Successor judgment

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In a decision of the Federal Constitutional Court (2 BvC 28/96) of February 26, 1998, the long-standing practice of moving up a deputy to an unbalanced overhang mandate was excluded. For the specific case complained about, however, an exception (for the successor Franz Romer ) was allowed until the legislative period was about to expire .

It continues to apply that a resigned MP who was elected via the state list is replaced by a successor from the same list. The list applicants who did not get a chance at the time act as substitutes. The Constitutional Court criticized the fact that constituency members are also replaced with the help of the state list when they leave. The federal electoral law decided against voting for a replacement candidate in the constituency, and in general it was the intention that the constituency candidate represented the voters as the directly elected person. He was elected with the first vote, not the second vote. Nevertheless, moving up the list is justifiable insofar as the second vote result determines the total number of MPs for a party. And if the party had not won the direct mandate of the constituency, it would have got one more list mandate anyway . Overhang mandates, on the other hand, have not displaced a list mandate, so this rule cannot apply to them.

Since, in the case of an equalization mandate, there would only be two possibilities to mathematically equalize the relationship after the withdrawal of an overhang mandate, namely either to exclude the equalization mandate or to move up to the overhang mandate and in this case the exclusion of a member is not legally permissible, then how in the case of a list mandate, also moved to an overhang mandate.

Brandenburg

A corresponding judgment (VfGBbg 19/00) was passed in the federal state of Brandenburg . Here it was not allowed to move into the mandate of the resigned Regine Hildebrandt , so that the MP Angelika Thiel-Vigh lost the mandate she had already taken in the Landtag.

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