Jaak Madison: E-voting reform and constitutional infringement

MEP Jaak Madison (EKRE).
MEP Jaak Madison (EKRE). Source: Kairit Leibold/ERR

The new foreign trade and IT minister should consider the constitutional aspect of e-voting as it has turned out by now that the Riigikogu decision from 2005 that admitted constitutional infringement but said it was less important that anticipated positive effect on voter turnout has proved inaccurate, MEP Jaak Madison writes.

The Centre Party, Conservative People's Party (EKRE) and Isamaa designated as an item of their coalition agreement reforming e-voting to boost its credibility and transparency.

More specifically, it has been mentioned in three places.

1. We deem necessary additional analysis of the e-voting system and an independent international audit. Based on these analyses, we will introduce necessary updates to the system.

2. We will retain the possibility of e-voting, while rendering the process verifiable, secure and transparent.

3. We will introduce on the level of legislation rules for verifying e-voting results based on a Supreme Court decision.

I'm glad the coalition agreement mentions the Supreme Court ruling. However, I would approach e-voting from a different perspective, although also based on a Supreme Court decision from September 1, 2015.

President at the time Arnold Rüütel found a bill passed in the Riigikogu to regulate the functioning of e-voting and allow repeated online voting and changing of one's vote to be unconstitutional in that elections must be uniform.

The president's position was rejected by the justice ministry, justice chancellor and the Riigikogu Constitutional Committee. Because the president did not proclaim the law, he turned to the Supreme Court for constitutional review proceedings. The Supreme Court ruled on September 1 that infringement of the uniformity requirement is not deemed to be intensive.

The Supreme Court concluded that infringement of the uniformity principle is permissible if it brings with it increased voter turnout and adoption of new technical solutions.

The logic behind the Supreme Court's phrasing remains unclear because e-voting, as the new technical solution in question, was aimed primarily at boosting participation, in other words, making sure more people had the opportunity to vote, as opposed to it being a goal in itself.

Therefore, according to my subjective opinion, the Supreme Court proceeded based on faulty logic and regarded use of new technical solutions a separate goal. It is also difficult to agree with the Supreme Court's claim that the ability to vote again or change one's vote offered by e-voting helps reduce the likelihood of voters being swayed and contributes to secrecy of e-voting as required by the Constitution.

The Supreme Court has not pointed out in its ruling the potential risk of voters being swayed after they have made their initial choice and cast their vote. Because the e-voting period is quite long and coincides with the active campaigning period, it is theoretically possible to sway the online voter several times that will jeopardize the requirement of secrecy.

It could happen that a voter is swayed to vote immediately before e-voting closes, with no time left for them to change their vote based on their true preference.

Hitting the original goal

Now, 14 years later, we can also analyze whether the original goal of increased voter turnout has been met. While our legal system is based on the principle of courts monitoring compliance with the law instead of creating it, the Supreme Court has at times and justifiably offered the executive power its take on certain matters.

The Supreme Court could also have deemed it possible to direct the legislator's attention to international practice or suggested it analyze reasons why other countries had decided against using new technology to offer new ways of voting.

Additionally, different sides, the Supreme Court included, could have recognized the possibility of boosting voter turnout by introducing mandatory elections that are practiced by many countries (for example, Australia, Belgium, Greece, Luxembourg). This would ensure greater participation in elections without jeopardizing the constitutional principle of uniformity and secrecy of elections.

Because the Supreme Court, together with the justice minister and the justice chancellor, found the potential constitutional infringement as concerns uniformity and secrecy of elections not to outweigh the goal of boosting voter turnout, by now it is clear the goal was not achieved.

Voter turnout

Looking at voter turnout before and after e-voting was introduced, we see it has not had notable positive effect. Let us look at voter turnout before e-voting first. Riigikogu elections in 1992 saw the participation of 67.84 of voting-age citizens. The figure grew to 69.06 percent by 1995. Voter turnout started falling after that, partly because of people's disappointment with politics.

Riigikogu elections' voter turnout was 57.43 percent in 1999 and 58 percent in 2003. Local government council elections saw voter turnout of 52.6 percent in 1993, 52.5 percent in 1996, 49.8 percent in 1999 and 52.5 percent in 2002.

The first to include the e-voting component were local elections in 2005 that had a voter turnout of just 47 percent, meaning that the goal emphasized in the Supreme Court's ruling failed the very first time it was tried. Parliamentary elections in 2007 saw 61.9 percent of voters turn up, remaining in the same ballpark as recent elections but falling well short of those in 1992 and 1995.

2009 local elections saw voter turnout of 60.57 percent – a notable spike compared to the previous elections that could partly be attributed to e-voting.

That said, we cannot underestimate the possibility that a tenser political situation after the Bronze Night in 2007 mobilized voters for the upcoming elections, especially in Tallinn where voter turnout hit 65.74 percent, negating the role of e-voting in increased voter activity.

The latter claim seems confirmed by results of subsequent local elections. In 2013, 57.97 percent of voters participated, with turnout dropping to 53.3 percent in 2017. Therefore, voter turnout was in the same ballpark as results for 1993 and 2002 elections last time around (52.6 and 52.5 percent respectively).

Riigikogu elections' voter turnout was 63 percent in 2011, 64.2 percent in 2015 and 63.7 in 2019.

We see that recent Riigikogu elections have seen a much lower voter turnout compared to 1992 when higher turnout could have been the result of Estonia having regained its independence, while turnout has only grown a few points beyond the low point between these two periods in more recent years.

Therefore, it is difficult to agree with the Supreme Court's claim in its ruling: "The chamber finds that the infringement of the equality and uniformity principle, as which we can treat the right of electronic voters to change their vote an unlimited number of times, is not intensive enough to outweigh the goal of boosting voter turnout and adopting new IT solutions."

This means that the new Minister of Foreign Trade and IT Kaimar Karu should consider the constitutional aspect when treating with e-voting as we now know that the Supreme Court decision from 2005 that acknowledged constitutional infringement and its lower priority next to the goal of boosting voter turnout has not proven accurate. This means that the supposition was mistaken and the uniformity infringement remains entirely valid.


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Editor: Marcus Turovski

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