Last updated on December 17, 2013

When considering the use of electronic voting and counting technologies, the compatibility of these technologies with a country’s existing constitutional and legal framework needs to be considered very carefully.³ The use of these technologies may not only be contradictory to existing provisions in the legal framework, but may require additional provisions be drafted to cover the ways in which technologies impact electoral processes. 

It may well be that the existing legal framework makes reference to physical ballot boxes and ballot box seals, to actual ballot papers and the ways in which ballots are counted and adjudicated. All of these processes can occur with an electronic voting or counting machine, but in a different way. 

Therefore, the electoral legal framework needs to be reviewed to determine whether the use of electronic voting or counting technologies is in compliance with the law. It is highly likely that if only paper balloting has been used in the past, then the laws will have been written in such a way as to preclude the use of these technologies. Parts of the legislation requiring amendment will need to be identified, and suitable amendments will need to be passed before a trial or full use of electronic voting and counting technologies can be implemented. The consequence of not doing so could be to invalidate any election held with electronic voting or counting technology.

However, rather than simply addressing electoral framework issues that might be inconsistent with using electronic voting or counting technologies, it would be advisable to conduct a comprehensive review of relevant legislation to ensure all aspects of using electronic technologies in a country’s elections are lawful and appropriately regulated. The review could also cover issues such as transparency mechanisms, security mechanisms, certification requirements, audit requirements and procedures for challenging results generated by electronic voting or counting machines. It may also be relevant to review other legislation that might not be directly related to elections, such as laws dealing with information technology; administrative and criminal codes; data security and protection; procurement; and the issue of government contracts. Such legislation may have an impact on the legal framework for using electronic voting or counting technologies, or may require an amendment to permit their use.

A balance needs to be established in drafting legislation to enable electronic voting or counting. A similar level of detail to paper based voting should be included in this legislation. Those drafting the legislation must also ensure the EMB has sufficient flexibility to respond to changes in technology and the way in which it is implemented. The EMB needs to be aware that, not only will legislation and regulations be required for proper implementation of electronic voting or counting technologies, but procedures and protocols for internal use and management are also vital.

If legal changes are required to use electronic voting or counting technologies, it is prudent to start the process of making legal amendments as early as possible, as the process may be lengthy. This will allow sufficient time to develop or amend legislation in a manner inclusive of citizens and political contestants. 

At least as important as revising the law substantively is the process by which it is addressed. An open and inclusive process for deliberating any legal amendments concerning these issues is vital to winning public confidence and reaching an agreement with potential electoral contestants on the new rules of the electoral competition. The importance of a transparent and inclusive approach cannot be overstated.

^{3 For more detailed information on this topic, please refer to the following sections in Part 2: Decision in Principle; Legal and Procedural Framework.}

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