History of the election test

The history of the election test , i.e. the procedure for reviewing an election, goes back to times when voting was not democratic in today's understanding.

Origins of the election test in the corporate state

The origins of the election test go back to pre-democratic times. The precursor to the election test is the verification of the legitimacy of the members of the estates' representations. It was carried out either by the sovereign or by the estates themselves. In the Holy Roman Empire of the German Nation, the Reichstag, as an assembly of the imperial estates, was composed of envoys from the secular and spiritual princes as well as from the imperial cities . Since the legitimation of these ambassadors was not derived from an election by the people, but from the sovereignty of the estates represented, the legitimacy check did not check the validity of an election, but the authenticity of the power of attorney with which the ambassador had identified himself. Responsible for this was the Reich Directorate , which the Archbishop of Mainz held as Arch Chancellor . Even today the wording of some constitutions points to this origin which speak of an “examination of the powers of the members” with regard to the electoral examination (e.g. Art. 34 in Belgium , Art. 57 (1) in Luxembourg , § 64 in Norway , also § 112 of the Paulskirche constitution ).

The development of parliamentary self-examination

With the breakthrough of democracy, the need for an election test soon developed. The Kingdom of England was a pioneer in the development of representative democracy .

Creation of the English Parliament

Since the victory of William the Conqueror, England has been increasingly centrally administered. The control of this administration was incumbent on the royal council, the curia regis. In the Battle of Lewes in 1264 , Simon V de Montfort forced the first parliament in English history by convening an expanded Regency Council : Henry III. had to invite 2 knights per county and 2 citizens per city as representatives of the community to this meeting, which took place in 1265. The participation of such Commons was institutionalized in 1295 under Edward I with the Model Parliament.

Election of parliamentary representatives

Initially, representatives of parliament were "elected" by acclamation by county assemblies at the suggestion of respected citizens . With the development of an electoral law under Henry IV , the parliament finally becomes a representative body in the true sense of the word: In 1406 an English law stipulates that elections are to be made freely and to be sealed with a document signed by all voters.

Examination of choice

The right of the election examination originally belonged to the king. In a law, Heinrich IV instructed the traveling assistant judges to review the election reports. In the second half of the 16th century, the electoral examination found itself in the hands of the Lord Steward as Crown Official. With the election test, the King held a key to the composition of Parliament. Because parliament increasingly saw itself as a counterpart to the monarchy, there is apparently a certain tension here. Since 1586 the Commons have been claiming the right to vote for themselves. In the course of the affair over the mandate of Sir Francis Godwin, the English parliament defied the king and his lords in 1604 the right to scrutiny and was to retain it for more than two and a half centuries.

Codification in constitutions

The first of the new constitutions were also shaped by the British idea that the electoral examination belongs in the hands of Parliament. Since September 17, 1787, Art. I Sect. 5 para. 1 of the Constitution of the United States of America this for the two Houses of Congress . The regulation was the model for the French constitution of 1789. The principle in Paris was that the election test was an inalienable part of the constitutional power and could therefore only be exercised by the parliament itself. This view had a decisive influence on German early constitutionalism until 1848, which was subsequently - cf. Section 112 of the Paulskirche constitution - also tended towards a parliamentary election review.

The evolution of the judicial election test

In England in particular, however, parliament was not up to the task of examining elections from the start. Where the principle of democracy demands objective, independent control, there was a tendency in the British House of Commons to instrumentalize this competence politically and thus partisan. Nevertheless, parliament was only withdrawn from the election examination following the second parliamentary reform act in 1867/1868. With the transfer to an independent court, however, England no longer assumed a pioneering position, because Sweden had already found this means in 1810 to prevent an abusive election review.

Electoral examination in Germany since 1871

Constitution of 1871

The German constitution was initially unimpressed by the development towards judicial electoral testing: Article 27 of the Constitution of the German Empire of 1871 adopted the "classic" model of self-examination for the Reichstag. However, as early as 1888 Jellinek and v. Seydel in her report on the XIX. German Juristentag, the introduction of an independent, judicial election test, as already practiced in England and Sweden.

Weimar Constitution

These two reports had a decisive influence on the draft of the new Weimar Constitution . In the deliberations, however, one could not completely separate oneself from the election examination by the parliament, probably because one wanted to protect the parliament against the judiciary and executive branches of the monarchical state. It was therefore decided to combine parliamentary self-examination with the model of judicial election examination. As a result, Art. 31 WRV provided for the formation of an election review court, which was composed of two judges from the Reich Administrative Court and three members elected by the Reichstag from among its members. He was responsible for the election test as well as the loss of mandate test.

Bonn Basic Law

The regulation of the Basic Law goes back to Art. 51 of the Herrenchiemsee Draft, which also provided for a parliamentary election review. Comparable to the debate in France, the outstanding position of the Bundestag was cited against a completely independent electoral review court . The Herrenchiemsee draft, however, left it to the federal legislature to decide whether the complaint against the decision of the Bundestag should be addressed to the Federal Constitutional Court or to a special electoral review court. An appeal to the Federal Constitutional Court was only mandatory if an election as a whole was contested. In the parliamentary council , however, the establishment of a special electoral review court was seen as inexpedient and the version of Art. 41 GG, which is still valid today, was finally adopted, which, like Art. 31 WRV, provides for a combination of parliamentary and judicial electoral scrutiny. Now the two models are switched one after the other, with the Bundestag conducting the election test in the first “instance”, but with an appeal to the Federal Constitutional Court against its decision.