Establishing a Legal Framework for E-voting in Canada

Appendix A – International Standards and Reports

In conducting our research on what an ideal legal framework for Canada would be, we consulted with major reports on e-voting produced by government agencies as well as guidelines produced by international election observers. This is an overview of the key findings and criteria synthesized from those reports.

A.1 Council of Europe

The Council of Europe (COE) has released the only set of specific Internet voting standards that are valid and approved at an international level (Smith 2006). In 2004, the COE released the Legal, Operational, and Technical Standards for E-voting (Recommendation Rec (2004)11) (COE 2005), which was a guide to the legal, operational and technical standards for e-voting. Canada currently holds observer status to the COE. In addition to the recommendations, the COE has also released handbooks on implementing e-voting.

The COE's main recommendations comprise 121 requirements that serve as a checklist for implementing e-voting and that have been highly referenced by member nations, including Norway and Switzerland, in implementing their e-voting systems.

The COE framework itself is light on legal specifics, recognizing the wide range of national electoral legislation. Instead the focus is on specific best practices such as accessibility, security and practical elements of e-voting. The purpose is to encourage its member states to counter low voter turnout by embracing informational and communication technology used in day-to-day life. The council recommends that public confidence be built by ensuring that e-voting systems are "secure, reliable, efficient, technologically robust, open to independent verification and easily accessible to voters" (COE 2005, 7). To encourage this, the COE recommends that members change domestic legislation to meet the criteria, as well as ensure e-voting elections are as reliable and secure as those that do not use electronic means.

The recommendations are divided into three components: the legal, operational and technical steps that must be taken. The legal component embraces some general principles such as universal suffrage, equal suffrage and free suffrage, as well as the protection of election results. Many of the recommendations echo features that transcend voting methods, such as preventing a voter from voting multiple times, not disturbing freedom of choice and properly preparing registration lists.

Much of the report is very specific, containing steps to ensure that privacy, security and systems are adequately tested; that proper audit methods are in place; and that backup plans are in place in case there are any hardware failures. It is now becoming common for election observers to use the COE's recommendations as a report card to test system requirements and procedures, and we would recommend that election officials in Canada consider referencing this checklist as well.

Not all of the recommendations are universally adopted. For instance, there is debate on whether a voter should be able to get a receipt for having voted, as some feel it can lead to voter coercion, while others feel that a paper trail of some sort may help voter confidence. Nor are the recommendations entirely complete. They do not address specific laws that should be in place to prevent election fraud or what is the best way to distribute tasks in an electronic voting system.

A2 United States Election Assistance Commission

The United States Election Assistance Commission has released comprehensive guidelines for the use of controlled e-voting systems, but has yet to release the same requirements for Internet voting. The commission was created in 2002 through the Help America Vote Act of 2002, a bill passed by the US Congress to encourage states to replace outdated punch card and lever-based voting systems that were controversial in the 2000 presidential election, particularly in some of the Florida counties. The Help America Vote Act of 2002 legislates some minimum standards, while the National Institute of Standards and Technology advises the commission on a set of specific guidelines.

Voluntary Voting System Guidelines is a set of criteria governing the use of controlled voting machines that use direct-recording electronic technology.^{Footnote 12} While each US state independently administers federal and state elections, states that comply with the minimum requirements of the Help America Vote Act of 2002 are eligible for federal funding toward the purchase of voting machines. Some states have adopted the Voluntary Voting System Guidelines certification requirements directly, while others have set their own guidelines.

The Help America Vote Act of 2002 also requires the Election Assistance Commission to conduct a study of Internet-based voting, but this appears to be a subset of other studies. We have found a general survey of Internet voting, but no detailed guidelines to the extent of the Voluntary Voting System Guidelines.

Some criticism has been levelled against the Voluntary Voting System Guidelines criteria, because once technology is certified, there was no requirement that recertification would have to happen, and the guidelines have been slow to adapt to new threats. Some states such as California have adopted additional requirements that any errors or problems that become known must be immediately reported on threat of substantial fines.

A.3 Organization for Security and Co-operation in Europe

The Organization for Security and Co-operation in Europe (OSCE) is a European-based oversight group that, among other things, sends election observers to almost every major European election to provide a report card and review of election procedures. The OSCE's reports are excellent for providing independent information on how elections take place in practice. We used its reports on Norway, the Netherlands, Estonia and others to identify areas and deficiencies that other jurisdictions came across in running their e-voting elections.

The OSCE's Election Observation Handbook (OSCE 2010) instructs its observers to observe practices in how nations conduct their voting, which is useful for observers examining both paper balloting as well as Internet voting. The handbook notes that some of the following steps are the best way to ensure voter confidence in any electoral system.

The OSCE's early reports strongly recommended paper ballots, but this was for stand-alone kiosks in a controlled environment where there was a concern with tampering of individual voting machines.

A.4 International Foundation for Electoral Systems

The International Foundation for Electoral Systems (IFES), a non-governmental organization, has long been an expert in reviewing elections law, on topics including proportional representation, voter fraud and e-voting. IFES consists of academics and other experts in legal affairs who routinely consult and work with developing nations to implement election laws. It has released excellent handbooks on conducting feasibility studies for e-voting elections, as well as implementing solutions. In its recent report, International Experience with E-Voting (Barrat i Esteve et. al, 2012b), the IFES presented a broad survey of many of the considerations that are needed for e-voting, which was invaluable for our research. The foundation conducted an in-depth study on the recent Norwegian pilot projects. In its 2011 report, Electronic Voting & Counting Technologies: A Guide to Conducting Feasibility Studies (Goldsmith 2011), the IFES highlighted the importance of reviewing existing legislation and recommending changes to accommodate voting technology.

A.5 The Carter Center

The Carter Center, a US-based charitable organization, among other things sends election observers to many developing nations and helps to build civil society in many countries. The center has worked with the United Nations on developing an international framework for election observers. Because most of the elections it covered are in jurisdictions with little cultural similarities to Canada or were involving voting machines, we did not use its cases studies in our report. However, The Carter Center Handbook on Observing Electronic Voting (The Carter Center 2012) provides a guide for observers on what they should look at when examining a legal framework. While the handbook is not aimed at Internet voting, we found the considerations very helpful in designing a comprehensive legal framework for e-voting.

Additionally, The Carter Center raised other issues about what steps are taken to inform the voters and increase their confidence. Was the technology tendering process open? Who has ownership to the intellectual property? Is there a contingency plan in place for technology failure?

A.6 Canadian Research

For the purpose of our recommendations, we think is it important to also recognize some of the considerations that have begun to surface in other discussion papers regarding e-voting.

A discussion paper produced by Elections BC, the electoral authority in the province of British Columbia, identified seven criteria for e-voting (Elections BC 2011).

Like some of the other sources, many of the considerations in the Elections BC report span both the legal and technical requirements.

Return to source of ^{Footnote 12} Direct-recording electronic machines are one common form of controlled voting technology, and the one most commonly associated with electronic voting in the United States.

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