Decision of the BVerfG: Why the Berlin elections are repeated

It remains the same: the elections for the Berlin House of Representatives and for the district assemblies in Berlin will be repeated on February 12. However, some points are still open.

What was the Federal Constitutional Court about?

In November 2022, the Berlin Constitutional Court decided: The elections to the Berlin House of Representatives and to the district assemblies in Berlin must be repeated. The Berlin Constitutional Court declared the result of the September 2021 elections invalid. The reason: There were too many breakdowns. “In view of the large number and severity of the electoral errors”, a constitutional state can only be restored by complete repetition.

Shortly before Christmas, several constitutional complaints were lodged with the Federal Constitutional Court against this court decision. Because of the short time until the planned election date on February 12, they also submitted an urgent application. Their goal: to temporarily stop the repeat elections until the constitutional complaints have been finally decided. With this urgent application, they have now failed.

Why did the Federal Constitutional Court decide this way?

The Federal Constitutional Court announced the decision in the summary proceedings without justification. “This will be sent to the parties separately,” says the court’s press release. So there is no justification yet; At this point in time, one can only say that the content of the case is not finally examined in summary proceedings. The court only weighs the consequences that a provisional intervention by the court would have.

Will there be a final decision after the election?

Yes, the court will also decide on the main issue on the constitutional complaint. A letter from the court to the President of the Berlin House of Representatives shows that this could also happen relatively quickly. MEPs then have until March 2 to comment. A decision on the main issue might come in a few months.

That Karlsruhe is dealing with the matter is not surprising, but the normal procedure. It also says little about the possible outcome. When constitutional complaints are received by the court, a decision must of course be made as to whether they are admissible and well-founded.

What are the chances of success in the main proceedings?

It is not yet possible to say whether the constitutional complaints are ultimately admissible and justified. In principle, however, the hurdles to overturning the Berlin decision are high. The Berlin Constitutional Court is originally responsible for reviewing the Berlin election. One speaks here of separate and autonomous constitutional spaces. Protecting the right to vote in state elections is therefore not the primary task of the Federal Constitutional Court.

The Berlin Constitutional Court has ruled that the election must be repeated in its entirety. This judgment can only be overturned by the Federal Constitutional Court if fundamental procedural principles have been disregarded by the Berlin court.

Even if the urgent decision usually does not allow any substantive statement about the outcome of the procedure, one can certainly ask oneself after the decision today: Would it actually be possible at all to turn back the repeat election – after a decision on the main issue? It would then not be about a new election, but about restoring the current situation. Difficult to imagine, but cannot say conclusively today.

What were the electoral errors in Berlin?

On September 26, 2021, there were undeniably and visibly glitches in Berlin: In some polling stations, wrong ballot papers were issued or there were not enough ballot papers for the number of voters. As a result, some polling stations had to be temporarily closed; in some, elections were still held after 6 p.m., i.e. when the polling stations actually closed.

Who are the complainants?

A total of five constitutional complaints were received in Karlsruhe. The one that was discussed today came from 43 people alone, including elected members of parliament from Berlin, for example the former Finance Senator Matthias Kollatz, but also voters.

How did the complainants argue?

The complainants had not denied that there were electoral errors in Berlin. However, they consider the decision of the Berlin Constitutional Court to be excessive and wrong from a legal point of view. A repeat election throughout Berlin is not correct; the Berlin constitutional court interpreted the existing rules arbitrarily in its judgment.

The concrete arguments of the plaintiffs: In many polling stations there had been no or hardly any voting errors. It is not justifiable to have new elections there as well. Other mistakes would not have affected the result, such as the distribution of seats in the House of Representatives. They are therefore not “relevant to the mandate”. However, this is a prerequisite for a repetition of the election.

In addition, in a democracy, the interest in the existence of the elected parliament is particularly high. According to the plaintiffs, it is also incomprehensible for people if one and the same mistake in the state election and federal election leads to different results. A “factually and physically uniform election process” must be judged according to the same standards.

What does the decision mean for the general election?

Although the federal election took place on the same day as the Berlin elections and suffered at least in part from the same errors, the decision means nothing for the federal elections in Berlin today. This is mainly due to the fact that the scrutiny of a Bundestag election is completely different: In a first step, the Bundestag itself decides on any objections, in step two this decision can then be challenged with an election scrutiny complaint before the Federal Constitutional Court.

In contrast to the review of the Berlin election, the Federal Constitutional Court is responsible for reviewing the content of the election from the outset. It is planned from the outset as the second step in the election verification process.

What is the status of the general election?

On November 10, 2022, the Bundestag decided with the votes of the traffic light coalition that the election should not be repeated in all of Berlin, but only in 431 Berlin polling stations. The mistakes were assessed differently than the Constitutional Court did in the Berlin election. A decision has not yet been made on the election scrutiny complaints filed against this.

It is therefore not yet certain that there will only be new elections in 431 constituencies in the Bundestag elections in Berlin. The Federal Constitutional Court still has to examine this completely itself: What errors were there and were they relevant to the distribution of mandates? It then decides whether and in how many polling stations new elections must be held.

Even if that seems absurd at first: It is quite possible that the federal elections will be treated differently than the state parliament and district assembly elections despite the same mistakes.