Resolution No. 3 of 14 March 2023 in constitutional case No. 4/2023
Referring entity and subject matter of the case
The case has been initiated upon request of Members of Parliament seeking to establish anti-constitutionality of the following provisions of the Election Code (EC): Article 206, para 1 as regards ‘of his own choosing’ and ‘paper ballot or’; Article 206, para 3; Article 212, para 4; Article 212, para 5 as regards ‘Machine voting shall not be held in polling stations outside the country for the formation of which less than 300 applications under Art. 16, para. 1 have been submitted or in which less than 300 voters voted in the last elections, as well as in the cases in which there is no person to whom the Central Election Commission has assigned activities for the technical provision and maintenance of the technical voting device, who knows the Bulgarian language, to install and maintain the technical devices for machine voting’; Article 213b, para 1 as regards ‘received more than four percent of the actual votes in the last parliamentary elections held’; Article 213c; Article 268, paras 4 and 5; Article 271 as regards ‘by counting the machine voting ballots’; Article 430 as regards ‘by counting the ballots from the machine voting’; § 54 of the Law Amending and Supplementing the Election Code (LAS EC) (promulgated SG No. 104 of 30 December 2022) repealing § 145 of the Transitional and Final Provisions of the Law Amending and Supplementing the Election Code (promulgated SG No. 39/2016; amended SG 85/2017, SG 94/2018, SG 17/2019 and SG 21/2019).
The challenged – in part or in whole – provisions of Article 206, paras 1 and 3; Article 212, paras 3 and 5; Article 213b, para 1; Article 213c; Article 268, paras 4 and 5; Article 271; and Article 430 EC are part of the framework regulating machine voting. The challenged § 54 LAS EC (promulgated SG No. 104/2022) repeals § 145 of the Transitional and Final Provisions LAS EC promulgated SG No. 39/2016; amended SG 85/2017, SG 94/2018, SG 17/2019 and SG 21/2019) which allows for the possibility of experimental remote electronic voting and prescribes its arrangements.
Summary of reasons
By judgment No. 9/2021 in constitutional case No. 9/2021 the Constitutional Court ruled on the merits on a request seeking to establish the anti-constitutionality of some provisions of the Election Code, including Article 206, paras 1 and 3 in the version in force as of the time the Court adopted its judgment. After the delivery of judgment No. 9/2021 these provisions were amended, and the amendments were integrated in the wording of the provisions (promulgated SG No. 104/2022), hence this part of the subject matter of these constitutional proceedings is different from the one of constitutional case No. 9/2021. The part of Article 212, para 5 challenged by this request for constitutional review, even though formulated in a separate sentence, literally reproduces the identical part from the previous version of Article 212, para 5 – ‘Machine voting shall not be held … as well as in polling stations outside the country for the formation of which less than 300 applications under Art. 16, para. 1 have been submitted or in which less than 300 voters voted in the last elections’ on which the Constitutional Court ruled by judgment No. 9/2021. This is why the request concerning Article 212, para 5, second sentence ‘‘Machine voting shall not be held in polling stations outside the country for the formation of which less than 300 applications under Art. 16, para. 1 have been submitted or in which less than 300 voters voted in the last elections’ should be rejected.
The Constitutional Court has not ruled by a judgment or a ruling on the inadmissibility on the other provisions (or parts thereof) of the Election Code currently in force that are challenged by this request, hence the ineligibility clause (Article 21, para 6) of the Constitutional Court Act does not apply.
Grounds for the ruling
Pursuant to Article 149, para 1, item 2 of the Constitution (powers to rule on constitutionality of laws), the Constitutional Court admits for constitutional review on the merits the request of 73 MPs of the 48th National Assembly seeking to establish anti-constitutionality of the following provisions of the Election Code: Article 206, para 1 as regards ‘of his own choosing’ and ‘paper ballot or’; Article 206, para 3; Article 212, para 4; Article 212, para 5 as regards ‘as well as in the cases in which there is no person to whom the Central Election Commission has assigned activities for the technical provision and maintenance of the technical voting device, who knows the Bulgarian language, to install and maintain the technical devices for machine voting’; Article 213b, para 1 as regards ‘received more than four percent of the actual votes in the last parliamentary elections held’; Article 213c; Article 268, paras 4 and 5; Article 271 as regards ‘by counting the machine voting ballots’; Article 430 as regards ‘by counting the ballots from the machine voting’; § 54 LAS EC (promulgated SG No. 104 of 30 December 2022).
The Constitutional Court rejects the request of 73 MPs of the 48th National Assembly seeking to establish anti-constitutionality of Article 212, para 5, second sentence of the Election Code as regards the part ‘Machine voting shall not be held in polling stations outside the country for the formation of which less than 300 applications under Art. 16, para. 1 have been submitted or in which less than 300 voters voted in the last elections’ and terminates this part of the proceedings.