Federal Constitutional Court - Press office -

Press release no. 82/2009 of 21 July 2009

Order of 21 April 2009 2009 – 2 BvC 2/06 –

Announcement of the provisional official election result for the 16th
German Bundestag prior to the by-election in the Dresden I constituency
held constitutional 


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.


This press release is also available in the original german version.