Local electoral law (Bavaria)

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The municipal electoral law in Bavaria regulates the elections for the representative bodies and for the top management at the lower and upper municipal levels, i.e. the election of the municipal or city councilors and mayors as well as the district councils and district administrators . The election of the district days of the districts as the third municipal level is not regulated by the municipal electoral law, but by the law on the election of the district days , which in its main corresponds to the state election law . Compared to the state or federal elections, the Bavarian municipal electoral law gives voters an extraordinarily large number of differentiation options when casting their votes, but is therefore also particularly complex.

Historical development up to the First World War

With the municipal edict of 1818, representative bodies were created for all Bavarian municipalities for the first time, which can be described as the forerunners of today's municipal and city councils. For the right to vote in the committees, however, it was stipulated in the municipal edict of 1818 and also in the municipal code that came into force from 1869 that only a privileged group of inhabitants of the municipality was granted citizenship. Only these citizens were allowed to exercise the right to vote. According to the election regulations of August 5, 1818, the citizens entitled to vote in cities and markets elected electors, who then appointed the community representatives. The plenipotentiaries then elected the mayor and the magistrate. In the rural communities, the board of directors, carers and community representatives were directly elected by the citizens without electors. The elections in the first half of the 19th century were not secret, because the votes of the citizens were cast orally. It was not until the municipal ordinance of April 29, 1869 that the secret and direct election of the municipal representatives without electors was introduced. The municipal code of 1869 existed until the end of the First World War. Local elections that correspond to today's understanding found their state-wide legal basis only during the Munich Council Republic in § 14 of the "Provisional State Basic Law of the Free State of Bavaria" of March 17, 1919, which specified an election according to the principles of the state election law and thus a general, equal, immediate and secret election of local councils. This was made more concrete in the “Law on Municipal Self-Government” of May 22, 1919 and in the Municipal Code of October 17, 1927.

Granting of civil rights in the 19th century

According to the electoral ordinances in the municipal ordinances of 1818 and 1869, the decisive question was who of the inhabitants of the municipality had citizenship and was thus actively and passively eligible to vote or could be elected as an elector or, after the changes of 1869, as a proxy. In both municipal codes, women were excluded from citizenship from the outset.

According to the municipal code of 1818 , citizenship in cities was only granted to three categories of male residents:

  • Male permanent residents of the city who had a taxed trade in the city or who owned taxed property there.
  • Men living outside the city if they owned property that was taxed in the city, in which case citizenship had to be exercised through a proxy.
  • Permanent male residents of the city, who had been granted citizenship for special reasons of community welfare by the magistrate and community representatives, subject to royal approval.

Since the vast majority of holders of civil rights belonged to the first category, the civil rights were de facto limited to the tradespeople and homeowners resident in the city. The legislature had intended that too. For the small number of holders of civil rights there were two further restrictions in large cities until 1869, from which only the wealthy, highest taxed upper third of civil rights holders were excluded:

  • The active right to vote was available to the holders of the civil rights only for the election of the community representative (community council). It did not apply to the election of the magistrate (municipal authority), consisting of a mayor, up to 4 legally qualified magistrates and honorary magistrates.
  • The passive right to vote (eligibility) as a municipal representative (36 for Regensburg) was also not available to them. These restrictions were justified by the fact that municipal representatives worked free of charge and elected magistrates were paid very little for their time-consuming work, which only very wealthy citizens could afford.

With the municipal code of 1869 , the restrictions on active and passive voting rights for holders of civil rights were abolished, but the guidelines on remuneration were not changed. More important than the changes in the electoral law, however, was that the granting of citizenship was no longer made dependent on property ownership or the exercise of a trade. Instead, citizenship could (not: had to) be granted by the municipality if the following conditions were met:

  • male and of legal age
  • Self-employment (children, servants and assistants in the household were considered to be dependent)
  • Tax assessment in the municipality (property tax or trade tax or income tax )

They still had a right to citizenship

Even if these conditions could be met by many applicants, in the end there was still the actual threshold for acquiring citizenship:

  • The municipalities were authorized to make the granting of citizenship dependent on the payment of a fee, which for large cities with more than 20,000 inhabitants could amount to up to 100 guilders.

While an important new source of income opened up for communities here, the fees for many residents were a multiple of the monthly wage. In addition, there were new opportunities here - not only for the communities, but also for the political groups emerging during this period - through promised reductions in fees for certain population groups (paramedics, firefighters, war veterans) or through grants granted to members of political groups To influence the future voting behavior of the new civil rights holders supported in this way.

Effects of the granting of civil rights

Personnel composition of the city government: The restrictions on granting citizenship, especially before the new municipal code of 1869, meant that the leading people in the large cities were only recruited from 400 to 500 very wealthy citizens.

Development of the ratio of the number of citizens to the number of inhabitants

For the city of Regensburg, where only Protestants had citizenship until 1803, the following conditions are known for the period before the enactment of the municipal edicts of 1818 and for the development afterwards, which were similar in other large Bavarian cities.

  • End of the 18th century: 800 Protestant family fathers with civil rights faced 3 Catholic family fathers with civil rights, although the population of the city consisted of only 1/3 Protestants and 2/3 Catholics. Until Regensburg was incorporated into the Kingdom of Bavaria (1810), Catholics were also granted citizenship during the reign of Prince-Bishop Dalberg . Changes to the initially special conditions began in Regensburg even before the municipal edict was passed in 1818.
  • 1830, 12 years after the municipal edict of 1818 was issued: Regensburg had 18,912 inhabitants with 4,979 families. 1,376 of the fathers of the family (27.6%) had citizenship, 65% of them were Protestant and 35% Catholic. The still clear denominational difference can be traced back to the aftermath of the special conditions in Regensburg up to 1800. Much more important, however, is the number of residents with citizenship in relation to the total number of residents. This value was 7.14%, which means that at that time in Regensburg only 1 citizen out of 14 inhabitants had the citizenship (1/14).
  • 1867: In Regensburg there were 26,646 inhabitants with 8,543 families, of whom 1,510 fathers (17.7%) had civil rights. Based on the total number of residents, only 1 citizen out of 17 residents had the right to be a citizen. The ratio had deteriorated to a value of 1/17. In other Bavarian cities the ratio had a similar value: Nuremberg 1/10, Augsburg 1/14, Würzburg 1/12, or like in Munich it was even significantly lower at 1/28.
  • 1872 to 1910: According to the new municipal code of 1869, the ratio of citizens to inhabitants deteriorated despite the growing population and in 1896 was 1/31 in Regensburg. The situation developed just as badly in other Bavarian cities. In the next few years this led to a reduction in fees and, in the 1911 municipal election year, even to a drastic reduction in fees in all cities in Bavaria. As a result of these measures, the situation improved in all cities. In 1911 in Regensburg, citizenship was granted in 2,543 cases, 137 of which were even free of charge. With 53,000 inhabitants at that time, 1 out of 11 inhabitants of the city had citizenship again.

Development of economic and political conditions

For municipalities, the possibility of making the granting of citizenship dependent on the payment of an admission fee was an additional source of income. This source could be used after 1868 to finance the political, economic, industrial and social upheavals that began in the following years. The number of inhabitants grew in all cities. After the demolition of the city walls and the construction of train stations, the road infrastructure had to be expanded. In addition, the construction of gas and electricity plants began, the renewal of the water supply and the construction of a new sewer system. On the other hand, the temptation was great for mayors and municipal representatives to bind certain groups of voters to themselves permanently by reducing the admission fee or even waiving the fee. This could also be done by groups of residents who were in opposition to the mayor and the parishioners if they received financial support. This was e.g. For example, the case in the city ​​of Regensburg, which was strongly Protestant under Mayor Oskar von Stobäus , where the Catholic residents who had moved there were offered financial help by support organizations in order to be able to pay the civil rights fee. In the then beginning Bavarian culture war . these associations developed into precursor groups of the Bavarian Patriot Party and the conservative Center Party founded in 1870 .

Legal basis after World War II

The right of the municipalities to “elect their mayors and representative bodies” is anchored in Article 11 (2) of the Bavarian Constitution , the right to vote of the municipality citizens in Article 17 of the Bavarian Municipal Code (“ The municipality citizens elect the municipality council with a majority of the valid votes cast the first mayor. ”) or the district citizen in Article 12 of the district regulations. The actual rules for the election process are determined by the Bavarian Municipality and District Election Act (law on the election of municipal councils, mayors, district councils and district administrators) and the municipal and district election regulations as well as the ministerial enforcement instructions.

Essential electoral provisions

Ballot for the 2020 city council election in Nuremberg : paper format 1.0 by 0.7 meters

The composition of the municipal or city councils and the district assemblies is determined according to proportional representation ; the election of mayors and district administrators takes place according to majority voting , whereby an absolute majority is required and, if necessary, a runoff election is held two weeks after the general election day . Because of the local conditions, which can differ considerably between large cities and small communities, the Bavarian municipal electoral law also contains provisions for the event that no nominations or only a single nomination are listed on the ballot papers and, under certain circumstances, allows the addition of those not mentioned in the form People. In addition, different regulations are sometimes made for honorary and full-time mayors.

Electoral term

The electoral period of the committees and office holders is six years and always begins on May 1st following the general election date. If mayors or district administrators leave office prematurely, new elections take place for their function (but not for the representative body), provided that the next general election date is not close anyway. Honorary mayors are always elected for a shortened term of office until the next general local election, but professional mayors and district administrators for a full six years if the term of office until the next election would be less than four years. In order to achieve simultaneous elections again, the full-time mayor or district administrator can also in this case achieve a simultaneous election by submitting a corresponding application to the municipality / city council or district council. Also in the interest of returning to simultaneous elections, the term of office can be extended to up to eight years if a district administrator or mayor election took place within the last two years before the nationwide election date.

Right to vote

All Union citizens - that is, all citizens of EU member states - who have reached the age of 18 and whose “focus of their life relationships” has been in the municipality or district for at least two months have the right to vote . As a rule, this coincides with the main place of residence in the sense of registration law, but can deviate from it for homeless people, commuters or students, for example. Due to the fact that EU foreigners also have the right to vote, the number of voters in local elections is higher than in state or federal elections. In 2008 it was 9.64 million (state elections in the same year, albeit more than six months later: 9.32 million). In 2002 it was 9.25 million (Bundestag election in the same year: 9.10 million).

Passive suffrage

Eligibility, i.e. the passive right to vote for the representative bodies and as honorary mayor, requires an apartment according to the registration law (habitual residence for homeless people) in the constituency for three months. In addition, administrative employees and civil servants of a municipality there cannot be honorary municipal or city councilors or mayors. Only Germans can be elected as district administrators or full-time mayors because they are also heads of their authorities and civil service regulations are applied. The maximum age for professional public officials from the 2020 local elections at the start of their term of office (usually on May 1st following the election) is 66 years, until then 64 years.

Nominations

Election proposals can be submitted by political parties and groups of voters, so a fixed organizational structure is not a prerequisite for the approval of a list. Parties and groups that have not yet been represented on the committee and that have not achieved at least five percent of the votes nationwide in the most recent preceding state, federal or European elections, however, require support signatures to approve their nomination . Their number depends on the number of inhabitants of the respective municipality or district and ranges from 40 in municipalities with up to 1000 inhabitants to 1000 in the state capital Munich. In contrast to applications for approval for a referendum or nominations for state or federal elections, the support signatures are not collected by the associations themselves and subsequently submitted, but can only be submitted directly to the municipal administration by those entitled to vote. Exceptions are possible, comparable to the procedure for postal voting.

Each nominee may only submit one nomination. This attracted a lot of attention during the municipal elections in Munich in 1990, when the nomination of the CSU-affiliated boys' list with reference to the restriction was not approved, but the list was subsequently approved by the Administrative Court and the city council election was repeated four years after the original date had to become. In the re-election, the Young List won two city council mandates.

Number of committee members

The number of community or city council members and district councilors to be elected depends on the population of the respective electoral area.

According to Article 31 (2) of the Bavarian Municipal Code, the number of members in the municipality or city council is:

In contrast, Article 24 (2) of the Landkreisordnung only recognizes three levels for the number of district council members:

  • with up to 75,000 inhabitants 50
  • with more than 75,000 up to 150,000 inhabitants 60
  • with more than 150,000 inhabitants 70

City district representatives

At the same time as the city councils, in municipalities with more than 100,000 inhabitants, the members of city district councils can also be directly elected if they have their own decision-making rights. Such a direct election of the district committee members has taken place in Munich since 1996 as the only Bavarian municipality. The election process corresponds to that of the city council members.

Voting

When electing the first mayor or lord mayor and the district administrator, each person entitled to vote has one vote, which is assigned directly. The other mayors of a municipality are not determined in the municipal elections, but are chosen by the new municipality or city council from among its members.

In the election of the municipality or city council (and analogously for the district council), each voter has as many votes as the committee has members, i.e., depending on the municipality, they can cast between 8 and 80 votes. The ballot papers have checkboxes both in the header of each nomination list and next to each individual candidate. The voter can give candidates up to three votes (" cumulate " or "pile up") and choose candidates from different lists (" panaschieren "). Remaining votes that have not been given to specific candidates go to the list that was marked in the header of the nomination ("list cross"). With the list cross, each candidate receives one vote in the list order until the remaining votes are used up. Candidates who were removed from the list by the voter or who have already received individual votes will not be taken into account in the allocation of the remaining votes.

In municipalities with up to 3000 inhabitants, the nominations can contain up to twice as many applicants as there are to be elected. Accordingly, the voters then have twice as many votes.

A possible special feature is the multiple appearing of candidates within a list. Nominees can choose this option if they have fewer than the maximum number of candidates (which corresponds to the number of committee members). By naming candidates up to three times on the list, the crosses on the list are fully utilized, while otherwise the remaining votes would not be allocated and thus would not be taken into account when determining the mandates on the list. Nevertheless, even with multiple nominations, none of the candidates can receive more than three votes.

IT support for the counting of votes

In § 81 (6), § 82 (9) and § 87 (2) of the municipal and district electoral code, the use of data processing systems is also taken into account when counting votes (but not when casting votes). Since the local elections in 2002, voting slips have been provided with barcodes next to the names of the candidates in numerous municipalities , which enable the votes to be recorded using a barcode scanner . The transmission and evaluation of each vote on a connected computer makes it easier to add up the votes and leads to an automated validation check of the individual ballot papers. The OK.Wahl system of the public authority for municipal data processing in Bavaria was used in around 1000 municipalities with 15,000 reading pens in the 2008 municipal elections . The lobby group Chaos Computer Club criticized this as "insecure and non-transparent".

See also

literature

  • Municipality and School Publishing Bavaria: Commentary on Municipal Constitutional Law Bavaria, loose-leaf edition June 2013, ISBN 978-3-89382-212-6

Web links

Individual evidence

  1. ↑ Municipal election regulations of August 5, 1818 in the Google book search
  2. ^ Municipal code of April 29, 1869 in the Google book search
  3. ↑ Municipal constitution (19th / 20th century) in the Bavarian Historical Lexicon
  4. ^ A b c Dieter Albrecht: Regensburg im Wandel, studies on the history of the city in the 19th and 20th centuries . In: Museums and Archives of the City of Regensburg (Hrsg.): Studies and sources on the history of Regensburg . tape 2 . Mittelbayerische Druckerei und Verlags-Gesellschaft mbH, Regensburg 1984, ISBN 3-921114-11-X , p. 19-22 .
  5. ^ Municipal code for the Free State of Bavaria
  6. ↑ Landkreisordnung for the Free State of Bavaria
  7. ↑ Municipal and District Election Act
  8. ↑ Municipal and district election regulations
  9. ↑ Commune and district election announcement of the Bavarian Ministry of the Interior of November 15, 2012
  10. ↑ Art. 41 (2) Municipal and District Election Act
  11. ↑ Art. 42 (2) Municipal and District Election Act
  12. ↑ Art. 42 (3) Municipal and District Election Act
  13. ↑ Art. 43 (2) Municipal and District Election Act
  14. ↑ Art. 1 (1) Municipal and District Election Act
  15. ↑ Point 2.1 of the announcement by the Bavarian State Ministry of the Interior of November 15, 2012
  16. ↑ Art. 21 (1) and 39 (1) Municipal and District Election Act
  17. ↑ Eligibility , point 4.1 Commune and district election announcement of August 19, 2013
  18. ↑ Art. 31 (3) or 34 (5) Bavarian municipal code
  19. ↑ Art. 39 (1) Municipal and District Election Act
  20. ↑ Art. 39 (2) sentence 2 (footnote) Municipal and District Election Act
  21. ↑ Art. 24 (1) Municipal and District Election Act
  22. ↑ Art. 27 (1) Municipal and District Election Act
  23. ↑ Art. 27 (3) Municipal and District Election Act
  24. ↑ Art. 28 (2) Municipal and District Election Act
  25. ↑ Art. 24 (3) Municipal and District Election Act
  26. ↑ Der Spiegel: Everything is broken ; In: Der Spiegel 23/1994
  27. ↑ Art. 60 (3) Bavarian municipal code
  28. ^ Institute for Communal Data Processing in Bavaria (AKDB) - Press release: E-learning program for electoral counting supports local authorities. ( Memento from March 18, 2014 in the Internet Archive ) In: akdb.de. February 25, 2014, accessed February 19, 2020.
  29. ↑ AKDB: Safe and fast election evaluation by OK.WAHL , press release of March 6, 2008
  30. ↑ Chaos Computer Club: Bavarian municipal elections 2008: Computerized counting with barcodes insecure and non-transparent , press release from February 25, 2008