When Berlin's rulers hold on to their office against the will of the voters

There is no blessing on this Berlin repeat election. On Monday, state returning officer Stephan Bröchler was relieved to announce that this time everything went well. On Tuesday it became known that 466 postal votes in the Lichtenberg district had not been handed over by the post office in good time and were therefore not counted.

That should now be made up for, the votes would then be included in the official final result, said Bröchler. For the SPD and the Greens, the trembling should continue as to which party is in second place behind the election winner, the CDU. According to the provisional official result, the SPD had won the race with just 105 votes.

But the recent breakdown is not the only problem. The modalities of repeat elections are causing chaos, especially in the districts. Here, the election result leads to the curious situation that there have been significant changes in the majority in the district parliaments - almost exclusively in favor of the victorious CDU.

Nevertheless, the previous district mayors and city councilors remain formally in office. The reason: They are elected officials for the duration of their five-year term of office. According to the district administration law, their term of office only ends prematurely if they die, resign or are voted out by a two-thirds majority. However, withdrawal is associated with the loss of all pension entitlements.

"This is an unsatisfactory legal situation that is not adapted to the situation that can arise after a repeat election. Because unlike a new election, the legislative period does not end, but simply continues,” says Christian Pestalozza, Professor of Administrative Law at the Free University of Berlin. A complete repeat election was simply not considered by the legislature.

In order to really make a fresh start, politicians should have agreed on a dissolution of parliament and an early election when the decision of the state constitutional court to declare the 2021 election invalid became foreseeable. "That would have been a clear cut, because the problems that would follow from a repeat election could have been clearly foreseen," said Pestalozza WELT. "But they didn't have the strength to kill themselves."

Now parties and Berliners have to live with the consequences. And they are highly unsatisfactory, especially for the victorious CDU. In many districts it has clearly overtaken the previously leading parties.

Example Spandau: The CDU achieved a lead of 15,000 votes over the SPD. "From this I derive the clear claim to become district mayor," says top candidate Frank Bewig. But the incumbent district mayor Carola Brückner (SPD) would have to agree to withdraw.

He will now seek talks with all parties apart from the AfD in order to discuss the implementation of this voter's will, says Bewig. "I'm not out for a fight, I want to solve it together, also with the incumbent district mayor. I'm sure that in the end all political forces in Spandau will accept the result."

In Neukölln, youth councilor Falko Liecke, a CDU man, is also laying claim to the SPD-led town hall. “If you stand up for democracy, it is essential to recognize the will of the voters and not leave everything as it is out of your own claim to power,” argues Liecke. "If the voters are massively disappointed, this can also have consequences for future elections."

Technically, a solution could look like agreeing with the other parties on a formal deselection of the mayor and city councilors by a two-thirds majority. In a next step, the new election can then take place.

But whether the losers in the election are willing to participate in their own voting for reasons of fairness has not yet been decided. “I have taken on the responsibility of leading the Charlottenburg-Wilmersdorf district. I have been appointed to do this. I take on this responsibility. Everything else is in the hands of the parliamentary groups in the district assembly,” says Kirstin Bauch, Green district mayor of Charlottenburg-Wilmersdorf. Here, the Union has clearly passed the previously leading Greens and is claiming additional posts for itself.

The incumbent Neukölln District Mayor Martin Hikel (SPD) says that a simple “business as usual” cannot exist. However, he is counting on the fact that there is a uniform procedure in the district offices across Berlin. "Otherwise, chaos and confusion will only increase." On Wednesday, the mayors and city councils of the SPD will meet to discuss a joint approach.

One person who is willing to give up his position as Deputy Mayor is Kevin Hönicke (SPD) from Lichtenberg. Even before the election, he had argued that the new majorities should also be reflected in the district office - "even if it ends badly for me". This case has now occurred. "I could keep my city council post, but I wouldn't be deputy mayor anymore. Nevertheless, I firmly believe that the will of the voters must be implemented.”

There is agreement with the CDU that the current district office must be deselected. “But the SPD has not got that far in the other districts. Many cling to their posts.” Constitutional lawyer Pestalozza therefore believes that the issue of district governments will ultimately be resolved in the style of horse-trading. "Perhaps the CDU will not challenge the SPD's claim to leadership at state level. Or the SPD will be compensated with posts in a grand coalition. My imagination can't be strong enough."

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