The Social Democrats had become the strongest force in the election on September 26th – on the basis of a result that even the Berlin election authorities now want to challenge. State Returning Officer Petra Michaelis announced an appeal to the Constitutional Court this Thursday. The reason: In two constituencies there were violations of the electoral law that could affect the distribution of seats.
How serious are the violations?
The objection by the regional returning officer relates to constituency 6 in Charlottenburg-Wilmersdorf and constituency 1 in Marzahn-Hellersdorf. This is about the direct mandates for the House of Representatives. An examination by the regional election committee showed that the “irregularities in these two cases could have had an impact on the mandate”.
How does politics react to the objection of the state returning officer?
The CDU legal politician Jan-Marco Luczak considers a legal examination before the Constitutional Court to be inadequate. “Quite independently of this, after such a disaster, we cannot simply go back to the agenda, but also need a thorough legal review,” the Berlin member of the Bundestag told the Handelsblatt.
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The massive irregularities in the elections in Berlin “shook confidence in the administration and the democratic processes”. “The integrity of the election file has been damaged,” said Luczak.
“The fact that in quite a few polling stations people voted after 6 p.m., after the first prognoses had already shown supposed winners and losers, is a blatant violation of the fact that elections basically have to take place unaffected,” complained the CDU politician. Whether there will actually be new elections in Berlin or individual constituencies, however, depends on whether the errors were relevant to the mandate.
What do constitutional lawyers say about a possible repetition of the election?
Constitutional lawyers assume that the repetition of the election may only be necessary in part. A re-election was “only proportionate in those electoral districts in which electoral law violations could have been relevant to the mandate, in which there could have been a different election result without the violations,” said Joachim Wieland, a Speyrian constitutional lawyer. “In the constituencies in which violations of the electoral law were relevant to the mandate in this sense, the election must be repeated.”
The Berlin constitutional lawyer Christian Pestalozza sees it similarly. “There will be no repetition of the election as a whole, because the previously known errors that may be relevant to the mandate seem to be limited to individual constituencies,” he said. “In this respect, a partial repetition is possible at most.”
Wieland called the violations of the electoral law “more than annoying because they damage the democratic legitimation of the election, which is vital for a parliamentary democracy”. However, the lawyer also said: “As far as the election went without errors, it has given the newly elected members of the House of Representatives the necessary legitimacy, which must be preserved by the constitution.”
Could contesting the election result in a redial?
That depends on the constitutional review. In any case, those directly affected by electoral errors, such as voters, candidates or political parties, can lodge constitutional complaints. The AfD, for example, has already announced it.
“Compared to the objection procedure, the constitutional complaint of the electorate has the advantage that its success – determination of the violation of the right to vote – does not depend on the relevance of the mandate of the error,” explained the lawyer Pestalozza.
How did it come to this at all, what were the main problems with the Berlin election?
In front of some of the 2,257 polling stations in 78 constituencies for the House of Representatives election, voters had to queue for a long time. Ballot papers were missing in the meantime and had to be delivered by messenger. In some cases, votes could only be cast after 6 p.m. In some places, voters received false ballot papers from other districts or constituencies that were later deemed invalid. The counting did not go smoothly everywhere, as election officials reported.
How many polling stations or constituencies were affected?
At the meeting of the state election committee, state returning officer Michaelis reported that there were irregularities in 207 of 2,257 polling stations. “That is a number that must scare us all and must also annoy us,” said Michaelis. On the other hand, she could state that the election in more than 2000 polling stations went off without any problems.
What were the causes of the breakdowns?
According to State Returning Officer Michaelis, there were delays in sending postal voting documents, incorrect or missing ballot papers as well as a temporary interruption of the election process in 73 pubs or long queues in front of polling stations. Several hundred polling stations were open longer than usual.
The main problem was probably the simultaneous elections to the Bundestag, the Berlin House of Representatives, the district parliaments and a referendum. There were also corona conditions and closures because of the Berlin marathon.
The CDU politician Luczak speaks of a “professional failure” of Berlin. It was clear that the choice would have required significantly more resources. The fact that no precautions had been taken was “amateurish and embarrassing”.
Was the regional returning officer really not prepared for the challenge?
The regional election control had set up more than 400 additional polling stations and increased the number of election workers from around 20,000 to 34,000. Apparently, however, many voters needed more time than expected for their six crosses on five ballot papers. Some people spent five to ten minutes in the cabin, observers reported. Too few voting booths were available in many polling stations.
Who is responsible for the mess?
The bottom line is that the regional election committee is responsible for ensuring that the voting runs properly. State Returning Officer Petra Michaelis made her post available because of the “circumstances surrounding the election”. In detail, however, the elections are organized at the level of the Berlin districts, which are each comparable to large cities. These in turn point to poor equipment, especially in terms of personnel, by the Senate.
More: How the SPD triumphed in Mecklenburg-Western Pomerania and Berlin