Status: 10/14/2021 3:47 a.m.
Despite the mishaps on election day, the Berlin state electoral committee will today determine the final result of the election of representatives. A legal review is possible, but should not change anything in the result.
Long queues in front of the polling stations, mixed up or too few ballot papers in different districts, more votes cast than eligible voters: various irregularities in Berlin became known even while the election was still going on. Four votes are pending in the capital at the same time – the elections to the Bundestag, the House of Representatives and the district assemblies. In addition, a referendum with the aim of socializing private housing groups.
Is there a legal possibility to contest the federal election?
Yes, there is a possibility. Anyone who thinks they have discovered a mishap with legal relevance while voting can appeal against the election within two months of the election day – including until midnight on November 26th. In the Election Examination Act (WahlPrG) it says: “The objection must be submitted in writing to the Bundestag and justified.” This then first goes to the electoral review committee – in the end, the Bundestag decides on it with a simple majority.
This means that the election test is primarily a matter for the Bundestag. However, if he rejects the objection, the voter can turn to the Federal Constitutional Court in a second step with an election review complaint. But you need a reason for contestation so that the complaint can be successful.
What does the Federal Constitutional Court then examine?
The Federal Constitutional Court would investigate whether the regulations in the federal electoral law and in the federal electoral code were correctly applied in the election. In addition, it is particularly important in the examination whether the electoral law principles that the Basic Law prescribes have been observed. Article 38 says: “The members of the German Bundestag are elected in a general, direct, free, equal and secret ballot.”
If, as in Berlin, you have to wait a particularly long time before you even get to the polling station, or if missing ballot papers hinder or prevent voting – then it is at least possible that the rights of voters will be violated, that the election may no longer be possible “general” is. However – and this is important: electoral errors can only lead to invalidation of the election if they have affected or at least have affected the distribution of seats in the Bundestag. This is called “mandate relevance”.
Are the mishaps in the Bundestag election relevant to the mandate?
Several experts – including Christian Waldhoff, law professor at Berlin’s Humboldt University – do not think so. The German election scrutiny law is based heavily on the stability of the parliaments. “The results of the Bundestag election in Berlin are so clear that one can hardly prove that the election errors are relevant to the mandate,” said Waldhoff ARD legal editors.
Even if the irregularities in Berlin could have affected the distribution of seats in the Bundestag, the election would probably not be repeated. The Federal Constitutional Court ruled in 2008 that the electoral review decision could only go as far as the electoral error found required. “From this, among other things, that an election error must be corrected instead of repeating the election,” the decision said.
Do the same rules apply to the Berlin election?
Yes and no. Appeals can also be lodged against the election to the House of Representatives. As a rule, however, not from individual voters, but from parties, voter communities and affected applicants, for example. Another difference: Appeals must be directed to the Constitutional Court of the State of Berlin – not first to the House of Representatives. And: The deadline is only one month and does not start from election day, but only from the announcement of the official final results on October 14th. The prerequisite for the objection is that the election error “influenced the distribution of the seats”, including relevance to the mandate.
Individual voters who think they were affected by irregularities in the election could, according to law professor Waldhoff, file a state constitutional complaint. However, “only” with the aim of having a court establish that their voting rights have been violated.
What happens if the appeal is successful?
Should the breakdowns in Berlin have relevance to the mandate in relation to the election to the House of Representatives, the Constitutional Court would declare the election in the electoral area, in the constituency association or in the constituency to be invalid – with the result that it would have to be repeated there. It has never happened before that an entire election was “overturned” like this in Berlin. For individual applicants who only received a few votes, however, a new edition can be of great importance. Most recently, Berlin’s Interior Senator Andreas Geisel (SPD) did not want to rule out by-elections in individual constituencies or voting districts.