What was going on in the 2021 federal elections in Berlin? Corona rules and a marathon played a role, but above all there were blatant deficiencies in the preparation of the election. The consequences will now be decided.
Almost two years after the federal elections, it still sounds hard to imagine what was going on in Berlin on September 26, 2021: long queues in front of polling stations, too few polling booths, voting after 6 p.m., incorrect and missing ballot papers and, as a result, election interruptions in some cases more than 100 minutes.
Minors and people who were not entitled to do so for other reasons voted for the Bundestag. The Berlin election officer Stephan Bröchler called this “serious organizational deficiencies” on Tuesday in the Federal Constitutional Court. He was not yet in office at the time – but he himself waited in a queue in Pankow, as he said.
The highest German court is examining the breakdowns in the 2021 federal election in Berlin and their consequences. Among other things, it is about how many Berlin constituencies the election has to be repeated and whether in this case the casting of the second vote – i.e. for a party or group – is sufficient.
Election scrutiny complaint from the Union faction
The background is an election scrutiny complaint from the Union faction in the Bundestag. From their point of view, the election would have to be repeated in more constituencies than decided by the plenum with the votes of the SPD, Greens and FDP. Despite many inquiries from the Karlsruhe judges, especially to the representatives of the Bundestag, the hearing was over after just one day, contrary to what had been planned. However, a decision is not expected for a few months.
The topic is explosive: According to a spokesman, the constitutional court has 61 other complaints relating to the federal elections, including one from the AfD parliamentary group. 1713 objections were raised to the Bundestag against the Bundestag elections in the state of Berlin; one from the Federal Returning Officer at the time. That was around eight times as many objections as in previous elections, as Judge Peter Müller said. A “previously unknown number”. The electoral errors could have led to people not exercising their right to vote.
Some of what the Second Senate heard sounded sobering. Müller – who by his own admission once worked as an election worker himself – pointed out that despite the parallel elections for the Berlin House of Representatives, capacities had not been increased in all parts of the capital. He asked the state returning officer whether anyone had noticed. Bröchler’s dry answer: “It’s Berlin reality.” There is a long tradition that the districts are independent. But there is no control body.
Partly decided to repeat
On November 10, 2022, the Bundestag decided with the votes of the traffic light parliamentary groups that the election would only be partially repeated. 327 of the 2,256 constituencies in the capital and 104 of the 1,507 postal voting districts are affected. From the point of view of the CDU/CSU parliamentary group, however, the decision is illegal, partly because the Bundestag did not declare the elections in six constituencies contested by the Federal Returning Officer to be invalid overall.
In his argument before the court, the parliamentary manager of the parliamentary group, Patrick Schnieder, emphasized that the legitimacy of the election had to be restored. It is about civil rights, emphasized the complainant’s representative, Prof. Bernd Grzeszick.
Prof. Heiko Sauer, the representative of the Bundestag, said that one does not know how many non-voters did not vote because of the chaos. Voter turnout was just below the national average. He also questioned why a redial in the offending cases should not be enough. There is no reason to re-run votes that were not affected by electoral errors.
The sides also gave different opinions on the question of whether waiting times, for example, longer than half an hour, were in themselves a mistake in voting. The new Federal Returning Officer Ruth Brand sees it that way. Among other things, she explained that photos and videos of queues on social networks, for example, could deter other people from voting.
The possibility of influencing the election is also an issue
It was also about possible influence on the election if people can call up the first forecasts on their smartphone from 6 p.m. on the evening of the election and then go to the polls – and whether voting could not be more targeted now that there is a time lag. The Senate must also weigh up the interest in correcting the outcome of the election and the question of whether the elected parliament enjoys grandfathering.
According to Judge Müller, the fact that negotiations have only started now about the breakdown election is due to the two-stage test procedure: First it is a matter for the Bundestag, only later for the Constitutional Court. Also because of the high number of objections, no earlier date was possible, even with the greatest possible acceleration, said Müller.
No date has yet been set for the repeat election – no matter to what extent. State returning officer Bröchler declared in June that the repeat election would be held after just 60 days as soon as the constitutional court had passed its verdict. He now asked the Senate not to hold the new election during the Advent season, around Christmas or the New Year. Because then there could be a lack of election workers.
The election of the Berlin House of Representatives, which was also affected by the breakdowns on election day in September 2021, was completely repeated on February 12 of this year. Shortly before, the constitutional judges in Karlsruhe had given the green light in an urgent procedure. In a statement submitted later, it was said that according to the federal constitution, the Federal Constitutional Court was not a second instance above the state constitutional courts, which reviewed their judgments consistently and in full. (Az. 2 BvR 2189/22)