Date when decision was rendered: 9.4.2009

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 899; 687/1/09

Reference to source

KHO 2009:39.

Yearbook of the Supreme Administrative Court 2009 January-June

Högsta förvaltningsdomstolens årsbok 2009 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 2009 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2010

Pages: pp. 364-382

Subject

elections, right to vote, right to be elected,
val, rätt att rösta, rätt att bli vald,
vaalit, äänioikeus, oikeus tulla valituksi,

Relevant legal provisions

chapter 6a, section 101 and section 103 of the Election Act; section 14 of the Constitution Act

= vallag 6a kapitel, 101 § och 103 §; grundlagen 14 §

= vaalilaki 6a luku, 101 § ja 103 §; perustuslaki 14 §.

ECHRP-1-3

Abstract

In the municipal elections in October 2008 the voters in three municipalities (Kauniainen, Karkkila and Vihti) were, for the first time and on an experimental basis, given the possibility to vote electronically at polling stations either on election day or in advance voting.Each voter could choose between electronic voting and ballot voting.Distance electronic voting from home was not possible.Written and illustrated instructions for electronic voting were attached to the polling card sent prior to the polling day to each person with a right to vote.Illustrated instructions were provided at polling stations and in voting booths.After the elections it was reported that altogether 232 votes in the three concerned municipalities had not been registered in the electronic ballot box and were thus lost.

Ten residents, including two candidates, in the municipality of Kauniainen lodged an appeal against the decision of the central election committee by which the result of the election had been confirmed.According to the Election Act, such a decision is subject to appeal on the grounds that the decision is unlawful or that the election has been carried out in an incorrect order which might have had an effect on the election result.The appellants claimed, among other things, that electronic votes had been lost because of insufficient instructions for voters and because of defects in the electronic voting system.For example, the system did not warn the voter of the fact that a precipitated withdrawal of the voting card, that had to be inserted in the voting terminal, aborted the voting.A total of 61 electronic votes were lost in Kauniainen.

In the first appeal instance, the administrative court found that the instructions for electronic voting could have been clearer and more uniform, but they were not incorrect.It also held that the fact that a precipitated withdrawal of the voting card aborted the voting without alerting the voter could be considered a defect in the electronic voting system.However, the court found that, although some two per cent of the electronic votes were lost, this did not indicate that the election authorities had committed an error and that the election had been carried out in an incorrect order.The appeal was rejected.

In the second appeal instance, the Supreme Administrative Court found shortcomings in the written instructions for electronic voting whereas the illustrated instructions were correct.The Court further held that the electronic voting system had been defective, because it had not informed the voter that the voting was aborted if the voting card was withdrawn too soon.The voter could then have been left with the misconception that the voting had succeeded.This defect had been detected when the system was tested before the elections, but the election authorities had failed to take any action to correct it.The Court concluded that, considered as a whole, the measures taken in preparation for the electronic voting were unlawful.The election had thus been carried out in an incorrect order.Considering the number of non-registered electronic votes, the defects may apparently have affected the result of the election.In the view of the Court, the defects were of the kind that the result of the election could not be rectified.Therefore, with reference to section 103 of the Election Act, the Court ordered that new elections shall be held.As a result of the Court's decision, new elections will be held in all three municipalities concerned.

In their appeal to the Supreme Administrative Court, the appellants referred to the Election Act, section 14 of the Constitution Act concerning electoral and participatory rights and Article 3 of Protocol No. 1 to the ECHR, concerning right to free elections.The Supreme Administrative Court based its decision on the Election Act, with a brief reference to section 14 of the Constitution Act.

See also: Council of Europe, Congress of Local and Regional Authorities, Information report on the electronic voting in the Finnish municipal elections, observed on 26 October 2008.

15.4.2009 / 21.10.2010 / RHANSKI