1. Blockchain technology: an overview

Blockchain technology is an innovative digital tool that fundamentally shapes how we track, store, and share data.Footnote ³¹ The blockchain is a particular type of distributed ledger technology that is encrypted, decentralised, and immutable. It shares, stores, and distributes information digitally across a system of nodes (participants on a distributed network of computer servers called a blockchain network), where nodes collectively control and maintain data on a blockchain network, including a synchronised copy of the history of transactions on the network, without relying on a central authority or third-party intermediary to reach consensus on the validity of a block.Footnote ³² Its capacity to track items of value, avoid alterations, achieve peer-to-peer consensus, and execute transactions without being controlled by third-party intermediaries – centralised authorities, banks, and regulators – is ground-breaking for citizen participation and distributed governance.Footnote ³³ Proponents of the technology argue that blockchain enhances democratic legitimation, since the entire network can be monitored by a multitude of nodes.

As a decentralised and distributed ledger technology, blockchain is based on a peer-to-peer consensus network. The technology links timestamped lists of “blocks” with one another, once a consensus among nodes exists, verifying the authenticity of information on the block.Footnote ³⁴ Blockchain technology tracks and stores the complete history of transactions and the sequences in which transactions occur on the blockchain network, creating an immutable audit trail that tracks and verifies transactions on the network.Footnote ³⁵ A block can only be added when a consensus among nodes in the network is reached.Footnote ³⁶

To guarantee a secure and immutable audit trail blockchain technology utilises cryptography to create a digital signature. Once a consensus is reached amongst the nodes that confirms the accuracy of the data, the data is encrypted on a block to secure the communication throughout the entirety of a transaction (ie end-to-end voting process).Footnote ³⁷ This peer-to-peer consensus mechanism is an integral part of the blockchain. It is designed to guarantee the accuracy of the data stored and enhance trust in the information on the network by utilising a “proof of work” or “proof of stake” scheme where a multitude of nodes verify the validity of the block before a new block is added to the network and thus aims to ensure only legitimate transactions are on the blockchain network.Footnote ³⁸ The data involving the different transactions are distributed and shared in a manner that is unalterable (without detection) across the different nodes in the blockchain. Ideally, any suspicious activity that involves an attempt to manipulate or alter the blockchain is detected and individual nodes are informed, which prevents any user from unilaterally modifying the block.Footnote ³⁹

Blockchain comes in many different forms, but a general classification can be made based on two fundamental questions. Who has access to a blockchain network and who can mine (modify) transactions on the blockchain network? Private (permissioned) blockchains are run by a single specialist entity that is “the dominant trust”.Footnote ⁴⁰ Under permissioned blockchain, any node needs permission to access or mine on the blockchain network. A public (permissionless) blockchain, on the other hand, such as Bitcoin, allows access and any network node the capacity to mine, alter transactions on a blockchain network, and thus be part of a consensus that verifies a block’s validity, without obtaining permission from any entity.Footnote ⁴¹ In contrast to private blockchains, the sharing of information along public blockchains grants access to all – instead of selected nodes, which can diminish information asymmetries – since ideally anyone with internet access can be a node, operating as a network participant with access and mining capability on a blockchain network. The next section shows that a number of illustrative use cases highlight how blockchain-based voting exemplifies democratic experimentalism in the digital age.

2. Blockchain-based voting use cases

Blockchain technology has emerged as a digital tool designed to enhance the legitimacy of electoral, political, and collective decision-making processes across the globe.Footnote ⁴² The implementation of some form of blockchain-based voting is now a reality in countries ranging from Sierra Leone to Switzerland, Japan to Colombia, and Russia to South Korea. For instance, innovative blockchain technology was “partially deployed” in the 2018 Sierra Leonean elections, where a private Swiss company, Agora, acted as an international observer, running its own unofficial trial election test.Footnote ⁴³ In Switzerland, the city of Zug used blockchain technology as part of an e-voting initiative.Footnote ⁴⁴ Blockchain technology was also utilised as an innovative solution to overcome the limits of traditional voting in Colombia in the 2016 Peace Plebiscite, as part of the nation’s transitional justice process.Footnote ⁴⁵ Challenging traditional voting processes that only provided for a limited number of expatriates to participate in a “symbolic” vote on the Colombian Peace Treaty, the technology was designed to strengthen public confidence and create an inclusive voting process that allowed more expatriates to participate in the symbolic vote.Footnote ⁴⁶ In addition to the application of blockchain-based voting in electoral and transitional justice processes, the technology is also utilised in collective decision-making processes concerning community projects. A number of pilot projects designed to implement blockchain-based voting have also been introduced in the province of Gyeonggi-do, South Korea and the Russian capital city, Moscow.Footnote ⁴⁷ Meanwhile, Estonia has developed an e-Residency program using blockchain technology to further empower individuals, allowing them to verify digitally encrypted documents, including contracts.Footnote ⁴⁸

This section has introduced several blockchain-based voting use cases. Such use cases demonstrate the great promise blockchain offers, but as sections V.1 and V.2 show, a number of important risks connected with the technology limit the potential application of blockchain-based voting. Before examining the risk associated with blockchain based-voting it is necessary to trace core themes of the US and EU systems of governance, elucidating the commonalities and differences between the two systems.

1. The US and the EU systems of governance

The US is a national constitutional order.Footnote ⁵¹ It is a federal republic, a presidential system of governance, based on democratic self-rule, representative governance, checks and balances, separation of powers, federalism, a bill of rights safeguarding individual and minority rights, and strong judicial review exercised by its courts including the highest court of the land, the US Supreme Court.Footnote ⁵² In contrast to the US system, ongoing contestation concerning the constitutional nature of the EU has occurred since the inception of the European integration process in the 1950s.Footnote ⁵³

The EU is a multilevel system of governance comprised of 28 member states, operating both within and beyond the nation state.Footnote ⁵⁴ Although the EU is not a nation-state and arguably does not possess all the characteristics of a fully-fledged democratic system, it embodies core features of a constitutional order and as a result is now often referred to as a form of “multilevel constitutionalism”.Footnote ⁵⁵ This multilevel system of governance is based on its desire to achieve foundational “constitutional values”, such as promoting democratic governance through representative and participatory methods, safeguarding individual and collective fundamental rights, adherence to the rule of law, limited and divided government, and the principle of institutional balance, primacy, and subsidiarity.Footnote ⁵⁶

Despite these fundamental differences, it is important to note that both systems strive to achieve constitutional aspirations – free and fair elections and active civic participation – linked with contemporary notions of legitimate democratic governance. Both systems embody jurisdictions that face fundamental legitimacy questions, where public confidence is eroding as citizens expectations for free and fair elections and vibrant political debate in deliberative fora are often unrealised.Footnote ⁵⁷ This underpins the perception that governments in both jurisdictions often fail to achieve democratic ideals.

2. Representative and participatory democracy

The examination of the potential application of blockchain-based voting in the US and the EU systems of governance provides the framework to explore how the technology can shape two complementary, but distinct forms of democracy, representative and participatory.Footnote ⁵⁸ Representative democracy is based on consent of the governed and equal citizenship for all.Footnote ⁵⁹ It connotes a system of indirect governance where “the people” elect representatives that reflect different societal interests and who govern on behalf of the public good.Footnote ⁶⁰ It is linked to the idea of a governmental system that demands “fair and free” elections and consists of a set of (elected) officials and institutions that reflect the will of the people and govern a society utilising top-down processes (laws, rules, and norms).Footnote ⁶¹

Participatory democracy is seen as a way to complement and strengthen shortcomings in representative governance. It is a form of governance that concentrates on promoting citizen engagement through a diverse set of deliberative processes, institutions, and norms.Footnote ⁶² Essential aims within participatory governance include citizen empowerment and community capacity-building by utilising decentralised decision-making processes, establishing avenues for constitutional dialogues between an array of public officials, civil society, and the citizenry, and ensuring more transparent and accountabile decision-making processes.Footnote ⁶³

Assessing the potential application of blockchain-based voting provides key insights concerning whether the technology can be used as a digital tool to reshape representative forms of governance in a manner that enhances the legitimacy of the US electoral system. Meanwhile, the analysis exploring whether the application of blockchain-based voting in the EU, as a form of participatory democracy, provides insights concerning whether the technology can act as a digital tool to shift the EU from passive civic participation to a system of governance with active civic engagement. This leads to the next section, which elucidates the historical context of the struggle to secure the right to vote for all in the US electoral system, while illustrating that universal suffrage and the right to participate in the US constitutional order remains deeply contentious, as systematic risks remain.Footnote ⁶⁴

3. Systematic voting risks in the US: threatening the ideals of “We the People”

Since the birth of the nation, the exclusion of large segments of American society – including women, African Americans, Native Americans, Hispanics, Asians, and those with low socio-economic status – from certain constitutional guarantees, left a significant percentage of the population disenfranchised.Footnote ⁶⁵ As the right to vote expanded to different segments of American society over time, the creation of ominous methods used to eliminate the ability for certain groups to participate in the political process, including the poll tax and literacy test, became commonplace in states across the US.Footnote ⁶⁶

The right to vote is now a constitutional guarantee that is the bedrock of the American political system. Since the post-World War II Human Rights movement in the 1940s, 50s and 60s, where disparate groups of disenfranchised citizens in the US vigorously fought for their constitutionally guaranteed rights, systematic changes were put in place to promote free and fair elections that secure the right to vote for all.Footnote ⁶⁷ Legal guarantees in the US and state constitutions, federal and state legislation, and judicial decisions now prohibit explicit discriminatory practices.Footnote ⁶⁸ For instance, the US has a multilevel electoral system with actors at the federal, state, and local level playing a fundamental role in the creation and implementation of voting rules and the monitoring of elections.Footnote ⁶⁹ At the federal level, two key legislative acts governing voting laws in the US are a product of transformative developments.Footnote ⁷⁰ The first, the Voting Rights Act of 1965 is a product of the Human Rights movement of the 1960s. The second, the Help America Vote Act of 2002 was a result of the intensely debated 2000 Presidential election between then Texas Governor George W Bush and Vice President Al Gore. Each legislative act introduced vital measures that aimed to guarantee free and fair elections. Despite such legal guarantees, ongoing and systematic efforts to (re)shape the electorate have the potential to alter electoral outcomes and potentially interfere with the constitutional guaranteed right to vote.Footnote ⁷¹

Today, debates over the right to vote in the US concentrate on two strands. Each strand presents significant risks to the integrity of the US electoral system. According to the first, voter suppression and gerrymandering occurs systematically in national, state, and local elections, which undermine constitutional norms designed to protect the right to vote for all and disproportionally disenfranchise and alienate certain groups of voters – racial and ethnic minorities as well as those with a lower socio-economic status.Footnote ⁷² The second claim rests on the argument that a significant degree of voter manipulation (fraud, hacking, and interference) occurs in US elections that potentially shape electoral outcomes.Footnote ⁷³

US elections in 2000, 2016, and 2018 vividly illustrate how complex voting procedures, voter irregularities, voter suppression, voter identification laws, and allegations of voter manipulation create uncertainty over electoral outcomes.Footnote ⁷⁴ The abovementioned 2000 US Presidential election marked a turning point in public confidence in the US electoral system.Footnote ⁷⁵ The US Supreme Court eventually decided the outcome in the profoundly contentious Bush v Gore decision.Footnote ⁷⁶ The Court’s decision ended the Florida manual recount, holding that the lack of clear uniform standards to govern the recount was a violation of the equal protection clause of the 14^th Amendment of the US Constitution. As a result of the Court’s decision, Bush eventually won the Presidency.Footnote ⁷⁷

The 2016 and 2018 elections intensified political distrust and vividly displayed significant legitimacy concerns involving the US electoral system.Footnote ⁷⁸ For the second time, in four elections, the Presidential candidate that won the popular vote lost the electoral college and the Presidency. Investigations into Russian interference in the 2016 Presidential elections further elucidates concerns over the integrity of US elections.Footnote ⁷⁹ Importantly, claims of widespread voter suppression efforts and allegations of voter manipulation also eroded public trust in the electoral system in 2016 and 2018.Footnote ⁸⁰

Fiercely contested outcomes in recent elections reinforce concerns over the integrity of the US electoral system.Footnote ⁸¹ Despite constitutional protections, recent developments show that a multitude of new legal and extra-legal barriers are now in place in states across the US that potentially discourage voter turnout and decrease the number of citizens that participate in the political process.Footnote ⁸² For instance, several states have established new voting rules that have eliminated same-day voter registration, purged voters from voter registration lists, or significantly cut the time period allowed for early voting.Footnote ⁸³ Recently enacted voting rules can intensify existing risks in the system that include the complexity of voting rules, the cost of voting, the limited hours of in-person voting, outdated voting machines, voter registration problems, challenges with mail-in voting, delays in counting ballots and the potential for administrative errors that invalidate or – perhaps even worse – indicate a vote for a candidate other than the one the voter intended.Footnote ⁸⁴ Courts operating at both the federal and state level are also increasingly asked to minimise voting risks and settle legal questions concerning voter suppression and partisan gerrymandering. An illustrative example is the monumental decision in 2013, Shelby County v Holder, where the US Supreme Court rolled back voter protection safeguards in the 1965 Voting Rights Act.Footnote ⁸⁵

This section shows that the US electoral system faces a legitimation crisis.Footnote ⁸⁶ It highlights systematic risks – complexity, accessibility, inclusiveness, equality, anonymity, arbitrariness, and accountability – in the existing US system.Footnote ⁸⁷ In addition to vigorously contested elections, a number of measures have been introduced that ultimately shape the composition of the electorate and potentially electoral outcomes, while adding to the complexity, uncertainty, and opaque nature of the US electoral system.Footnote ⁸⁸ The existing risks in the electoral system highlight questions concerning the control of voting processes, for instance, who controls voter registration, the operation of voting machines, and who controls how votes are counted (including post-election auditing). These risks can infringe fundamental constitutional principles and decrease public confidence in the integrity of elections.Footnote ⁸⁹ To effectively protect constitutional norms, different levels of US governance must respond to efforts to shape voting outcomes through a strategy of voter suppression or voter manipulation. Importantly, the legitimacy of voting processes demands more than the efficacy of government institutions, but a vigilant effort by citizens and civil society to safeguard the right to vote for all.

The analysis, thus far, has illustrated how systematic risks within the US electoral system can undermine constitutional aspirations linked to the democratic ideals of “We the People”. The article now shifts focus to explore legitimation debates at the heart of the EU political system.

4. Passive civic participation in the EU: a systemic risk to the ideals of “united in diversity”

Since the inception of the European integration process in the 1950s, the transformation from 6 to 28 member states fundamentally shapes how public power in the EU is exercised, limited, and balanced.Footnote ⁹⁰ An underlying theme throughout the history of EU integration is the conception that a passive citizenry exists that is based on a lack of civic participation and control in the political process.Footnote ⁹¹ The following analysis explores some of the most prevalent explanations elucidating passive civic participation in the EU.

An array of reasons are put forward to explain why the widespread perception of a legitimacy crisis exists in the EU.Footnote ⁹² This section highlights four of the most salient ideas that capture the argument. First, is the common understanding that the EU is a “sui generis” system of governance.Footnote ⁹³ Second, is the argument that a constitutional deficit exists, where institutional structures and processes are viewed as undemocratic and unresponsive to the desires of the EU citizenry.Footnote ⁹⁴ Third, is the argument that the EU suffers from a legitimation problem, since there is not a sufficient degree of political contestation over EU policy. Footnote ⁹⁵ Fourth, is the “demos problem”, which rests on the notion that the EU fails to reflect a genuine democracy, with an overarching European vision. Footnote ⁹⁶

The sui generis nature of the multilevel system of EU governance and the perception that the EU exerts dominating power creates a number of risks that can diminish its legitimacy. Throughout the integration process many new actors designed to represent a plurality of societal interests at different levels of EU governance have been established in an attempt to guarantee the Union’s smooth functioning and achieve objectives linked to the Community Method.Footnote ⁹⁷ However, the complexity of EU governance and the increasing number of actors has led to significant confusion about how the EU functions. Moreover, the lack of representativeness of the EU and its institutions, the Community Method, the application of the institutional balance rather than the separation of powers, the lack of parliamentary governance, and the perception of the technocratic nature of EU governance, where unelected and unaccountable bureaucrats exercise significant power at a great distance from the people, are factors that increase the potential for citizen confusion and contribute to the perception of a legitimacy crisis in the EU.Footnote ⁹⁸

The notion that there are insufficient avenues for genuine political contestation is reinforced by the increasing transfer of powers towards the EU level. This important trend concerning the enhanced scope of EU action, particularly since the Maastricht Treaty, reinforces the argument that the EU is largely operating outside the control of member state governments and the peoples of Europe. Aside from the European Parliament – the Council, the Commission, the European Council, and the CJEU – the main institutions operating at EU level are unelected.Footnote ⁹⁹ Moreover, the argument that European Parliament elections are “second order elections” also raises key legitimation concerns that strengthen the argument that the European Parliament is not a genuine parliament since, “the composition of the directly elected European Parliament does not precisely reflect the ‘real’ balance of political forces in the European Community”.Footnote ¹⁰⁰ This perception still exists in the current institutional framework, even after the European Parliament has obtained enhanced power with successive Treaties, since its members were directly elected in 1979.Footnote ¹⁰¹

Concerns over the European Parliament’s role in the EU political process remain post-Lisbon Treaty, when the European Parliament obtained an enhanced role in the EU legislative process and national parliaments received enhanced powers to limit EU action through the principle of subsidiarity.Footnote ¹⁰² Unelected actors at the EU level, aside from the European Parliament, and the increased scope of EU administrative action contribute to the perception that power is transferred from actors operating at the national level to unelected EU bureaucrats who largely operate outside political controls and are unaccountable to the EU citizenry.Footnote ¹⁰³ Concerns that the European Parliament does not exercise genuine parliamentary powers strengthen arguments in favour of the demos problem and may have a depressive effect on voter turnout for European Parliament elections. This presents a significant paradox, as citizen participation in EU governance is particularly important in light of a number of key crises facing the EU that exacerbate the need for a clear and coherent European vision to tackle challenges related to Brexit, security, nationalism, rule of law, the euro crisis, and migration. Such debates highlight significant contestation concerning how to address existing crises in the EU and present urgent questions, particularly whether the EU has the capacity to meet citizens’ expectations and govern in a manner that mitigates existing risks. Legitimacy questions also highlight the lack of a cohesive social and cultural identity that binds the peoples of Europe together.Footnote ¹⁰⁴

This analysis illustrates that questions concerning civic participation in the political process are at the heart of the legitimation debate in the EU, threatening its ability to live up to the constitutional aspirations of a Europe that is “United in Diversity”.Footnote ¹⁰⁵ Consequently, a range of methods designed to augment civic participation, address its legitimacy crisis, and achieve democratic ideals have been introduced in the EU.Footnote ¹⁰⁶ Such methods include enhancing the role of the European Parliament and national parliaments in EU governance, facilitating a greater role for civil society in EU decision-making through Commission dialogues with stakeholders and social dialogues.Footnote ¹⁰⁷ The Better Regulation Agenda has also been developed, which aims to diminish regulatory burdens and promote open and transparent governance that strengthens the role of citizens and civil society in EU decision-making processes.Footnote ¹⁰⁸ Each of these methods are illustrative examples of how the EU attempts to enhance the participatory nature and legitimacy of EU governance by engaging in a dialogue between distinct actors – EU institutions and other bodies, member states, civil society, and the peoples of Europe – operating at different levels within the EU. As subsequent sections highlight, the EU is also attempting to engage in multi-actor dialogues concerning the role of blockchain technology in regulating risks across Europe.Footnote ¹⁰⁹

This section explores arguments that exemplify justifiable concerns that a fundamental disconnect exists between EU normative aims, its actions, and citizens’ expectations. Arguments explaining why a legitimacy deficit exists are closely related to the unique characteristics of EU governance and can lead to profound uncertainty over who does what, when, and how in the complex multi-level system of EU governance. Such developments make it difficult for citizens to understand where the EU’s sources of legitimacy stem from, how to hold those that exercise power to account, and the consequences of EU elections.Footnote ¹¹⁰ These risks often lead to passive civic participation in the political process, as citizens do not know how their involvement will shape EU governance. Further, passive civic participation raises significant questions about the EU’s capacity to promote participatory governance and democratic ideals in a manner that fosters public deliberation and civic engagement between a plurality of societal interests.Footnote ¹¹¹ Such challenges threaten the EU’s ability to realise one of its central objectives, a Europe that is “United in Diversity”.Footnote ¹¹² Thus, to ensure legitimacy and promote democratic ideals, any vision for the future of Europe must incorporate citizens in a multi-actor dialogue to search for common solutions, reconcile competing social interests and to meet citizens’ expectations. The next section explores the prospects and limits of blockchain-based voting in the US and the EU.

1. Blockchain-based voting use cases: illuminating core risks with the technology

Existing blockchain-based voting use cases show significant obstacles that limit the potential for the widespread application of the technology in electoral and political processes.Footnote ¹¹⁸ The blockchain-based voting use cases explored thus far, highlight fundamental risks that include the potential for one actor to dominate blockchain-based voting processes, the deeply complex nature of blockchain technology, a lack of digital (blockchain) literacy and technical know-how, different levels of internet speed and capacity, challenges concerning the stage of development of blockchain technology, and cultural and institutional resistance to the technology from large segments of society.

The aforementioned use cases illuminate key risks including the role of permission-based blockchain technology, where private companies such as the Swiss company, Agora, in the Sierra Leoneon election, Active Citizen in Russia, and Blocko in South Korea play an integral role shaping how a blockchain infrastructure functions. When such permissioned blockchains are utilised, private companies may be able to exert dominating power, diminishing the potential for genuine checks and balances on the blockchain network. As a result, using permissioned blockchains, private companies can almost unilaterally shape electoral and political processes, since they can control how the blockchain apparatus functions and remain in control of who has access or who can mine on a blockchain network. Similar to traditional voting methods, private blockchains can provide the framework for an electoral system where a single authority can exert dominating control in the electoral or political system. Unilateral control by private companies – or any other actor – of a blockchain-based voting apparatus increases the potential that a single actor or group of actors can manipulate electoral and political processes.Footnote ¹¹⁹ Public blockchains diminish the potential for any single actor to dominate voting processes, but face significant challenges of their own.

The complex nature of blockchain is linked to one of the key challenges currently facing public blockchains: scalability.Footnote ¹²⁰ The scalability challenge concerns the scale and speed in which transactions can occur on a blockchain network. In voting use cases, scalability refers to the ability of a blockchain network to increase capacity to meet greater demand in order to handle all voting transactions within an electoral process, regardless of the size of the electorate. This transaction velocity is intimately connected to the efficacy of the blockchain and involves the time it takes to put a transaction on a block or reach a consensus between nodes on the network. It is important to note that certain blockchain networks require significant computing power, which reduces accessibility.

The existing use cases show public blockchains are not “sufficiently mature”, from a technical standpoint, to handle the demands of large electoral and political processes.Footnote ¹²¹ A fully mature and operational blockchain would work well whether there is a small electorate (300,000), a medium sized electorate (3 million), or a rather large electorate (30 million). Thus, an efficacious blockchain infrastructure would handle the large number of voters on a network at the federal and state level in the US or in different levels of governance within the EU. Current blockchain networks are simply not sufficiently mature to handle such large demand. The scalability challenge means that the performance of public blockchains is currently limited.Footnote ¹²² For these reasons, the scalability challenge presents fundamental obstacles to expanding the application of blockchain-based voting to large elections. Accordingly, existing use cases are generally private permission-based blockchains that have the capacity to process transactions more rapidly than public blockchains but leave control almost exclusively in the hands of a private entity. The essential role of private companies in blockchain-based voting use cases and the challenges of scalability in public blockchains raises the question whether private entities play a dominant role in existing use cases and whether the application of fully public blockchain voting infrastructures are realistic alternatives to traditional voting methods in the near future.

The Colombian Plebiscite use case further illuminates fundamental risks concerning the complex nature of blockchain technology.Footnote ¹²³ Such risks are connected to questions concerning the complexity of blockchain, digital (blockchain) literacy and technical know-how, issues involving how the technology works, who controls the blockchain network, the potential efficacy of blockchain-based voting, limited internet access and computing power, and cultural and institutional resistance from those in public service, private interests groups, or segments of the citizenry who favour the status quo.Footnote ¹²⁴ The Colombian use case highlights fundamental risks connected to the widespread application of blockchain-based voting in the digital age, including significant misunderstandings concerning how the technology works and considerable scepticism concerning the potential for blockchain to guarantee the integrity of electoral outcomes. The complexity of blockchain technology and lack of blockchain literacy among citizens, public officials, and civil society presents another fundamental question, whether blockchain-based voting genuinely enhances citizen access and participation in electoral and political decision-making systems. Blockchain also presents its own concerns involving voter identity and the security of electoral and political processes, including potential cyberattacks. For the abovementioned reasons, instead of strengthening public confidence, the complex nature of the technology, and the amount of computing power necessary to run blockchain may actually limit access and increase distrust in the US and EU, as citizens may face difficulty understanding how blockchain-based voting works and lack the technical knowledge or the resources to act as a vibrant participant on a blockchain network.Footnote ¹²⁵ Ensuing sections show that innovative solutions are needed in order to overcome existing risks in the US and EU electoral and political systems, as well as risks presented by blockchain-based voting.

2. Blockchain-based voting: a digital tool to promote constitutional values and minimise risks in the US and EU electoral and political systems?

The core features of blockchain – its decentralised, immutable, inclusive and secure nature – can promote constitutional values and diminish risks in the US and the EU electoral and political systems. The technology can minimise the potential for domination, enhance security, and facilitate greater transparency and openness in decision-making processes, while maintaining the privacy and anonymity of voters in a manner consistent with good governance standards in contemporary constitutionalism.Footnote ¹²⁶ As non-domination and limited government are foundational elements necessary to achieve democratic ideals, a blockchain-based voting appartus must promote such constitutional values. Consequently, a legitimate blockchain-based voting infrastructure must operate in a fashion that diminishes power imbalances, social inequalities, and informational asymmetries, while preventing any entity from exerting dominance. Thus, it is critically important that blockchain-based voting does not become a means for factional societal interests, such as political, technical, or legal elements to dominate decision-making processes.

Among the many virtues of blockchain-based voting is its potential to foster democratic ideals linked to equality and non-domination, as there is no central command or established hierarchy on a fully operational blockchain network. Instead, blockchain allows the people to operate as principal players who exercise checks and balances throughout the entire voting process. Its projected capacity to guarantee that a single actor does not unilaterally control decision-making processes is a vital element to ensure that systematic checks and balances exists. Blockchain technology can also facilitate open and transparent decision-making so that those exerting power reflect societal ideals, and are held to account.Footnote ¹²⁷ In the process, it can alert voters of administrative errors and attempts to manipulate the vote. In essence, the technology can incentivise citizen participation by granting citizens greater control in electoral governance.

Certain elements are essential within a blockchain network to achieve constitutional values connected to the right to vote and civic participation. For instance, certain steps are required to combat the risks of domination that can lead to fundamental threats to the integrity and security of elections. Constructing blockchain networks with a large number of nodes is one way to promote a strong consensus mechanism that prevents any actor from playing a dominant role on a blockchain network. Further, existing risks in decision-making processes necessitate the creation of multi-track verification processes on blockchain networks. One track that focuses on guaranteeing the authenticity of the voter (voter id), while another focuses on guaranteeing the integrity and validity of the information (blocks) on the blockchain. A multi-track verification process can ensure that checks and balances exist in electoral processes that diminish the chance of any entity being able to exercise dominance.

The blockchain network, with a multitude of nodes that monitor electoral processes and outcomes, and multi-prong verification processes, can offer greater citizen control and participation in political processes than traditional voting methods.Footnote ¹²⁸ The technology makes it possible to maintain a timestamped immutable audit trail that secures the capacity for genuine checks and balances during different phases of the electoral process. The nodes on the network can verify and publicise that someone voted, while explaining which decision was taken and when, without identifying the voter or linking a voting transaction to a particular voter.Footnote ¹²⁹ The tracking of information on a blockchain during different stages of the electoral process in a secure, decentralised, and immutable fashion also diminishes the potential for arbitrary electoral outcomes. Moreover, blockchain is seen as a method to enhance the efficacy of electoral governance and increase transparency, making voting processes more accessible and inclusive, while ensuring that those who exercise powers are held accountable for their actions.Footnote ¹³⁰ The technology can also help diminish voting irregularities and reduce administrative and transaction costs, while providing a systematic response to significant challenges to the integrity of the US electoral system and passive civic participation in the EU.Footnote ¹³¹ Ultimately, the technology can help reduce uncertainty and restore public confidence in electoral outcomes by allowing the people to play a greater role controlling and monitoring electoral processes.Footnote ¹³²

The aforementioned elements of blockchain technology are consistent with contemporary standards of good governance and enhance the potential for citizens to hold their government to account, minimise the potential for arbitrary voting processes and maladministration that can lead to ineffective governance and increase public distrust.Footnote ¹³³ For these reasons, blockchain supporters argue that the technology can diminish concerns over the integrity of voting processes and promote constitutional values by securing a balanced constitutional order that minimises the potential for arbitrary decision-making and the abuse of power by preventing any single societal force from unilaterally dominating the distinct processes of electoral and political governance.Footnote ¹³⁴ The following sections address the application of blockchain-based voting and the potential for future use cases in the US and EU.

3. The US state of West Virginia’s 2018 blockchain-based voting use case

Blockchain-based voting is in its initial stages around the world. The prospects of simplifying voting and guaranteeing secure electoral processes has led to the launch of several pilot projects in the US.Footnote ¹³⁵ An illustrative example of the application of blockchain-based voting is the US state of West Virginia’s use of the technology in the 2018 midterm elections.Footnote ¹³⁶ West Virginia created a blockchain-based voting pilot program, with the aim of securing the right to vote for military and overseas US citizens permitted to vote in the state. To address challenges facing such voters when they attempted to cast their ballot, West Virginia state officials worked with Voatz Inc, a mobile voting company, to develop a blockchain-based voting application for US citizens overseas to receive and cast a ballot electronically utilising biometric identity verification.Footnote ¹³⁷ Blockchain technology was then used to store votes until election night, so that information was not leaked that could impact voters who had yet to cast their ballot. In order to implement a blockchain-based voting application for midterm elections, rigorous security measures were conducted to ensure the integrity of the voting application. Security methods were deployed to ensure votes were not interfered with, which included post-election auditing by external companies that demonstrated the potential for blockchain-based voting to act as a viable alternative to what is often an arduous mail-in voting process in the West Virginia use case.Footnote ¹³⁸ West Virginia’s decision to use a blockchain-based voting application for military and overseas ballots lays the framework for more states or cities in the US to experiment with the technology. The West Virginia use case and the recent application of blockchain-based voting in 2019 in the city of Denver, Colorado illustrate a push for the creation and implementation of the technology in new voting use cases. Although the application of blockchain-based voting in the West Virginia 2018 use case is largely viewed as a success by state officials, the aforementioned risks – potential for domination, lack of digital literacy and technical know-how, and low public confidence – limit the potential for the widespread application of the technology in future US election.Footnote ¹³⁹ Nevertheless, more pilot projects are necessary to overcome the risks associated with the technology before the widespread application of blockchain-based voting across the US. Meanwhile, in the EU, a number of initiatives have been developed in order to promote civic participation and facilitate a dialogue on the application of blockchain across a wide range of fields.

4. The EU Blockchain Observatory and Forum: a dialogue

The EU is taking significant steps to secure a prominent role as a global leader in blockchain technology.Footnote ¹⁴⁰ The EU Blockchain Observatory and Forum is a paradigmatic example.Footnote ¹⁴¹ Created as a Pilot Project, the Commission initiates dialogues with civil society, with the aim of creating a blockchain infrastructure, enabling blockchain innovation, and developing best practices for the use of the technology.Footnote ¹⁴² The European Parliament has voiced its institutional position concerning the potential for blockchain to build trust across a number of different sectors within the EU.Footnote ¹⁴³ The Council has acknowledged the need to address the emergence of blockchain and called for more action to regulate risks associated with the technology.Footnote ¹⁴⁴ Meanwhile, a number of member states and Norway have also signed the European Blockchain Partnership to support the delivery of cross-border public services.Footnote ¹⁴⁵ Such activities allow for an exchange of ideas, a mapping of relevant blockchain initiatives, pooling of expertise and resources, and provide incentives for member states, civil society, and citizens to actively participate in debates concerning blockchain-based voting.Footnote ¹⁴⁶ These initiatives show the EU is creating innovative ways to engage citizens to help shape debates concerning how blockchain impacts European society. The next section examines the potential application of blockchain based-voting for ECI to explore whether the technology is a viable tool to enhance civic participation, promote open and transparent governance, and facilitate multi-actor and multi-level dialogues over the role of blockchain in processes of EU governance.

5. The potential application of a blockchain-based voting pilot project for the ECI

The ECI is an innovative method with the potential to transform our understanding of the multilevel system of EU governance by facilitating an active role for civic engagement in the political process.Footnote ¹⁴⁷ Introduced in the Lisbon Treaty, it is one of the most promising instruments in which to activate civic participation within the EU.Footnote ¹⁴⁸ The ECI is designed to enhance civic participation and ensure an ongoing dialogue on key EU policy issues that extend beyond the central decision-making institutions at the EU and national levels.Footnote ¹⁴⁹ Despite its great promise, the ECI has yet to meet expectations.Footnote ¹⁵⁰

A key barrier to fully realising the potential of the ECI concerns the question how to meet the legal requirements to launch an initiative.Footnote ¹⁵¹ The legal requirements of the initiative demand at least a million citizens who are nationals of at least seven different member states request the European Commission to make a proposal for an EU legislative act.Footnote ¹⁵² The inability for the ECI to successfully initiate more than a handful of legislative acts has caused significant concern and threatens the potential of the instrument to foster civic engagement. Consequently, the Commission, European Parliament, and Council attempted to revamp the ECI through a new EU regulation, with the aim of enhancing the role of the ECI in EU decision-making.Footnote ¹⁵³

Debates concerning the new ECI regulation provide an excellent opportunity for the EU to experiment with blockchain technology. The new regulation aims to establish an online platform with registration initiatives that organise signatures and support initiatives, that would require a reduced amount of personal data to start an initiative. The new regulation is designed to enhance follow-up mechanisms for successful initiatives after the formal requirements are met.Footnote ¹⁵⁴ In the aftermath of the new regulation the Commission, European Parliament, and Council should take the additional step of debating the introduction of blockchain-based voting for ECIs.

The decentralised nature of blockchain can provide more avenues for democratic contestation through ECIs, facilitating the use of bottom up processes that can enhance the role of citizens in EU policy-making. The technology has the potential to help citizens meet the legal requirements with the ECI by making it easier to obtain the necessary votes. The participants in the blockchain network can engage in a multi-actor dialogue to verify existing data and assess it against any potential manipulation, providing the framework for multi-actor checks and balances that guarantee the veracity of the digital signatures on the blockchain network, to ensure compliance with the ECI legal requirements. The application of blockchain on ECI can prevent centralised Union institutions from unilaterally establishing EU law and policy.Footnote ¹⁵⁵

Thus, far this section has surveyed a number of existing and potential use cases, with particular emphasis on the US and the EU to examine how blockchain-based voting can further individuals to actively participate in fundamental decisions that affect their lives.Footnote ¹⁵⁶ The preceding analysis demonstrates that blockchain has great promise. It has the potential to secure the right to vote, while minimising risks linked with voter suppression, voter manipulation and passive civic participation in electoral and political processes. Yet, the technology presents a number of new risks that have not fully been addressed, which limit the potential for its widespread application. Different solutions can be implemented to combat the risks connected with blockchain. The penultimate section elucidates how a dialogue on blockchain can help overcome risks connected to the application of blockchain-based voting in the US and the EU.

6. A blockchain dialogue: a way forward

This article contends that dialogical fora on blockchain have the potential to promote constitutional values and democratic ideals, while combatting existing risks in electoral and political processes in the US and the EU, as well as risks connected with the application of blockchain-based voting. The promotion of dialogues on blockchain involves creating inventive initiatives that promote educating the US and EU citizenry to ensure blockchain-based voting is inclusive, accessible, efficient, and understandable. The importance of consensus-based decisions is also exemplified in the dialogical model that includes a wide plurality of societal interests. Multi-actor dialogues can secure public deliberation, democratic contestation, and promote checks and balances in different phases of the electoral and political process. Such dialogical fora show that government is taking the potential of blockchain-based voting seriously, and so should the citizenry. Multi-actor and multi-level dialogue between citizens, civil society interest groups, and government officials can also facilitate a balanced interaction between a range of societal forces that informs citizens of contested public policy issues and voting rules, while encouraging citizen participation in the political process.Footnote ¹⁵⁷ When citizens are actively informed and participate, they can act as a genuine check in electoral and political processes. While traditional voting promotes hierarchical command and control forms of governance where a centralised authority monitors each phase of the electoral process, blockchain governance relies on decentralised and multi-actor dialogues where multiple actors create regulatory standards and control electoral and political systems.Footnote ¹⁵⁸ Accordingly, the decentralised nature of blockchain, multi-actor dialogue, and a balanced interaction between an array of societal forces can ensure hi-tech voting systems do not disadvantage those without technical acumen. Another important step that can alleviate potential power imbalances which blockchain technology may present is to ensure that electoral oversight bodies – such as the US Elections Assistance Commission, which sets US legal standards and best practices governing voting processes at the federal and state level – include a plurality of societal interests: political representatives, regulators, cybersecurity and tech community, legal, business, and privacy groups operating at different levels of governance. Representatives from the different groups can be placed on such committees, with an equal number of individuals of party or member state affiliation to prevent any single interests from dominating.

Greater government funding to start or expand blockchain-based voting pilot programs can encourage broader participation from civil society, public and private interest groups and individuals. Incentivising distinct societal forces to contribute to debates on the role of blockchain-based voting in electoral and political processes can help ensure multi-actor and multilevel checks and balances within electoral and political processes. Similarly, more public funding for research on the prospects and limits of blockchain and initiatives to better inform the citizenry are necessary in both jurisdictions. Civic engagement initiatives, which facilitate active participation, provide for dialogical exchanges, where information and technological knowledge is shared among a plurality of societal interests, are also necessary. Such initiatives allow for the viewpoints of different societal interests to be voiced and heard, provide avenues for democratic contestation based on rational deliberation, and provide the framework for governments to be more responsive and accountable to the citizenry.

This analysis argues that a legitimate constitutional order secures constitutional values that promote public deliberation, democratic contestation, non-arbitrariness, and multi-actor and multi-level checks and balances. The question remains whether blockchain can help achieve such constitutional values. To fully realise the potential of blockchain-based voting more experimentalism is necessary in both constitutional orders. Both jurisdictions can follow the lead of West Virginia and facilitate blockchain initiatives similar to the EU’s Blockchain Observatory and Forum. For instance, the US federal government can launch new pilot programs and provide funding for different states across the US to implement blockchain-based voting on an experimental basis. Moreover, more multi-actor dialogues can be created through dialogical fora that facilitate open and transparent discourse on the prospects and limits of blockchain-based voting. Thus, the US can learn from the EU by providing more dialogical fora for debates on the future of blockchain. The EU is already actively involved in debates, initiatives, and pilot programs, exploring the role of blockchain in European society. It can take steps to stimulate debate over the future role of blockchain and further digitalise European democracy. Moreover, the EU can apply lessons from the application of blockchain-based voting in West Virginia and other blockchain-based voting use cases by applying the technology to the ECI and assess the technology’s potential as a tool to empower European citizens.