Lawyer: Riigikogu election e-vote unconstitutional, and cannot be counted

Paul Keres.
Paul Keres. Source: Siim Lõvi /ERR

Lawyer Paul Keres, acting for the Conservative People's Party of Estonia (EKRE) in their Supreme Court appeal in which they request the invalidation of the e-vote results at last Sunday's Riigikogu election, outlined the content of the complaint to ERR's radio news Thursday.

EKRE and Keres's argument is that the regulation of e-voting as it stands to be contrary to the Constitution, while the votes counted based on an unconstitutional regulation must be disregarded.

Indrek Kiisler: What are you disputing?

Paul Keres: We are objecting to the act of the e-vote count, and request that these votes not be counted [towards the final election result].

The statutory regulation governing the organization of e-voting and the counting of those votes is completely inadequate, if not non-existent. This, in our opinion, behind the unconstitutionality of this regulation.

This is not really a new concept; it's already quite old. In fact, since 1998, the Supreme Court has been drawing attention to the fact that all issues relating to elections must be resolved by the electoral law. At that time, of course, there were other issues, but the analogy is appropriate to today's case.

Furthermore, in 2019, the Supreme Court, in resolving a complaint, said that in order to ensure the right to vote and the principles of the rule of law, regulating the e-voting procedure in more detail via legislative acts, which means within the law was required. But so far, the legislature has not done anything towards this.

The situation that has arisen is one where the Riigikogu gives the order, and procedure and the conditions for conducting e-voting to be established by the State Electoral Committee (VVK) for the most part.

But the VVK is also there as a legislator, organizer and supervisor - all in the one organization. This is not in line with the principle of the separation of powers, and certainly not in line with the logic in the Constitution.

Kiisler: In other words, if the actions taken by the VVK during the counting of votes, throughout the entire process, had been written down in legislation, then everything would have been legally sound?

Keres: This is not quite clear. I say this because I think that if they had been enshrined in the law, they would have been so in a completely different manner. This is because the basic principles of observability, verifiability and openness are not explained, or not regulated. These are things which should definitely be regulated by law and which, for example, other countries which do not use e-elections have done in a relatively exemplary manner - for example, Switzerland or Norway.

Plus I think the picture would be quite different at the legislative level. Because 101 heads (ie. Riigikogu members-ed.) are still 101 heads, while the VVK is a relatively small body.

Attempts have been made to challenge e-vote at the Supreme Court virtually every time since 2005, ie. since we have used them. This is also about to be contested in the same way, the way you're doing it now. There have been relatively standard responses [in the past] and these objections have been overruled. Why do you think your desire will bear fruit this time?

As far as I know, no complaint like the one we have filed has ever been filed.

The reason why this appeal has prospects of success lies in the fact that we draw attention to those problems that the Supreme Court itself drew attention to four years ago, and we stress that these problems are still unresolved.

We also point out various anomalies and inconsistencies in the way the current elections have been conducted, all of which are a consequence of this.

Can you elaborate on these anomalies?

Well, there has been a whole series of all kinds of strange events. For instance, why the number of e-votes rises after the e-voting polls end, why there have been cases where people cast an e-vote, but then when using the checking app it cannot be ascertained that their vote has arrived and t gives back some error message - there are quite a lot of such incidents.

In addition to this, we also have a nine-point summary taken from an expert, if I recall correctly, about the technical processes and the shortcomings of that process - everything from the sealing, network devices, basic security requirements, or rather the lack thereof, and so on so forth – all of which we highlighted in the complaint.

Then we find that the fact that such deficiencies exist in the electoral organization is the result of the fact that e-voting has not been regulated on an equitable basis with that of paper ballot voting in the electoral law, and these rules have not been established. If you go and start comparing, for example, what it is like to vote with a regulated paper ballot, this is relatively detailed, simple and understandable. But in the case of electronic voting, there is a gaping chasm in the law, on all the main issues.

I understand that you of course cannot talk about the affairs between you and the client, i.e. EKRE, but we have not been able to grasp that when EKRE says that there cannot be such a result as there was Sunday night versus Monday morning, at what point this fraud could have taken place? (The e-vote results were not released until 11 p.m. on Sunday and became clear not long after that, while the final result was not established until after midnight-ed.)

I honestly don't know anything about any counterfeiting, in the sense that I have not pointed out counterfeiting in the complaint. I have pointed out that this regulation is unconstitutional, and the votes counted based on an unconstitutional regulation must be disregarded, because it is simply illegal, plus there are the anomalies.

I cannot say that, at least based on the information I am aware of, that fraud did or did not take place. The reason why, of course, I can't state that is in fact that the very observability and verification of this entire process from beginning to end is very, very, vague.

Your complaint actually puts the Supreme Court in a very difficult spot. Such a fundamental matter must be decided within seven days (under electoral complaints regulations-ed). If you win, over 313,000 e-votes will be invalidated, and the whole situation will be completely different. Do you believe that the Supreme Court would venture to make a decision of that nature, based purely on legislation?

That the Supreme Court would venture to make decisions purely based on the law? I very much believe that it would venture to do such a thing!

I cannot foresee what the final outcome of this appeal may be. One outcome is that 313,000 votes really do turn out to be invalidated, making the situation completely different. 

But this may not be an unreasonable solution, in such a case, if the Supreme Court, for example, does not feel confident that these 313,000 votes were cast in a controlled manner and that these 313,000 votes are genuine. In such a situation, the Supreme Court cannot be blamed for anything.

Second - I understand that if the votes are sincere, but the votes were cast illegally, so how then do we justify the counting of these votes. In this case, it is an illegal process, a process against the constitution. And even in such a case, I see no reason to criticize the Supreme Court if these votes are not taken into account.

And finally, whose fault is it that we continue to be in a situation where there is reason to blame a lack of regulation? It is not the fault of the Supreme Court, it is not the fault of EKRE, it is not the fault of any other parliamentary party, it is collectively the fault of the Estonian parliament. Parliament does not read what the Supreme Court says, and parliament does not do what the Supreme Court recommends.

In fact, there have been many such cases where the Supreme Court has acted according to the modern expression used today, namely nudging: In various decisions, the legislator is "nudged" to change certain regulations; for example on the topic of state fees, and there have been such examples in the past also on the topic of bailiffs' fees, for instance. And if the Supreme Court has "nudged" enough, but it realizes that this nudging is no longer sufficient, it may finally make a decision, one that is drastic and which throws the entire regulation on its head.

It's possible that that will happen now, it's possible that it won't happen now; maybe it will happen next time, I don't know. It is very difficult to predict.

Yes, I wanted to ask that when the Supreme Court explained in 2019 that the requirements for e-voting must be laid down in the legislation, but it did not give a deadline, does that have to be for the next election, the election after the next: That was note stated in advance?

Such a deadline cannot be set, because what the Supreme Court actually said is that the Constitution requires it. In this dispute, I understand that it did not turn out to be decisive.

EKRE announced Thursday that it would be appealing Sunday's Riigikogu elections e-vote result at the Supreme Court, requesting the results be annulled

The party was leading the paper ballot vote at one point, though the count had been incomplete at that time, while the e-vote results became known before the very last paper votes. In any case the addition of the e-vote to the overall total drastically changed the situation, in favor of Reform and also Eesti 200.


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Editor: Andrew Whyte, Mait Ots

Source: ERR Radio News

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