Applications for suspending provisions requiring supporting signatures or for lowering the number of supporting signatures required for ballot access for the 2021 Bundestag election are inadmissible

The legislator has a duty to review the applicable framework

Press Release No. 30/2021 of 27 April 2021

Order of 13 April 2021
2 BvE 1/21, 2 BvE 3/21

In an order published today, the Second Senate of the Federal Constitutional Court dismissed applications brought by the political parties Marxistisch-Leninistische Partei Deutschlands and Bayernpartei e. V. on the grounds that the applications were not sufficiently substantiated. The applicants sought a declaration that the German Bundestag had violated or directly threatened to violate their rights by failing, in view of the changed circumstances arising from the COVID-19 pandemic, to either suspend provisions of the Federal Elections Act (Bundeswahlgesetz – BWahlG) that require the furnishing of supporting signatures or to lower the number of signatures required. The applicants did not sufficiently demonstrate and substantiate that the Bundestag’s failure to suspend the application of § 20(2) second sentence and § 27(1) second sentence BWahlG, or to lower the number of supporting signatures required pursuant to these provisions for the approval of a political party’s constituency nomination or Land list for the 2021 Bundestag election, amounts to a possible violation of their right to equal opportunities. In its reasoning, the Court pointed out that the legislator must review the applicable signature quorums in light of the changed circumstances arising from the COVID-19 pandemic.

Facts of the case:

The applicants are political parties that are currently not represented in a Landtag (state parliament) or in the Bundestag. In their application in Organstreit proceedings (dispute between constitutional organs), the applicants challenge the Bundestag’s failure, in view of the changed parameters of political communication resulting from the COVID-19 pandemic, to suspend or amend the statutory provisions regarding supporting signatures in respect of the 2021 Bundestag election.

Pursuant to § 18(2) BWahlG, political parties that have not been continuously represented by at least five representatives in the Bundestag or in a Landtag since the last election may only submit nominations for Bundestag elections if they have been recognised as parties by the Federal Electoral Committee. Such parties must additionally furnish supporting signatures for constituency nominations and for Land party lists. Constituency nominations of a political party require the support of 200 persons eligible to vote in the constituency in question; the constituency nominations must bear the personal and handwritten signatures of these persons (§ 20(2) second sentence BWahlG). Land party lists must bear the personal and handwritten signatures of one per thousand – but of not more than 2,000 – persons eligible to vote in the Land in question in the last Bundestag election (§ 27(1) second sentence BWahlG).

Key considerations of the Senate:

The applications are inadmissible.

The applicants do not have standing to assert a violation of their rights given that they did not demonstrate a possible violation of their right to equal opportunities under Art. 21(1) first sentence of the Basic Law (Grundgesetz – GG) in a manner that would satisfy the substantiation requirements of § 23(1) second sentence of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG).

1. Pursuant to § 23(1) second sentence BVerfGG, applications to initiate proceedings before the Federal Constitutional Court must state reasons; the necessary evidence must be listed.

Where applicants assert in Organstreit proceedings that the legislator’s failure to act violates rights of a constitutional organ, they must demonstrate and substantiate that the particular requirements applicable to such submissions have been met. In this regard, it must be assumed that the legislator in principle has the power to enact or amend laws, but is not required to do so. Yet this does not rule out that, in exceptional cases, the legislator may have a duty to legislate following from individual provisions of the Basic Law or from EU law. Insofar as such a duty to act does exist, the legislator generally has wide latitude. Therefore, where applicants call for the legislator to enact specific legislation, they must sufficiently substantiate why the latitude that the legislator is in principle afforded is constricted to enacting the provision sought by the applicants.

2. Based on these standards, the applicants did not sufficiently substantiate a possible violation of their right to equal opportunities under Art. 21(1) first sentence GG.

a) The applicants did sufficiently demonstrate that the requirement to furnish supporting signatures arising from § 20(2) second sentence and § 27(1) second sentence BWahlG amounts to an interference with their right to equal opportunities.

b) They were also right in pointing out that in its established case-law, the Federal Constitutional Court has considered signature quorums in electoral law to be justified by objective reasons if and to the extent that these serve to ensure that only serious candidates stand for election, thus preventing the risk of a splintered vote. Limiting ballot access to serious nominations serves to ensure that elections are integration processes for the formation of the political will of the people and to prevent voters from voting for candidates that have no prospects of success. This purpose is capable of justifying the requirement that political parties not represented in Parliament must prove that their nominations are serious by furnishing a certain number of supporting signatures.

c) The applicants sufficiently demonstrated that the pandemic-related contact bans and restrictions, which are set to continue for an unforeseeable time period, change the conditions for collecting the required supporting signatures. It is evident that the supporting signatures must be collected under considerably more difficult conditions given that the usual means of collecting signatures from the public (approaching people directly, information booths, assemblies) have become much less efficient.

d) However, the applicants’ submissions do not satisfy the substantiation requirements following from § 23(1) second sentence BVerfGG to the extent that the applicants derive from the changed conditions for the collection of supporting signatures a legislative duty to not only review the application of § 20(2) second sentence and § 27(1) second sentence BWahlG, but to suspend the application of these provisions altogether or at least to lower the number of signatures required for the upcoming Bundestag election.

aa) It is true that the contact restrictions imposed due to the pandemic and the associated effects on political communication in the public sphere bring significant changes to the situation on the basis of which the legislator enacted the provisions regarding the collection of supporting signatures. Therefore, the legislator must examine if it is still necessary to maintain the applicable signature quorums without any changes in order to prove the seriousness of nominations in respect of parties not represented in the Bundestag or one of the state parliaments, or if the participation in elections of these parties is thereby rendered excessively difficult.

bb) However, it does not necessarily follow from this that the Bundestag (the respondent in the present proceedings) is required to suspend the application of § 20(2) second sentence and § 27(1) second sentence BWahlG altogether for the 2021 Bundestag election. The applicants failed to sufficiently demonstrate that the respondent is required under constitutional law to completely dispense with the requirement of collecting supporting signatures for the upcoming Bundestag election, nor is this otherwise ascertainable.

cc) Furthermore, the applicants’ submissions are not sufficient for finding that the respondent’s latitude must be constricted to a duty to lower the number of supporting signatures required for participating in the Bundestag election. The applicants failed to sufficiently demonstrate that the changed parameters of political communication resulting from the pandemic give rise to a duty incumbent upon the respondent to amend the provisions regarding the participation in elections of parties not represented in Parliament.

(1) The applicants did not address in a substantiated manner the standards developed in the Federal Constitutional Court’s case-law regarding signature quorums for parties not represented in Parliament and the conditions under which such quorums are not objectionable under constitutional law.

(2) The applicants failed to sufficiently demonstrate that on this basis, the changed parameters of political communication resulting from the pandemic give rise to any duty incumbent upon the respondent to amend the provisions regarding the participation in elections of parties not represented in Parliament.

(a) According to the Federal Constitutional Court’s case-law, the aim of ensuring that elections are integration processes for the formation of the political will of the people and the resulting requirement of proving the seriousness of nominations for election are normally capable of justifying signature quorums of up to 0.25% of persons eligible to vote. The requirements in § 20(2) second sentence and § 27(1) second sentence BWahlG are significantly lower than that. Pursuant to § 27(1) second sentence BWahlG, in order to be approved, Land party lists merely require the support of one per thousand, but no more than 2,000, persons eligible to vote in the respective Land at the last Bundestag election. In respect of constituency candidates, § 20(2) second sentence BWahlG requires supporting signatures provided by at least 200 persons eligible to vote in the constituency, and thereby remains within the same order of magnitude as § 27(1) second sentence BWahlG, since the average number of persons eligible to vote per constituency for Bundestag elections is 206,000, and § 3(1) no. 3 BWahlG provides that the population of a constituency should not deviate from the average population of constituencies by more than 15 per cent. Thus, the legislator has by no means made full use of the latitude it is afforded, according to the Federal Constitutional Court’s case-law, for determining the minimum number of signatures under normal circumstances. It cannot simply be assumed that maintaining the statutory signature quorums in a situation that renders the collection of the required supporting signatures more difficult exceeds the limits of what is permissible under constitutional law. Rather, it would have been necessary to provide plausible reasons to support the claim that the pandemic-related changes to the conditions for collecting supporting signatures made participation in the election for parties not represented in Parliament virtually impossible or excessively difficult and that the respondent were therefore required under constitutional law to lower the statutory signature quorums.

(b) This is not sufficiently clear from the applicants’ submissions. Essentially, the applicants merely claimed that the contact bans and restrictions imposed have rendered the collection of the required signatures “significantly more difficult, or even impossible in the individual case”. This is not plausible in and of itself. One of the applicants submitted that it has more than 5,000 members in Bavaria. It is not ascertainable why, in light of this, it should not be possible for this party to meet the statutory signature quorums. In this respect, the applicants also failed to address the time period of more than one year over which the supporting signatures can be collected and to set out whether the seriousness of nominations can still be considered to be proven if the quorum is lowered significantly.

(3) Even if it were assumed that the legislator in principle had a duty to amend the statutory provisions in view of the pandemic-related restrictions of political communication in the public sphere, separate reasons would have been required for asserting that the legislative latitude was specifically constricted to a duty to lower the signature quorums set out in § 20(2) second sentence and § 27(1) second sentence BWahlG. These are also not provided.