Elective test

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Election review is the name of the process in which the legality and validity of an election are checked.

In modern democracies , the election test is the responsibility of parliament or a judicial body. In Germany, the election to the Bundestag is first checked by the election review committee. The Federal Constitutional Court then makes a final decision on election review complaints .

Election test as a necessary element of a democracy

Because the legitimacy chain is established in the election , through which all state authority is derived from the people, the regularity of the elections is a prerequisite for a democracy . Since the electoral examination ensures the proper conduct of the elections, the electoral examination itself is a necessary element of a democratic constitution . Firstly, it should uncover irregularities and manipulations and deter them. Second, the positive determination of the validity of an election by the election examiners strengthens the legitimacy of the elected representatives.

History of the election test

The history of the election test is the subject of a special article.

Election test in Germany at the federal level

(I) The election test is a matter for the Bundestag . It also decides whether a member of the Bundestag has lost membership. (II) An appeal to the Federal Constitutional Court against the decision of the Bundestag is admissible. (III) The details are regulated by a federal law. (Art. 41 GG)

Subject of the election test

The original scope of Article 41 GG is the examination of the elections to the German Bundestag . In addition, the elections to the European Parliament within the scope of the Basic Law are reviewed in the procedures of Article 41 of the Basic Law, as long as there is no uniform European electoral law, § 26 Paragraph 1 and 3 EuropaWG. Internal elections and votes and referendums are not subject to the election test.

It is controversial whether the election test, analogous to Art. 41 GG, also takes place when the Federal President is elected by the Federal Assembly in accordance with Art. 54 GG. The question is not regulated in the law on Art. 54 VII GG. The starting point for this consideration is the contestability of the election of the Reich President before the electoral examination court during the Weimar period . The Federal President, unlike the Reich President, is not elected by the people, so his election is tantamount to an internal election. This speaks against the review of the only indirectly democratic election of the Federal President with the procedures of Art. 41 GG, which are coordinated with the mass procedure of the Bundestag election, as long as there is a legal basis for this.

The procedure before the Bundestag according to Article 41, Paragraph 1, Sentence 1 of the Basic Law

Article 41, Paragraph 1, Sentence 1 of the Basic Law makes the “election test” a matter for the Bundestag. As part of this election test "in the narrower sense", it is examined whether the MPs have received their mandate properly. The more detailed procedure for this is regulated by the “Election Examination Act” of March 12, 1951 ( Federal Law Gazette I, p. 166), which the federal legislature enacted by virtue of its exclusive legislative competence conferred by Article 41.3 of the Basic Law .

Abstract object, meaning and purpose

The abstract subject of the election test in the narrower sense is the validity of the election according to § 1 Abs. 1 WahlPrG, expressed negatively, its test for election errors. The sole purpose of this validity check is to protect the objective right to vote; therefore, according to the general opinion, the violation of subjective rights cannot be the subject of the proceedings, but its cause.

Eligibility to object

Because the principle of avoidance of § 2 Abs. 1 WahlPrG applies. The Bundestag therefore does not undertake an ex officio examination and thus deviates from the model of the Weimar period. According to Section 2 (2) WahlPrG, everyone entitled to vote on the day of the election and every group of such persons entitled to vote is entitled to object , regardless of their participation in the election and without any restriction to their constituency . The state and federal returning officers and the President of the Bundestag also have an official right of objection .

Form and deadline

From a formal point of view, Section 2 (3) WahlPrG requires that the objection is submitted to the Bundestag in writing and with reasons. According to § 2 Abs. 4 S. 1 WahlPrG the period for this is two months, starting with the election day. Otherwise the correct composition of the Bundestag could not be clarified within a reasonable time. If the President of the Bundestag becomes aware of circumstances in an official capacity after this period that could justify a lack of elections, he can still object within one month of these circumstances becoming known, Section 2 (4) sentence 2 WahlPrG. The objection must be justified within this period.

Specific subject - scope of the examination

As a possible concrete subject, the examination includes all decisions and measures that relate directly to the electoral process, cf. Section 49 BWG. In terms of time, this ranges from the preparation of the election to the actual election act and the determination of the election result. Actions that can be attributed to the state, but also actions of third parties, especially the parties, come into consideration. However, the scope of the examination is limited by the objection itself. According to the prevailing opinion, the Bundestag cannot review electoral norms for their unconstitutionality; this is the sole responsibility of the Federal Constitutional Court .

Procedure

To relieve the plenary, the decision on the objection is prepared by the electoral examination committee, Section 3 (1) WahlPrG. The electoral review committee has nine full members elected by the Bundestag and the same number of deputies. The committee members are appointed by the parliamentary groups according to their strength ratio. In Bundestag practice, the task of electoral review is assigned to nine selected members of the "Committee for Election Review, Immunity and Rules of Procedure" (cf. § 128 GOBT), who act as an independent election review committee within this "first standing committee". The procedure in the electoral examination committee is divided into three parts: a preliminary examination, a public oral hearing (which is usually not taken) and a secret final consultation.

Decision by the Bundestag plenary

The decision on electoral objections is made by the plenary, whereby the objections are usually presented in a bundle. If a deputy loses his mandate as a result of the decision on the objection, the deputy concerned regularly retains his rights and obligations until the decision becomes final, in accordance with Section 16 (1) WahlPrG. The Bundestag can, however, with a two-thirds majority of its members exclude the MPs from the work of the Bundestag, § 16 Abs. 2 WahlPrG.

Legal nature

There are some arguments in favor of qualifying the parliamentary self-examination against the background of a substantive concept of jurisprudence as at least similar to jurisdiction. The Bundestag does not make any political decisions as part of the election review, even if political considerations play an essential role. Rather, he checks the choice made against the standard of law. The election test is therefore a legal control.

The loss of mandate examination according to Art. 41 Para. 1 Sentence 2 GG

In the so-called loss of mandate review procedure, the Bundestag decides on the subsequent loss of a validly acquired mandate, Article 41, Paragraph 1, Sentence 2 of the Basic Law. Together with the procedure referred to as the electoral examination in the narrower sense of the word, the electoral examination in accordance with Art. 41 (1) sentence 1 forms the electoral examination in the broader sense.

Sense and purpose

The purpose of the loss of mandate check is to ensure the continued existence of parliamentary legitimation.

Procedure

In principle, the same rules apply to the examination of the loss of a mandate as to the electoral examination in the narrower sense, § 15 sentence 1 WahlPrG. There are, however, the following differences: The only specific subject of the proceedings can be the question of whether a member of parliament has subsequently lost his validly acquired mandate. There is no deadline for applying for a decision, § 15 sentence 2 WahlPrG.

Reasons for loss

Objectively, the reasons for a subsequent loss of a mandate are regulated in Section 46 BWG. This list is not exhaustive, as can be seen from Section 46 (1) sentence 2 BWahlG.

The complaint to the Federal Constitutional Court according to Article 41 (2) of the Basic Law

A complaint to the Federal Constitutional Court against the decision of the Bundestag on an election review matter or in a mandate review matter is admissible, Article 41 (2) GG in conjunction with Section 13 No. 3 BVerfGG. According to § 18 WahlPrG, the provisions of the BVerfGG apply to the procedure, which in § 48 BVerfGG contains a “spartan regulation” of some admissibility requirements.

Right to complain

The persons entitled to complain are finally listed in § 48 BVerfGG. An eligible voter whose objection has been rejected is entitled to complain. Finally, the complaint can be submitted by a member of parliament whose membership is disputed and by any parliamentary group in the Bundestag as well as by a minority in the Bundestag that comprises at least one tenth of its statutory membership.

Form and deadline

The complaint must be made and substantiated within a period of 2 months. It must be made in writing, Section 23 (1) sentence 1 BVerfGG.

decision

The second senate is responsible for the decision according to § 14 Abs. 2 BVerfGG. A decision on the complaint will be made after an oral hearing, which the court can also dispense with in accordance with Section 48 (3) BVerfGG. The Federal Constitutional Court rejects the complaint if it is inadmissible or obviously unfounded, it rejects it if it is unfounded, and the court makes a final decision on the matter on admissible and well-founded complaints.

Decision-making practice and statistics

The number of appeals has been relatively constant in the past. On average, around 40 objections were lodged against the elections for the first twelve Bundestag. Since 1990 there has been an increasing tendency based on objections to overhang mandates . In connection with the 13th Bundestag election in 1994, the number of objections rose to 1,453. The number of complaints about the election review rose from an average of 7 in 1990 to 17, and in 1994 even to 28. 102 objections and 21 complaints were made against the Bundestag election in October 1998, In 2014 there were 224 objections to the Bundestag election and 109 to the European elections, and 70 appeals were lodged. As far as can be seen, only one objection and only a few complaints led to success at the federal level.

The length of the proceedings is unpleasant. Because, among other things, with the argument that the composition of the Bundestag should be clarified as binding as possible as soon as possible, the objector in the form of deadlines and the substantiation requirement are set some hurdles that are not always easy to take. It is true that the goal of the electoral examination requires the procedures to be carried out quickly. In practice, however, the Bundestag and the Federal Constitutional Court often need more than half the legislative period together until the objections are decided.

Some complaints - most recently about the 2002 Bundestag elections - are negotiated until they can finally be rejected as settled because the legislative period has expired. The court is therefore accused of procrastination. Complainants also rightly ask themselves why objections based on the unconstitutionality of electoral law norms are only rejected after more than a year, even though the Bundestag does not conduct any substantive examination here in constant practice. However, as long as the objection is negotiated, the complainants' way to the Federal Constitutional Court is blocked.

Reform of the electoral examination

The former constitutional judges Karin Graßhoff and Hans H. Klein criticized in a joint newspaper article (FAZ, September 11, 2006) that the length of the proceedings was not compatible with the “fundamental importance of the election for the democratic legitimation of parliament”. They suggest replacing the current two-stage procedure with a one-stage procedure at an electoral examination court.

The authors of Wahlrecht.de developed another draft. You propose to leave the process in two stages, but to replace the Bundestag with an electoral review court in the first instance. The concept also provides for the implementation of the requirement of short proceedings, the shortening of deadlines and the regulation of the substantive election scrutiny law.

Substantive electoral scrutiny right

Although the legislative competence given to the Federation by Article 41.3 of the Basic Law is not limited to the procedure, the legislature has not yet regulated the substantive right to scrutiny in its entirety.

Definition of the election error

There is therefore no legal definition of the election error. Any violation of formal or material electoral law is viewed as an election error. On the one hand, violations of the five principles of electoral law of Article 38.1 of the Basic Law and, on the other hand, the regulations in the Federal Electoral Act and the Federal Electoral Code come into consideration. An election error can also lie in the violation of the electoral criminal law codified in §§ 107 ff. StGB. Ultimately, however, the entire right to vote - and also the criminal electoral law - is to be regarded as the embodiment of the principles of the right to vote in Article 38.1 of the Basic Law. The violation of one of these electoral law principles remains the core offense of an election error. In fact, there may be errors in the electoral results, i.e. procedural deficiencies in the election preparation phase and during the election itself, on the one hand, and errors in determining the electoral result that has already been achieved, i.e. in the counting, on the other. Decisions and measures that directly affect the election are not only made by official electoral bodies. Third parties who could influence the election result can also be considered.

Merits of the complaint

Not every electoral error leads to the complaint being justified: the electoral examination only serves to guarantee the correct composition of the Bundestag, because the purpose of the procedure is to protect the objective, not the subjective right to vote. An electoral mistake is therefore only intended to justify the complaint if it has or could possibly have had an impact on the distribution of seats.

Differentiated consequences of voting errors

No type of election mistake inevitably leads to a new election. It is now recognized that there are no absolute grounds for invalidity. Instead, the choice made enjoys the greatest possible grandfathering. The gradation of the consequences of an election error is governed by the principle of proportionality:

Pure formal errors - for example in the election minutes - are only corrected. If the result is incorrect, an arithmetic correction is made as far as possible according to the so-called improvement principle. But this is only possible if the correct result can be determined, for example by recounting or recalculating. If necessary, the mandates are to be distributed differently.

If the error cannot be improved mathematically, it is examined whether it could have had any effect on the election result. For this, the election error must at least possibly have been reflected in the vote. This would be the case, for example, if a ballot box is lost or a voting machine fails.

If the electoral error is actually or at least possibly reflected in the voting result, it must be checked whether there is an impact on the actual election result, i.e. the distribution of mandates. It depends on the number of incorrect votes. Only in the case of such an at least potential influence on the distribution of mandates must the election as a last resort be canceled. However, it may only be declared invalid within the limits in which the election error could have an impact.

Elective test in the German federal states

Similar to the federal elections, elections to the state parliaments take place at the state level. The federal states are obliged by the homogeneity requirement of Article 28.1 and 2 of the Basic Law in conjunction with the democratic principle of Article 20.1 of the Basic Law to enable an election test in this regard. All countries have complied with this constitutional mandate and regulated the electoral examination procedure, albeit in very different ways.

Model of the Basic Law

Some of the states, including all five new states, followed the example of the Basic Law. In Baden-Württemberg, Bavaria, Brandenburg, Hamburg, Mecklenburg-Western Pomerania, Lower Saxony, North Rhine-Westphalia, Saarland, Saxony, Saxony-Anhalt and Thuringia, first the state parliament (or the citizenship), then the respective state constitutional court, decide on election complaints.

In Rhineland-Palatinate, it is not the Landtag itself that makes the decision in the first instance, but an election review committee formed by the Landtag and consisting only of MPs. Against his decision, an appeal to the Constitutional Court according to Article 82 of the Constitution has been opened.

Despite the similar level of appeal, the specific procedure is designed differently in all of these countries. In Bavaria, for example, the election test is carried out ex officio, while in Baden-Württemberg the state parliament only acts in response to an objection.

Sonderweg: Berlin

Before unification, the state of Berlin had an electoral review court because it had four-power status and therefore had no constitutional court in accordance with Art. 87a of the Constitution. This changed with the new constitution of 1995. Berlin is now taking a special route: the law on the Constitutional Court assigns this to the decision on questions relating to the electoral examination in § 14 No. 2, 3 and § 40. Berlin is the only federal state with a one-stage judicial election test.

Model of the Weimar Constitution

In Bremen and Hesse, the electoral examination is still assigned to an electoral examination court made up of members of parliament and judges. The constitutions of both countries came into force before the Basic Law, which explains the proximity of their regulation to the Weimar constitution. The Rhineland-Palatinate constitution of May 18, 1947 also provided for a comparable election review court until 1975. However, Bavaria and the Saarland, which also (in this sense) have pre-constitutional constitutions, did not follow the Weimar solution. Rather, its regulations could have served the Parliamentary Council as a model.

The electoral examination courts are composed differently. In Bremen, five members elected from among the citizens decide together with the president and the vice-president of the administrative court. In Hesse, the electoral review court consists of three members of the state parliament as well as the president of the administrative court and the president of the Frankfurt Higher Regional Court.

However, the differences in the regulation of the procedure are more decisive. In Bremen, a complaint against the decision of the electoral examination court can be lodged with the “electoral examination court of the second instance”, which consists of the members of the state court. On the other hand, the decision of the Hessian electoral examination court according to § 17 HessWPG should become final when it is announced.

Austria

The election of the National Council , the Federal President , the Austrian members of the European Parliament and the elections of the regional parliaments and municipal councils can be contested at the Constitutional Court. The period of action is four weeks, unless the relevant electoral law provides otherwise.

Switzerland

The cantonal government is the first instance in the event of contesting the election of the National Council or a federal referendum, which has to decide on this within 10 days. In contrast to Germany, where a challenge is generally only possible after the election, complaints can be made during the ongoing election or voting process. The complaint must be submitted within three days of becoming aware of the reason for the complaint, but no later than the third day after the publication of the election or voting results in the cantonal official journal. The decision of the cantonal government can be appealed to the federal court.

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  1. ↑ Former constitutional judges criticize the Bundestag (Deutsche Welle, September 11, 2006)
  2. ↑ Wahlrecht.de: Reform of the election test for federal elections overdue
  3. ↑ Constitutional Court Act 1953, Section 67
  4. ↑ Federal Act on Political Rights, 6th title: Rechtspflege

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