Election review complaint

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The election review complaint is a legal remedy in German law in the procedure for examining the validity of an election . If the election examination complaint is admissible and well-founded, the result will be changed in whole or in part. The election can also be ordered again.

Bundestag elections

An election review complaint can be lodged with the Federal Constitutional Court (BVerfG) against the decision of the Bundestag on the validity of the election of the German Bundestag . The jurisdiction of the BVerfG results from Art. 93 Para. 1 No. 5 i. V. m. Article 41, Paragraph 1, Clause 1, Paragraph 2 of the Basic Law . Further implementation provisions are contained in Section 13 No. 3, Section 48 BVerfGG .

In order for the electoral examination procedure to be admissible before the Federal Constitutional Court, an objection must first be made against the election according to § 2 WahlPrG . This objection must then have been rejected by resolution of the Bundestag according to § 13 WahlPrG. An application must then be submitted to the BVerfG within two months of the decision.

According to § 48 BVerfGG, applicants are eligible to participate

The application itself is justified if the election result and the distribution of mandates are illegal. This is the case if the legal basis ( Section 6 (5), (6) sentence 1 of the Federal Electoral Act ) is invalid or if there are violations of Article 38 (1) sentence 1 of the Basic Law in the electoral process. The violation of Art. 38 GG must also be “relevant to the mandate” . If a lawfully conducted election would have resulted in other majorities in the constituency, the election in the constituency must be repeated ( Section 83 BWahlO and Section 44 BWahlG). If, on the other hand, the electoral norm is unlawful, a new election must take place if a new election would not take place in the next six months anyway (so-called “limitation of the consequences of errors through the principle of proportionality”).

A need for legal protection or an interest in clarification is also required. As a result, the complaint is usually resolved at the end of the legislative period, unless fundamental issues that need clarification are raised.

An election examination complaint is justified if

  1. the handling of an objection to the Bundestag election by the Bundestag was formally incorrect and this formal error is material, d. H. removes the basis for the decision of the Bundestag or
  2. the election a) violates constitutional electoral principles (in particular Article 38.1 sentence 1 GG) or b) violates simple electoral laws, and this violation may affect the distribution of mandates.

While the Bundestag's electoral review committee only checks the correct application of the electoral laws as part of the objection procedure, the BVerfG also examines the electoral laws to determine whether they are materially compatible with the Basic Law.

As a legal consequence, the election can only be declared invalid if there is mandate relevance and, after weighing the mandate relevance with the grandfathering of the elected parliament, sufficient relevance of the mandate relevance has been determined. Furthermore, the unconstitutionality of the simple electoral laws or parts of them can be determined.

Election review complaints bear the number of the responsible Second Senate with the registration number BvC , followed by the serial number and - separated by a slash - the year.

Individual evidence

  1. ↑ Art. 3 No. 2 a) cc) of the Act to Improve Legal Protection in Electoral Matters of July 12, 2012 ( Federal Law Gazette I, p. 1501 ).
  2. ↑ Decision of the Federal Constitutional Court of February 26, 2009 in procedure 2 BvC 6/04
  3. ↑ BVerfGE 89, 243 (249) Rn 33