Lawyer: Riigikogu election by e-voting unconstitutional and cannot be counted | News

The argument of EKRE and Keres is that the regulation of e-voting in its current form is unconstitutional, while the votes counted on the basis of an unconstitutional regulation must remain unconsidered.

Indrek Küsler: What do you dispute?

Paul Keres: We oppose the counting of e-votes and demand that these votes not be counted [towards the final election result].

The legal regulation for the organization of e-voting and the counting of these votes is completely inadequate, if not non-existent. In our opinion, this is behind the unconstitutionality of this regulation.

This isn’t really a new concept; it’s quite old. In fact, since 1998, the Supreme Court has pointed out that all election-related issues must be resolved through the Electoral Law. There were other problems then, of course, but the analogy is appropriate for today’s case.

In addition, the Supreme Court ruled in a 2019 complaint that in order to uphold the right to vote and the principles of the rule of law, the e-voting process should be regulated in more detail by legislative acts, i.e. within the framework of the e-voting process was required by law. However, the legislature has not done anything about this so far.

A situation has arisen where the Riigikogu dictates the order, procedure and conditions for conducting e-voting, most of which are to be determined by the State Electoral Committee (VVK).

But the VVK is also there as a legislator, organizer and supervisor – all in one organization. This does not correspond to the principle of the separation of powers and certainly not to the logic of the constitution.

Küsler: That means that if the VVK’s procedure for counting votes had been legally recorded throughout the entire process, would everything then have been legally secure?

Keres: That’s not entirely clear. I say that because I think they would have been in a very different way if they had been enshrined in law. Because the basic principles of observability, verifiability and openness are not explained or regulated. These are things that should definitely be regulated by law and that other countries that do not use e-voting, for example, have done relatively well – for example Switzerland or Norway.

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

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Virtually every time since 2005 there has been an attempt to challenge e-voting to the Supreme Court, ie. since we used them. This will also be challenged in the same way you are now doing it. There were relatively standard answers [in the past] and these objections were overruled. Why do you think your wish will bear fruit this time?

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

The reason this appeal has any chance of success is that we are highlighting those issues that the Supreme Court itself drew attention to four years ago, and we emphasize that these issues are still unresolved.

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

Can you elaborate on these anomalies?

Well, there was a whole bunch of all sorts of weird events. For example, why the number of e-votes increases after the end of the e-voting polls, why there have been cases where people have e-voted but the review app cannot determine whether their vote has arrived is, and t returns an error message – there are quite a lot of such incidents.

Also, if I remember correctly, we have a 9-point summary from an expert on the technical processes and their shortcomings – from the sealing to the network devices to the basic security requirements or lack of them – etc. – the we have all highlighted in the complaint.

Then we find that such shortcomings in the organization of the elections are due to the fact that e-voting is not regulated on an equal footing with ballot voting in the electoral law and these rules have not been established. For example, if you compare what it’s like to vote with a regulated ballot, it’s relatively detailed, simple and understandable. But in the case of electronic voting, there is a gaping legal loophole on all the important issues.

I understand that of course you cannot talk about the matters between you and the customer i.e. EKRE, but we could not understand when EKRE says that there can be no result that Sunday evening was against Monday morning, what point, at where this scam could have taken place? (The e-vote results were not released until 11pm on Sunday and became clear shortly thereafter, while the final result was not known until after midnight.)

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I honestly don’t know anything about fakes in the sense that I didn’t mention fakes in the complaint. I have pointed out that this rule is unconstitutional and the votes counted under an unconstitutional rule need not be taken into account because it is simply unlawful, plus the anomalies.

I can’t say, at least based on the information I’m aware of, that cheating did or didn’t happen. The reason I can’t say that, of course, is in fact that the observability and verification of this entire process from start to finish is very, very vague.

Indeed, your complaint puts the Supreme Court in a very difficult position. Such a matter of principle must be decided within seven days (under the Election Complaints Ordinance-ed). If you win, over 313,000 e-votes will be invalidated, and the whole situation will be completely different. Do you think the Supreme Court would dare to make such a decision based solely on law?

That the Supreme Court would dare to make decisions based purely on the law? I really believe that one would dare to do something like that!

I cannot predict what the ultimate outcome of this appeal will be. One result is that 313,000 votes are actually invalid, making the situation completely different.

However, this may not be an unreasonable solution in such a case if, for example, the Supreme Court is not satisfied that those 313,000 votes were cast in a controlled manner and that those 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 genuine, but the votes were cast illegally, how do we justify counting those votes. In this case it is an illegal trial, a trial against the Constitution. And even in such a case, I see no reason to criticize the Supreme Court if these voices are not taken into account.

And finally, whose fault is that we continue to find ourselves in a situation where there is reason to blame 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 the fault of the Estonian Parliament altogether. Parliament does not read what the Supreme Court says, and Parliament does not do what the Supreme Court recommends.

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In fact, there have been many such cases in which the Supreme Court has acted in what is now the modern expression of nudging: in various decisions, the legislature is “nudged” to change certain regulations; for example on the subject of state fees, and there have also been examples of this in the past, for example on the subject of bailiff fees. And when the Supreme Court has “nudged” enough, but realizes that that nudge is no longer enough, it can finally make a decision that is drastic and turns the entire rule on its head.

It’s possible that’s happening now, it’s possible that’s not happening now; Maybe next time it will happen, I don’t know. It’s very difficult to predict.

Yes, that’s what I wanted to ask, when the Supreme Court said in 2019 that the requirements for e-voting must be set in legislation, but didn’t set a deadline, that has to be for the next election, the election after that the next: That was a note given in advance?

Such a deadline cannot be set because what the Supreme Court actually said is that the Constitution requires it. I understand that it was not decisive in this dispute.

EKRE announced on Thursday that it would appeal the e-voting result of Sunday’s Riigikogu elections to the Supreme Court, asking for the results to be annulled

The party led the voting by paper ballot at one point, although the count was incomplete at the time, while e-vote results were known before the very last paper votes. In any case, the addition of electronic voting to the total has drastically changed the situation in favor of Reform and also Eesti 200.

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