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Switzerland: New Legislation on E-Voting Trials Enters into Force

On July 1, 2022, revisions to the Ordinance on Political Rights (PoRO) ( Verordnung über die politischen Rechte, VPR ) and a completely revised Ordinance of the Federal Chancellery on Electronic Voting (OEV) ( Verordnung der Bundeskanzlei über die elektronische Stimmabgabe, VEleS ) entered into force in Switzerland. They amend the legal requirements for electronic voting (e-voting) trials and introduce, among other things, stricter security and transparency requirements and require the involvement of independent experts. Federal Act on Political Rights Article 8a of the Federal Act on Political Rights (PRA) ( Bundesgesetz über die politischen Rechte, BPR ) sets out the general requirements for e-voting trials. It authorizes the Federal Council (the Swiss government) to permit electronic voting pilot schemes in interested cantons (states) and communes. Details of the e-voting trials are specified in the Ordinance on Political Rights and the Ordinance of the Federal Chancellery on Electronic Voting. (PRA art. 8a, para. 4.) Requirement to Apply for a License The revised Ordinance on Political Rights provides that cantons interested in using e-voting for federal popular votes must submit an application to the Federal Council. A first-time basic license will be granted for a maximum of five ballots. If the first five e-voting trials are successful, the Federal Council may specify a maximum time period for the canton to use e-voting for federal popular votes. E-voting trials for elections to the National Council — Switzerland’s lower house of parliament — require a special license every time. (PoRO art. 27a.) In order to get a license, cantons must guarantee that they comply with federal law, in particular that they check each person’s right to vote, ensure that the one-person-one-vote principle is observed, ensure that the electronically cast votes are a “reliable reproduction of the genuine expression of will,” maintain voting secrecy, and prevent any systematic abuses. (Art. 27b.) Along with their application, cantons must submit a statement that the abovementioned federal requirements will be complied with, a copy of the applicable cantonal regulations, details of the system used for e-voting, and a statement of how many eligible voters will be included in the trial, among other requirements. (Art. 27c.) The Ordinance on Political Rights stipulates that no more than 30% of the cantonal electorate may participate in an e-voting trial, which at the same time cannot be more than 10% of the entire Swiss population. Swiss citizens living abroad and voters with a disability who cannot cast their votes without assistance do not count toward that limit. (Art. 27f.) Systems Used for E-Voting Cantons may use either their own e-voting system or an externally operated system from another canton or a private company. (Art. 27kbis.) All systems must be examined by independent entities before their first use, when changes are made, and at regular intervals. The independent entities conducting the examination must review, in particular, whether the security features and the e-voting system comply with the state of the art. Details are regulated in the Ordinance of the Federal Chancellery on Electronic Voting. (Art. 27l.) Authorization from the Federal Chancellery Once a license has been obtained, authorization must be sought from the Federal Chancellery before each e-voting trial. (Art. 27e.) The details for granting authorization are specified in the Ordinance of the Federal Chancellery on Electronic Voting. In particular, it contains rules on the design and operation of the e-voting system, the ease of use, and public access to information. The ordinance also includes details on risk assessment, how the correctness of vote processing and results verification are to be ensured, requirements for the independent entities that review the e-voting systems, disclosure obligations, and public involvement. Lastly, the annex contains detailed technical and administrative requirements for e-voting, such as cryptographic protocol requirements for verifiability. Involvement of the Public, Experts, and Academia Information on the security features, functionality, and operation of the system must be made publicly available by the cantons, including the source code of the software. (Art. 27lbis.) The organization, technology, and procedure for e-voting must be explained to voters in plain language. (Art. 27m.) The public and experts are called on to submit comments to the cantons to improve the e-voting systems. Cantons must provide incentives to encourage such participation. (Art. 27lter.) In addition, to strengthen trust in e-voting and improve its security, the Federal Chancellery and the cantons must involve independent experts in their work. (Art. 27o, para. 1.) Academia may be involved to perform research and collect data, in particular to investigate the effects of e-voting on voter turnout and voting habits. (Art. 27o, paras. 2, 3.) Background to E-Voting in Switzerland E-voting has been used on a trial basis in Switzerland since 2004. It is part of the E-Government Strategy Switzerland , which sets out the common digitization goals of the Swiss Confederation and the cantons and determines which areas are central to achieve a digital transformation of the administration. Since 2004, 15 cantons have enacted cantonal legislation on e-voting and have performed around 300 trials. Two systems were used for e-voting: a system from the canton of Geneva and a system from the Swiss post office. However, both providers withdrew their systems in 2019, which is why the e-voting trials were stopped. ( Explanatory Memorandum  at 3.)

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