction of e-voting in Switzerland”.

Conclusion

Let us leave the closing remarks to Alexandre Schmidt (FDP), former Finance Director of the City of Berne: “The founding fathers of our institutions, in 1848, knew neither digitisation nor the power of ‘fake news’. They have nevertheless created a stronghold against it. Obviously, they were already aware of the need for balanced-out and decelerated decision-making processes to create trust and credibility. This system is robust enough to absorb unwanted upheavals caused by digitisation. E-voting, on the other hand, offers incentives for instant voting, i.e. making decisions at the push of a button on the way home in a tram. This will wipe out confidence in the decision and would be a breach with history. Voting may remain decelerated. Taking the envelope to the mailbox or, on Sunday, to the election office, leaves room for a final thoughts and consideration. The acceleration of decision-making through digitisation does not serve democracy.”12    •

1    see “Direct democracy is no computer game. Launch of the federal popular initiative ‹For a secure und trustworthy democracy (e-voting moratorium)” Current Concerns No. 8 from 2 April
2    https://www.admin.ch/ch/d/gg/pc/documents/3014/Elektronische-Stimmabgabe_Entwurf_de.pdf
3    “E-Voting: Federal Council to reframe trial phase and delay introduction as a regular voting channel”, Media release of the Federal Council from 27 June
4     Schmidt, Alexandre. “Das Bollwerk von 1848 schützt gegen‘fake news’. Abstimmungen mittels E-Voting zu beschleunigen, dient der Demokratie nicht.”(The federal Constitution from 1848 protects against “fake news” Acceleration by E-voting does not help/serve democracy) “Der Bund” from 4 April  
5    Initiative text see https://e-voting-moratorium.ch
6    “Genf zieht sein E-Voting-System schon vor den eid­genössischen Wahlen zurück”, Neue Zürcher Zeitung from 19 June, sda
7    SonntagsZeitung from 29 Juni, by Skinner Barnaby, Head data journalism
8    “Das E-Voting ist ein riesiges Verlustgeschäft (E-voting is a huge loss-making business)”, “20 Minuten” from 28 Juni
9    Änderung des Bundesgesetzes über die politischen Rechte (Überführung der elektronischen Stimmabgabe in den ordentlichen Betrieb, Amending the Federal Act on Political Rights. Transfer of e-voting as a regular voting channel results report p. 6) https://www.admin.ch/ch/d/gg/pc/documents/3014/Elektronische-Stimmabgabe_Ergebnisbericht_de.pdf
10    Schmidt, Alexandre. “Das Bollwerk von 1848 schützt gegen ‘fake news’. Abstimmungen mittels E-Voting zu beschleunigen, dient der Demokratie nicht.” “Der Bund” from 4 April
11    https://www.admin.ch/ch/d/gg/pc/documents/3014/Elektronische-Stimmabgabe_Stellungnahmen.pdf
12    Schmidt, Alexandre. “Das Bollwerk von 1848 schützt gegen ‘fake news’. Abstimmungen mittels E-Voting zu beschleunigen, dient der Demokratie nicht.” “Der Bund” from 4 April 

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