Berlin: breakdown election is negotiated in court – politics

Long queues formed in front of the Berlin polling stations on September 26, 2021, as here in front of the Jane Addams School in Friedrichshain.

(Photo: Bernd von Jutrczenka/dpa)

There were certainly many well-explained reasons why the judges of the Berlin Constitutional Court met on this Wednesday of all days. However, the symbolism of the date cannot be overlooked: on September 26, 2021, Berlin experienced one of its greatest embarrassments since the construction of BER Airport. 2.5 million Berliners were called to three elections that day: Bundestag, House of Representatives, district parliaments; there was also a referendum. The voting ended in chaos – also because the Berlin marathon was taking place at the same time. The capital had overtaken itself. Once again.

Now this Wednesday, 367 days later, this Sunday will be judged for the first time. It is all about the election to the Berlin House of Representatives, which ultimately made the Social Democrat Franziska Giffey the Governing Mayor. The interest is so great that for the first time the oral hearing of the Berlin Constitutional Court will not take place in the plenary hall or in the halls of the Superior Court. Instead, they were invited to the large lecture hall of the chemistry department at Freie Universität. There is room for almost 600 listeners.

Strict rules apply in Berlin as to who may object to an election; therefore only 35 have reached the court. For the time being, four of them are to be negotiated. These are suitable “to cover all relevant questions in connection with the election process,” it says. For example, how could it happen that wrong or too few ballot papers were issued? That Berliners sometimes had to wait more than an hour to be able to vote? That the last polling station didn’t close until 9 p.m.? In her final report, the state returning officer found irregularities in 207 of the almost 2,300 polling stations. The Federal Returning Officer went a few powerful steps further and spoke of a “complete systematic failure of the electoral organization” in the capital.

Parallel to the hearing before the Constitutional Court, the part of the election in Berlin that affects the Bundestag election is also being examined. The Election Review Committee of the Bundestag is responsible. Because in a Bundestag election – unlike in Berlin – anyone entitled to vote can complain, there have been significantly more objections, namely over 2000. According to an initial, not yet public resolution draft by the committee in August, new elections are to be held in a fifth of the electoral districts.

The CDU advocates voting in a particularly large number of constituencies

The election review committee has repeatedly postponed its decision because of the many glitches to be investigated and will now meet on Thursday. However, an official recommendation for the Bundestag should not be made until October, which could then decide on it in November. Observers also suspect that the examiners first wanted to wait for the verdict of the Berlin judges. This should prevent the scope of the new elections to the Bundestag and the House of Representatives from deviating too much from each other. Almost all experts assume that the elections will have to be repeated in individual districts.

Political interests also play a role in the assessment of the extent to which new elections must be held – of course only tacitly. The CDU, for example, advocates voting in a particularly large number of constituencies both in the federal government and in Berlin. According to the latest polls, the Christian Democrats in Berlin are now well ahead of the SPD – as are the Greens. Conversely, it is certainly in the interest of the SPD that new elections are held in as few cases as possible. According to the Social Democrats, this is also supported by the legal situation, according to which new elections can only be held where there are errors in the election process.

How serious they are to be assessed – that in turn depends on how close the result of individual candidates was. For example, the CDU candidate Monika Grütters won her direct Bundestag mandate in Berlin-Reinickendorf with only 1.4 percent of the vote before her competitor from the SPD.

In the end, it may well be that not only the new elections to the House of Representatives will be decided in court. “Some of the objectors and other persons authorized to lodge complaints may not be satisfied with the decision,” says Awet Tesfaiesus, who sits on the election review committee for the Greens. In these cases, a complaint can be filed with the Federal Constitutional Court. Tesfaiesus: “There is nothing wrong with the fact that our highest court will deal with this matter, which is very important for all citizens. Even if it will unfortunately delay the final decision again.”

The new state returning officer in Berlin will have his own office with seven employees

In fact, a lawsuit in Karlsruhe would completely mess up the schedule for possible new elections. So far, it has been assumed that a new vote could be held next spring, both for the House of Representatives and for the Bundestag. The Berlin Constitutional Court has already announced “an initial legal assessment” for Wednesday. A verdict will be reached in December at the latest, leaving 90 days to schedule new elections. A verdict by the Federal Constitutional Court is not expected until late next year.

In any case, Berlin has already done a lot to ensure that an election day like September 26, 2021 does not happen again. On October 1st, the administrative scientist Stephan Bröchler will start as the new state returning officer in Berlin. He will have his own office with seven employees; the electoral offices in the districts are also to be expanded. A somewhat strange provision in the state electoral code is also to be changed. Unlike before, it will then be possible to bring the blank ballot papers to the polling stations the day before an election.

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