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Announcement of the provisional official election result for the 16th German Bundestag prior to the by-election in the Dresden I constituency held constitutional
Press Release No. 82/2009 of 21 July 2009
Order of 21 April 2009
2 BvC 2/06
The complaint relating to the scrutiny of an election was unsuccessful. It was lodged by the complainant against the announcement of the provisional election results for the 16th German Bundestag on 19 September 2005 and thus prior to the by-election in constituency 160 (Dresden I) on 2 October 2005. The provisions on by-elections in §§ 43.1 no. 2, 43.2 and 43.3 of the Federal Electoral Act (Bundeswahlgesetz - BWG) in the version of 23 July 1993 and in § 82 of the Federal Electoral Code (Bundeswahlordnung - BWO) are compatible with the Basic Law (Grundgesetz - GG). The order for and conduct of a by-election is a recognised and traditional institution of electoral law. The by-election was correctly conducted in compliance with the provisions of §§ 43.2 and 43.3 BWG (old version) in conjunction with § 82 BWO. The determination and announcement of the provisional official election result on the day of the main election does not violate the principles of open elections, equal opportunity or free and secret elections. No objections can be made to the interpretation and application of the provisions of the Federal Electoral Act and the Federal Electoral Code.
The Federal President set the 18th of September 2005 as the date for the election of the 16th German Bundestag. After the decision on the acceptance of the nominations, the NPD candidate for constituency 160 (Dresden I) died on 7 September 2005. As a result, the election was cancelled in the constituency affected and a by-election was set for 2 October 2005. Following the main election on 18 September 2005, the Federal Returning Officer announced the first provisional official result early on the morning of 19 September 2005. The percentage of second votes for the individual parties and the respective number of mandates won by the parties' lists of candidates for each Land (state), including the overhang mandates, were initially calculated without the results from the Dresden I constituency (Press Release from the Federal Returning Office of 19 September 2005). After the provisional election result was announced on 19 September 2005, it was possible to calculate comparatively accurately what second vote result in the Dresden I constituency would lead to the win or loss of an overhang mandate or to a change in the allocation of mandates. The relevant calculations regarding the second and first votes were also published in the media in the days prior to the by-election in Dresden. At any rate, the parties in Dresden tailored their campaign in part to the predictions of the media.
On the evening of the by-election of 2 October 2005, the Federal Returning Officer announced a "second provisional official result for the election of the 16th German Bundestag", which included the election result for constituency 160 (Dresden I). As compared with the provisional official result announced on the day of the main election, the second result led to changes in the allocation of seats in the German Bundestag. The complainant objects in his complaint relating to the scrutiny of an election to the announcement of the provisional election results prior to the conduct of the by-election and objects to the provisions on by-elections in the Federal Electoral Act. He argues that the previous solution provided by the Act and its construction and application lead to different electoral groups having different chances of success and thus to votes having different weights.
In essence, the decision is based on the following considerations:
§§ 43.1 no. 2, 43.2 and 43.3 BWG (old version) are compatible with the Basic Law and in particular with the principle of "one man - one vote" in Article 38.1 sentence 1 of the Basic Law (Grundgesetz - GG). The ascertainment, determination and announcement of the provisional election results following the main election are not objectionable under constitutional law.
The by-election is what made it possible in the first place for the voters in the constituencies concerned to participate in the election thus giving effect to the principle of universal suffrage (Article 38.1 sentence 1 GG). This important electoral principle is accompanied by the principle of equal opportunity for [all] parties and candidates (Article 21.1 GG and Article 38.1 GG). By-elections ensure that the party affected is able to nominate another candidate to replace its candidate who has passed away and participate in the competition for the constituency mandate.
The ascertainment and determination of the election result is subject to the principle of the public nature of elections. This principle obliges the legislature to organise election procedures in such a way as to permit the public supervision of elections by citizens. Supervision would be at least considerably more difficult if the results of the main election were not ascertained until after the conclusion of the by-election. It would be almost impossible to overcome the practical difficulties associated with monitoring, in a manner that the public could easily understand, whether ballot boxes were being properly stored over a longer period of time.
There is no violation of the principle of equal opportunities for [all] candidates and parties. The parties have sufficient opportunity between a main election and a by-election to react to the results of the main election and to canvas voters in the by-election on this basis. This opportunity for evening things out through electoral competition is equally open to all parties.
The determination of a (provisional) result after the main election and its announcement by the Federal Returning Officer prior to the conduct of the by-election does not amount to interference with electoral freedom. This is reflected in the very fact that there is no intention of exerting an influence on how voters cast their votes. The provisional announcement of the election result does not force any voters to vote in a particular way or seriously interfere with their freedom to vote as they see fit.