Karlsruhe, Berlin The Federal Constitutional Court has rejected an urgent application against the repeat election in Berlin. This means that the election on February 12 can take place as planned for the time being.
However, a decision on the constitutional complaint in the main proceedings is still pending. It should only fall after the election date.
In principle, the Berlin Constitutional Court is responsible for examining objections to an election to the House of Representatives. This had declared the election of September 26, 2021 as a whole invalid. The judges saw no other option: “In view of the large number and severity of the electoral errors, a selective repetition of elections in individual constituencies would not be suitable for creating a constitutional situation,” they explained.
There was no regular appeal against the Berlin judgment of November 16. However, a constitutional complaint can be filed in Karlsruhe against any legally binding court decision. The decision concerns the best-known and largest of several pending proceedings – and there only the urgent application.
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The more than 40 plaintiffs want to ensure that the election cannot take place until a final decision has been made. The judges carried out a so-called impact assessment in the urgent procedure. They considered what would have the worse consequences: if they grant the urgent application now and the constitutional complaint is later unsuccessful – or if they let things run their course and the constitutional complaint later turns out to be justified.
State returning officer Stephan Bröchler said “Zeit Online” on Monday that both options were difficult. If the election were to take place, those entitled to vote would not know whether their vote counted at all and might stay at home. Even a shift is not ideal. “What would we do with the votes already cast?”
Berlin election: Both possible decisions create problems
Because the documents for the postal vote have long since been sent. Since this is a repeat election and not a new election, the parties must run with the same candidates as in 2021. The legislative period ends in 2026. The election of the twelve district councils must also be repeated.
September 26, 2021 was a super election day in the capital: with the elections to the House of Representatives and the local parliaments, the federal election and a referendum took place. The Berlin marathon was also running at the same time.
The result was sometimes chaotic conditions in the polling stations. Long queues formed because far too little time had been allowed for when planning the individual votes. Some polling stations had to close temporarily because the ballot papers ran out. In many places, those waiting were allowed to cast their votes until well after 6 p.m. – while the first forecasts had long since been published. According to the Constitutional Court, at least 20,000 to 30,000 votes were affected by voting errors.
Karlsruhe later decides on the federal elections
The Karlsruhe decision has nothing to do with the Berlin federal elections, which also caused problems. Here the election test is regulated differently. The Bundestag responsible for this had decided on November 10 with the votes of the traffic light parliamentary groups SPD, Greens and FDP that the election in Berlin will only be partially repeated – namely where there have been proven incidents.
The Federal Constitutional Court deals with this in a separate procedure as a formal complaints authority. The parliamentary groups of the CDU/CSU and AfD, who are striving for a more extensive or complete repetition, have lodged election scrutiny complaints. A date for the repeat election will only be determined here once the review in Karlsruhe has been completed.
More: Election before the repetition – how realistic is black and green for Berlin?