The Council of Europe insists, the new 2017 recommendation on E-Voting. Softlaw with a great potential (Full-length article)

The essence of any democracy rests on the political right of suffrage that allows the sovereign people to participate in public affairs. Article 23 of the Spanish Constitution reminds us that citizens participate directly or through freely elected representatives in periodic elections by universal suffrage. This is a fundamental right that our Organic Law of 1985 (Organic Law 5/1985, of June 19) develops in detail within clear limits: it must be universal, free, equal, direct and secret. In 1985 there were no technological tools to exercise the vote and the legislator in Spain did not intuit a persevering and unstoppable technological future.

The first law in Spain that regulates electronic voting is the Basque Electoral Law of 1990 (Law 5/1990 of June 15), which after being amended in 1998 (art. 132 bis-noníes) introduced it in a pioneer way. And as the global society is stubborn and other countries do have and regulate electronic voting, our State has lived as an "active" viewer of this process. The 2009 Judgment of the German Constitutional Court is an example [a type of electronic vote is declared unconstitutional and contrary to art. 21 of the Grundgesetz but, at the same time, Germany does bet on the use of electronic voting]. That same year the Spanish State Council recognizes, [through the report of reform proposals to the LOREG] that the future of the vote in Spain will be by vote online.

Technology is here to stay, the wear and tear of classical institutions and the challenges of the 21st century are fellow travelers. This combination requires a multidisciplinary dialogue to dimension its depth and effects. Globality and its network connection have generated a new power of information, communication, cooperation and decision-making that have little to do with the classic concepts of "participation" and "representation." The doctrine is plural and authors such as KURBAN understand that only by lighting up concepts such as "technopolitics" can we understand the new digital policy. RODOTÁ, on the other hand, prefers to underline that they are rather "formal" changes that do not alter the essence and, EDWARDS and HECHT, in a very different sense, do perceive the heart of politics modified in the new technological scenario, which creates new Participation processes

Digital democracy, Democracy 2.0, e-democracy ..., name unforeseen realities and puzzling challenges. Rights and freedoms are also exercised with technological tools. In the middle of the universe of participation is the political right to vote that is exercised by individual and free vote. We speak of universal, free, equal, direct and secret e-voting as a new way to illuminate an infinitesimal portion of what in the future are the decisions that build democratic states.

All these realities mean that in the international framework since the end of the last century and, in an intense way, in the latter, we work to legally regulate the scenarios of political participation with technological tools (DRE, Direct recording electronic voting machines, electronic voting screens , digital pencils, smartphones, internet voting systems, etc.)

Pierre Garrone warns, as an initial premise, that the new scenario must guarantee the “European electoral heritage”, as a set of experiences and knowledge that have built over the years in Europe the essence of democracy through fair and free elections.

The Council of Europe Committee of Ministers adopts on June 14, 2017 a new Recommendation on e-voting. It does so under Article 15.b of the Statute of the Council of Europe [BOE 51/1978, of March 1] which states: “… The conclusions of the Committee of Ministers may, if necessary, take the form of a Recommendation to the governments. The committee may invite them to inform them of the measures they have taken with respect to their recommendations. ”These are electoral processes with the right to vote by electronic vote. How should states regulate this to continue guaranteeing fair and free elections? The 2017 recommendation has a great capacity but a small normative force to bind (in a binding way) the Member States.

The International Community continues to work to offer electronic voting experiences by finding common problems and offering convergent ways to solve them. Baggage to be taken advantage of, putting it in common and subjecting it to slow and critical “cooking”. The result is articulated in the Recommendation and must coexist with the plurality and heterogeneity of States (with different rhythms and implementation needs).

The Recommendation is a soft law standard that only suggests, proposes and recommends. What effects does a Recommendation like this have then? Especially when the different electoral rules place us in front of diverse e-voting experiences and in different development phases. Think of Norway or Estonia and at the same time other examples such as Russia or Turkey.

More than ten years after the last Recommendation of 2004, [approved on September 30], on legal, operational and technical standards for electronic voting, the Board updates and revises its contents. Task performed by the CAHVE expert committee (Ad Hoc committee of Experts on Legal, Operational and Technical Standards). This “multidisciplinary” group brings together experts in legal, technical and operational matters in order to encourage and support the use of e-voting in the States, always with the maximum guarantees of democratic quality.

In 2004, the Council of Europe, addressing governments, sought to respond to concerns such as: the downward trend in participation in elections and referendums, the increasing implementation of electronic voting in many countries and their need for management and regulation , the suggestive idea of ​​casting the vote from places other than the polling station (fax, mail, smartphone, internet ...), the need to provide solutions to groups of temporarily displaced voters, residents abroad, embarked in international waters, or even to people with disabilities or with special needs [this last reality has led to the recent reform of our LOREG, LO 2/2018, of December 5 in its article 3.2 recognizing to every person the right to active, conscious, free and voluntary suffrage anyone who be your way of communicating it and with the means of support you require].

The voters of more than ten years ago also demanded new technologies to participate more and better, to reduce the costs of the electoral processes, to know the results scrutinized more quickly and more reliably and, all this, for the sake of a democracy of quality. In 2004 we began to wonder if the right of participation, thanks to electronic voting, would illuminate new participatory processes, not only in electoral processes, but also in other areas (budgetary matters, for example).

The problems of then and some more, are those of now. National electoral legislation has evolved and undergone changes. Hence the commitment to review and update, in the light of the respective internal regulations (domestic law), the regulations, their policies and regulations of electronic voting. All with two clear ideas: group the experiences of e-voting and, after their study, evaluate them. How each country had decided to attend and implement the recommendation of the Council of Europe? What had been learned from all this? What did the use of electronic voting have to offer to solve new problems present in the elections of the States?

The current 2017 Recommendation is shorter. Their assessment by experts is not unanimous. Authors like McGaley and Gibson see an effort "... devoid of ambition." On the contrary, Drita Maurer, describes it as an essential tool and pillar of the open dialogue between the national legislator, the international community, the academy, the technical experts and other bodies involved in the future of e-voting [technical companies, national institutional authorities and international]. In any case it is a step forward in an open process.

Several positive aspects can be highlighted: a) its vocation to update-continue a process, b) its new concept of e-voting [broader qualitatively and quantitatively] and, c) its delimiter-differentiating desire for three regulatory categories of regulation: "Principle", "standard" and "requirement". The choice between them will depend on the type [importance, stability or general or specific character] of content to be regulated.

It is true that the Recommendation does not abandon problems seen in 2004. It is organized into 49 provisions grouped into eight chapters: on universal, equal, free and secret suffrage (standards 1-26); on the requirements to be observed in the organization and regulation of e-voting (27-30); about the relevance of transparency and the possibility of “observation” in electoral processes (31-35); provisions also to guarantee the accountability of the process in each and every one of the phases (36-39) and, finally, standards that detail how to make the process “reliable and safe” (40-49). Along with these contents, two complementary documents are added. On the one hand, the Explanatory Memorandum of the Recommendation (GR-DEM at its meetings of April 20 and June 1, 2017) and, on the other, an ambitious guide on how to implement the contents. In both texts it is clear that the competence of the Member States in electoral matters and referendums cannot be affected by the suggestions-suggestions of the Recommendation. That is why we must integrate and respect the diversity and specificity of each State in their domestic law and in their personal reasons to implement e-voting. At the same time that States will be provided with valuable material made of "good practices or good uses."

The recommendation offers a better and more ambitious e-voting concept. Electronic voting will no longer only be the exercise of the right to vote by technological tools, but will also contemplate the “recount” of the vote as an inescindible part of it. An integral design of the electronic vote cannot exclude the counting phase. This was one of the gaps in the 2004 recommendation. Today the OSCE / ODHIR defines e-voting as the use of information and communication technologies in the exercise and counting of citizens' votes.

The 2017 recommendation introduces a certain hierarchy of its contents. What legal nature does the new recommendation on e-voting have? It will depend on the regulated content. The answer here will be relevant since the States will decide to articulate, according to what content, under the nature of principle, standard or requirement. It is clear that the vertical hierarchy of content aims to smooth out, to the extent that it can facilitate, the implementation of electronic voting. Because it guides the State in its personal process and helps it to discern about contents and their relevance.

The "principles" must be dedicated to basic electoral law content, are the essence of fair democracy and free electoral processes. They refer to matters contained in documents such as the Universal Declaration of Human Rights of 1948, art. 21.3: “… The will of the people is the basis of the authority of public power; this will shall be expressed through authentic elections to be held periodically, by universal and equal suffrage and by secret ballot or other equivalent procedure that guarantees freedom of vote ”; the art. 25.b) of the International Covenant on Civil and Political Rights of 1966: “… Vote and be elected in periodic, authentic elections, held by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the electors”; Article 3 of Protocol I of the 1950 European Convention on Human Rights: “The High Contracting Parties undertake to organize, at reasonable intervals, free elections with secret scrutiny, under conditions that guarantee the free expression of the opinion of the people in the election of the legislative body… ”; “The public nature of elections in any country”, the Code of Good Electoral Practice of 2002 (European Commission for Democracy through law, Venice Commission), etc. These contents embody the "common electoral heritage", without which, we could not speak of true democracies. They enjoy the utmost importance. In this context, the recommendation considers that they require the nature of a “principle”: the aspects of electronic voting necessary to guarantee universal, free, equal, direct and secret suffrage; the frequency and periodicity of the elections; respect for fundamental rights, legal regulation and the necessary electoral stability; the procedural regulation of the organization and management of the electoral process by an impartial body that allows electoral observation, that articulates an effective process of electoral resources, manages the development of the conference in a uniform and equitable manner and, properly manages the funds. All these aspects will be binding in their development and regulatory regulation for each state. Without being exhaustive, this type of content at the national level is the essence of electoral law and must be regulated by “formal” law of the highest hierarchical rank. Being most often articulated by the Constitution of the country with an unequivocal vocation of permanence and stability.

In addition and along with the principles would be the legal standards (arts. 4, 5, 7, 8 and 28 of the Explanatory Report of the Recommendation) regulate the requirements that governments must observe when implementing electronic voting within an electoral process democratic (eg: to ensure a reliable and unique identification of voters, to ensure neutrality and equality of all alternatives involved in a process, etc.) The contents aim to create uniform medium-term guidelines for all States. Its impact and transcendence is somewhat less than the principles and, instead, its versatility to be updated and reformed, greater. They are also mostly regulated by formal, therefore, general, binding and stable laws.

And both principles and legal standards should not be confused with technical or formal standards, that is, requirements. They are detailed, more adaptable and are destined for prompt updating. Its content is technical, related to specific technological products (software and hardware) hence requiring detailed standards, easily updated (art. 36 of Appendix I concerning the creation of duly appointed technical bodies to support and lead the development or, aspects related to the technical development of a certain tool, in its evaluation or audit mode, etc.)

The 2017 recommendation is "soft law." It is an instrument of indirect action, with an unquestionable political reach and that seeks to guide and promote (although they cannot impose) specific behaviors, practices or measures. It cannot be exhaustive and demands from each State its concrete development. We can see responses such as Norway with a faithful reflection in its regulatory system [in the Constitution] and others, such as the Russian that demanded in the same publication of the recommendation [at the foot of the foot] remember the right of each State to comply or not with the content (art. 10.2c of the Statute of the Council). An electoral process does not demand the same in India, [society of contrasts and with a ruling of its Constitutional Court in 1984 declaring the use of electronic tools unconstitutional, although in 1988 it would accept it] that Estonia, a country that allows online voting with character binding for your general elections to Parliament. Soft law will always have lights and shadows. The non-binding nature of the content of the recommendation generates “laxity” by the public authorities when interpreting and applying its content, making it more “manipulable”. The ability and intelligence to combine, proportionately, flexibility and rigor in their observance is the great challenge we face.

KOUBI points out that with electronic voting modern democracies are rebuilt around the secure scheme of order and stability, but they are also deconstructed, inventing the digital citizen irreversibly anonymized and undeniably individualistic and away from public affairs.

Governments and legal systems must implement electronic voting, through weighting, balance, proportionality and gradualness. Hence, a tool such as the 2017 Recommendation allows, from its flexibility and not linking, a scenario of gradual progress as plural as the Member States.