The Federal Constitutional Court had provided clarity in good time. The court ruled in an emergency decision almost two weeks before the date on February 12 that the breakdown election for the Berlin House of Representatives in September 2022 could be repeated. Which has now also happened without an accident. A mystery remained, of course. The court – understandable in view of the urgency – did not provide any justification. This makes it difficult to predict whether the lawsuits against the complete rerun of the election in the main proceedings could still be successful.
At the annual press reception of the Karlsruhe court, Peter Müller, the reporter responsible for the proceedings, now revealed the secret a little. “The lawsuits raise very fundamental questions” – questions to which no answers can yet be found in the Karlsruhe case law. It’s about federal coexistence. And whether the Federal Constitutional Court is allowed to intervene at all in faulty state elections.
Many MPs have complained. Your arguments are worth considering
Actually, that seemed to be clarified: In state elections, the respective state constitutional court has the overall supervision of whether the principles of electoral law are observed – i.e. whether the election was general and direct, free, equal and secret. In federal elections, the final authority is in Karlsruhe. Lawyers speak of “independent constitutional areas” – here the federal government, there the states. This is what it says in a Karlsruhe resolution on Bavarian local electoral law from 1998.
But the 250-page brief by the Berlin lawyer Roya Sangi from the Redeker law firm – she represents the more than 40 complainants, including many MPs – has apparently caused the Second Senate to ponder. Karlsruhe formulated in 1998: “The states guarantee the subjective protection of the right to vote in political elections in their constitutional area.”
Nevertheless, in Sangi’s view, certain “homogeneity requirements” follow from the Basic Law for the assessment of electoral errors, whether at federal or state level. The Federal Constitutional Court has by no means completely withdrawn from the control of state elections, the constitutional areas are rather “interlocked”. And because this is the case, the Federal Constitutional Court must correct serious mistakes by way of arbitrary control. Errors that she claims to have discovered in abundance in the judgment of the state constitutional court, such as the question of whether opening the polling stations after 6 p.m. constituted a voting error. Here the court had simply resorted to the wrong paragraph.
The Berlin mishaps in the parallel federal elections are still an issue
It won’t be known until May at the earliest how convincing Karlsruhe considers this approach – then the urgent decision will be justified, and then the main proceedings will begin. Is a repeat of the repeat threatening? It’s not very likely, but the court isn’t making things easy for itself. In any case, according to Peter Müller, it was simply impossible to formulate a serious justification in the short time between submitting the application shortly before Christmas and the election date.
At the same time, the court announced an oral hearing, probably before the summer break, about Berlin mishaps in the federal elections held at the same time. The Bundestag had ordered a repeat in around a fifth of the constituencies. On the other hand, the CDU/CDU and AfD had sued. A verdict will probably follow in the fall. Means: It’s an election year in Karlsruhe.