The observer was not allowed near the electronics

The Tverskoy District Court of Moscow began to consider the claim of a resident of the Moscow region, Viktor Tolstoguzov, to cancel the results of remote electronic voting (DEG) in the election of the head of the Moscow region. This is the first legal dispute about the results of the DEG on the federal platform – previously claims were made only against the Moscow system. The applicant refers to the lack of information about the technical data of the DEG and the refusal to allow him as an observer into the premises of the territorial election commission (TEC). The election commission insists that all claims are “speculations and general assumptions.” The expert explains that the lack of documented evidence is a common problem in disputes over the results of electronic elections.

At the elections in September 2023, the head of the department of electronic voting systems of the Bauman Moscow State Technical University, Viktor Tolstoguzov, was appointed as an observer in the TEC DEG from the regional branch of the Communist Party of the Russian Federation. But he was not allowed into the building of the Central Election Commission, where the TEC DEG was located, citing the “black list” of the FSO. At the same time, the applicant complains, the TEC DEG not only did not ensure the observance of his rights as an observer, but also did not take measures to restore them, thereby violating the voting procedure.

Mr. Tolstoguzov also refers to the lack of publicly available certificates and certificates issued by the FSB and FSTEC of Russia that would confirm that the DEG equipment is safe to operate, ensures the safety of the results of the expression of will and reliably establishes the results of the DEG. Information on the technical data of the system and operating manuals necessary for the work of TEC members, observers and the operator of the DEG software and hardware complex have also not been published. And the description of the DEG protocol posted on the online voting portal is unclear, since its application requires special technical knowledge. Such violations do not make it possible to reliably determine the results of the expression of the will of voters, and therefore are grounds for canceling its results, the applicant is sure.

At the first hearing on November 16, the court refused to involve the Communist Party of the Russian Federation in participation in the dispute as an interested party. But he added explanations to the case materials in which Viktor Tolstoguzov refers to the violation he discovered of the invariability of the results of the expression of will of the participants of the DEG: some of the files received by the observer after the end of voting did not match in size and content with similar records copied earlier, he claims. The representative of the TEC DEG asked for additional time to familiarize himself with these documents; the next meeting is scheduled for December 11.

In general, TEC DEG believes that the applicant’s arguments do not contain specific information about the facts of violations that could be the subject of verification in the framework of this dispute. The response to the claim emphasizes that assumptions and general assumptions cannot be the subject of verification by the court, since they would impose on it the obligation to carry out abstract control of the legality of the DEG and its results. Obstructing the observation of voting (if this ultimately does not make it possible to reliably determine the results of the expression of will) in itself can become grounds for canceling its results, the election commission confirms. But since Mr. Tolstoguzov is challenging the voting results as a voter, he cannot refer to the infringement of his rights as an observer: the candidate or the party that nominated him has the right to appeal against such a violation. The review also emphasizes that the DEG software and hardware complex has been certified and meets the requirements for information protection in state information systems of the first security class.

Electoral lawyer Roman Smirnov believes that with this formulation of the issue, the lawsuit has no prospects. He does not remember a case when the non-admission of an observer would become the basis for canceling the voting results, even at a regular polling station, because it is still necessary to prove that the violation influenced the results of the expression of will. The evidence base is a stumbling block in any election dispute, since the courts prefer to focus primarily on official documents; literally every step must be recorded, the expert recalls. Well, in the case of DEG, this becomes a problem squared, since the system itself is closed: both the law on personal data and the secrecy of expression of will come into play here, argues Roman Smirnov. He believes that the court will not examine the substantive part of the dispute in detail, but will refuse on formal grounds.

Anastasia Kornya