Merkel’s criticism of the Kemmerich election: aftermath in Karlsruhe

The AfD helps a Prime Minister to be elected. The then Chancellor Merkel demanded that this be “undone”. Was that ok? The Federal Constitutional Court will now decide that.

In February 2020, the Thuringian state parliament elected Thomas Kemmerich as Prime Minister – also with the votes of the AfD. In the third ballot with a simple majority. Bodo Ramelow, the candidate from the Left, SPD and Greens, missed the absolute majority required in the first two ballots because the three parliamentary groups did not have enough MPs for it.

It is the first time that the AfD has helped a prime minister into office. The outrage is great. A bouquet of flowers is thrown at Kemmerich’s feet in the state parliament. In South Africa, then-Chancellor Angela Merkel spoke of a “bad day for democracy.”

Merkel’s preliminary remark “for domestic reasons”

Events caught up with Merkel on an official trip to Africa. In South Africa, she used a press conference with the local president to make “a preliminary remark for domestic political reasons”: “The election of the prime minister was a unique process that broke with a basic conviction for the CDU and also for me, namely that there were no majorities should be won with the help of the AfD. Since this was foreseeable in the constellation in which the third ballot was held, one has to say that this process is unforgivable and the result must therefore be reversed.” And she adds: “It was a bad day for democracy.”

A transcript of the press conference including Merkel’s preliminary remarks was then published on the websites of the Chancellor and the Federal Government. The AfD responded with complaints to the Federal Constitutional Court – against the statement as such and against the publication. Meanwhile, the verbatim protocol is no longer on the pages. The lawsuits filed by the AfD were negotiated last summer, and the verdict is now pending.

Equal opportunities and duty of neutrality

In the political battle of opinions, members of the government are obliged to remain neutral. The Federal Constitutional Court has had to remind us of this several times in recent years. Legally, it is about the right of the parties to equal opportunities. This results in the duty of members of the government to behave neutrally in the political battle of opinions. They must not influence the competition between political parties in a partisan way.

Outside of their official function, members of the government may take part in political opinion struggles. The court has therefore recognized that members of the government are also politicians and have political opinions, which they can also express publicly. But what they shouldn’t do is fall back on the “means and opportunities” that the office offers them. And such “means and possibilities” also include a ministry website, as the court recently had to explain in the Horst Seehofer case.

In an interview with the dpa news agency, the former interior minister called the AfD “state-destroying”. He was allowed to, because he had not only spoken about his work as a minister, but also about other political issues. But he was not allowed to have the interview published on the ministry’s website afterwards – because it was a resource available to him solely because of his government position, the court said.

Spoken as head of government or as a CDU politician?

In the proceedings against Merkel, it must now be clarified whether the former Chancellor made her statement in an official capacity or as a pure party politician and whether this and the later publication on the websites of the Chancellor and the Federal Government violated the neutrality requirement and thus also the right of the AfD to equality of opportunity has been violated. And if so, whether there are reasons that could justify it.

During the oral hearing, the judges asked many questions that indicated that they assumed that Merkel also spoke at the press conference in her role as head of government, and not just as a party politician. It could therefore be decisive for the verdict whether the court sees reasons that could justify Merkel’s statements.