Judge elections are often discreet, but this time it was different. Not because it was about an important position. The position that Bert Matthias Gärtner has achieved in the constitutional court of Baden-Württemberg is that of deputy lay judge – in other words, substitute bench. And even if he were allowed to have a say in the decision-making process, he would first have to get the majority in the nine-member court on his side.
Rather, the excitement is ignited by the result that the AfD man Gärtner achieved in the Stuttgart state parliament. He was elected with 37 votes in favor, 77 abstentions and 32 votes against. First of all, this means that – with 17 AfD members in the state parliament – he has received at least 20 yes-votes from other parliamentary groups. And secondly, that it would not have been enough for Gärtner if only five MPs had refused his approval instead of abstaining.
The question that now hovers over the strange act of voting is: Couldn’t it be otherwise? Were the parliamentary groups’ hands tied because parliamentary majorities now have to be represented in the composition of the Constitutional Court? The state parliament elected two lay judges to the court on an AfD proposal in 2016 and again in 2018. So are the voters to blame because they voted for the AfD? At least that’s how Hans-Ulrich Sckerl, parliamentary manager of the Greens, saw it. “They are formally entitled to what the election result yields.” After fierce criticism from within his own ranks, he announced that he would once again discuss how to deal with the AfD’s election proposals in the state parliament.
The idea that the Landtag should be reflected in the Constitutional Court comes from Section 17a of the Landtag’s rules of procedure. There it says: “Unless expressly stipulated otherwise or agreed between the parliamentary groups, the parliamentary groups will be involved according to their number of members when appointing other state parliament or non-parliamentary bodies.” Volker Haug, professor at the University of Public Administration and Finance in Ludwigsburg and editor of a commentary on the state constitution, considers this to be a serious misunderstanding: “Constitutionally and by law, there is absolutely no need to proceed like this,” he told the SZ .
The key word in the regulation is “extra-parliamentary bodies”. According to Haug, this means committees that are equipped with members of the state parliament. For example, the media council of the State Office for Communication: In addition to representatives of socially relevant groups, there are also members of the state parliament – including two AfD MPs. The members of the Constitutional Court, on the other hand, are not delegated from the ranks of the Landtag, but are elected by it. In other words, it is not about the posting of Members as regulated in the regulation, but about the creation of the Court of Justice through an election. The state parliament’s “creative function” is what lawyers call it.
From Haug’s point of view, it is clear: “The Constitutional Court is not an extra-parliamentary body, but a constitutional body.” Because the constitution itself regulates its powers and responsibilities. From the rules of procedure – which incidentally does not even have the status of a law – no mandatory specifications for its composition can be derived. The only really binding rule is therefore in Section 2 of the Law on the Constitutional Court. It reads: “Whoever receives the most votes is elected.” This is an invitation to say no.
Elections to the constitutional judge are often determined by unwritten rules; Proposal rights for judges’ posts, such as those that exist at the federal level, are not documented anywhere. How such rules look, especially under changed parliamentary conditions, is a political decision, not a legal one.