Hostname: page-component-586b7cd67f-gb8f7 Total loading time: 0 Render date: 2024-11-30T17:36:35.958Z Has data issue: false hasContentIssue false
  • English
  • Français

Blockchain-Based Voting in the US and EU Constitutional Orders: A Digital Technology to Secure Democratic Values?

Published online by Cambridge University Press:  18 September 2019

Desmond JOHNSON Open the ORCID record for Desmond JOHNSON [Opens in a new window]
Get access Rights & Permissions [Opens in a new window]

Abstract

The right to vote and participate in the political process is a quintessential feature of any democratic society. Systematic risks to the integrity of US elections and passive civic participation in the EU political process present fundamental threats to the constitutional aspirations and the democratic ideals connected to “We the People” in the US and “United in Diversity” in the EU. The existence of power imbalances, social inequalities and information asymmetries in electoral and political processes illustrate that both jurisdictions are in peril and in risk of democratic backsliding. Blockchain-based voting can transform existing electoral and political processes in the digital age. This raises the question whether blockchain-based voting can be utilised as a digital tool to enhance the democratic legitimacy of US and EU electoral and political systems. Accordingly, this article aims to examine the prospects and limits of blockchain technology to secure foundational democratic norms connected to the right to vote and civic participation at the heart of contemporary constitutionalism. It contends that the decentralised, immutable, accessible, transparent, and secure processes of blockchain technology have the potential to enhance the legitimacy of the US and EU constitutional orders, since blockchain-based voting can act as a forum for enhanced civic participation, public deliberation, and democratic contestation. Nevertheless, the article concludes that a number of important steps must be taken to fully realise the potential of blockchain-based voting in a manner that combats the risks associated with the technology, strengthens public confidence in electoral and political processes and secures a balanced system of governance in the US and the EU constitutional orders.

Type
Symposium on Blockchain Regulation and Governance
Information
European Journal of Risk Regulation , Volume 10 , Issue 2: Symposium on Blockchain Regulation and Governance , June 2019 , pp. 330 - 358
Copyright
© Cambridge University Press 2019 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

Lecturer in Comparative Public Law and Governance, The Hague University of Applied Sciences; email: [email protected]. I would like to thank Elif Kiesow Cortez, Auke Willems, Jeff Dahl, Szilárd Gáspár Szilágyi and Arjen Vermeer for their invaluable comments. I would also like to acknowledge Sofia Ranchordás, the editors of the European Journal of Risk Regulation and the anonymous reviewers for their insightful feedback.

References

1 Satoshi Nakamoto is a pseudonymous individual or group of individuals credited with developing blockchain technology to maximise the potential of bitcoin in 2008: S Nakamoto, “Bitcoin: A Peer-to-Peer Electronic Cash System” (2008) Bitcoin <bitcoin.org/bitcoin.pdf> (last accessed 16 July 2019). The concept of risk society connotes the universal nature of risks, the uncertainty surrounding contemporary risks, and the power structures, processes and arrangements in place to respond to existing and emerging risks in contemporary societies: U Beck et al, Risk Society: Towards a New Modernity, Vol 17 (Sage 1992); U Beck, “Critical Theory of World Risk Society: A Cosmopolitan Vision” (2009) 16 Constellations 3, available at <doi.wiley.com/10.1111/j.1467-8675.2009.00534.x>. Digital democracy can be described as the ongoing pursuit of democratic ideals and practices through “digital media in online and offline political communication”: JAGM van Dijk, “Digital democracy: vision and reality” in I Snellen and W van de Donk (eds), Public Administration in the Information Age: Revisited, 19 (IOS Press 2013) pp 49, 51.

2 P Boucher, “What if Blockchain Technology Revolutionised Voting?” (2016) European Parliament Think Tank – Scientific Foresight Unit (STOA), European Parliamentary Research Service. September 2016.

3 G Zyskind and O Nathan, “Decentralizing Privacy: Using Blockchain to Protect Personal Data” (2015) IEEE Security and Privacy Workshops (SPW), 180.

4 A Wright and P De Filippi, “Decentralized Blockchain Technology and the Rise of Lex Cryptographia” (2015) <ssrn.com/abstract=2580664> (last accessed 16 July 2019) pp 1–8.

5 A Tapscott and D Tapscott, “How Blockchain is Changing Finance” (2017) 1(9) Harvard Business Review 1.

6 Z Zheng et al, “Blockchain Challenges and Opportunities: A Survey” (2016) 14(4) International Journal of Web and Grid Services 352.

7 M Peck, “Blockchain World – Do You Need a Blockchain? This Chart Will Tell You if the Technology Can Solve Your Problem” (2017) 54(10) IEEE Spectrum 38.

8 S Ølnes et al, “Blockchain in Government: Benefits and Implications of Distributed Ledger Technology for Information Sharing” (2017) 34(3) Government Information Quarterly 355; M Swan, Blockchain: Blueprint for a New Economy (O’Reilly Media 2015).

9 AZ Huq and T Ginsburg, “How to Lose a Constitutional Democracy” (2017) 65 UCLA Law Review 78.

10 Debates over the constitutional nature of the EU are widespread. For the purposes of this work the EU is understood as a constitutional order. For different conceptions of constitutionalism in the EU see P Craig, “Constitutions, Constitutionalism, and the European Union” (2001) 7(2) European Law Journal 125; also see AJ Menéndez, “Three Conceptions of the European Constitution” in EO Eriksen and JE Fossum (eds), Developing a Constitution for Europe (Routledge 2004) p 127.

11 P Noizat, “Blockchain Electronic Vote” in D Lee and K Chuen, Handbook of Digital Currency (Academic Press 2015) p 453.

12 A Keyssar, The Right to Vote: The Contested History of Democracy in the United States (Basic Books 2009) p 172.

13 The right to vote using a secret ballot and participate in public affairs is guaranteed through international human rights law: see International Covenant on Civil and Political Rights (ICCPR) (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, Art 25.

14 J Elkit and P Svensson, “What Makes Elections Free and Fair”(1997) 8(3) Journal of Democracy 32.

15 J Habermas, “Constitutional Democracy: A Paradoxical Union of Contradictory Principles?” (2001) 29(6) Political Theory 766.

16 See Young, arguing that in the context of the US such constitutional values are both entrenched and outside the formal US written constitution: EA Young, “The Constitution Outside the Constitution” (2007) 117 Yale Law Journal 408.

17 A Stone Sweet, “Constitutionalism, Legal Pluralism, and International Regimes” (2009) 16(2) Indiana Journal of Global Legal Studies 621.

18 See Fishkin, illustrating how the right to vote is linked with a number of different principles, including majority rule, political participation and interest representation: J Fishkin, “Equal Citizenship and the Individual Right to Vote” (2011) 86 Indiana Law Journal 1297.

19 For debates concerning the viability of constitutional dialogue as a means to ensure legitimate governance see L Fisher, Constitutional Dialogues: Interpretation as Political Process, Vol 922 (Princeton University Press 2014); C Bateup, “The Dialogic Promise-Assessing the Normative Potential of Theories of Constitutional Dialogue” (2005) 71 Brooklyn Law Review 1109; R Karlheinz and H Schmitt, “Nine Second-Order National Elections – A Conceptual Framework for the Analysis of European Election Results” (1980) 8(1) European Journal of Political Research 3. For debates on democratic contestation see P Pettit, “Republican Freedom and Contestatory Democratization” in I Shapiro and C Hacker-Cordon (eds), Democracy’s Value (Cambridge University Press 1999) p 163.

20 M Shapiro, “The Giving Reasons Requirement” (1992) University Chicago Legal Forum 179.

21 ICCPR, supra, note 13.

22 P Pettit, Republicanism: A Theory of Freedom and Government (Oxford University Press 1999).

23 ML King Jr vividly shows the power imbalances between African Americans and the Government in his seminal work: see ML King Jr, “Letter from Birmingham Jail” (1992) 26 UC Davis Law Review 835.

24 J Susskind, “Decrypting Democracy: Incentivizing Blockchain Voting Technology for an Improved Election System” (2017) 54 San Diego Law Review 785.

25 H Mahrer and R Krimmer, “Towards the Enhancement of e-Democracy: Identifying the Notion of the ‘Middleman Paradox’” (2005) 15(1) Information Systems Journal 27.

26 Countries such as Estonia and Switzerland have led a digital voting revolution. Estonia is considered the first country to have nation-wide e-voting: U Madise and T Martens, “E-voting in Estonia 2005. The First Practice of Country-wide Binding Internet Voting in the World” (2006) 86 Electronic Voting; TW Lauer, “The Risk of e-Voting” (2004) 2(3) Electronic Journal of E-government 177; D Phillips and H von Spakovsky, “Gauging the Risks of Internet Elections” (2001) 44(1) Communications of the Association for Computing Machinery 73.

27 For a detailed discussion on democratic experimentalism see MC Dorf and CF Sabel, “A Constitution of Democratic Experimentalism” (1998) 98(2) Columbia Law Review 267. Inventive technology poses such risks and presents new challenges to the democratic process: R Hanifatunnisa and R Budi. “Blockchain Based e-voting Recording System Design” (2017) 11th International Conference on Telecommunication Systems Services and Applications (TSSA) IEEE, 1.

28 A Ayed, “A Conceptual Secure Blockchain-based Electronic Voting System” (2017) 9(3) International Journal of Network Security & Its Applications 1.

29 M Teogenes and A Gomes, “Blockchain Voting and its Effects on Election Transparency and Voter Confidence” Proceedings of the 18th Annual international Conference on Digital Government Research, ACM, 2017.

30 J Yli-Huumo et al, “Where Is Current Research on Blockchain Technology? A Systematic Review” (2016) 11(10) PLoS ONE 1.

31 ibid.

32 A node is a fundamental aspect of the blockchain, as it forms the structure on which blockchain operates: H Natarajan et al, “Distributed Ledger Technology (DLT) and blockchain. FinTech note; no 1” (Washington, DC, World Bank Group 2017); R Houben and A Snyers, “Cryptocurrencies and Blockchain: Legal Context and Implications for Financial Crime, Money Laundering and Tax Evasion” (European Parliament Study 2018) p 15.

33 JW Michael et al, “BlockChain technology” (2018) The Journal 1, 7.

34 Ølnes et al, supra, note 8.

35 K Kirby et al, “Votebook: A Proposal for a Blockchain-based Electronic Voting System” The Economist (2016) <www.economist.com/sites/default/files/nyu.pdf> (last accessed 16 July 2019).

36 ibid.

37 Nakamoto, supra, note 1.

38 C van der Elst and A Lafarre, “Blockchain and Smart Contracting for the Shareholder Community” (2018) European Corporate Governance Institute (ECGI) Law Working Paper No 412/2018 <ssrn.com/abstract=3219146> (last accessed 16 July 2019); Blockchain Based E-voting Recording System design, 2.

39 Nakamoto, supra, note 1.

40 Hanifatunnisa and Budi, supra, note 27.

41 ibid; van der Elst and Lafarre, supra, note 38; Houben and Snyers, supra, note 32, pp 15–20; Natarajan et al, supra, note 32.

42 X Xiwei et al, “A Taxonomy of Blockchain-based systems for Architecture Design” (2017) IEEE International Conference on Software Architecture 243.

43 Agora was officially accredited to cover 280 polling locations in Sierra Leone by the National Electoral Commission. In order to clarify uncertainties concerning its role in the Sierra Leone election and the role of blockchain technology in the Sierra Leone election Agora released an Official Statement Regarding Sierra Leone election: see <medium.com/agorablockchain/agora-official-statement-regarding-sierra-leone-election-7730d2d9de4e>.

44 The e-voting platform was developed by a private company, Luxoft, and the Department of Computer Science at Lucerne University of Applied Sciences. The Official Press Release is in German: <www.wallstreethodl.com/blockchain-based-voting-in-zug/>.

45 According to the OECD report “only 599,026 of the 6 million Colombians living abroad” could vote through traditional methods at the consulate as they had voted in previous elections: C van Ooijen, How Blockchain Can Change Voting: The Colombian Peace Plebiscite. Case Study From the 2017 OECD Report: Embracing Innovation in Government <www.oecd-forum.org/users/76644-charlotte-van-ooijen/posts/28703-how-blockchain-can-change-voting-the-colombian-peace-plebiscite>.

46 The official plebiscite question was posed in the following manner: “do you agree with the agreement to end the conflict and build lasting peace?: ibid.

47 N Kshetri and J Voas, “Blockchain-Enabled E-Voting” (2008) 35(4) IEEE Software 95, available at <ieeexplore.ieee.org/document/8405627/citations?tabFilter=papers#citations>.

48 See <www.investinblockchain.com/estonia-blockchain-model/>.

49 For an analysis comparing how the US Supreme Court and the Court of Justice of the European Union (then ECJ) attempt to secure constitutional norms within their respective jurisdictions through constitutional review see M Rosenfeld, “Comparing Constitutional Review by the European Court of Justice and the US Supreme Court” (2006) 4(4) International Journal of Constitutional Law 618.

50 An exhaustive account of the two systems is beyond the scope of this article. For a comparative analysis outlining the similarities and differences between the two jurisdictions from a federalist perspective, see K Nicolaidis, “Conclusion: The Federal Vision Beyond the Federal State” in The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (2001) p 439.

51 “We the People of the United States, in Order to form a more perfect Union, establish Justice insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the Union States of America”: see US Const, Preamble.

52 A Amar, “The Bill of Rights as a Constitution” (1991) Yale Law Journal 1131.

53 J Habermas, “Why Europe Needs a Constitution” in Developing a Constitution for Europe (Routledge 2004) p 34; A Moravcsik, “What Can We Learn From the Collapse of the European Constitutional Project?” (2006) 47(2) Politische Vierteljahresschrift 219.

54 As debates concerning Brexit highlight, member states within the EU are allowed to withdraw from the Union. At the time of writing this article, Brexit debates are still unresolved: see Art 50 TEU.

55 I Pernice, “Multilevel Constitutionalism in the European Union” (2002) 27(1) European Law Review 511; P Popelier, “Europe Clauses” and Constitutional Strategies in Face of Multi-Level Governance” (2014) 21(2) Maastricht Journal of European and Comparative Law 300.

56 Art 2 TEU, Art 10 TEU, Art 11 TEU. Though not explicitly mentioned in the treaties, Art 13.2 is often considered the legal basis of the institutional balance. D Johnson, “Institutional Balance as Constitutional Dialogue A Republican Paradigm for the EU” in M Derlén and J Lindholm (eds), The Court of Justice of the European Union: Multidisciplinary Perspectives (Hart Publishing 2018) p 115.

57 K Nicolaïdis, “European Democracy and Its Crisis” (2013) 51(2) Journal of Common Market Studies 351.

58 B Wampler, “Participation, Representation, and Social Justice: Using Participatory Governance to Transform Representative Democracy” (2012) 44(4) Polity 668.

59 G Kateb, “The Moral Distinctiveness of Representative Democracy” (1981) 91(3) Ethics 357.

60 J Madison, “Federalist No 10” (22 November 1787); G O’Donell, “Delegative Democracy” (1994) 5(1) Journal of Democracy 55.

61 E Sørensen and J Torfing, “The Democratic Anchorage of Governance Networks” (2005) 28(3) Scandinavian Political Studies 195.

62 F Fischer, “Participatory Governance: From Theory to Practice” in The Oxford Handbook of Governance (2012) p 457.

63 ibid.

64 A Berman, Give Us the Ballot: The Modern Struggle for Voting Rights in America (Macmillan 2015).

65 See Justice Marshall arguing that “We the People” explicated by the framers of the US Constitution did not reflect the realities of America then or now, as it was reserved for only “free persons”. As Marshall expounds, “on a matter so basic as the right to vote, for example, Negro slaves were excluded, although they were counted for representational purposes – at three-fifths each. Women did not gain the right to vote for over a hundred years”. Such omissions were, in Marshall’s words, “intentional”: T Marshall, “Reflections on the Bicentennial of the United States Constitution” (1987) 101(1) Harvard Law Review 1. For an analysis on women’s suffrage and its link to other suffrage movement, see Keyssar, supra, note 12; K Lanning, “Democracy, Voting, and Disenfranchisement in the United States: A Social Psychological Perspective” (2008) 64(3) Journal of Social Issues 431.

66 See A Ellis, “The Cost of the Vote: Poll Taxes, Voter Identification Laws, and the Price of Democracy” (2008) 86 Denver University Law Review 1024.

67 See US Const amend. (XV); US Const. amend. (XIX); US Const. amend. (XXVI).

68 ibid; PM Shane, “Voting Rights and the ‘Statutory Constitution’” (1993) 56 Law and Contemporary Problems 243.

69 US Constitution, Art 1, § 4; Art II, § 1; WWJ Brennan, Jr, “State Constitutions and the Protection of Individual Rights” (1977) 90(3) Harvard Law Review 489.

70 Voting Rights Act of 1965, Pub L 89-110, 79 Stat 437 (1965); The Help America Vote Act of 2002, Pub L 107-252, 116 Stat 166 (2002).

71 KG Bentele and EE O’Brien, “Jim Crow 2.0?: Why States Consider and Adopt Restrictive Voter Access Policies” (2013) 11(4) Perspectives on Politics 1088.

72 The US Supreme Court has rejected claims that drawing boundary lines in state electoral districts are a political question and thus outside its domain, signifying its authority to ensure state legislatures are adhering to constitutional requirements linked with the equal protection clause under Art 14 of the US Constitution: see Baker v Carr, 369 US 186 (1962). “One person, one vote” is a constitutional principle designed to guarantee an egalitarian voting system where each person’s vote counted the same amount as any other individual: Reynolds v Simms, US 533 (1964); Z Hajnal et al, “Voter Identification Laws and the Suppression of Minority Votes” (2017) 79(2) The Journal of Politics 363.

73 Thus far, the allegations of systematic voter fraud in recent federal and state elections have gone largely unsubstantiated: D Schultz, “Less than Fundamental: The Myth of Voter Fraud and the Coming of the Second Great Disenfranchisement” (2007) 34 William Mitchell Law Review 483.

74 S Bowler and T Donovan, “A Partisan Model of Electoral Reform: Voter Identification Laws and Confidence in State Elections” (2016) 16(3) State Politics & Policy Quarterly 340.

75 Bush v Gore, 531 US 98 (2000).

76 ibid.

77 The profound contestation and large degree of media attention surrounding the US Supreme Court decision in Bush v Gore and the outcome of the Presidential elections have had lasting impact on the legitimacy of the US electoral system: E Chemerinsky, “Bush v Gore Was Not Justiciable” (2001) 76 Notre Dame Law Review 1093.

78 H Allcott and M Gentzkow, “Social Media and Fake News in the 2016 Election” (2017) 31(2) Journal of Economic Perspectives 221.

79 The Mueller Report highlights risks concerning voter manipulation in the 2016 Presidential election and deep concerns over the possibility of foreign interference or hacking of elections in the US electoral system: R Mueller, “Report on the Investigation into Russian Interference in the 2016 Presidential election” (US Department of Justice) Vol 1, 1–5; N Inkster, “Information Warfare and the US Presidential Election” (2016) 58(5) Survival 23.

80 R Sobel, “Voter-ID Issues in Politics and Political Science: Editor’s Introduction” (2009) 42(1) Political Science & Politics 81.

81 The 2000 and 2016 Presidential elections and the 2018 midterm elections are particularly illustrative.

82 Hajnal et al, supra, note 72.

83 State law in North Carolina and Texas are among the most illuminating examples of strict voter identification laws: see R Hasen, “Race or Party: How Courts should Think about Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere” (2013) 127 Harvard Law Review 58.

84 Mail-in voting presents the risk that voters may change their mind between the time of their mail-in vote and election day, yet since the vote has been cast their vote is locked: see J Susskind, “Decrypting Democracy: Incentivizing Blockchain Voting Technology for an Improved Election System” (2017) 54 San Diego L Rev 785.

85 Section 4 (b) and Section 5 of the 1965 Voting Rights Act were particularly contested in Shelby. The Shelby decision makes it significantly more difficult to challenge state electoral processes that include closing polling places that are predominately utilised by certain communities and thus adversely affect voter turnout. The decision illuminates continued concerns over the integrity of elections: see J Blacksher and L Guinier, “Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote Shelby County v. Holder” (2014) 8 Harvard Law and Policy Review 39; Dred Scott v Sandford, 60 US 393 (1856).

86 L Norden and C Famighetti, “America’s Voting Machines at Risk” (2015) Brennon Center for Justice at New York University School of Law.

87 Boucher, supra, note 2.

88 WD Hicks et al, “A Principle or a Strategy? Voter Identification Laws and Partisan Competition in the American States” (2015) 68(1) Political Research Quarterly 18.

89 For an analysis of the impact of the Bush v Gore decision on the US Supreme Court’s legitimacy see J Gibson et al, “The Supreme Court and the US Presidential Election of 2000: Wounds, Self-inflicted or Otherwise?” (2003) 33(4) British Journal of Political Science 535.

90 At the time of writing, despite Brexit negotiations, 28 Member States remain.

91 P Magnette, “European Governance and Civic Participation: Beyond Elitist Citizenship?” (2003) 51(1) Political Studies 144.

92 G Majone, “Europe’s ‘Democratic Deficit’: The Question of standards” (1998) 4(1) European Law Journal 5.

93 A Follesdal and S Hix, "Why There is a Democratic Deficit in the EU: A Response to Majone and Moravcsik" (2006) 44(3) Journal of Common Market Studies 542.

94 Menéndez, supra, note 10.

95 Follesdal and Hix, supra, note 93, p 533.

96 Such issues are related to the relationship between national citizenship and EU citizenship: JHH Weiler, “To be a European Citizen-Eros and Civilization” (1997) 4(4) Journal of European Public Policy 495; C Meyer, “Political Legitimacy and the Invisibility of Politics: Exploring the European Union’s Communication Deficit” (2002) 37(4) Journal of Common Market Studies 617.

97 B Kohler-Koch and B Rittberger, “The ‘Governance Turn’ in EU Studies” (2006) 44 Journal of Common Market Studies 27.

98 D Johnson, “Institutional Balance, Civic Virtue and Dialogue: A Republican Balancing Act for the EU Constitutional Order” (2018) 1(1) UCL Journal of Law and Jurisprudence-Special Issue 11.

99 Art 14.3 TEU.

100 Karlheinz and Schmitt, supra, note 19, p 3.

101 For discussions on how the euro crisis can exasperate legitimacy concerns over the limits of the European Parliament’s role in EU decision-making compared with the Council, Commission, and European Central Bank in Eurozone decision-making: VA Schmidt, “The Eurozone’s Crisis of Democratic Legitimacy: Can the EU Rebuild Public Trust and Support for European Economic Integration?” (2015) European Commission’s Directorate-General for Economic and Financial Affairs Discussion Paper No 015 <ec.europa.eu/info/sites/info/files/dp015_en.pdf> (last accessed 4 July 2019).

102 Art 5 of the Treaty on the EU and Protocol No 2 on the Application of the Principle of Subsidiarity and Proportionality); R Schütze. “Subsidiarity after Lisbon: Reinforcing the Safeguards of Federalism?” (2009) 68(3) The Cambridge Law Journal 525.

103 See the Spitzenkandidaten process to elect Commission President: European Parliamentary Research Service. “Election of the President of the European Commission Understanding the Spitzenkandidaten Process”, p 1.

104 For example, such issues are related to the relationship between national citizenship and EU citizenship: C Meyer, “Political Legitimacy and the Invisibility of Politics: Exploring the European Union’s Communication Deficit” (2002) 37(4) Journal of Common Market Studies 617; see also Weiler, supra, note 96.

105 The Brexit debate embodies concerns over the legitimation and democratic nature of the EU. Concerns that the EU is insufficiently democratic and unresponsive to British demands have led to calls for British withdrawal from the EU to restore sovereignty to the British people; S Holbolt. “The Brexit Vote: A Divided Nation, a Divided Continent” (2016) 23(9) Journal of European Public Policy 1259.

106 B Finke, “Civil Society Participation in EU governance” (2007) 2(2) Living Review European Governance 4.

107 For instance, social dialogues require the Commission to consult social partners – representatives of management and labour – in the field of social policy: Consolidated Version of the Treaty on the of the European Union [2012] OJ C326/172; Arts 151–156 TFEU; Art 11.2 and 11.3 TEU.

108 COM (2017) 651 final: Completing the Better Regulation Agenda: Better Solutions for Better Results.

109 The EU creates newsletters on the EU Blockchain Observatory Forum and EU Blockchain roundtables. It has published reports in divergent areas, highlighting the role of blockchain in public services, “GDPR, and innovation throughout Europe: A Thematic Report on blockchain and the GDPR” by The European Union Blockchain Observatory and Forum; EU Blockchain Observatory and Forum. Workshop Report. E-identity, Brussels, 7 November 2018. This is consistent with legal requirement that “the institutions shall maintain an open, transparent, and regular dialogue with representative associations and civil society”: Art 11.2 TEU.

110 As Magnette elucidates, the EU multilevel system of governance is a “highly complex institutional system, where sovereignty is pooled while accountability remains divided”: Magnette, supra, note 91.

111 A Malkopoulou, “Lost Voters: Participation in EU Elections and the Case for Compulsory Voting” (2009) CEPS Working Document No 317 <ssrn.com/abstract=1438562> (last accessed 4 July 2019).

112 See Thym, arguing that the asymmetric and varying degrees of participation among member state does not conflict with the United in Diversity motto of the EU: D Thym, “United in Diversity – The Integration of Enhanced Cooperation into the European Constitutional Order” (2005) 6(11) German Law Journal 1731.

113 R Briffault, “The Contested Right to Vote” (2002) 100 Michigan Law Review 1506.

114 The Mueller Report, supra, note 79, 1–5.

115 Debates on the democratic deficit are still prevalent in the aftermath of the Lisbon Treaty, where the European Parliament became co-legislator in the ordinary legislative process in the majority of fields and national parliaments had an augmented role in the making of EU legislation; Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C326/172 (Arts 289 and 294).

116 The notion of a legitimation deficit is linked to the widely debated notion of democratic deficit: Follesdal and Hix, supra, note 93, p 533.

117 For technical challenges with the application of blockchain technology, such as scalability and miners hoarding blocks for future revenue, see Zheng et al, supra, note 6.

118 ibid, p 352.

119 Hanifatunnisa and Budi, supra, note 27.

120 Scalability is also a challenge for private blockchains, but private companies often have less difficulty addressing the challenge because of greater computing power; see X Xu et al, “The Blockchain as a Software Connector” (2016) 13th Working IEEE/IFIP Conference on Software Architecture (WICSA) pp 182–191.

121 At the moment, public blockchains do not have the capacity to handle large scale (voting) transactions efficiently, since transactions on a public blockchain occur at a very slow pace.

122 ibid.

123 van Ooijen, supra, note 45.

124 ibid.

125 A Deshpande et al, “Distributed Ledger Technologies/Blockchain: Challenges, Opportunities and the Prospects for Standards” (2017), Overview report The British Standards Institution (BSI) p 10.

126 It has been argued that blockchain is a constitutional community: S Davidson et al, “Economics of Blockchain” (2016) <papers.ssrn.com/sol3/papers.cfm?abstract_id=2744751> (last accessed 16 July 2019).

127 On the importance of accountability see M Bovens, “Analysing and Assessing Public Accountability. A Conceptual Framework” (2006) European Governance Papers: EUROGOV No C-06-01, <www.ihs.ac.at/publications/lib/ep7.pdf> (last accessed 4 July 2019).

128 D Frisby, “In Proof We Trust” (Aeon, 21 April 2016) <aeon.co/essays/how-blockchain-will-revolutionise-far-more-than-money> (last accessed 4 July 2019).

129 As Satoshi Nakamoto explains, a main advantage of the blockchain is its ability to make transactions public, while maintaining personal anonymity: Nakamoto, supra, n 1.

130 S Underwood, “Blockchain Beyond: Bitcoin Blockchain technology has the Potential to Revolutionize Applications and Redefine the Digital Economy” (2016) 59(11) Communications of the ACM 15; MJW Rennock et al, “Blockchain Technology and Regulatory Investigations” (2018) The Journal 34.

131 S Bowler and T Donovan, “A Partisan Model of Electoral Reform: Voter Identification Laws and Confidence in State Elections” (2016) 16(3) State Politics & Policy Quarterly 340.

132 Teogenes and Gomes, supra, note 29.

133 ibid.

134 S Davidson et al, “Disrupting Governance: The New Institutional Economics of Distributed Ledger Technology” (2016) <ssrn.com/abstract=2811995> (last accessed 4 July 2019).

135 Examples of such pilot projects include blockchain-based voting for political parties in a republican primary in Utah and the city of Denver, Colorado in the US creating and implementing a blockchain pilot project for municipality voting. The elections in Utah did not provide the best results: <followmyvote.com/2016-presidential-race-blockchain-voting-utah/https://medium.com/universablockchain/transparent-elections-on-blockchain-e3a1c7707bc7>; <www.coindesk.com/city-of-denver-to-pilot-blockchain-voting-app-in-coming-elections>.

136 See <sos.wv.gov/elections/Pages/MobileVote.aspx>.

137 A Warner, “Warner Pleased with Participation in Test Pilot for Mobile Voting”, Office of the Secretary of State Press Release, 16 November 2018.

138 See <sos.wv.gov/elections/Pages/MobileVote.aspx>.

139 The West Virginia Secretary State claims that the 2018 General Elections (midterms) were a huge success: <sos.wv.gov/news/Pages/11-15-2018-A.aspx>.

140 27 member states and Norway have joined the Partnership on Blockchain: <ec.europa.eu/digital-single-market/en/news/european-countries-join-blockchain-partnership>.

141 See <www.eublockchainforum.eu/about>; <europa.eu/rapid/press-release_IP-18-521_en.htm>.

142 ibid.

143 European Parliament Resolution of 3 October 2018 on Distributed Ledger Technologies and Blockchains: Building Trust with Disintermediation (2017/2772 (RSP)).

144 EUCO 14/17 CO EUR 17 CONCL 5. 19 October 2017, Brussels.

145 <ec.europa.eu/digital-single-market/en/news/european-countries-join-blockchain-partnership>.

146 The Official Newsletter European Union Blockchain Observatory and Newsletter.

147 Art 11.4 TFEU.

148 M Conrad, “The European Citizens’ Initiative: Transnational Democracy in the EU At Last?”(2011) 7(1) 1 Stjórnmál og Stjórnsýsla 5.

149 Importantly, the ECI grants the European Commission the power to decide whether to launch a proposal, even if the legal requirements are met, if it justifies why it does begin a legislative proposal: LB Garcia and J Greenwood, “The European Citizens’ Initiative: a New Sphere of EU Politics?” (2014) 3(3) Interest Groups and Advocacy 246.

150 Only a handful ECIs have been successful thus far: A Karatzia, “The European Citizens’ Initiative and the EU institutional balance: On Realism and the Possibilities of Affecting EU Lawmaking” (2017) 54(1) Common Market Law Review 177.

151 Another important concern is that an ECI that meets the legal requirements does not bind the Commission to act: ibid.

152 It has proven to be an arduous task to meet the legal requirements under the ECI: Art 11.4 TFEU; Regulation No 211/2011 of the European Parliament and of the Council on the Citizen’s Initiative (OJ L 65, 11.3.2011, p 1).

153 The new ECI regulation is designed to enhance the number of successful ECIs in EU governance – according to the Commission as of May 2019, there have only been four successful ECIs: see Regulation (EU) 2019/788 of the European Parliament and of the Council on the European Citizen’s Initiative (OJ L 130, 17.5.2019, p 55–81); the European Citizens’ Initiative. Commission Factsheet 2019, available at <ec.europa.eu/citizens-initiative/public/ regulation-review>.

154 ibid.

155 M Orcutt, “How Secure is Blockchain Really?” (MIT Technology Review, 2018) <www.technologyreview.com/s/610836/how-secure-is-blockchain-really/> (last accessed 4 July 2019) 93; ibid, 22.

156 R Osgood, “The Future of Democracy: Blockchain Voting” COMP116: Information Security (2016); Zyskind and Nathan, supra, note 3.

157 For an analysis promoting a constitutional model that highlights the need for a balanced constitutional order by promoting an ongoing dialogue between a range of public and private societal forces: Johnson, supra, note 56.

158 Fisher, supra, note 19.