Before considering the implementation of e-voting, the national legislator will have to adapt – in one way or the other – the current national legislative framework. In most cases, as a first step, legislators will have to decide whether they want to provide a basis for the definitive introduction of e-voting or if they want to provide the basis for merely testing e-voting and decide on the introduction after a testing phase.
A testing phase for e-voting which may include the conduction of pilot projects is usually characterized by a limited duration and, in many cases, by a limitation of the number of voters involved. Depending on the overall national legislative framework, the provisions for a testing or piloting phase do not necessarily have to be incorporated as a whole in Parliamentary legislation. It might be sufficient if a provision adopted by Parliament generally allows for the testing of new voting technology and mandates the Government, a Chief Electoral Officer or an administrative body to draft the necessary regulations. Sublevel regulations which contain the specific conditions and details for the testing of e-voting will then be adopted by that body. The advantage of this procedure is that the necessary provisions for testing and evaluating e-voting may be adopted more rapidly than through a Parliamentary procedure. Should e-voting be introduced at a later stage, the Parliamentary legislator can be provided with the results of the testing phase and experience with e-voting pilot projects can be included in the legislation process. However, if the legal regulations for the testing phase are adopted by the Government or the Chief Electoral Officer or an administrative body, these provisions suffer from a lower democratic legitimacy than if the legislation were adopted by Parliament.
If e-voting is introduced on a permanent basis, the relevant provisions of the national legislation that contain the voting procedures (usually an Electoral Act) will have to be adapted by the Parliamentary legislator.
The legal framework for e-voting should incorporate integrity and security requirements. Since e-voting involves rapidly evolving technology, the legislative framework should provide for an efficient updating procedure. Most frequently, e-voting legislation combines elements of (more static) legislation adopted by Parliament and delegated regulations, adopted by the Government or the Chief Electoral Officer or an administrative body. The latter usually may be adapted more simply and more quickly in view of new technical achievements. Parliamentary legislation should be technologically neutral and it should avoid too many details on technical specifications. Hardware or software descriptions or encryption programs should rather be included in delegated regulations. The legislative framework must not prevent technological innovation. Achieving a balance between legislation and delegated regulations is important.
From a legal point of view, the national legal framework must ensure the principles of universal, equal, free, direct and secret suffrage. Guidance on these aspects can be found in the aforementioned international documents.
Two additional aspects seem to be worth mentioning here: First, the adaptation of legislation, especially when it comes to e-voting, is a time-consuming and complex undertaking. The process of reform should be started as early as possible. Secondly, a sound legal framework contributes to the establishment of trust among citizens. It should therefore envisage transparency requirements, means of controlling and evaluating e-voting systems by independent bodies and other trust-building measures (cf. hereafter).
