In connection with Bundestag elections, there are two types of proceedings before the Federal Constitutional Court. On the one hand, the Court decides on complaints by associations regarding their non-recognition as a political party for the election (Art. 93 (1) no. 4c of the Basic Law and §§ 96a et seq. of the Federal Constitutional Court Act). On the other hand, it is competent to deal with complaints relating to the validity of the election or to the acquisition or loss of the status of a Member of Parliament (Art. 41 (2) of the Basic Law and § 48 of the Federal Constitutional Court Act). Both types of proceedings may be recognised by their “BvC” file references. They can also be instituted regarding the election of the German Members of the European Parliament.
To date, the Federal Constitutional Court has not declared an election invalid. If, however, electoral errors are established, this contributes to legal standards being respected in future elections. An example for this is the Federal Constitutional Court’s decision that the use of electronic voting machines to record votes and to electronically ascertain the result of an election infringes the principle of the public nature of an election.
Complaint Against Non-Recognition as a Political Party
Parties which are already represented in the parliaments, as well as associations which are not yet represented, may submit nominations to the Federal Electoral Committee in order to stand for election in Bundestag elections (cf. §§ 18 et seq. of the Federal Electoral Act – Bundeswahlgesetz). The Federal Electoral Committee examines, on the one hand, whether the formal requirements have been satisfied, and on the other hand, whether an association can be recognised as a party. This is not an examination of the party programme’s contents. What is decisive is whether the association seriously pursues its declared intent to participate in the formation of the political will of the people. This can be lacking, for instance, if the association does not have a programme or consolidated organisational structures.
The decision of the Federal Electoral Committee may be appealed before the Federal Constitutional Court within a brief time span. The Federal Constitutional Court decides until the 59th day before the election; until it has reached a decision, the association shall be treated like a party entitled to submit a nomination (cf. § 18 (4a) second sentence of the Federal Electoral Act).
Complaint Concerning the Scrutiny of an Election
The proceedings concerning the scrutiny of an election pursuant to Art. 41 of the Basic Law intend to ensure that the composition of the Bundestag conforms to the Constitution and to the law. The scrutiny of elections is first and foremost the responsibility of the Bundestag, which itself decides on the validity of Bundestag elections and on whether rights were violated during an election or its preparation (Art. 41 (1) first sentence of the Basic Law and § 1 (1) of the Scrutiny of Elections Act – Wahlprüfungsgesetz). The decision of the Bundestag may be appealed by way of complaint before the Federal Constitutional Court (Art. 41 (2) of the Basic Law and § 48 (1) of the Federal Constitutional Court Act). Such a complaint may only be lodged after the resolution of the Bundestag has been adopted. The “anticipated” scrutiny of an election, for instance in preliminary injunction proceedings pursuant to § 32 of the Federal Constitutional Court Act, is impermissible.
The Federal Constitutional Court reviews, on the one hand, whether the electoral law that was applied is in harmony with higher-ranking law, in particular with the Basic Law. On the other hand, it examines, in the context of the challenges made, whether the electoral law was applied correctly. The standards of review are primarily the principles of electoral law under Art. 38 (1) first sentence of the Basic Law and the provisions of the Federal Elections Act as well as the Federal Electoral Regulations.
In the interest of protecting an existing elected parliament, the Federal Constitutional Court’s decision can only go as far as required by the electoral error that has been established. Only electoral errors that had, or might have had, an impact on the allocation of seats in the Bundestag can lead to an election being invalid (relevance to the allocation of seats). Violations of the law that do not render an election invalid shall all the same be declared to have taken place by the Federal Constitutional Court (cf. § 48 (3) of the Federal Constitutional Court Act).