New bill layouts legal basis for voting with smart devices

Phone. Source: Bryan Santos / Pixabay

The Ministry of Justice sent a draft to the government that would lay the foundation for voting via smart devices, such as mobile phones, if passed. However, it does not specifically mention m-voting.

In September, Minister of Justice Kalle Laanet (Reform) introduced a draft law that aims to allow voting on "the most common operating systems." The bill will create the legal framework for voting on smart devices.

The bill's explanatory text also gave an overview of the benefits and risks of voting from a mobile phone, known as m-voting and m-elections. One positive is that turnout could increase by between 0.8 and 2.6 percentage points, but a negative is that the election organizer no longer has full control over the election application.

Laanet has now sent the bill to the government for further discussion but it removed the sections directly related to changing the law to allow voting on smart devices.

Draft's purpose has not changed

The Minister of Entrepreneurship and Information Technology Tiit Riisalo (Eesti 200), who is in favor of voting from smart devices, said the aim of the bill has not changed.

"We are happy with it in the sense that it actually provides for the possibility to carry out m-elections but it does not provide for it expressis verbis [explicitly – ed]," he said.

In the draft, the corresponding clause states: "A voting application will be created for the most common operating systems and a vote checking application for the most common mobile operating systems. The operating systems on which the applications will be created will be determined by the national election service before each election."

Tiit Riisalo. Source: Ken Mürk/ERR

"We have an application for voting on a computer," Riisalo said. "And now we will have the opportunity, with the new law hopefully coming into force soon, to create these applications for operating systems used on mobile phones, and this will allow voting on smart devices."

Laanet: The situation has changed

Laanet said the situation changed between the creation of the first and second drafts. He stressed the bill's main purpose is to lay out the rules of electronic voting.

"The idea was to write down the possibilities of m-elections there. But, as we have read in the media, the National Electoral Commission was critical of m-elections and highlighted a number of risks," Laanet explained.

"Then we separated the two things so that the Ministry of Economic Affairs and Communications would deal with the m-elections technology and prepare it in a way that all parties would be happy and the risks would be mitigated. But the part specifically on the tidying up of the rules for electronic voting, that's what we decided to pass on to the government," the minister said.

Laanet said that the bill provides a unified framework for all forms of electronic voting.

"Whether it's a desktop or a laptop," the Minister of Justice listed. "And if, at the end of the day, it is said that it is possible to vote risk-free with a mobile phone, then in principle there is no need to make a separate m-voting law, but the points of the electronic voting law cover this. But if lawyers think that for the sake of legal clarity, it needs to be further clarified, it should be discussed." He added that in principle Riisalo is right.

Kalle Laanet (Reform). Source: Priit Mürk/ERR

Why are m-elections not mentioned in the explanatory letter?

Both ministers confirmed if the Riigikogu passes the law, then the election service will be able to specify which devices can be used in future elections.

"All things can progress step by step," Riisalo said, adding extensive experience with e-elections helps promote m-elections. "If the technology moves forward in parallel, this wording will give us the opportunity to further expand these possibilities in the future."

Therefore, there was no substantive change between the two versions of the draft. However, the explanatory text, which initially included the impact analysis and risk assessment, changed significantly. 

Laanet, who presented the bill, could not explain why this happened and suggested contacting the ministry.

"The minister, I confess, does not read the explanatory memorandum of any bill from cover to cover. Although people might think that the minister does. Perhaps he should, but unfortunately, I don't have the time," Laanet said.

Still unclear if m-voting will be used in European Parliament elections

The current law does not mention specific devices, neither phones nor computers. Laanet noted this essentially means a voter could already cast a ballot with a smart device according to the current law.

"Ministry of Justice officials were of the opinion that there was no need to regulate this separately when the draft law was being prepared," Laanet said. "I can't even tell you exactly why the Ministry of Economic Affairs and Communications wanted it to be regulated in more detail in this law."

In other words, according to the Ministry of Justice, the Riigikogu actually gave permission for m-elections years ago – when e-elections were first given the go-ahead.

However, Riisalo is waiting for the law to change and hopes that it will be possible to vote with a smart device in next year's European Parliament elections for the first time. "We will definitely prepare the technological side," he said.

Laanet said the technological risks of m-elections should still be assessed and mitigated. "So that we do not cast doubt on electronic voting as a whole," he said. 


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Editor: Helen Wright

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