In 1985, the Constitutional Court ruled that postal voting, as introduced in Lower Austria, was unconstitutional. It was not until a provision on postal voting was included in the Constitution as amended in 2007 that this form of voting became possible.
In its decision G 18/85, the Constitutional Court ruled that postal voting, as introduced in Lower Austria in 1984, was not compatible with the principles of the right to vote personally and by secret ballot and was thus unconstitutional.
Postal voting does not require the voter to be physically present at the polls and therefore appears to be particularly suitable for increasing voter turnout. In 1984, Lower Austria was the first province to permit postal voting in municipal elections held in chartered towns. Even before this system was applied for the first time in Wiener Neustadt on 14 April 1985, the Constitutional Court repealed the relevant provisions of the Lower Austrian Election Regulations for Chartered Towns, Provincial Law Gazette LGBl 0360-2. In its decision of 16 March 1985, VfSlg 10.412, the Constitutional Court explained that the system of postal voting was in violation of the principles of the right to vote personally and by secret ballot as laid down in the Constitution.
The primary reason given by the Constitutional Court for its decision was that pursuant to Art.117 para.2 first sentence of the Constitution the Municipal Council had to be elected on the basis of the equal, direct, secret and personal suffrage and proportional representation of all citizens. In the opinion of the Court, a ballot was only to be deemed secret if it was absolutely impossible for the electoral authority as well as for third parties to ascertain for whom individual voters cast their ballots. The introduction of postal voting would remove the safeguards that guaranteed that voters could cast their ballots at the polling stations unobserved and without being influenced. In addition, the Constitutional Court also perceived a violation of the right to vote personally, given that in the case of postal voting, the essential element of physical presence when casting the ballot was lacking. The Court followed its previous jurisprudence (cf. VfSlg 4483/1963, 4713/1964) and repealed the provisions on postal voting as unconstitutional.
Despite this decision, postal voting has in the meantime become widely established in all of Austria following the creation of the relevant constitutional basis through federal legislation. An amendment of the Constitution (Federal Law Gazette BGBl I 2007/27) incorporated the prerequisites for and the process of postal voting in Art.26 para.6 of the Constitution, thus establishing them as constitutional election principles. Since then, postal voting has been available in all elections held in Austria.
