Electoral committee chair: Worth keeping with times, but m-voting risky

National Electoral Committee (VVK) chair Oliver Kask drawing lots in connection with the 2023 Riigikogu elections. January 24, 2023.
National Electoral Committee (VVK) chair Oliver Kask drawing lots in connection with the 2023 Riigikogu elections. January 24, 2023. Source: Siim Lõvi/ERR

A bundle of proposed amendments to Estonia's election laws drawn up by the government doesn't provide clarity regarding how to ensure that all necessary requirements are met in mobile voting (m-voting), and leaves open the possibility of the government being given powers in organizing electronic elections (e-elections) that could impact their credibility, National Electoral Committee chair Oliver Kask said Thursday.

Does the National Electoral Committee [Vabariigi Valimiskomisjon, VVK] support the adoption of voting by smart device as currently proposed?

The simple answer is — not really. We believe this calls for longer and more in-depth discussion. Chiefly at the Riigikogu level, inasmuch as this entails significantly different, at times much greater risks compared with existing voting methods. In order to allow it, it should be acknowledged, discussed, and found, if not consensus, then at least very broad support for it via social debate.

We certainly understand the desire to change the technological solution, as the use of computers may decrease in time. When they came up with electronic voting, those new technological solutions — such as smart devices — didn't even exist yet. In terms of keeping with the times, it's definitely a worthwhile and relevant point of discussion. But the risks it entails are pretty significant right now.

Do I understand correctly that the central issue with voting by smart device is the fact that meaningful control over the voting app, how it's set up and what it contains will be taken out of our country and out of our hands?

That's definitely part of it, and perhaps the most problematic part. Some of the more significant risks, which we also highlighted when providing feedback on the bill, concern precisely the fact that, first of all, the public and observers cannot receive adequate assurances that this is the exact same, correct code. This is otherwise public; in the case of the computer program available at valimised.ee, its accuracy and authenticity can be verified fairly easily.

But when it comes to smart devices, this verification would require easy access to the owners or operators of the Google or Apple app stores — which are located outside of Estonia, where these programs are put together. This isn't somewhere any observer can freely just come and go.

According to Minister of Economic Affairs and IT Tiit Riisalo (Eesti 200),  there's no reason to doubt Apple or Google's credibility. He says that all kinds of trust services are provided through these very same app stores, and points out that every bank has its own app, for example, which is, especially in Apple's case, essentially taken apart, reassembled and then listed in the app store the exact same way.

Isn't the fact that these are large, well-known corporations enough to entrust them with partial control?

When it comes to banking, any of us can clearly check our bank accounts for how much money we have left in there and whether someone has handled this money in some way that we didn't want. It's precisely the secrecy of voting that doesn't allow for us to very clearly verify later whether all votes have arrived correctly, where they've arrived and whether anyone has been able to look at them in the meantime and make note of what they see somewhere — of who I, you or some third person has voted for.

In that sense this definitely requires a different sort of and greater trust, also given the fact that government or parliament decisions can have a much greater impact on our wallets than merely moving the money currently in our bank account around.

There's also been a lot of talk about how if you vote with a smart device, you may not have another smart device with which to check the vote you cast. Going back to Tiit Riisalo's earlier thoughts — in that case he recommended using a family member's smart device. Is that a suitable solution?

There may be situations where this works quite well — if a good and trusting relationship exists in the family and everyone understands and supports the principle of the secret ballot.

But it could surely also lead to a situation in which a family member or friend whose smart device you're borrowing also wants to know, out of curiosity, how it went and whether everything worked. And if someone themselves isn't sufficiently skilled in keeping their vote secret, then they could end up in a situation where they either reveal their voting preference to the other family member — which could also subconsciously influence [the other person's] voting preference and, if they were undecided, get them to vote for someone likewise supported by a family member — or they otherwise end up not checking at all whether their vote arrived at the right place.

This choice between two less than ideal choices or solutions is certainly possible. Many people also have several smart devices, or can use them secretly and personally enough, but this is certainly a risk worth acknowledging.

I'm not gonna start listing all of the various risks and concerns involving m-voting one by one, but from what I understand, the question, broadly speaking, is whether we can mitigate them or will we accept them, because they can't all be mitigated.

Is the acceptance level sufficient — if the Riigikogu amends the law with government coalition votes, and we can see that the majority of representatives elected by the people support the fact that we accept some or other risks, and we can proceed peacefully from there with m-voting? Or should the level of risk consideration and also acceptance be different somehow? In other words: once the Riigikogu has amended the law, accepted those risks with a majority vote, then it's all good?

Then it's not all good. Let's put it this way: the ideal or goal to strive toward should be the way e-voting was implemented in Estonia in the first place: in 2002, the Riigikogu Election Act was passed in the Riigikogu with 90 votes in favor. I believe that such a consensus or very broad-based support should be the goal in all countries for all fundamental changes — as is recommended by international standards.

Of course you can't say that if this amendment gets 51 votes in the Riigikogu then it won't enter into force or then it shouldn't be implemented. The Riigikogu can indeed adopt decisions with the support of a majority of votes. But that certainly shouldn't be considered a good solution. Given that election results should be supported, considered credible and legitimate by a very large part, if not all, of society.

After all, the laws we pass in the Riigikogu or the government that runs our lives and gives us orders aren't only being imposed on half or a little over half of society. Even those who lose a parliamentary debate should get the feeling that they were beaten in a fair and honest fight.

On top of permitting m-elections, the planned legislative amendment would also grant the government the power to establish various rules regarding electronic voting. I understand that this worries the electoral committee? The government would be granted several rights to impose regulations on the same issues regarding which regulations are currently imposed by the VVK? Have I got this right?

Yes, that's right! The amendment concerning the technical requirements for the organization of electronic voting was prompted by Supreme Court criticism regarding the matter, and the Supreme Court drew attention to the fact that all important matters in the state should be decided at the legislative level, not have their resolution delegated to subordinate bodies, of which the VVK is one.

And the Riigikogu Election Act emphasizes this in particular. The Constitution requires that election matters should have especially broad support in the Riigikogu, meaning passed with 51 votes. The Supreme Court found that the current framework is heavily biased toward acts subordinate to the law.

In the event that we now leave the rules regarding electronic voting more or less as detailed or general as before in the legislation — regardless of what we judge it to be — and we simply provide that those more detailed requirements will be imposed by the Government of the Republic instead of the VVK, then that's actually still just as strongly biased toward acts subordinate to the law, as criticized by the Riigikogu in its spring ruling. In that sense, the problem remains.

But we consider the biggest problem to be that the content of the technical rules could start to very significantly fluctuate and change as the composition of the government changes, depending on which parties are in the government at the time. This certainly wouldn't help foster election results or the organization of elections appearing credible and legitimate to society or voters.

If we change the regulation in one government to make participation in electronic voting significantly more difficult, but the next government comes and makes it very easy, then that should in no way be consistent with those general principles concerning the organization of elections. These rules should be permanent, stable as well as broadly discussed and debated in society. When it comes to adopting government regulations, unlike Riigikogu procedure, the opposition's opportunities to have a say are significantly more limited.


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Editor: Aili Vahtla

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