The Karlsruhe ruling states that the federal election must be repeated in parts of Berlin. The reason for this is the sometimes chaotic conditions in the capital during the 2021 election. Because ballot papers were missing or there were too few voting booths, long queues sometimes formed and some polling stations remained open later than 6 p.m.
The court has now decided that a total of 455 of around 2,200 electoral districts were affected by the deficiencies and that the election there must therefore be repeated. Both the first and second votes must be cast there again.
In doing so, the judges are going beyond a decision by the Bundestag. With the votes of the government majority of the SPD, Greens and FDP, this had already set a partial repeat, but only in 431 districts.
The CDU and CSU decided that the Bundestag’s decision was not sufficient and therefore went to the court in Karlsruhe. However, today’s judgment is not a clear victory for the Union: “The decision of the German Bundestag of November 10, 2022 is largely legal,” the court makes clear in a press release. The Union faction had originally demanded that the second votes for the party lists be cast again in the half of the Berlin constituencies in which the then Federal Returning Officer attacked the election. The ruling from Karlsruhe doesn’t go that far.
However, the judgment contains a reprimand for the MPs: the Bundestag did not adequately explain the election events and did not follow up on all the information. The presiding judge Doris König explained that the minutes of individual electoral districts were not evaluated – even though the Bundestag was obliged to do so.
Even if the election now has to be repeated in more districts than actually planned by the Bundestag, this will not have any significant impact on the composition of Parliament and therefore also on the majority of the SPD, Greens and FDP.
But there is a lot at stake for individual Berlin MPs. Some who narrowly won their constituency two years ago could face defeat if they repeat. They would then have to resign from the Bundestag after two years of parliamentary work. Others who failed in 2021 could now still enter parliament.
However, the Federal Constitutional Court’s ruling also goes beyond the specific case of the 2021 Berlin election. The judges took a closer look at what exactly constitutes an election error and what does not. The court says, for example: “Excessively long waiting times are not, as such, to be viewed as election errors.” However, in this case it sets a time limit: if there is a waiting time of over an hour, this is no longer acceptable. Translated, this means that in future the election officials will have to take precautions to ensure that waiting times do not exceed 60 minutes. This is good news for voters. However, if a polling station is open until 6:30 p.m. and therefore half an hour longer, that could still be appropriate, according to the court.
For the left, the situation before the verdict was particularly tense. Because in 2021 she remained below the five percent hurdle and was only able to enter the Bundestag because she won three direct mandates – two of them in Berlin. If the Berlin election had to be completely repeated, Gregor Gysi or Gesine Lötzsch could have lost their constituency. Then all 39 MPs from the former left-wing faction would have lost their seats, including the ten renegades around Sahra Wagenknecht.
Now, however, it is clear: In the constituencies of Gysi and Lötzsch, only so few sub-districts have to vote again that the loss of their direct mandates is actually impossible. The Left is also relieved: “With the verdict it is clear that we will remain in the Bundestag and continue to fulfill our role as a social opposition,” said former parliamentary group leader Dietmar Bartsch to the German Press Agency.
It is already clear when the election will be repeated in the affected districts: on February 11, 2024. The state returning officer Stephan Bröchler announced this immediately after the decision.
