Bundesverfassungsgericht

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Electoral complaints

The Federal Constitutional Court is called upon to decide on two types of complaints relating to Bundestag elections. The Court decides on complaints by associations regarding their non-recognition as a political party for elections (Art. 93(1) no. 4c of the Basic Law and §§ 96a et seq. of the Federal Constitutional Court Act). It is also competent to handle complaints relating to the validity of elections or to the acquisition or loss of the status of member of Parliament (Art. 41(2) of the Basic Law and § 48 of the Federal Constitutional Court Act). Both types of proceedings have the file reference “BvC”. Such complaints can also be filed regarding the election of the German members of the European Parliament.

The Federal Constitutional Court has not declared an election invalid yet. Even so, finding errors in the electoral process helps ensure that the legal requirements will be respected in future elections. One example is the decision by the Federal Constitutional Court that the use of electronic voting machines to record votes and electronically determine the result of an election infringes the principle of public elections.

Complaint against non-recognition as a political party

Parties that are already represented in Parliament as well as associations that are not yet represented can submit nominations to the Federal Electoral Committee in order to stand for election to the Bundestag (cf. §§ 18 et seq. of the Federal Elections Act). The Federal Electoral Committee examines whether the formal requirements are satisfied and whether an association can be recognised as a party. It does not examine the party manifesto; rather, 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 requirement is not satisfied, for instance, if the association does not have a manifesto or consolidated organisational structures.

The decision of the Federal Electoral Committee may be appealed to the Federal Constitutional Court within a brief time period. The Federal Constitutional Court decides until the 59th day before the election; until it has reached a decision, the association must be treated like a party entitled to submit a nomination (cf. § 18(4a) second sentence of the Federal Elections Act).

Proceedings concerning the scrutiny of elections

Proceedings concerning the scrutiny of elections pursuant to Art. 41 of the Basic Law are intended to ensure that the composition of the Bundestag is in conformity with the Constitution and statutory law. Scrutiny of elections primarily falls to the Bundestag, which 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 Law on the Scrutiny of Elections). Complaints against such decisions of the Bundestag may be lodged before the Federal Constitutional Court (Art. 41(2) of the Basic Law and § 48(1) of the Federal Constitutional Court Act). Such complaints may only be lodged after the decision of the Bundestag has been issued. Bringing forward the scrutiny of elections, for instance through preliminary injunction proceedings pursuant to § 32 of the Federal Constitutional Court Act, is not permissible.

The Federal Constitutional Court reviews whether the electoral law that was applied is in conformity with higher-ranking law, in particular with the Basic Law. It also examines, in the context of the challenges brought, whether electoral law was applied correctly. The standards of review are primarily the electoral principles 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.

To protect an elected Parliament, the Federal Constitutional Court’s decision can only go as far as is required by the error in the electoral process that has been established. Only errors that have, or might have had, an impact on the allocation of seats in the Bundestag can lead to an election being declared invalid. The Federal Constitutional Court also identifies violations of the law that do not lead to an election being declared invalid (cf. § 48(3) of the Federal Constitutional Court Act).