Bundestag elections must be repeated in 455 of 2,256 polling districts in the Land Berlin

Press Release No. 119/2023 of 19 December 2023

Judgment of 19 December 2023 - 2 BvC 4/23

In a judgment pronounced today, the Second Senate of the Federal Constitutional Court declared the elections to the 20th German Bundestag invalid in 31 polling districts – and their affiliated postal ballot districts – and ordered a repeat election. These districts were not among the districts in which the Bundestag declared the elections invalid on 10 November 2022. Additionally, the Court repealed those parts of the Bundestag‘s decision that declared the Bundestag elections invalid in seven polling districts and in the postal ballot districts affiliated with these polling districts.

In its electoral complaint, the CDU/CSU parliamentary group challenges the Bundestag’s decision of 10 November 2022, which declared the results of the 2021 Bundestag elections invalid in 431 polling districts in Berlin and ordered a repeat election in these districts.

The German Bundestag‘s decision of 10 November 2022 is, for the most part, lawful. The Bundestag’s investigation of the election was nevertheless insufficient, as it did not conduct the required consultation and evaluation of the records of the individual polling districts. This was subsequently done by the Federal Constitutional Court ex officio. Based on the Court’s evaluation, the 2021 Bundestag elections are to be declared invalid in an additional 25 polling districts in the Land Berlin, including the postal ballot districts affiliated with these polling districts. Further, the Bundestag wrongly declared the elections invalid in seven polling districts and their respective affiliated postal ballot districts, requiring that this declaration of invalidity be repealed. In addition, after the oral hearing, peculiarities with regard to the postal ballot count came to light that require the Bundestag elections be declared invalid in six additional postal ballot districts and in the six affiliated ballot box districts. The repeat election is to include both first and second votes, cast for an individual constituency candidate and a political party respectively.

Facts of the case:

In Berlin, the elections for the 20th German Bundestag took place on 26 September 2021. On the same day, elections to the 19th Berlin House of Representatives and the elections to the district assemblies as well as a referendum were also held. The Berlin marathon also took place on election day. A total of 1,713 electoral challenges concerning in whole or in part the way in which the election unfolded in Berlin were lodged with the Bundestag. In the twelve constituencies of Berlin, the Bundestag determined that electoral errors that are relevant to the allocation of seats occurred in 327 polling districts. These polling districts form joint postal ballot districts with an additional 104 polling districts. By order of 10 November 2022, the Bundestag declared the Bundestag elections invalid in 431 polling districts and ordered a repeat election in these districts.

The complainant asserts that the Bundestag‘s order is unlawful to the extent that it only declared the elections partly invalid in the six constituencies where the Federal Returning Officer challenged the elections. Additionally, the complainant contends that the Bundestag‘s order is unlawful to the extent it declared both the second and the first votes invalid in constituencies other than constituencies no. 76 and 77.

By judgment of 16 November 2022, the Berlin Constitutional Court declared the elections to the House of Representatives and the district assemblies invalid in their entirety. A constitutional complaint was lodged against this judgment, together with an application for preliminary injunction seeking to prevent a repeat election until a decision was made in the principal proceedings. The Federal Constitutional Court rejected the application for preliminary injunction on 25 January 2023 (cf. Press Release No. 13/2023 of 31 January 2023); a decision on the constitutional complaint is still pending. The repeat elections for the House of Representatives and the district assemblies took place on 12 February 2023.

Key considerations of the Senate:

The electoral complaint is well-founded in part.

I. Electoral scrutiny serves to establish the orderly composition of Parliament and to protect citizens’ subjective electoral rights. Electoral scrutiny primarily falls within the competences of the German Bundestag. In electoral complaint proceedings, the Federal Constitutional Court generally examines the decisions of the Bundestag in their entirety, while taking account of the discretion afforded the Bundestag’s Committee for the Scrutiny of Elections.

If the Bundestag‘s decision to refrain from further investigations is free from procedural errors, the Federal Constitutional Court has neither the authority nor any reason to investigate any further. The Federal Constitutional Court is authorised to engage in an ex officio examination only when the Bundestag itself collected evidence in a fragmentary or otherwise insufficient manner.

II. The decision of the German Bundestag rests on an insufficient investigation of the voting process, as the Bundestag did not evaluate the records of the individual polling districts itself, nor did it initiate such evaluation in any other manner.

Such evaluation, however, was required in the present case. The fact that mistakes and electoral errors cannot be inferred if the records are silent as to such occurrences does not exclude the possibility that individual records may detail events that prove electoral errors have been made. To guarantee the best possible investigation of the facts, the Bundestag was thus under an obligation to consult and evaluate the records of the individual polling districts.

Given that the Bundestag refrained from doing so, the Federal Constitutional Court was obliged to independently make use of the possibility to investigate how the voting process actually unfolded.

III. The German Bundestag‘s decision of 10 November 2022 is, for the most part, lawful in substantive terms.

1. For the most part, the Bundestag correctly identified possible electoral errors in terms of content.

a) Electoral errors result from any violation of the Federal Elections Act (Bundeswahlgesetz – BWahlG) and the Federal Electoral Regulations (Bundeswahlordnung – BWahlO), as well as any violation of the electoral principles under Art. 38(1) first sentence of the Basic Law (Grundgesetz – GG), with the two statutory laws shaped by these constitutional electoral principles. Electoral errors can only be established to the extent that there are statutory requirements.

b) According to this standard, electoral errors are present both with respect to the preparation and the implementation of the 2021 Bundestag elections in Berlin. These affected more ballot box districts than those covered by the challenged decision of the German Bundestag.

aa) Electoral errors occurred during the preparations for the 2021 Bundestag elections:

(1) § 46(1) third sentence of the Federal Electoral Regulations requires that participation in elections be as easy as possible. It was therefore necessary to make sufficient ballot papers available in the rooms with voting booths in order for the voting process to be as seamless as possible and to prevent excessive queue times. The planned distribution of voting booths in polling stations did not meet this statutory requirement. No sound consideration was given to the number of voting booths that would be required per room in order to prevent excessive queue times on a day with multiple elections, which in total consisted of six decisions per voter on five ballot papers, each of which differed in content and design.

(2) Additionally, § 49 no. 3 of the Federal Electoral Regulations was violated during the electoral preparations: although official ballot papers were procured, certain electoral boards of the polling districts were given an insufficient amount of ballot papers prior to the start of polling.

bb) Numerous electoral errors are also evident with respect to the manner in which the 2021 Bundestag elections were held in Berlin.

(1) This applies in cases where eligible voters received a ballot of another constituency, resulting in their first vote being invalid pursuant to § 39(1) first sentence no. 3 in conjunction with second sentence second half sentence of the Federal Elections Act.

(2) A temporary closure of a polling station constitutes an electoral error because it violates the principle of public elections under § 54 of the Federal Electoral Regulations. Interruptions to Bundestag elections also constitute an electoral error even if the polling station is continuously publicly accessible. Interruptions violate § 47 of the Federal Electoral Regulations, which stipulates that elections are to be held from 8 a.m. to 6 p.m. At most, doubts only exist with regard to those cases in which the elections to the House of Representatives, but not the Bundestag elections, were interrupted. However, on an election day with multiple elections, the polling process must be uniformly assessed. It follows that these disruptions to the polling process also affected the Bundestag elections.

(3) The records mention specific cases in which persons who were only allowed to vote in the elections to the House of Representatives were nevertheless given ballot papers for the Bundestag elections and cast them in the ballot box. To the extent the casting of such ballot papers could not be prevented, this resulted in electoral errors (§ 56(6) first sentence no. 1 of the Federal Electoral Regulations).

(4) Excessive queue times as such are not to be considered electoral errors. There are no statutory requirements on the length of admissible queue times. Significantly long queue times, however, generally indicate that too few ballot papers were provided per room and/or that the rooms were not equipped with a sufficient number of voting booths, resulting in a breach of § 46(1) third sentence and § 49 no. 3 of the Federal Electoral Regulations. In the given context, in which six votes were to be cast on five different ballot papers, queue times of one hour or more can be considered to exceed admissible limits and to indicate electoral errors.

(5) The casting of votes after 6 p.m. as such also does not constitute an electoral error. An electoral error is only to be established if eligible voters arrived at the polling station after 6 p.m. and were still admitted to vote. There are no indications that this was the case.

This is to be distinguished from the question of whether the fact that polling stations remained open after 6 p.m. might be considered a sufficient indication of other types of electoral errors. In this respect, the Bundestag’s Committee for the Scrutiny of Elections assumes there to have been long queue times at polling stations that closed after 6:30 p.m. and that this was caused by insufficient and faulty equipment. The Senate concurs with this assessment.

(6) The publication of Bundestag election exit polls at 6 p.m. does not constitute a violation of § 32(2) of the Federal Elections Act. As § 47(1) of the Federal Electoral Regulations stipulates, voting time ends at 6:00 p.m. and the exit polls were not published before that time.

cc) Based on these standards, the Senate assessed the records of the individual polling districts. Comparing the results with those of the challenged decision of the Bundestag, the Senate found that there were 15 additional ballot box districts in which electoral errors occurred. These ballot box districts are connected with ten additional ballot box districts, as together they form a joint postal ballot district. The 15 additional ballot box districts in which electoral errors were committed are:

•  Ballot box districts 75 01 102 and 75 01 106 (constituency 75): The casting of votes did not start until 8:59 a.m. and 8:55 a.m. respectively.
•  Ballot box district 75 01 314 (constituency 75): Queue times exceeding one hour (indication of electoral error).
•  Ballot box district 75 01 402 (constituency 75): Queue times of up to one hour (indication of electoral error).
•  Ballot box district 76 03 112 (constituency 76): Casting of votes ended at 6:31 p.m. (indication of electoral error).
•  Ballot box district 76 03 113 (constituency 76): Polling process ended at 7:40 p.m. (indication of electoral error).
•  Ballot box district 76 03 406 (constituency 76): Excessive queue times (indication of electoral error). At 4:41 p.m., the polling station ran out of ballot papers for the Bundestag elections (interruption).
•  Ballot box district 79 06 407 (constituency 79): Queue times of over one hour (indication of electoral error).
•  Ballot box district 80 04 304 (constituency 80): Polling process interrupted for at least 40 minutes.
•  Ballot box district 80 04 505 (constituency 80): Polling process interrupted - ‘no ballot papers’ from 3 p.m. to 3:50 p.m.
•  Ballot box district 80 04 722 (constituency 80): For 55 minutes, there were no ballot papers for the Bundestag elections.
•  Ballot box district 82 08 609 (constituency 82): Queue times exceeding one hour (indication of electoral error).
• Ballot box districts 84 09 623 and 84 09 625 (both constituency 84): Polling process ended at 6:35 p.m. and 6:36 p.m. respectively (indication of electoral error).
• Ballot box district 85 10 530 (constituency 85): Late opening of the polling station.

Conversely, there are three cases in which the challenged decision of the German Bundestag wrongly found there to be electoral errors; this finding therefore cannot be upheld. These are cases in which the Bundestag assumed there to be sufficient indication of underequipped polling stations even if there were no interruptions to the polling process and queue times were either under one hour or otherwise not quantified.

dd) Possible gaps in the records, especially in regard to the length of queues and queue times or interruptions to the polling process, do not constitute an electoral error as such, nor do they allow for inferences to be drawn as to whether other electoral errors occurred. In particular, this means that it cannot be assumed that all polling stations in the constituencies at issue were underequipped.

2. The established electoral errors are in most cases relevant to the allocation of seats in the Bundestag.

a) Electoral errors can only affect the validity of an election if they are relevant to electoral mandates, to wit: if they can have an effect on the allocation of seats in Parliament. In order for a finding that the validity of an election was compromised, the possibility of an electoral error affecting the allocation of seats must be specific and not far-fetched based on general life experience (principle of potential causality). In this respect, potential voting behaviour cannot be taken as an exact prediction of voting results, but it can serve as an approximate orientation and must be given consideration to this effect.

b) In terms of the result of the second vote, it follows that the insufficient amount of voting booths and ballot papers in polling stations constitutes an electoral error that is relevant to the allocation of seats in the Bundestag. It cannot be ruled out - indeed, it is rather likely - that precisely because of the queue times in excess of one hour, interruptions to the polling process, late openings and temporary or early closings of polling stations, eligible voters did not make use of their right to vote. There is also the specific possibility that, had these eligible voters cast their vote, the Sozialdemokratische Partei Deutschlands (SPD political party) would have reached a count of 802 second votes, thus gaining an additional seat in the Bundestag.

The same does not apply to the few documented instances in which ballot papers were handed out to persons who were not eligible to vote and these individuals then cast their vote in the Bundestag elections. Even if all of these votes had been cast in favour of the same political party, this would have had no consequence for the allocation of seats in the German Bundestag. Similarly, in those individual cases where there was a lack of accessibility, which does constitute an electoral error, there was also no relevance for the allocation of seats.

In terms of the result of the first vote, the electoral errors that occurred in constituencies 76 and 77 are of relevance to the allocation of seats. This is because the difference in votes between the winner and second place amounted to only 26% of non-voters in constituency 76 and 27% in constituency 77.

3. The established electoral errors with relevance to the allocation of seats have the legal consequence of invalidating the Bundestag elections in the affected polling districts and the polling districts affiliated with them. The other legal consequence is the repetition of the election, including both first and second votes.

a) The Federal Constitutional Court’s decision in electoral complaint proceedings is subject to the principle of minimum interference, meaning that the Court’s decision may only go as far as the established electoral error requires. Of the various possibilities to correct an error that is relevant to the allocation of seats, the Court must choose the option that most closely adheres to the interest of interfering as little as possible with the elected representation of the people. An entire election may only be declared void if electoral errors are of such weight that upholding the allocation of seats in Parliament appears intolerable.

b) Accordingly, there was no option of declaring the entire 2021 Bundestag elections invalid in the Land Berlin. Given that electoral errors could only be established in 339 of 2,256 ballot box districts (15.03 %), the overwhelming majority of voters were able to cast their votes in polling stations that were not affected by any discernible electoral errors. Therefore, it cannot be considered intolerable if the representation of the people thus elected remains unaltered.

In this respect, it is not relevant that the Berlin Constitutional Court ordered that the election to the House of Representatives and the district assemblies be repeated entirely. While the multiple elections that were held in Berlin on 26 September 2021 shared – in terms of external circumstances – a joint polling process, applying the Berlin Constitutional Court’s decision to the present case would ignore the fact the these elections served to constitute different parliaments based on different legal foundations. Moreover, there are electoral errors, such as the use of copied ballot papers, that occurred in the Land elections but cannot be established with respect to the Bundestag elections. The key difference, however, is that the Berlin Constitutional Court presumed that the established electoral errors affected 88 of 147 seats and thus 60 % of the total membership of the House of Representatives.

c) The option of merely correcting the election results is not feasible, as it is not possible to specifically determine how the electoral errors affected the election results. The principle of minimum interference thus mandates that the 2021 Bundestag elections in Berlin be declared invalid; both in those polling districts in which electoral errors occurred that are relevant to the allocation of seats as well as in any affiliated polling districts.

d) By contrast, extending the declaration of invalidity to six out of the twelve Bundestag constituencies in Berlin must be ruled out. The complainant asserts that it must be assumed that other electoral errors have occurred that are not limited to individual cases, even if no documentation exists. In this respect, however, the complainant fails to consider that an electoral complaint cannot succeed in cases in which no clarification is possible as to whether an electoral error occurred.

e) There are no objections to the German Bundestag‘s order for the repeat election extending to both first and second votes. Holding repeat elections without including the first vote would be contrary to § 44(2) of the Federal Elections Act, which stipulates that the repeat election be held ‘in accordance with the same regulations as the general election’. While § 44(1) of the Federal Elections Act permits an election to be declared only partially invalid, this provision does not refer to differentiation between first and second votes, but instead refers to confining the repeat election to a certain geographical area, consistent with the principle of interfering as little as possible with the elected representation of the people.

IV. A separate assessment is warranted regarding the reallocation of postal votes from polling districts in which the German Bundestag declared the election invalid to other postal ballot districts. This reallocation came to light only after the initiation of the present electoral complaint proceedings.

1. The reallocation of 1,080 postal votes from five postal ballot districts in which the election was declared invalid to six other postal ballot districts in constituency 81 violated electoral law. The declaration of invalidity by the Bundestag does not extend to these reallocated postal votes. In a repeat election, the votes counted in the postal ballot district to which they were reallocated would then remain valid. However, the same voters would be entitled to cast another valid vote. This would violate the principle of equal suffrage. Hence, the election must be declared invalid also in those postal ballot districts - and their affiliated ballot box districts - that counted postal votes cast from postal ballot districts in which the election was declared invalid due to established electoral errors.

2. The reallocation of postal votes that were received on election day in constituencies 78, 79, 82, 83 and 86 to nearby postal ballot districts constituted an electoral error. However, this error need not be taken into consideration in terms of the repeat election order. A repeat election may mean that there will be some individuals who will cast a valid vote twice while some will not be able to make use of their right to vote at all. Yet, given the low number of reallocated postal votes, this constitutes a limited risk that does not take precedence over the interest of interfering as little as possible with the elected representation of the people.

3. The fact that the electorate has changed due to people moving to and away from the districts in question does not preclude an order for a repeat election. Here too, there is a risk that double or non-voting may occur. However, this effect is a necessary consequence of the statutory provisions on repeat elections. § 44 of the Federal Elections Act provides for electoral registers to be renewed for repeat elections if six months or more have elapsed since the original election. There are no constitutional concerns in this respect.