A woman casts her vote for the election to the Berlin House of Representatives and throws her ballot paper into the ballot box. © Wolfgang Kumm/dpa/Archivbild
The Federal Constitutional Court justifies why it rejected an urgent application against the Berlin election to the House of Representatives. Relief can be heard from state politics.
Karlsruhe/Berlin - At the end of January, the Federal Constitutional Court had already rejected an urgent application against the repeat election in Berlin, and on Wednesday the judges provided the reasoning. The urgent application was unsuccessful because the constitutional complaint was inadmissible.
The Basic Law guarantees the federal and state governments independent constitutional areas, which also include the right to vote, the court in Karlsruhe announced. Against this background, there is generally no room for a constitutional complaint to the Federal Constitutional Court against decisions on the scrutiny of elections by the Land Constitutional Court. "According to the federal order of the Basic Law, the Federal Constitutional Court is not a second instance above the Land constitutional courts, which is called upon to review their judgments consistently and in full."
A decision on the merits of the constitutional complaint has not yet been made. However, it now seems unlikely that it will be successful.
"In today's reasoning, the Federal Constitutional Court makes it clear that it has no jurisdiction of its own in the Berlin election scrutiny procedure. It is good that Berlin does not have to fear another nail-biter," said the chairmen of the Berlin Greens, Susanne Mertens and Philmon Ghirmai. "We accept our task of a constructive and critical opposition."
Berlin's CDU parliamentary group leader Dirk Stettner told the German Press Agency that the repeat election was necessary and correct after the serious systemic deficiencies. The reasoning of the Federal Constitutional Court for the rejection of the urgent application creates a bit more legal certainty.
The complainants Bertram von Boxberg (Greens), Stefan Förster (FDP), Jan Lehmann (SPD) and Sebastian Schlüsselburg (Left), on the other hand, have criticized the Federal Constitutional Court: It is not true that the complainants ultimately had as their goal the final prevention of a repeat election. They had demanded that massive electoral errors be examined and that a repeat election would only take place where the electoral errors had had an impact on the distribution of seats in parliament.
In addition, the Federal Constitutional Court expressly left open whether the Berlin Constitutional Court had violated the fundamental rights of the complainants. "Notwithstanding the dangers this poses for future elections in German states, the Federal Constitutional Court has now fully and definitively withdrawn from an examination of state elections," the joint statement reads. It is also noteworthy that the Federal Constitutional Court has to justify on 57 pages that the constitutional complaint filed is inadmissible from the outset.
The Federal Constitutional Court had initially rejected the urgent application without justification. With their decision, the Karlsruhe judges had made it possible for the rerun of the election in Berlin on February 12 to take place as planned.
From the point of view of the Berlin State Constitutional Court, the repeat election had become necessary because there had been numerous mishaps and "serious systemic deficiencies" at the original election date in September 2021.
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As examples of electoral errors, the court cited incorrect, missing or hastily copied ballot papers, too few ballot boxes, the temporary closure of polling stations and long queues in front of them, with waiting times of sometimes several hours. According to the state constitutional court, the breakdown election, which had made headlines nationwide, was invalid and thus had to be repeated in its entirety.
The Berlin Senate and the then Governing Mayor Franziska Giffey (SPD) then assured that they would accept the decision. However, more than 40 plaintiffs, including affected members of the House of Representatives and the district parliaments, appealed against the ruling. The complainants were of the opinion that the Berlin judges had arbitrarily disregarded the Karlsruhe principles of the scrutiny of elections.
In the repeat election, the CDU finally won the election. The SPD ended up in second place with a gap of almost ten percentage points and only a very narrow lead over the Greens. Exploratory talks and coalition negotiations after the election finally resulted in a change of government from red-green-red to black-red - the Greens and the Left ended up in opposition. The FDP is no longer represented in the state parliament. Dpa
