Karlsruhe judge
Election examiners do not have to get to the bottom of every error
Almost four and a half years after the 2017 federal election, the Federal Constitutional Court in Karlsruhe has ruled on a possible election error. Photo: picture alliance / Rolf Vennenbernd/dpa
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A voter believes her vote was not counted in the 2017 federal election. In fact, the result raises questions. But the complaint was not followed up – rightly so?
A woman elects an outsider candidate for the Bundestag in 2017, but according to the official count he has zero votes in the district – probably a mistake, but the Federal Constitutional Court sees no omissions.
The Karlsruhe judges rejected an election review complaint from the two, as they announced on Wednesday. (Az. 2 BvC 17/18)
With its decision, the Second Senate of the highest court also approved a change in the law from 2012. According to this, the election examination committee of the Bundestag only has to conduct investigations if effects on the distribution of seats are conceivable.
Not a single vote
The woman states that she voted for the independent candidate Elmar Widder in the Bavarian constituency of Amberg on September 24, 2017. However, not a single vote was registered for Aries in her polling district. Both asked for clarification shortly after the election. By this time, however, the final result had already been established and the packet of ballot papers in question was not opened again. The discrepancy could not really be clarified: the cross may have been overlooked because Aries was at the bottom of the ballot paper separately from the other direct candidates, with a number of small parties intervening.
The German Bundestag had rejected the election objection in July 2018. The resolution recommendation of the election examination committee states: “This result may be unsatisfactory from the point of view of the objectors.” However, there is no doubt that the composition of the Bundestag is objectively correct.
Counting errors are not always avoidable
In their decision, the constitutional judges emphasize “the paramount importance of the right to vote in a democratic state”. Measured against this, the non-consideration of a vote basically represents “a serious electoral error”. However, a federal election must also take place quickly and the result must be determined promptly. In individual cases, the occurrence of counting errors is therefore unavoidable.
Against this background, the judges consider the new regulation from 2012 to be permissible. If there is a suspicion of election fraud or “comparably serious impairments of the subjective right to vote”, the committee could be obliged to investigate – even if the composition of the Bundestag would not change one way or the other.
In this specific case, effects on the distribution of seats were excluded. The victorious CSU candidate had received more than 80,000 votes, while Aries only 1,074 in the entire constituency.
In the meantime, the Bundestag has been completely reorganized after the 2021 election anyway. For the constitutional judges, however, the case was not over. They took the complaint as an opportunity to take a close look at the 2012 amendment to the law.
The aim of the reform at that time was to strengthen individual legal protection. The Election Review Committee had previously examined a possible violation of electoral rights in individual cases and passed on its findings so that similar mistakes did not happen again. However, the result was not prominently highlighted in the Bundestag resolution. That’s different now. Nevertheless, the Parliament’s stock should continue to have priority in the examination.