Decision No. 9 of 7 December 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: 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 (promulgated SG No. 104 of 30 December 2022) repealing § 145 pf 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).
By a ruling dated 14 March 2023 the Constitutional Court admitted for substantive examination the request seeking to establish anti-constitutionality of the following provisions: 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’; and §54 of the Law Amending and Supplementing the Election Code.
By the same ruling the Constitutional Code turned down the request seeking to establish anti-constitutionality of Article 212, para 5, second sentence of the Election Code 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’ and terminated the constitutional proceedings concerning that part.
The vast majority of arguments laid down in the request in support of the alleged anti-constitutionality of the challenged provisions of the Election Code pertain to the constitutional principle of equality and equal suffrage as a fundamental political right.
Summary of the reasons
1. As regards the contested part of Article 206, para 1 and paragraph 3 of the Election Code (EC) and the admitted part of the contested Article 212, para 5 EC
- as regards the contested part of Article 206, para 1 EC
The last amendments of the Election Code, in particular Article 206, para 1, as contested, restores the possibility for the voter to decide on the voting modality by choosing alternately either to vote by a paper ballot or by machine vote – a possibility that is precluded in the cases referred to in Article 212, para 5 and Article 269.
The law treats voters in the election process identically, regardless of the way they choose to cast their vote in from the statutory voting modalities – by a paper ballot or a machine vote. It is important to underline that the legislator, in Article 206, para 2 EC, expressly qualifies these two modalities of exercising the active voting right as ‘equal’ and hence introduces equal rules for voting either way. As regards the examination of the constitutionality of the legal provision in question, it is significant to note down that regardless of the voting modality envisaged in the law, there are safeguards inbuilt to ensure the integrity of the election process and equal citizens’ participation therein.
- as regards Article 206, para 3 EC
The restriction introduced by Article 206, para 3, namely that a voter, who has chosen to vote by a machine vote, cannot vote by a paper ballot, strikes a balance with the envisaged possibility for machine voting voters, a possibility provided in view of the specificities of the equipment, to make an adjustment in the course of casting their vote by checking the ‘in favour of’ option on the machine ballot (visualized on the screen) before confirming their choice. The machine voting equipment allows for revisions by default – once the voter has confirmed his vote, it is considered that he has cast his vote, hence the logic of Article 206, para 3 is to preclude exercising your active voting right once more, save for the respective exceptions set forth in the law. In fact, with the provision of Article 206, para 3 the legislator further strengthens the safeguards for equal treating of voters (of a different class/group), striking a balance in the types of restrictions inherent in either voting modality according to the specificities of the preferred voting modality.
- Article 212, para 5 EC 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’
The provision of Article 212, para 5 outlines the cases when voters can vote solely by a paper ballot. The contested section of Article 212, para 5 admitted for examination for constitutionality review provides for an exception of the general principle. By providing for more cases as exceptions to the general principle, the legislator commits the Central Election Commission to ensure a person to whom to assign the technical provision and maintenance of the technical voting device to install and maintain the technical devices for machine voting, furthermore that person must know the Bulgarian language. Should no such person be available, according to the legislator’s phraseology, the possibility for a machine vote is precluded as a general option for any voter.
Unlike the other hypotheses set forth as exceptions under Article 212, para 5 whereby no machine voting shall be carried out in the polling station, the exception in the provision under discussion is not premised on objective or legitimate criteria. The ambiguity hence makes it impossible to establish whether there is a legal basis to rule out voting by a technical voting device, which will render limitations to the equal suffrage – and ruling out would be tantamount to limitations in the hypothesis under discussion – not arbitrary but still falling within the constitutionally admissible tolerance without violating this essential characteristic of suffrage. The accessibility of the electoral process in equal terms for all voters, just like the foreclosure of arbitrary limitations of the equal suffrage are both aspects of fair and transparent elections in compliance with the rule of law that are solely capable of ensuring democratic legitimacy of the state power.
The Constitutional Court finds that the provision of Article 212, para 5, in particular as regards the part ‘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’ runs contrary to the rule of law principle enshrined in Article 4, para 1 of the Constitution, which renders it constitutionally intolerant.
2. As regards Article 212, para 4 and Article 268, paras 4 and 5 EC
The Court believes that in view of the subject of the challenge and the reasons stated in the request for constitutional review, and given the connectivity of the three provisions, namely Article 212, para 4 and Article 268, paras 4 and 5, these should be reviewed simultaneously as regards their compliance with the Constitution.
The Court finds that the different phraseology used in the amended provisions of the Election Code, namely ‘a ballot designed for machine voting and ‘a ballot printed from the machine voting’ clearly distinguishes the two ballots in accordance with their designation in the process of expressing the voters’ free will through the statutory means of voting such as the machine voting – an equally legitimate alternative manner of voting in addition to the voting by a paper ballot. The new terminology used (‘machine voting ballot’ instead of ‘receipt’) may not possibly lead to changes in the voting mechanism such as to prevent the free forming and expressing of the will, to confuse and complicate the voter in the process of voting and thus to put voters who have opted for machine voting in an unequal position compared to voters voting by a paper ballot.
The Constitutional Court maintains, premised on the established understanding in the Bulgarian and other constitutional case-law, of the equality principle enshrined in Article 6 of the Basic Law whereby the legislator guarantees equality before the law, in particular in the course of submitting the vote (in accordance with the generally applicable rules) by means of treating equally all voters falling in the same classification group and treating differently voters in accordance with the specificities of their classification group on the basis of clearly established differentiation criterion, namely the preferred voting modality among two alternative voting modalities provided for by the law in Article 206, para 1. The Court underscores that the different terminology used by the legislator as discussed above – compared to the one prior to the amendments to the Election Code – does not precondition or lead to unequal treatment of voters exercising their right to vote by means of one of the two alternative voting modalities envisaged in the law. Therefore, the challenged part of the provision of Article 212, para 4 and the provisions of Article 268, paras 4 and 5 do not run contrary to the principles of suffrage set forth in Article 10 of the Constitution and in particular equal suffrage.
3. As regards Article 213b, para 1 EC, and in particular the part ‘that received more than four percent of the actual votes in the last parliamentary elections held’
Pursuant to Article 213b, para 1, ‘The Central Election Commission, assisted by the Minister of Electronic Governance, shall provide access to the source code and documentation of the system for the electronic machine voting, as well as all other software tools applicable in the electoral process, to persons named by the parties and coalitions that received more than four percent of the actual votes in the last parliamentary elections held. Each of the parties and coalitions can nominate no more than three persons’. The possibilities to establish independent control on all stages of the electoral process and to ensure that election results are duly verified is essential for the overall democratic process. Guaranteeing access to the source code and documentation of the system for the electronic machine voting, as well as all other software tools applicable in the electoral process to a sufficiently broad range of entities is an imperative prerequisite in case of machine voting. Restricting the access within the meaning of Article 213b, para 1 in fact constitutes a disproportionate interference of the state by its legislature in the freedom of political beliefs and freedom of association in political by nature organisations such as political parties. This entails the risk of distorting political competition and the role of elections as a means of consistently democratically legitimizing state power and hence runs contrary to the principle of political pluralism.
In view of the above, the Court finds that the provision of Article 213b, para 1 EC, in particular the challenged part unduly restricts the possibility for public control in the electoral process in a democratic society.
4. As regards Article 213c, Article 271 concerning the part ‘by counting the machine voting ballots’, and Article 430 concerning the part ‘by counting the machine voting ballots’
The challenged provisions of Article 213c, Article 271 concerning the part ‘by counting the machine voting ballots’, and Article 430 concerning the part ‘by counting the machine voting ballots’ basically deal with the manner of reporting the votes cast by a machine voting ballot in the course of the electoral process. The Constitutional Court has pointed out in judgment No. 9/2021 in relation to arguments similar to the ones brought up in the request for constitutional review under discussion that ‘Doubt as to how well the state bodies in charge of the electoral process will exercise their statutory powers and whether in fact fair and democratic elections will be held cannot serve as a basis to establish anti-constitutionality of the challenged provisions’. The Constitutional Court points out that doubts as to the human behaviour regardless of the voting modality are always possible but the assumption of bad faith cannot possibly serve as a basis for anti-constitutionality.
5. As regards § 54 of the Law amending and supplementing the Election Code (promulgated SG No. 104 of 30 December 2022)
In the request for constitutional review the alleged anti-constitutionality of § 54 of the Law amending and supplementing the Election Code repealing § 145 of the Transitional and Final Provisions of the Law amending and supplementing the Election Code (promulgated SG No. 39/2016, last amended by SG 21/2019) is premised on the fact that the challenged provision has been adopted by the legislature ‘at a single vote and with no public debate’. The Constitutional Court underscores in judgment No. 10/2012 that ‘the idea has been implicitly incorporated that there will be such texts that will be debated and adopted in plenary session only once at second reading because they have been proposed between the first and the second reading of the draft law. This basic condition in the modern legislative process does not run contrary to the constitutional rules for adopting legislative texts at two readings since it is part but of the second reading alone’.
Grounds for the ruling and decision
Pursuant to Article 149, para 1, item 2 of the Constitution (power to rule on constitutionality of laws), the Constitutional Court declares unconstitutional the provisions of Article 212, para 5 EC 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’ and Article 213b, para 1 EC, in particular the part ‘that received more than four percent of the actual votes in the last parliamentary elections held’.
The Constitutional Court rejects the request seeking to establish anti-constitutionality of the provisions of Article 206, para 1 as regards ‘of his own choosing’ and ‘paper ballot or’; Article 206, para 3; Article 212, para 4; 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’; as well as § 54 of the Law Amending and Supplementing the Election Code (promulgated SG No. 104 of 30 December 2022).
Председател: Павлина Панова