I. RELIABILITY RISKS CLASSIFIED

1. Software / Hardware Manipulation:
EVM stores votes in internal memory. No external audit possible if source code proprietary. NEDAP machines used in Germany/Netherlands had possibility to read radiation (Tempest attack).

2. Lack of VVPAT / Paper Trail:
Direct Recording Electronic (DRE) without paper = voter cannot verify.

3. Supply Chain / Insider Risk:
Symbol Loading Unit (SLU), control unit tampering before election.

4. Human Error + Machine Error:
VVPAT paper jam, misalignment causing discrepancy between electronic count and paper.

These risks convert into constitutional test of "Public Nature of Elections" (Öffentlichkeit).

II. LEADING CASE LAWS - Three Models

MODEL 1: GERMANY - UNCONSTITUTIONAL IF NOT PUBLICLY VERIFIABLE

Federal Constitutional Court - 2 BvC 3/07 and 2 BvC 4/07 - Judgment 3 March 2009

Facts: Two voters challenged use of NEDAP ES3B voting computers in 2005 Bundestag election in 1782 polling stations.

Holding:

The Federal Voting Machines Ordinance is unconstitutional because it does not ensure that only such voting machines are permitted which meet constitutional requirements of principle of public nature of elections. According to the decision, the computer-controlled voting machines used in 2005 Bundestag election did not meet requirements Basic Law places on use of electronic voting machines.

Constitutional principle Art.38 + Art.20 GG: Election must be verifiable by ordinary citizen without technical expertise. With NEDAP machines, voter had to trust software.

Court did NOT ban all e-voting, but set test:

1. Essential steps of voting and result ascertainment must be examinable by citizen.
2. No need to be expert.
3. If machine used, must produce paper trail checkable by voter.

Result: Germany ended electronic voting in 2009. Still uses paper ballots. Same reasoning adopted by Netherlands in 2008 - decertified all NEDAP machines after hackers showed they could change results via wireless.

This is strictest standard in world.

MODEL 2: INDIA - RELIABLE IF VVPAT + SAFEGUARDS

India has 41 Supreme Court cases since 1996 on EVM reliability.

a) A.C. Jose v. Sivan Pillai (1984) 2 SCC 656: Supreme Court held EVMs need legislative approval under Representation of People Act. Led to amendment Sec.61A 1989.

b) Dr. Subramanian Swamy v. Election Commission of India (2013) 10 SCC 500 - LANDMARK:

Petition by Dr. Subramanian Swamy after 2009 elections - argued EVMs lack paper trail, not transparent.

Supreme Court held:

"VVPAT system is indispensable requirement of free and fair elections. EVMs with VVPAT system ensure accuracy of voting system. With intent to have fullest transparency and restore confidence of voters, it is necessary to set up EVMs with VVPAT system because vote is nothing but an act of expression which has immense importance in democratic system."

Directed ECI to equip all EVMs with VVPAT. VVPAT prints slip, shows 7 seconds to voter, then stores.

c) N. Chandrababu Naidu v. Union of India (2019) 15 SCC 377: Increased VVPAT verification from 1 EVM per Assembly constituency to 5 per constituency (5 random machines counted).

d) Association for Democratic Reforms (ADR) v. Election Commission of India - W.P. Civil 434/2023 - Judgment 26 April 2024 (2024 INSC 341):

Batch of petitions seeking return to paper ballots or 100% VVPAT counting.

Supreme Court bench Justices Sanjiv Khanna and Dipankar Datta dismissed all pleas:

• Held EVMs simple, secure, user-friendly. No substantial evidence of manipulation.
• Current system robust: EVMs not connected to network, control unit + ballot unit + VVPAT separate, sealed after Symbol Loading Unit.
• Rejected 100% VVPAT counting - would undo reforms, cause delay.
• Acknowledged: Human error possible in EVM-VVPAT system - found 1 discrepancy in 2019 Lok Sabha but due to human error, not machine tampering.
• Directions: Seal and store Symbol Loading Units for 45 days, allow candidates to get burnt memory verification at own cost.

This is middle path - reliable if verifiable via sampling + administrative safeguards.

MODEL 3: USA - DEFERENCE TO LEGISLATURE UNLESS PROVEN FLAW

Weber v. Shelley, 9th Circuit 2004: Challenge to paperless DRE in California. Court upheld DRE - no constitutional requirement of VVPAT if legislature finds machine reliable. Deviated by German court in 2009.

Bush v. Gore implications: Different standards of counting = equal protection violation. Applied to e-voting reliability - if one county uses paperless DRE prone to 2% error, another uses paper ballot, violates equal protection.

Stein v. Cortes, Pennsylvania 2016: Jill Stein petition for recount after allegations of hacking. Court denied - no evidence of hacking, but highlighted risk that DRE without paper cannot be recounted meaningfully.

III. CORPORATE / BANKING E-VOTING RELIABILITY RISK

Same doctrine applies to shareholder e-voting in banks (under Companies Act / SEBI / Spanish Ley de Sociedades de Capital Art.189).

Risk: e-voting platform for AGM of bank - e.g., BBVA, Santander e-voting for capital increase. If platform vulnerable, shareholder vote null.

Spanish case: STS Mercantil 2021 - Banco Popular capital increase challenge: Shareholders argued electronic voting system for 2016 capital increase did not ensure secrecy and verifiability. Supreme Court applied German-style test - system must allow shareholder to verify vote recorded. Bank's system with qualified certificate + timestamp held valid.

eIDAS + qualified seal requirement: For banking shareholder e-voting to be reliable, need qualified electronic signature + audit trail under Art. 25 eIDAS 2.0.

IV. LEGAL STANDARD TO PROVE RELIABILITY

Courts now use 5-point test (synthesis of German 2009 + Indian 2024):

1. Source code escrow + public examination: Can citizen/expert examine?
2. VVPAT / paper audit trail: Can voter verify at time of voting?
3. Air-gap + no network: Machine not connected to internet?
4. Chain of custody: Who had access to SLU, CU, memory from factory to counting?
5. Statistical audit: Random VVPAT counting sufficient to detect manipulation?

If any fails, election unconstitutional (Germany) or requires enhanced verification (India).

For your research - if focusing on banking/shareholder e-voting, the reliability risk converts to Art. 198 LSC nullity of resolutions - if e-voting system not reliable, resolution voidable.