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"Some voters will probably think: I'm fed up with the circus"

The re-election to the Berlin House of Representatives can take place as planned on February 12.

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"Some voters will probably think: I'm fed up with the circus"

The re-election to the Berlin House of Representatives can take place as planned on February 12. In a decision published on Tuesday, the Federal Constitutional Court rejected an urgent application against the conduct of the election. However, the legality of the election will only be decided after the vote.

40 complainants, including members of the Berlin House of Representatives, wanted to use the urgent motion to have the repeat election stopped until the constitutional court had made its final decision. For the main proceedings, i.e. the precise examination of whether the repeat of the September 2021 election is constitutional, the judges in Karlsruhe have given the parties involved a deadline of March 2 to comment.

Your constitutional complaint is directed against the judgment of the Berlin Constitutional Court. In November 2022, this declared the elections to the Berlin House of Representatives and to the district assemblies of September 2021 in the entire electoral area to be invalid. There were numerous glitches on election day: there were no ballot papers or voting booths, some wrong ballot papers were distributed, and voters had to wait for hours.

The Federal Constitutional Court could declare the judgment of the State Constitutional Court to be unconstitutional in the main. Then the repeat election would have to take place again if necessary. However, constitutional law experts consider this to be extremely unlikely.

"If Karlsruhe later decided that the Berlin decision should be overturned, that would be a catastrophe that cannot be communicated," said Ulrich Battis, professor emeritus for constitutional law at the Humboldt University in Berlin. “That would be an incredible damage to voters' confidence in democracy. The judges know that and will therefore not do it.”

For Christian Pestalozza, professor of constitutional law at the Freie Universität Berlin, the refusal to postpone the repeat election also indicates "that the court is inclined to let the Berlin decision stand".

Christian Waldhoff, Chair of Public Law at Humboldt University in Berlin, is also of the opinion: "If the court considers the decision of the Berlin Constitutional Court to be obviously unconstitutional, it would have been more appropriate to stop the whole thing now." Legal is still Anything is possible, the law professor continued. “Strictly legally, it is a conditional election. I don't think so in this matter."

Nevertheless, the constitutional lawyers fear a certain uncertainty among the voters. "It is problematic that some voters now fear that they will vote tentatively on February 12," Battis said. "Some voters will probably think: 'I'm tired of the circus.' That's very unfortunate." His colleague Pestalozza said: "It's not ideal, but democracy is not in danger because of it."

Normally, one can read little about the main issue from decisions of the Federal Constitutional Court on summary proceedings. While administrative courts decide on interim orders according to the criterion of the main issue's chance of success, Karlsruhe acts differently. There, the court makes an assessment of which decision on the urgent matter has overall more disadvantageous consequences for the general public. This is what the law on the Federal Constitutional Court provides.

In this case, the issuance of the interim order would have meant that the election that was already in progress – tens of thousands of Berliners had long since voted by post – would have had to be stopped again. In such an impact assessment, the judges in Karlsruhe not only think strictly legally, but also politically. The law professors estimate that if the court had serious doubts about the complete re-election, it would probably have already pulled the brakes.

"Assessing the consequences of the decision goes beyond the purely legal," says the constitutional lawyer Waldhoff. The Karlsruhe judges faced a dilemma. "It would also have been a big problem if the repeat election had to be postponed so that the court could first examine it thoroughly."

Should the Federal Constitutional Court reject the complaints against the repeat election, it could refer to its settled case law. In the near future it will stay out of election verification procedures in the federal states because it does not want to be an appeals body for the election decisions of the state constitutional courts. If the court wants to get involved with the content of the Berlin decision at all, it would have to deviate from this case law.

The complainants argue that the Berlin State Constitutional Court in its decision "deviated significantly from the principles of election verification developed by the Federal Constitutional Court". This refers to the fact that possible votes from non-voters were also included in the assessment.

However, the Berlin breakdown election also had an unprecedented dimension. "It's about election errors that have never happened before in the history of the Federal Republic," said Professor of Law Waldhoff. It is convincing that the Constitutional Court assumes a "systemic failure" in the preparation of the election.

His colleague Battis considers the error that only three minutes per voter was planned in the preparation for the elections to the Bundestag, the House of Representatives, the district assemblies and the referendum on housing policy to be “so serious that the previous case law on the Berlin elections has not is applicable”. The Karlsruhe election examination principles refer to "the unavoidable errors of a normal election".

Constitutional law expert Pestalozza takes a different view: "The state constitutional court has completely overshot the target." The electoral errors were not determined sufficiently comprehensively and their relevance for the distribution of seats was not sufficiently justified, Pestalozza continued. In addition, it was incomprehensible that the postal vote had to be repeated, although errors in the postal vote had not been determined at all.

Berlin politicians reacted with relief to the decision from Karlsruhe. "We will do everything we can to ensure that the elections in Berlin run smoothly by February 12," said Governing Mayor Franziska Giffey (SPD). The Berlin CDU General Secretary Stefan Evers called the decision "good for democracy, good for Berlin".

"Kick-off Politics" is WELT's daily news podcast. The most important topic analyzed by WELT editors and the dates of the day. Subscribe to the podcast on Spotify, Apple Podcasts, Amazon Music, among others, or directly via RSS feed.

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