Berlin State Elections Declared Invalid – TBEN – 16/11/2022

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Germany’s constitutional court ruled on Wednesday that the state of Berlin should hold its elections again next year, after ruling that organizational chaos reported at hundreds of polling stations across the city last September invalidated the vote. The elections in Berlin must now be repeated within 90 days.

Judge Ludgera Selting said the decision had to be made because of the “frequency and seriousness” of the mistakes made, which were so widespread they may have altered the election results. Selting also spoke of “serious system errors” in the preparations for the elections.

Wilko Zich, who heads the non-profit election watchdog Wahlrecht, said the court’s decision was certainly correct. “Democracy is based on accepting results, and that’s only possible if you can trust the results,” he told TBEN. “These errors could not have been corrected in any other way.” It would not have been fair, he argued, for the election to be repeated only in areas that had reported problems.

Sight also believes that Wednesday’s decision should strengthen rather than weaken confidence in democratic institutions. “I think the danger would have been greater if today’s verdict had been different,” he said. “Then you could actually argue: even if something clearly went wrong, how can they just continue and not repeat the elections.”

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Berlin Mayor Franziska Giffey faces a tough race in the repeat electionImage: Emmanuele Contini/imago images

Widespread chaos

Berlin held four votes on the same day on September 26, 2021: the federal elections, the state elections, local district elections and a referendum on socializing large housing companies. While there is no evidence of electoral fraud, the logistical challenges clearly proved too much for many polling stations and there were widespread reports of delays and irregularities in violation of electoral law.

Some ballots ran out, or had the wrong candidates on them, or photocopied hastily, while some polling stations had to be closed during the day, or stayed open longer than allowed. There were reports of volunteers offering to let voters in only if they were willing to vote in the federal election.

The fact that Berlin also hosted its annual international marathon on the same day, restricting access to some stations, added to the chaos. Berlin’s top election official therefore resigned a few days after the election. But the opposition’s Christian Democratic Union (CDU) has demanded that Berlin’s then Interior Minister Andreas Geisel also resign – even though he has since moved to another department.

That would be a step too far, Sight suggested. “There is a good reason why the interior minister does not organize elections,” he said. “I can’t see a mistake being made because of a minister’s decision. It’s not witchcraft, organizing elections, other states are doing it well enough.”

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Green Party Bettina Jarasch
Bettina Jarasch of the Green Party now has a second chance to become mayor of BerlinImage: Christoph Soeder/dpa/photo alliance

Wednesday’s verdict does not affect the federal elections won by Chancellor Olaf Scholz: Since only the German parliament, the Bundestag, is competent for federal elections, the decision of the Berlin court was limited to the state and municipal elections. The referendum on socializing housing associations, which won the “yes” vote, also remains unaffected, as there have been no legal challenges to that result.

On November 10, the Bundestag decided to repeat the federal elections in 431 of Berlin’s 2,256 constituencies. It is unlikely that this will have a meaningful effect on the national result, although one or two MPs could lose their seats.

It also remains unclear exactly when that election rerun will take place, as the matter is still subject to a possible appeal to the Federal Constitutional Court in Karlsruhe, which is likely to take several months. The opposition parties, the conservative CDU and the far-right Alternative for Germany (AfD), can sue to have the elections repeated in more constituencies in Berlin.

Mayor of Berlin faces a new challenge

But repeating the entire Berlin state election will obviously have major consequences for the city government, as it determines the composition of the Berlin parliament and thus the mayor. The current mayor, Franziska Giffey, leads a coalition of her Social Democrats (SPD), with the Greens and the Socialist Left Party.

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But the current polls in Berlin put the SPD in a neck-and-neck race with the Greens and the CDU. Should the Greens take the lead, Bettina Jarasch – currently transport minister in Giffey’s cabinet – would become mayor, likely leading the same coalition of parties. This would also affect the composition of the Bundesrat, the upper house of the German parliament, which represents the 16 state governments.

Some 35 complaints about the elections were submitted to the Berlin Constitutional Court, although the nine judges ultimately decided to deal with only four: those from the State Electoral Administration Office, the Berlin Government Office, and complaints from the Left Party and the AfD, on grounds of the fact that these four organizations handled all complaints.

A repeat state election is very rare in Germany, but not unprecedented: the 1991 Hamburg state election had to be repeated after a court found that the CDU had broken the rules for choosing candidates.

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