Legal scholar: Government can only regulate e-voting 'technical details'

Countdown to the end of online voting in the 2023 Riigikogu elections on the homepage.
Countdown to the end of online voting in the 2023 Riigikogu elections on the homepage. Source: Priit Mürk/ERRR

Electronic voting in Estonia, including a planned smartphone voting system, can only be regulated by the executive in terms of their technical aspects, one expert says.

Paloma Krõõt Tupay, Associate Professor of State Law at the University of Tartu, says the government may be able to regulate the technical details of e-voting, but not go beyond that.

This is in part because the executive in a democracy is subject to checks and balances which can cause it to change its makeup.

Speaking to ETV news show "Aktuaalne kaamera" (AK) Thursday, Tupay said: "Let us not forget that governments change in democracies, so I would venture to say that this should be carefully considered here; that fundamental issues should still be left to the legislature to regulate, even in the case of e-voting."

An amendment to the law completed by the Ministry of Justice would give the government more say in the organization of e-elections.

National Electoral Committee chair Oliver Kask told ERR Thursday that he was critical of the plan.

Minister of Justice Kalle Laanet (Reform) says the government cannot abolish e-voting via this regulation;

"E-voting is still established by law. There are certain details on how these processes are carried out, descriptions of the processes are included in the laws, but e-voting is included in the laws," Laanet told AK.

National Electoral Committee chair Oliver Kask however told AK that the new law would give the government the opportunity to make e-voting by turns too easy or too difficult.

"Will it be possible for a few voters to vote electronically whatsoever, if it becomes so inconvenient that it is much easier to go to the polling station to vote with a paper ballot, or, on the other hand, e-voting becomes so easy that all the dangers and risks that may be associated with it get overlooked," Kask said.

The amendment to the election law drawn up by the Ministry of Justice legalizes voting by mobile phone, or m-voting, and would also grant the government the right to introduce various regulations on e-voting more broadly.

Justice Minister Kalle Laanet (Reform) said the changes were based on suggestions from the Supreme Court.

Ultimately, however, Oliver Kask said, if the executive starts to corral e-voting with its own regulations, this can lead to elections getting caught up in political crosswinds.

Minister Laanet said that both his ministry and the government as a whole are set to discuss the criticisms of the bill. 

In any case, before entering into force, amendments to the electoral law in Estonia must pass a Riigikogu vote.


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Editor: Andrew Whyte, Merili Nael

Source: 'Aktuaalne kaamera,' reporter Anne Raiste.

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