Swiss Internet Voting Legislation and Jurisprudence – actual state
One of the most significant novelties announced to take place in 2013 is already there: a proposed modification of section 6a of the federal ordinance on political rights regulating internet voting has been published (in French and German) and is in the consultation procedure until mid-July. Furthermore a new, lower-level, regulation containing technical instructions on how to implement the principles announced in the ordinance has been prepared (Project and annex in French and Project and annex in German).
Compared to the older (still in force) version, the new articles 27a to 27o of the ordinance are meant to clarify and simplify procedures for Cantons (States) who wish to use internet voting for federal ballots. Another objective is to introduce detailed conditions subject to which internet voting can be used for up to 100% of the electorate. Internet voting continues to be considered an experimental channel unlike polling station and postal voting. “Experimental” refers to the fact that internet voting can only be used if so authorized by the federal Government. It is however a fully valid channel whose results are binding. So what’s new and less new in the proposed ordinance?
From 10 to 100%
Today, internet voting can be proposed to a maximum 10% of the federal electorate and 30% of the cantonal electorate (almost half of the Cantons do internet voting). The great novelty foreseen by the current modification is the possibility to extend the electorate’s limitation to 50% and then to 100%. According to a new article 27f, the federal Chancellery introduces requirements which will regulate the use of internet voting for:
- 30% cantonal – 10% federal electorate (current situation)
- 50% cantonal – 30% federal electorate (intermediary step)
- 100% electorate (final objective)
Such rules are part of a technical regulation due to be published soon. Achieving the 100% goal will presumably mark the end of the authorization system and the generalization of internet voting.
Plausibility and Verifiability
The second biggest novelty is the introduction of the concept of verifiability. Article 27i stipulates that to be allowed to propose internet voting to 100% of its electorate, a Canton must first introduce verification tools which allow to prove that the voting itself was held according to rules and that the results are correct. Cantons who propose the internet voting channel to only a part of the electoral body must only establish the plausibility of the internet voting results. Verifiability and plausibility are not defined in the ordinance itself. The federal Chancellery establishes the modalities according to which verifiability and plausibility are to be conducted (minimum requirements). This will presumably also be part of the technical regulation.
A two-stage authorization
Up to now the federal Government alone had the competence to authorize the use of internet voting at federal ballots. The underlying procedure proved to be cumbersome for the Cantons. If the proposed modification of the ordinance is accepted this is going to change. A two-stage approach will apply.
The first-step for a Canton will be to obtain a general authorization from the federal Government (27a1). Cantons new to e-voting will receive an authorization for a maximum 5 consecutive e-votes; the more experimented ones will receive longer authorizations but still of limited duration. Other restrictions may apply. Federal elections are not part of this system as they need to be approved on an ad-hoc basis (27a4).
After having obtained the general authorization, the Canton must ask for a specific authorization for each federal ballot with internet voting. This specific authorization is issued by the federal Chancellery (27e) the body in charge among others of evaluating cantonal demands.
By splitting the authorization procedure in two steps and simplifying it at the federal Government level, the aim is to make life easier to Cantons and Government. New “authorization competences” are given to the federal Chancellery – the competent body for internet voting which operates in close coordination with the cantons and has the advantage of being more flexible compared to the federal Government.
A canton wishing to propose internet voting has basically three choices (27k): to implement and use its own internet voting system, to outsource internet voting to another canton (with system) or to outsource the internet voting service to a private service provider. Both last cases are to be regulated in a contractual way through an agreement signed by all involved parties and the federal Chancellery.
Internet voting systems will be evaluated by an external independent service (article 27l) approved by the federal Chancellery. This independent body will check the system’s compatibility with up-to-date security requirements and the system’s performance. Such control will be reiterated at each important modification of the system.
Here again, the ordinance introduces the basic idea of system evaluation. The federal Chancellery must now regulate the details and modalities.
In line with present legislation, cantons are required to allow voters to observe the main internet voting operations (27m2). A newly-introduced sentence foresees access to internet voting documentation.
But the main novelty with respect to observation is to be found in another text: the federal law on political rights. The law has also been recently modified and is in the consultations phase. A new article 85.1 requires Cantons to introduce legislation on observation which covers observation of voting and counting processes by citizens. Although observation was possible in practice and no problem ever aroused with this respect, introducing minimum requirements on observation in the federal legislation will help achieve harmonization of practice throughout the country, including with respect to internet voting observation.
Swiss abroad and sight-impaired are in the focus of internet voting extension. Swiss abroad were already excluded from almost all limitations of electorate. What’s new is that sight-impaired may also be excluded from limitations (27f2). This is far more challenging because of the difficulty to precisely define a “sight-impaired” from a political rights point of view and even more because of the fact that, to the difference of Swiss abroad, they are not grouped in one register.
Federal Court’s Impulse
The proposed modification clears the federal ordinance on political rights, section 6a, from detailed technical provisions: the new version only contains the main principles applicable to internet voting. Which was certainly one of the objectives of the revision. Detailed implementation requirements and modalities are to be laid down in the technical regulation (coming soon). Now, such detailed technical regulation is quite a new animal in the political rights landscape.
In another (not directly related but pertinent) development the federal judges upheld an appeal on security and control requirements of internet voting. The appellant held that detailed provisions implementing the general prescriptions contained in the law had to be adopted before internet voting could be used extensively. Understood, such detailed prescriptions should also be appropriate to implement the general principles contained in the law. The federal Court was not entitled to examine the security and control arguments itself but referred the matter back to the initial decision-maker for a new decision asking the cantonal court to try the case in substance and thus determine the issue of detailed technical regulation of internet voting. Importantly, the federal Court stated that despite the fact that the appellant had no interest presently (the vote where the alleged irregularities occurred has been validated) the question (of the detailed technical regulation of internet voting) is a matter of principle which may be asked again in similar terms and as such has to be clarified. It will be interesting to see how the cantonal (and maybe eventually the federal) judge will determine this issue and the potential spill-over effects it may have on the federal regulation.
 Internet voting is currently limited to those Swiss abroad living in Wassenaar Countries which are part of the Wassenaar Arrangement of 19 December 1995/12 Mai 1996 on export controls for conventional arms and dual-use goods and technologies, www.wassenaar.org . The Arrangement regulates the use of cryptography, a dual use technology. The participating states allow the exchange of encrypted communications used in internet voting. Some 90% of Swiss abroad live in this area.
 Judgement 1C_477/2012 of 27 March 2013 published on www.bger.ch