Bundesverfassungsgericht

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Provisions regarding the right to vote and be elected of German nationals living abroad unconstitutional

Press Release No. 61/2012 of 07 August 2012

Order of 4 July 2012
2 BvC 1/11

Germans living abroad are entitled to vote and be elected according to § 12 sec. 2 of the Federal Elections Act (Bundeswahlgesetz - BWG) if they have continuously resided or had their habitual residence in Germany for at least three months prior to moving away. The legislature had gradually relaxed the requirement of established residence in the past. In addition to the requirement of prior three-month residence, the right of German nationals living abroad to vote and be elected was initially contingent on no more than ten years having passed since they moved away. The period since moving away with regard to German nationals living outside the member states of the Council of Europe was later increased to 25 years. The legislature ultimately ceased making any distinction whatever between German nationals living abroad within and outside the member states of the Council of Europe and abolished the period since moving away.

The applicants were born in Belgium in 1982 and are German nationals. Since they had not lived continuously in Germany for three months at any time, they were denied participation in the 2009 Bundestag elections. With their complaints requesting the scrutiny of an election, they were complaining that the prerequisite of prior established residence in the Federal Republic of Germany violated the principle of general elections.

The Second Senate of the Federal Constitutional Court ruled that the right of German nationals living abroad to vote and be elected, as formulated by § 12 sec. 2 sentence 1 BWG, is incompatible with the principle of general elections under Article 38 sec. 1 sentence 1 of the Basic Law (Grundgesetz - GG), and is null and void. The electoral error that has been ascertained, however, does invalidate the 2009 Bundestag elections.

The decision was handed down with 7:1 votes. Justice Lübbe-Wolff submitted a dissenting opinion.

The Decision is Essentially Based on the Following Considerations:

1. The principle of general elections guarantees the right of all nationals to vote and be elected. It must be understood in such a way that strict and formal equality applies concerning the admission to the election of the German Bundestag. Therefore the legislature only has narrow latitude to restrict the elaboration of the right to vote and be elected. Distinctions may only be justified if the reasons for them are legitimated by the Constitution and are at least as weighty as general elections. Potentially justifiable reasons include in particular the objective pursued with democratic elections to safeguard the nature of the election as an integrative process in the formation of the political will of the people. Thus, exclusion from the right to vote may be constitutionally justified if there were a specific group of individuals for which the possibility to participate in the process of communication between the people and state bodies did not exist to an adequate degree.

2. According to these standards, § 12 sec. 2 sentence 1 BWG violates the principle of general elections. The provision brings about unequal treatment within the group of German nationals living abroad. It denies those German nationals living abroad who do not meet the requirement of prior three-month residence in the Federal Republic of Germany the right to vote. This unequal treatment is not legitimated by an adequate reason.

It is unobjectionable under constitutional law that the legislature does not fully realise the principle of general elections in the participation of German nationals living abroad in elections because, according to the legislature's assessment, the ability to take part in the process of formation of political will and political opinion requires a minimum of personal and directly acquired familiarity with the political situation in Germany. Linking the right to vote and be elected solely to prior three-month residence in the federal territory, however, violates the requirement to carefully balance the principle of general elections with the communication function of elections. The goal pursued by the legislature to ensure familiarity with the political situation in the Federal Republic of Germany, which is considered a prerequisite to take part in elections, cannot be achieved solely by requiring prior three-month residence in Germany. According to this requirement, a non-negligible number of German nationals living abroad are permitted to take part in elections who have not been able to acquire such familiarity at all because, at the time of their residence in Germany, their age did not permit them to yet have the maturity and insight to do so. Others left the Federal Republic of Germany so long ago that the experience acquired at that time no longer corresponds to the current political situation. It is true that the requirement of prior three-month residence is likely to exclude German nationals who have no ongoing relationship with Germany from taking part in elections. At the same time, however, its effect is that Germans cannot vote in elections to the German Bundestag who are typically familiar with the political situation and are affected by it, such as Germans living abroad who work in Germany as "border workers".

The provision contained in § 12 sec. 2 sentence 1 BWG can, finally, also not be justified by stating that otherwise, an accumulation of persons entitled to vote in specific constituencies, or a major change in the structure of the electorate, would take place. It is not possible to state that the link to prior three-month residence in the locality from which a person moved away would reliably ensure an equal distribution among the constituencies of qualified German voters living abroad. It is also not necessary to link the right to vote and be elected to prior residence in the federal territory in order to prevent constituencies being created which are unequal in size, because it is not evident that this objective could not be achieved just as reliably by other, less incisive allocation criteria.

Dissenting opinion submitted by Justice Lübbe-Wolff:

The ruling of the Senate derogates from the case-law of the Federal Constitutional Court established to date in a manner that is surprising and not convincing in terms of its content.

As a consequence of the development of mobility and communications technology, linking the right to vote and be elected of the person concerned to a continuous or habitual residence of at least three months, at present or only a few years ago, in the electoral area has lost its plausibility. The legislature took account of this by successively reducing the restrictions on voting for German nationals living abroad. The remaining requirement of at least three months' residence in the electoral area regardless of how long ago it was may be considered relatively inexpedient as the sole criterion for communication potential relevant to the right to vote and be elected. This is, however, not the point. Communication is indeed essential for democracy. As to the link which is established, and is to be established, by democratic elections, it is not the connection in terms of communication, but the connection in terms of responsibility, which is more fundamental- a connection in terms of responsibility of the real, serious kind, in which not only words are to be exchanged, but consequences of personal decision-making conduct are also to be borne both by those electing and by those elected. The more often, and the further, formal affiliation - in Germany, the status of being a German according to Article 116 sec. 1 of the Basic Law (Grundgesetz - GG) - and being affected by state authority in substantive terms fall apart, the more does it therefore correspond to the purpose of democratic elections to link the right to vote and be elected not to formal affiliation alone, but also to the fact that the voters influence the policies that impact their own living conditions, not those of others. The justification of the three-month rule lies in the fact that it is intended to safeguard the necessary minimum of a real tie with the Federal Republic of Germany. In this differentiating function, the three-month rule takes into account, on the one hand, the fact that, even after living abroad for many years, Germans may still have links to Germany which make the German res publica a personal concern for them. On the other hand, it prevents the right to vote inherited via nationality being passed on to individuals with regard to whom the exercise of a right to vote in Germany would no longer constitute an act of democratic self-determination, but only an act of co-determination over others. Thus, a justifiable balance has been struck between contradictory constitutional interests.