Judgment from Karlsruhe
Federal elections in Berlin will be partially repeated on February 11th
Watch the video: Verdict of Federal Constitutional Court – Federal election in Berlin must be repeated on a larger scale.
The 2021 federal election will have to be repeated in more Berlin electoral districts than planned due to numerous errors. The Federal Constitutional Court in Karlsruhe decided on Tuesday that new votes must be held in 455 electoral districts. At the end of 2022, the Bundestag decided to repeat it in 431 districts. However, the Union demanded a much more extensive by-election and lodged a complaint in Karlsruhe. This has now been partially successful. There were numerous mishaps in Berlin when voting in September 2021. There were too few ballot boxes in polling stations or ballot papers were missing. Some polling stations remained open after 6 p.m. The Federal Constitutional Court’s ruling could change the result of the federal election. The over 2,200 electoral districts in Berlin are parts of the capital’s twelve constituencies. Only when elections have been held again in the affected districts will it be clear whether the result in the respective constituencies will change and thus affect the Bundestag mandates. The majority of the ruling traffic light coalition is not considered to be at risk. Things look different for the left. She had failed at the five percent hurdle and was only able to enter the Bundestag through three direct mandates, two of which came from Berlin. If the party were to lose even one direct mandate in the by-election, it would no longer be represented in the Bundestag.
The 2021 federal election in Berlin was chaotic. Many were pretty sure that it had to be repeated. It is now clear that this will have to take place on a larger scale than planned.
Due to numerous breakdowns, the 2021 federal election in Berlin will have to be repeated in a good fifth of the 2,256 electoral districts. The Federal Constitutional Court ruled on Tuesday in Karlsruhe that 455 electoral districts, including the associated postal voting districts, were affected. The highest German court examined the chaotic processes on September 26, 2021 for election errors relevant to the mandate – i.e. those who can influence the distribution of seats in parliament. (Ref. 2 BvC 4/23)
The Second Senate came to the conclusion that the Bundestag had inadequately explained the election events. He did not evaluate transcripts from individual electoral districts. The court made up for this, explained the presiding judge, Doris König. Accordingly, the election in another 31 electoral districts in Berlin was declared invalid when the Bundestag decided in 2022.
The election will now be repeated on February 11th. State returning officer Stephan Bröchler announced the date for the partial repetition shortly after the verdict in Karlsruhe.
Long list of mishaps on election day in Berlin 2021
Election day on September 26, 2021 was chaotic in many Berlin polling stations: people had to wait a long time and queue, ballot papers were incorrect or missing entirely. Polling stations had to temporarily close or remain open until well after 6 p.m – the point at which voting should actually be over. Then there are usually initial predictions about the result.
In 1713 objections were raised to the Bundestag against the federal election in the state of Berlin, including one from the Federal Returning Officer. That was around eight times as many objections as in previous elections, Judge Peter Müller said at the hearing in July.
The Bundestag had decided on a partial repeat election with the votes of the traffic light factions SPD, Greens and FDP. From the perspective of the CDU/CSU parliamentary group, the decision was illegal, among other things because the Bundestag did not declare the election invalid as a whole in six constituencies that were contested by the Federal Returning Officer. Therefore, she filed an election audit complaint in Karlsruhe.
Court examined possible election errors
The Federal Constitutional Court now ruled that the decision was largely legal. However, it criticized election errors that had not been taken into account in detail. However, the extension of the repeat election called for by the Union faction goes too far, as it cannot be clarified in all cases whether there were voting errors.
The court considered voting errors to include, among other things, the fact that eligible voters received ballot papers from another constituency and the temporary complete closure of a polling station. The Senate took a more nuanced view of excessive waiting times and voting after 6 p.m., which are not always voting errors.
In addition, according to Judge König, it only became known after the oral hearing that voting letters from electoral districts in which the election was declared invalid had been redistributed – so that they were not included in the results of the postal voting districts covered by the Bundestag resolution, but rather in the results of other postal voting districts that were not declared invalid. That was contrary to electoral law.
The left expressed relief. “With the verdict it is clear that we will remain in the Bundestag and continue to fulfill our role as a social opposition,” said former parliamentary group leader Dietmar Bartsch to the German Press Agency. The partial repetition could not change the outcome in the two constituencies in which the Left won direct mandates, said Bartsch. The party was only able to enter the Bundestag thanks to three direct mandates because it remained below the five percent hurdle overall.
Differences from the House of Representatives election
Because of the mishaps on September 26, 2021, the Berlin Constitutional Court declared the election to the House of Representatives invalid due to “serious systemic deficiencies” and numerous voting errors. This election was completely repeated on February 12, 2023 – with the result that a black-red coalition replaced the three-way alliance of the SPD, the Greens and the Left that had governed since 2016.
König explained that the Federal Constitutional Court did not order a complete repeat of the federal election by citing different legal bases for the constitution of different parliaments. She explained that voting errors occurred in the state elections, such as the use of copied ballot papers, which were not detectable in the federal election.
Berlin’s Governing Mayor Kai Wegner sees the second election rerun in his city within a short period of time as a “great effort”. The CDU politician said after the verdict that he had full confidence in state returning officer Bröchler that the partial repeat of the federal election would go smoothly.
Note: This post has been updated.