In the end, the Federal Constitutional Court gave the go-ahead for the Berlin House of Representatives elections on February 12 – but the associated procedure continues to give the judges in Karlsruhe headaches. The central constitutional complaint raises very important questions about the relationship between state and federal constitutional jurisdiction, said the responsible rapporteur in the Second Senate, Judge Peter Müller, on Tuesday evening at the court’s annual press reception. Much of this is still unclear in the previous Karlsruhe case law.
Against this background, Müller also asked for understanding that the Senate had rejected the emergency motion to stop the election at the end of January without any justification. In a resilient way, this would not have been possible otherwise in the short time available. He announced that the justification would be published around May. For this, the constitutional complaint must be assessed in its entirety. The main proceedings will probably not have ended with that.
The Berlin Constitutional Court, which is basically responsible for examining the objections, had declared the haphazard election of September 26, 2021 to be invalid overall. This made the complete repetition throughout the capital necessary.
The more than 40 plaintiffs argue that in this unprecedented situation the state constitutional judges would have been obliged to intervene on their own initiative in Karlsruhe. Müller said one could get the idea that this wasn’t completely outlandish. This has not yet been decided in case law.
The Bundestag elections in Berlin, which took place at the same time, are only to be partially repeated according to a resolution by the Bundestag. The constitutional judges deal 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. In this regard, it was heard that this procedure also occupied the Second Senate intensively. It is conceivable that a negotiation will be scheduled, if possible before the summer break.
Urgent decision of January 25 Notification of the court on the judgment of the Berlin Constitutional Court of November 16 Berlin state election law Law on the Berlin Constitutional Court, election examination from Section 40 Information on constitutional complaints in Karlsruhe Information on urgent applications Resolution recommendation of the Bundestag election examination committee Federal election law on repeat elections, Section 44 Information on Election Review Complaints
