The secret ballot protects the voter in a secret election warning that his voting decision is observed or can be reconstructed later. Securing voting secrecy is one of the principles of electoral law in a democracy . The aim is to make it more difficult to intimidate voters and sell votes.
The secrecy of the election seems to contradict the public of the election. However, elections such as the Bundestag elections are called public because the election act itself takes place in public. The polling station is open to the public and the voting process should be transparent and traceable.
In order to ensure that the “correct” result is obtained from sham elections , these are usually not secret. The secrecy of the voting in the “elections” for the People's Chamber in the GDR was in fact public. The theoretical possibility existed to fill out the ballot in secret and to vote against the standard list. However, this voting behavior was registered and the voter had to expect reprisals. The vast majority of votes were therefore cast openly. In popular parlance, people spoke of going “folding notes” when going to vote.
The document of the Copenhagen meeting of the Conference on Security and Co-operation in Europe of the Conference on the Human Dimension of the CSCE of 29 June 1990 prescribes secret voting in points 5.1 and 7.4.
Ballot box at the polling station
Voting secrecy is secured by the voting booth in which the voting process must take place and the locked ballot box into which the ballot is thrown. This also includes uniform ballot papers and the same pens with which the ballot papers can be marked. According to Paragraph 2, Clause 2 and Paragraph 6, Item 5a of the Federal Electoral Regulations , photos and video recordings are prohibited in the voting booth. A violation of these rules would a violation of secrecy ( StGB). After the 2017 Bundestag election , the Federal Returning Officer filed 42 criminal charges on suspicion of violating voting secrecy.
Voting secrecy requires that a voter present in his polling station without need for help must cast his vote secretly, ie unobserved ; Ballot papers, which the voter was observed to identify, may in principle not be thrown into the ballot box. This regulation must not, however, undermine Art. 29 of the “ UN Convention on the Rights of Persons with Disabilities ”, according to which the contracting states are obliged to ensure that, at the request of persons with disabilities, electoral officers can help with voting by a person of their choice of disabled voters. The person who helps with the voting process inevitably learns how the voter votes. This restriction of the requirement of secret voting must be accepted because of the prohibition of discrimination against people because of their disabilities .
After the election, every voter may publicly announce his or her voting decision. By having no way of verifying the accuracy of this statement, intimidation is prevented. If someone has been unlawfully pressured prior to the election, the person concerned can, after casting an unobserved vote, claim to have made the election requested, but in fact to have freely chosen another party.
Several de facto electoral principles are restricted when voting by post . These restrictions are accepted in order to enable voters to participate in the election who could not do so on election day at the polling station, especially because of illness or absence from their place of residence.
When voting by postal vote, unlike when voting at a polling station, it cannot be guaranteed that the voters fill out their ballot papers uninfluenced, unobserved and personally . This makes it possible to intimidate, buy votes and take advantage of the helplessness of demented and mentally disabled people. It is also technically possible to pass on signed but blank postal voting documents that are only filled out later by third parties. However, all of the aforementioned forms of abuse are prohibited.
On the way to the electoral authority by post, postal secrecy is supposed to protect the election letters from being opened by the post office staff. The voting letters are kept locked in the electoral authority until they are counted. However, the fact that a person entitled to vote has made use of the postal voting option is noted in the electoral roll so that the person concerned cannot make use of his or her right to vote at his polling station (a second time).
The use of two envelopes is intended to protect against the fact that it becomes known where the ballot papers are counted who filled out the ballot papers. The outer one contains the voter's identification ( ballot slip ) to prevent multiple votes and a smaller envelope. In this there is a voting slip, from which no conclusions can be drawn about the person of the voter. To ensure voting secrecy, it is forbidden for postal votes for one person to open both envelopes one after the other.
A ballot that was submitted by postal vote, for example, and that is in the outer envelope (with identification of the voter), but not in the inner envelope, is deemed not to have been submitted (maintaining voting secrecy).
If a voter collects the postal voting documents personally from the electoral authority, he can fill them in and hand them in on site. This also eliminates the risk of inspection by post.
The use of voting computers is controversial in terms of the guarantee of voting secrecy. For example, the approval for the Dutch parliamentary elections was withdrawn from the SDU voting computers due to compromising electromagnetic radiation and the associated enabling of Van Eck Phreaking . The Federal Constitutional Court ruled in 2009 that the use of voting computers in the 2005 Bundestag election was against the constitution.
- See also: Hans Michael Kloth: From “folding paper” to free voting. The democratization of the GDR in 1989/90 and the “election question”. Links, Berlin 2000, ISBN 3-86153-212-3 , p. 105, (also: Lüneburg, Universität, Dissertation, 1999), online .
- Document from the Copenhagen meeting of the Conference on the Human Dimension of the CSCE
- charges for voting paper photos: The wrong choice was made. Der Spiegel , October 23, 2017, accessed on October 25, 2017 .
- Heise.de: SDU voting computer excluded from Dutch parliamentary elections, October 30, 2006
- BVerfG, judgment of March 3, 2009 , Az. 2 BvC 3/07, full text and BVerfG press release No. 19/2009 of March 3, 2009.