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Federal Constitutional Court reserves itself the right to examine electoral-law provisions or important doubts under electoral law even after the end of an electoral period
Press Release No. 4/2009 of 23 January 2009
Order of 15 January 2009
2 BvC 4/04
The Second Senate of the Federal Constitutional Court has decided that the court reserves itself the right to examine, in principle, the unconstitutionality of electoral-law provisions in the context of an admissible application for the scrutiny of an election even after the dissolution of a Bundestag or after the regular expiry of an electoral period. The public interest in a decision on the merits which is required for this has however ceased to exist as regards applications that challenge the proper composition of the 15th German Bundestag to the extent that they claim the unconstitutionality of the overhang mandates and object to certain second votes being taken into account in two Berlin constituencies.
In November 2002, the complainant lodged an objection with the German Bundestag against the election to the 15th German Bundestag. The German Bundestag rejected the objection against the election as patently unfounded. The complainant lodged a complaint against the rejection before the Federal Constitutional Court. On 21 July 2005, the Federal President dissolved the 15th German Bundestag at the suggestion of the Federal Chancellor. Meanwhile, the 16th German Bundestag has convened as a result of the elections held on 18 September 2005. The complainant continues to pursue his complaint.
The decision is essentially based on the following considerations:
In principle, the Federal Constitutional Court retains its competence to review the claims of unconstitutionality of electoral-law provisions which have been made in the context of an admissible application for the scrutiny of an election, and of important doubts under electoral law, even after the dissolution of a Bundestag or the regular expiry of an electoral period. After the expiry of an electoral period, there may be a public interest in a decision of the Federal Constitutional Court on the constitutionality of electoral-law provisions and the application of valid electoral law to the extent that a possible electoral error is of fundamental importance beyond the individual case.
After the expiry of the electoral period, there is no public interest in a decision on the merits to the extent that an application for the scrutiny of an election is inadmissible from the outset or if the Federal Constitutional Court has already clarified the constitutionality or unconstitutionality of the challenged provision, or doubts under electoral law raised by the complainant, and if the complainant has not submitted any aspects that might give rise to a different assessment. The same applies if the challenged defect has meanwhile been remedied by amending the provision or if there is a close factual context between the provision in question and provisions whose unconstitutionality has already been established by the Federal Constitutional Court. A public interest in a decision on the merits can also cease to exist if the German Bundestag has already in the objection proceedings established a violation against an electoral-law provision which has been objected to by the complainant.
The public interest does not run counter to terminating the proceedings without a decision on the merits because the objections raised by the complainant are partly inadmissible already because they do not comply with the requirements placed on substantiation. To the extent that the complainant claims that the age limit to the right to vote is unconstitutional, alleges the possibility of an electoral error due to newspaper and magazine inserts and objects to opinion polls before the election as unconstitutional, his sweeping submissions do not meet the substantiation requirements. Apart from this, the complainant has not set out in a sufficiently substantiated manner that an electoral error has occurred on account of election advertising by the FDP which had been funded in an impermissible manner due to a violation of the party's accountability.
Due to the Senate's decision on what is known as the negative voting weight, there is no longer a public interest in continuing the election scrutiny proceedings as regards the complainant's complaint that the equality of voting has been violated by the emergence of overhang mandates and by the fact that the second votes of voters in two Berlin constituencies have been taken into account who secured a mandate for the respective constituency candidate of the PDS with their first vote but voted for a different Land list with their second vote (so-called Berlin second votes). The Federal Constitutional Court instructed the legislature to amend the complex of regulations which can result in the emergence of what is known as the negative voting weight until 30 June 2011 at the latest so that in the future the German Bundestag can be elected on the basis of a law which is in harmony with the constitution. In view of the fact that the effect mentioned is inextricably linked with the overhang mandates and the possibility of combining lists, a new regulation can take as a starting point the emergence of overhang mandates or the offsetting of direct mandates against second-vote mandates or the possibility of creating combinations of lists. After the adoption of the new regulation, the issue of the unconstitutionality of overhang mandates which has been raised by the complainant will no longer arise in the same manner. Whether and to what extent the distribution of mandates in the German Bundestag is compatible with the constitution can only be assessed taking into account the interplay of the different electoral-law provisions, and with a view to the electoral system chosen by the legislature. The same applies to the question whether a double voting success can be achieved by splitting the first and the second vote if the second votes cast for political parties secure list mandates for them even though the voters' first votes have already resulted in a seat in the Bundestag being allotted to the respective party which cannot be offset by means of proportional compensation.
To the extent that the complainant complains of an unlawful use of data by the CDU for election campaign purposes, there is no public interest in a decision on the merits because the German Bundestag established already in the objection proceedings that the transmission to the CDU of the data of all persons entitled to vote in the respective constituencies by the City of Cologne had been unlawful. The Land legislature of North Rhine-Westphalia has meanwhile clarified this by amending the law. The question whether and to what extent the transmission of the data of all those entitled to vote might have constituted a considerable voting error in the past therefore does not need to be decided any longer.
The complainant's remaining complaints concern electoral-law provisions whose constitutionality has already been established by the Federal Constitutional Court and doubts under electoral law which have already been decided by the Federal Constitutional Court. In this regard, the complainant has not submitted any aspects which might give rise to a different assessment.