Berlin Constitutional Court's Decision to Annul Regional and Local Election Results

Buzin A.Yu.

Abstract

The annulment of the results of the Berlin state election held on September 26, 2021 revealed certain weaknesses in how elections are organized in Germany. However, it also revealed the defining attributes of the state's approach to the importance of the institution itself. Berlin's constitutional court demonstrated an admirable independence by sorting out priorities in its assessment of electoral violations. Assessing the procedural violations committed in the elections, the court pointed out that said violations undermine election principles and credibility. It is also important that Berlin's constitutional court quantified the influence of the violations on the seat allocation.

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Introduction

On September 26, 2021, Berlin, Germany's capital and a city-state, elected its highest legislative body — the House of Representatives (Abgeordnetenhaus) — and the District Assemblies (Bezirksverordnetenversammlungen). The law dictates that these elections must always be held at the same time. Berliners also elected members of the German Bundestag and voted on a referendum on the expropriation of the housing properties held by major real-estate companies. As a result, the September 26, 2021 voting process became complicated for both election organizers and voters. The Election Day was also the date of the 2021 Berlin Marathon, which disrupted travel in the city.

As a result of all these complications, many Berliners either had to stand in line at polling stations or decided not to vote at all. In two constituencies out of 12, election organizers got the ballots mixed up, handing out ballots from other constituencies as a result. Some election commissions ran out of ballots, and some polling stations had to close much later than the legal voting deadline because of the long waiting lines.

The election organizers themselves proposed to cancel the vote returns in two constituencies. The Berlin Senate (the executive branch of the government), which oversees the elections, proposed to cancel the elections in a number of polling stations; and the Alternative für Deutschland (AfD) — the party directly involved in the election — demanded that the entire election be cancelled.

The power to annul election results in Berlin lies with the Constitutional Court of the State of Berlin (CCB), which combined the claims of three applicants (the third applicant was a party that ran under quite a straightforward acronym "die PARTEI," but the CCB rejected the its claims on the grounds of the party not having nominated candidates in the contested districts), reviewed the case and ruled to annul the House of Representatives and the District Councils election results and to rerun the ballot.

This paper presents an analysis of the CCB decision. This analysis shows how Berlin's (and Germany's) approach to elections and their organization in particular differs from that in Russia. These differences are rooted not in the legal regulation of elections alone (which is much more particularized in Russia than in Germany), but in the state and political systems of the two countries as well.

The violations committed in the Berlin elections, detailed in the CCB decision, are less likely to occur in Russian elections, and have not previously taken place on such a scale. Whenever election results were annulled in Russia, it was based on direct fraud, and it was unlikely that procedural violations (and multiple such violations can occur in Russian elections as well, albeit of a different nature) could have serve as the grounds for annulling the election results. In Germany, it was different: no election fraud was detected, but procedural violations turned out to be grounds for annulment.

To understand the CCB's decision, it is necessary to know the structure of Berlin's electoral bodies, which we describe below. Although the structure of electoral bodies in Germany differs significantly from that in Russia, the reason for violations in German elections does not stem from this difference.

Electoral Authorities

The structure of Berlin's electoral authorities (electoral administration) is similar to that in Russia. It is hierarchical and comprises three levels: state (regional) electoral administration, constituency electoral administration and precinct election committees.

The electoral administration of the highest level (the city-wide constituency, which includes all of Berlin's territory) in made up of officials: the Landeswahlleiter (state election commissioner) appointed by the Berlin Senate (the executive authority), and the staff, as well as the Landeswahlausschuss (state election commission), which is independent within its jurisdiction.

The constituency electoral administrations organize elections in each of Berlin's 12 administrative districts. The entire city of Berlin is divided into 78 constituencies, in which 78 members of the House of Representatives are elected according to the principles of majority voting. Constituencies that fall within one administrative district form a "territorial constituency" (Wahlkreisverband; calling it "district constituency" makes very little sense). In each territorial constituency, voters vote for one of the party lists on the ballot for that territorial constituency (except for when they are supposed to vote for a particular candidate under majority voting). In territorial constituencies, elections are organized by the second-level electoral administrations, which consist of a constituency election commissioner appointed by the district administration and a constituency election commission (Bezirkwahlausschuss). The constituency election commissioner also works with an administrative office of his/her own — Constituency Election Department.

The lower level of electoral bodies is represented by Precinct Election Committees (PEC; Wahlvorständen), which handle the technical side of organizing and conducting voting at polling stations. They are formed by Constituency Election Departments. They include 3-7 people and an electoral specialist chairperson (Wahlvorsteher) appointed by the same department. The difference in the names of the collegial electoral authorities requires special attention: they are called commissions at the city and constituency level, and committees at at the precinct level. This distinction reflects the fact that the lower level should perform strictly technical functions.

The state election commission consists of six voting members and two judges of the Berlin–Brandenburg High Administrative Court. These six members are appointed by the state election commissioner, who is obliged to "take into account the proposals of the parties represented in the House of Representatives according to their share of the second vote in the last election to the House of Representatives." The same requirement applies to constituency election commissions formed by the constituency election commissioner, but not to PECs that are formed by the Constituency Election Departments.

Therefore, Berlin's system of electoral authorities is legally tied to the administration, to the executive branch. And while there is a legal requirement that election officials not display party affiliation [3: §3(4)] such a declaration cannot be legally guaranteed, of course.

In other words, elections in Berlin (and in all of Germany) are organized by the executive branch, which reflects the fact that elections are the state's responsibility. This is the essential difference between how elections are organized in Germany and in Russia. In Russia, although the Constitution encharges the state to organize elections, they are formally organized by authorities unaffiliated with either branch of government. The configuration of Berlin's electoral authorities may seem extremely concerning to the Russian observer, and this concern relates to the model of the Russian state system in the first place. If the incumbent administration is not unbiased towards certain contenders (candidates or parties), it has ways of influencing the outcome of elections through electoral authorities. However, judging from what happened in the 2021 Berlin election, the reason for annulling the election results was not at all that. Moreover, the analysis of the detected violations and electoral statistics testifies rather to the electoral authorities' impartiality and to the presence of an important counterbalance to possible administrative resource use, that counterbalance being the independent judiciary.

Voting Procedures

The September 26, 2021 elections were quite a challenge for Berliners. Voters had to mark six items on five ballots (we are talking about the voter with the right to vote on all the items). The voter could give

– two votes on one ballot in the Bundestag election ("first vote" for a candidate in a majority constituency, "second vote" for a party list),

– one vote (the so-called "first vote") on the ballot for a candidate for the Berlin House of Representatives in a majority constituency,

– one vote (the so-called "second vote") on another ballot for a party list of candidates for the House of Representatives,

– one vote on the ballot with party lists for his/her district assembly and

– one more vote as an answer to the referendum question.

Ballots were mailed to everyone who applied to receive them this way. Ballots like these could be used in two ways: either to vote by mailing the filled-out ballot (or submitting it personally in a sealed envelope), or to exchange the received ballot for a new one on the voting premises on election day. Postal voting and postal vote counting, which takes place in separate "postal" PECs, involves a procedure that preserves the secrecy of the vote.

The turnout at the Berlin House of Representatives election amounted to 1,844,278 voters — 75.4% of their total number. Nearly half of these voters — 46.8% — voted by mail. The remaining 980,733 voters voted at the polling stations. Electoral roll compilation rules allow us to assume that turnout in District Assembly election amounted to that in the House or Representatives election.

Certain statutory procedures were violated in the election to the House of Representatives. Elections to the House of Representatives and District Assemblies have shared legislative regulation and are governed by two basic documents: the House of Representatives and District Assembly Elections Act (Gesetz über die Wahlen zum Abgeordnetenhaus und zu den Bezirksverordnetenversammlungen, Landeswahlgesetz) and the Instructions (hereinafter referred to as Instructions; it is also sometimes called the Electoral Code) for Elections to the House of Representatives and District Assemblies (Wahlordnung für die Wahlen zum Abgeordnetenhaus und zu den Bezirksverordnetenversammlungen, Landeswahlordnung). The first regulates the basic provisions, while the second provides a more detailed description of how election procedures should be organized. The events of September 26, 2021 were primarily in violation of the Instruction, and the Berlin Constitutional Court mostly refers mainly to this document.

Proceedings at the Constitutional Court of the State of Berlin

The Constitutional Court of the State of Berlin (CCB) conducted a detailed review of all of the evidence of violations submitted by the petitioners and concerned parties (of which there were over a hundred), as well as questioned many election organizers and independently examined the protocols of all 2,256 PECs, which contained not only the vote returns, but also comments on the voting process.

The BCS decision includes 155 pages of detailed descriptions of the violations and their assessment. It's important that the Constitutional Court annulled the election result based on QUANTITATIVE assessments of the influence the detected violations produced on seat allocation. The Constitutional Court assesses most of the violations in terms of how they could have influenced the seat allocation. In other words, the number of violations is compared to the number of votes received by the candidates and the possible (potential) change in the number of votes had these violations not occurred. CCB does not base its decision solely on a formal deviation of procedures from the law.

Naturally, the assessment of the potential influence of violations on the distribution of votes is only hypothetical. The CCB assesments often refer to subjective probability, which is certainly inherent in members of the court. One can agree or disagree with these assessments, as evidenced by the non-unanimous decision (seven against two) and the dissenting opinion of one member of the court. Nevertheless, the attempt of a judicial institution to informally quantify violations is significant in and of itself, since this institution is independent of the election organizers and participants and which possesses a Constitution-granted right to be an arbiter between the state and its citizens.

It is also worth noting that in applying a quantitative approach to the reasoning behind its decision, the CCB employs the constitutional right to vote and the purpose of elections as the final arguments. This confirms the court's informal approach to the complex issue of the cost of elections (Berlin allocated 39 million euros for the the repeat election [1]). The CCB is blunt about this dilemma: "The Constitutional Court is aware that this decision represents the most serious interference in the outcome of the September 26, 2021 elections. Nevertheless, in view of the principle of the lesser evil, in view of the numerous and serious violations, it is the only right thing to do, because the requirement to have a law-conforming House of Representatives and District Assemblies is consistent with the purpose of democratic elections." [2: 32-33].

There were four types of violations:

– refusal to issue a ballot because of a shortage,

– voting using incorrect ballots,

– voting-process breaks caused by ballot delivery wait and

– violation of the law-prescribed voting time.

The CCB condisered all of these violations of procedure as a violation of voter rights in general.

The CCB were very careful about the evidence of violations: each violation was supported by written or oral testimony and documents of election organizers, as well as witness testimonies.

It is worth noting that the most comprehensive evidence was provided by the election organizers themselves (not the participants!), primarily by Petra Michaelis, Berlin State Election Commissioner. She was the first petitioner to request that the election results of two majority constituencies where some voters failed to receive ballots be annulled. The second applicant was the Berline Senate Department for the Interior, and the Alternative for Germany (AfD) party the third. Petitioners presented the court with more or less complete evidence of violations, but the evidence presented by the State Election Commissioner was the most complete. At an oral hearing held on September 28, 2022, she submitted to the Constitutional Court a tabulated list of voting errors committed at 455 of the 2,256 polling stations. The circumstances of the case and the evidence presented were available to all parties in interest, and the CCB received more than a hundred comments.

Assessments and Arguments of the Constitutional Court

According to the Constitutional Court Act, elections to the House of Representatives can only be annulled if the Basic Law, the Berlin Constitution, the Federal Elections Act and the Federal Electoral Regulations are violated, resulting in a changed distribution of parliamentary seats [2: 32].

That said, German law establishes that an election cannot be annulled on the grounds of detected procedural violations alone.

In this regard, the CCB decision text predominantly recites specific facts, linking them to the provisions of various laws and quantifying their influence on how the seats in House of Representatives were allocated. Despite the fact that violations were detected at only about one fifth of polling stations and only in 22 out of 78 majority constituencies, the CCB claims that the elections should be annulled pervasively, because the results and the vote returns in majority constituencies (considering the first vote) influence the party-list seat allocation, while the vote returns under the proportional system (considering the second vote) in one territorial constituency influence seat allocation in the entire city district. This is indeed the case according to the rules for determining election results (the so-called "mixed compensatory system"), and the extent of such influence can be quantified (although the Constitutional Court did no such thing, simply declaring such influence took place).

The CCB emphasized the absence of direct fraud and deliberate distortion of the results at the hands of election organizers. "The outlined violations do not constitute direct electoral fraud or other manipulation. They also do not consist in misconduct or bias on the part of nearly 38,000 volunteers involved in the election on Election Day, who, according to the findings of a factual investigation conducted by the Constitutional Court, largely tried to do their to solve the issues that arose on Election Day" [2: 33].

The CCB sees a violation of the PRINCIPLES of universality, equality and freedom of elections in the detected procedural violations. In describing the violation of specific articles of the law, the court emphasizes that they violated the PRINCIPLES of the institution of elections. For example, issuing photocopies instead of official ballots violates the principle of equality of voters; issues with obtaining a ballot and waiting lines violate the principle of universal elections. Finally, voting after the polling station had been closed (and exit polls had been published) violates the principle of freedom of choice. Therefore, the CCB bases its decision not only on the fact that violations influenced seat allocation, but also on the fact that the principles of elections as an institution were violated.

There is no denying that the weakest point of the CCB's argument lies in quantitative calculations of the potential number of "spoilt" votes, meaning the votes that either were left uncast due to organizational issues or were cast with formal violations of the law.

Assessing Distortion of Voters' Will

The number of "spoilt" votes is estimated based on the assessed number of ballots that were either

(a) unissued,

(b) issued with formal violations.

The number of ballots in category (a) was estimated either according to

(aa) an actual entry in the PEC protocol;

(ab) the duration of recorded breaks in the process of issuing ballots at PECs. To estimate the number of unissued ballots, the total break time was divided by 5 minutes — the CCB considered it a realistic amount needed for a voter to vote.

The number of ballots in category (b) was estimated as either

(ba) The number of ballots issued in an improper form, meaning copies of ballots (which some PECs had to produce with the approval of a superior agency due to ballot shortages);

(bb) The issuing window (in minutes) after the voting end time at 6:00 p.m., divided by 5 minutes.

Out of these four estimates, only (aa) can be considered sufficiently accurate. Therefore, in cases where the number of unissued ballots exceeds the difference between the number of votes received by the two leading candidates in a majority constituency, the election result should naturally be called into question. These cases did not escape the attention the State Election Commissioner, who herself called for annulling the election results in the two constituencies where this occurred (Charlottenburg-Wilmersdorf 6 and Marzahn-Hellersdorf 1) [2: 130]. It is worth noting that under a mixed compensatory system, annulling the results in a majority constituency may affect the seat allocation in the city district and between territorial groups.

However, the CCB goes beyond the matter of unissued ballots and provides calculations that show that in four more majority constituencies the number of "spoilt" votes exceeds the difference between the number of votes received by the two leading candidates [2: 131].

Moreover, the BCС notes that in 13 constituencies, the number of voters who did not vote is more than twice the difference between the number of votes received by the two leading candidates [2: 132]. These constituencies also indicated a large number of procedural violations. The CCB interprets this fact as indirect evidence that violations could have affected seat allocation.

The resulting CCB estimates amount to between 20,000 and 30,000 "spoilt" votes [2: 138]. The court argues that this may have affected seat allocation between the parties under the proportional representation system in the entire city district. As an example, the CCB cites the fact that the Alliance 90/The Greens and AfD needed only 10,000 or 2,000 more votes to change the number of seats (seats are allocated between the parties according the Hare-Niemeyer method).

Legal and Non-Legal Grounds for Annulling the Election

The CCB notes that the decision to annul the election results comes close to a clash of two constitutional principles: on the one hand, it is important to restore the electoral rights that had been violated, on the other hand, the stability of elected bodies should be protected. This is how the CCB decision goes: "The presence of violations, however serious they may be, does not automatically render the elections invalid... Therefore, annulling all elections requires the presence of violations of such gravity that the continued existence of an elected body is deemed unacceptable" [2: 138].

Considering the conflicting arguments for and against annulling elections, the CCB ultimately states that "the tipping factor for annulment as the preferred course of action is the fact that the citizens of Berlin stand to lose trust in the democratic structures as a result of the severity and scale of violations. A free democratic constitutional state is based on trust—trust that the state itself can neither create nor guarantee, but can in fact protect through transparent procedures that meet constitutional requirements. If this trust is undermined, the democratic legal order can become unstable in the long run. If the severe and frequent electoral violations are ignored and the election results are not annulled, the reputation of democracy in Berlin will suffer permanent damage" [2: 145].

On the Separation of Powers

In the decision, the Constitutional Court of the State of Berlin was quite unsparing in pointing out the perpetrators of election annulment: "The responsibility to organize elections lies with the state electoral authorities (Landeswahlleitung) and, as part of their general supervisory duty, the Senate's Department of the Interior (Senatsverwaltung für Inneres)... This responsibility arises directly out of Clause 2i, Article 2 in connection with Article 39, Clause 1 of the Constitution of Berlin and out of the resulting constitutional obligation to ensure that elections are conducted in accordance with the principles of electoral law." The result was Berlin's judiciary calling attention to two responsibilities of the executive branch: to hold elections and to safeguard and ensure the electoral rights in the process.

This very decision of the Constitutional Court presents as radical because it is not based on fraud per se (fraud being a common phenomenon in a sham election), but on mere procedural violations. The court's decision is very German in its meticulousness, as it elaborates the importance of following democratic procedure and expounds how procedural violations further violate election principles, all while pointing out the importance of elections as an institution. The court stresses that if procedural violations are left unchecked, they will undermine the trust in democratic institutions.

Pointing out the perpetrators of election annulment further demonstrated the court's independence from the executive branch, affirming the principle of the separation of powers. As a result, the Constitutional Court's decision: appointed the date for repeat elections to the House of Representatives and District Assemblies (February 12, 2023); allocated considerable funding for the elections (PEC members' pay in particular was increased fourfold); dismissed the Berlin State Election Commissioner for Elections.

Acknowledgements

I thank Stephanie Schiffer for the provided materials and commentaries.

Received 28.01.2023, revision received 08.02.2023.

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References

1. Gandzior A. Wiederholunswahlen kosten Berlin 39 Millionen Euro. – Berliner Morgenpost, 16.11.2022. URL: https://www.morgenpost.de/berlin/article236784751/Wiederholungswahlen-kosten-Berlin-39-Millionen-Euro.html (accessed 08.02.2023). (In German) - https://www.morgenpost.de/berlin/article236784751/Wiederholungswahlen-kosten-Berlin-39-Millionen-Euro.html
2. Verfassungsgerichtshof des Landes Berlin, Urteil VerfGH 154/21 Verkündet am 16 November 2022. (In German)
3. Wahlordnung für die Wahlen zum Abgeordnetenhaus und zu den Bezirksverordnetenversammlungen (Landeswahlordnung) in der Fassung vom 9 März 2006. (In German)