Berlin state elections declared void

Germany's constitutional court ruled on Wednesday that the state of Berlin would have to re-run its elections next year, after deciding that organizational chaos reported at hundreds of polling stations around the city last September made the vote invalid. The Berlin election will now have to be repeated within 90 days.

Presiding Judge Ludgera Selting said the decision had to be taken because of the "frequency and gravity" of the mistakes that had been made, which were so widespread that they may have altered the election result. Selting also spoke of "serious systemic flaws" in the preparation for the election.

Wilko Zicht, who runs the nonprofit electoral watchdog Wahlrecht, said the court's decision was certainly right. "Democracy rests on the fact that results are accepted, and that is only possible if you can trust the results," he told DW. "These mistakes could not have been corrected any other way." It would not have been fair, he argued, if the election were only repeated in areas that had reported problems.

Zicht also thinks Wednesday's decision should strengthen, rather than weaken, trust in democratic institutions. "I think the danger would have been greater if the verdict today had been different," he said. "Then you actually could have argued: Even if something has clearly gone wrong, how can they just carry on and not repeat the election." 

Widespread chaos

Berlin held four votes on the same day on September 26, 2021 — the federal election, the state election, local district elections, and a referendum on socializing major housing companies. While election fraud has not been alleged, the logistical challenges clearly proved to be too much for many polling stations, and there were widespread reports of delays and irregularities that violated electoral law.

Some ballot papers ran out, had the wrong candidates listed on them, or were hastily photocopied, while some polling stations had to be closed during the day, or remained open longer than they should have. There were reports of volunteers offering to allow voters in if they were prepared only to vote in the federal election. 

The fact that Berlin was also hosting its annual international marathon on the same day, hampering access to some stations, exacerbated the chaos. Berlin's top election official resigned as a result a few days after the election. But the opposition Christian Democratic Union (CDU) has demanded that Berlin's then-Interior Minister Andreas Geisel also resign — though he has since moved to a different department.

That would be a step too far, suggested Zicht. "There's a good reason why the interior minister keeps out of organizing elections," he said. "I can't see that some mistake was made because of a decision made by the minister. It's not witchcraft, organizing an election, other states manage it well enough."

Wednesday's verdict does not affect the federal election won by Chancellor Olaf Scholz: Since only the German parliament, the Bundestag, has authority over federal elections, the Berlin court's decision was confined to the city's state and municipal elections. The referendum on socializing housing companies, which the "Yes" vote won, is also unaffected, as there have been no legal challenges to that result.

On November 10, the Bundestag decided to have the federal election repeated in 431 of 2,256 Berlin electoral constituencies. This is unlikely to have a meaningful effect on the national result, though one or two parliamentarians may lose their seats.

It also remains unclear when exactly that election repeat might happen, as the issue is still subject to a possible appeal at 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), may sue to have the election repeated in more constituencies in Berlin.

Berlin mayor facing a new challenge

But repeating the entire Berlin state election will obviously have big consequences for the city-state government, as it decides the make-up of the Berlin parliament and therefore the city mayor. The current mayor, Franziska Giffey, leads a coalition of her center-left Social Democrats (SPD), with the environmentalistGreens and the socialist Left Party.

But current opinion polls in Berlin put the SPD in a neck-and-neck race with the Greens and the CDU. Should the Greens come out on top, Bettina Jarasch — currently transport minister in Giffey's cabinet — would become mayor, probably at the head of the same coalition of parties. This would also have an effect on the make-up of the Bundesrat, the upper house of the German parliament, which represents the 16 state governments.

Some 35 complaints were filed to the Berlin constitutional court about the election, though the nine judges ultimately decided only to deal with four of them: Those from the state election administration office, the Berlin government administration office, as well as complaints from the Left Party and the AfD, on the grounds that these four organizations covered all the complaints.

A repeated state election is very rare in Germany, but not unprecedented: The Hamburg state election of 1991 had to be repeated after a court found that the CDU had violated rules on picking candidates.

Edited by Kate Brady