Berlin’s breakdown election from September 2021 is invalid. It is possible that members of the state parliament have been sitting in the state parliament for a year and a half and it is not always clear whether they were properly elected. Your decisions will still remain effective – for practical reasons.
In Berlin, parties are now allowed to distribute flyers and roses again and hang far too many election posters on lanterns, because on February 12th the House of Representatives will be voted on for the second time in 18 months. It is well known why: the capital botched the first attempt in September 2021. Missing ballot papers, closed polling stations and far too long queues – the breakdown list was so long that the state constitutional court in Berlin declared the vote invalid last November. “Mistakes happened that shouldn’t have happened,” explained the Governing Mayor Franziska Giffey afterwards.
In its judgment, the court speaks of “serious systemic deficiencies” in a number that make the elections of September 26, 2021 a presumably unique event in the history of the Federal Republic. So for a year and a half there have been people in the Berlin Parliament who are not always sure whether they were properly elected, but who still go about their work as if nothing had happened: They passed the Berlin budget, decided on the 29-euro ticket and also energy subsidies.
Were they allowed? Do these decisions remain effective? Yes, say the Berlin Constitutional Court and also state and constitutional lawyer Christian Pestalozza. “I understand the question of whether parliament is properly legitimized at all,” explains the lawyer from Freie Universität Berlin in the “Learned Again” podcast from ntv.de. “But you simply cannot reverse Parliament’s decisions.”
According to the Berlin judges, they did not make their judgment lightly. You know that the re-election will be a tour de force that will cost Berlin a lot of money. According to the verdict, it was the most far-reaching intervention in the existence of the elections that could have been possible. However, the judges see no other way to restore democratic conditions in Berlin. And yet all parliamentary decisions stand.
With this decision, the Berlin judges are following established case law. In a similar decision, the Federal Constitutional Court declared that parliament’s right to continue should be weighed against the seriousness of the electoral error. The invalidity of the election has an ex nunc effect: “It does not have retrospective effects, but future ones,” explains constitutional lawyer Pestalozza.
According to the lawyer, the consideration has purely practical reasons. “Imagine an election being declared invalid not just a year and a half, but two or three years later,” he explains. The financial consequences alone would be gigantic if everything had to be reversed, says the lawyer. “That’s practically impossible.”
The grandfathering not only applies to laws, but also to Franziska Giffey. Because her election as head of government was also a decision of the House of Representatives, even if its composition may not correspond to the votes. “It is also true for such election acts that they endure and are not touched,” says Pestalozza. Parliament not only elected Franziska Giffey as Governing Mayor, but also made many other personnel decisions.
If all of these decisions by the House of Representatives were invalid, the scope would be immense. Because then all the decisions of these elected persons would also be invalid – and Berlin would sink completely into a political standstill, the government and the administration would be practically paralyzed, as Pestalozza explains: “They would be busy for the entire legislative period dealing with the consequences of the retrospective declaration of invalidity. “
The lesser evil is that the election debacle is partially accepted and the decisions made are permanent. In the vast majority of cases, this even applies to decisions that the House of Representatives has made and will make after the verdict of the State Constitutional Court. It can continue its work until the repeat elections in February, even if former MP Marcel Luthe sues the “unelected” and therefore “illegitimate” parliament.
The state constitutional court has only formulated a vague restriction for the transitional period: The deputies should “maintain the necessary degree of restraint” – without explaining what that means in concrete terms. A mistake, says Christian Pestalozza: “The court shouldn’t say a sentence like that without citing at least one example,” criticizes the constitutional lawyer. No one knows exactly when the “required level of restraint” is exceeded.
“The court raised its finger and said: Watch out, behave yourself,” explains the lawyer. “But it didn’t tell us what rules of conduct apply.”
Parliament can and must therefore decide for itself which decisions it is still entitled to make. From a legal point of view, these are in any case all decisions to which it is obliged by the constitution or law, such as the budget for the coming year. In addition, it can and must decide on urgent matters, such as state aid in the energy crisis or relief offers such as the 29-euro ticket. Because not making a decision in these matters would harm the population.
But constitutional lawyer Christian Pestalozza sees a clear limit. “The area of ??doubt begins where Parliament does not fulfill any obligations, but creates them itself,” he emphasizes. This applies to tasks that MPs usually feel compelled to do for political reasons. “One could say: Please wait three months and leave it to a possibly newly composed parliament.”
The future work of the House of Representatives is secured, but stands on the shaky ground of discretion. In addition, the administration must organize a new – and this time error-free – election in a short time. State returning officer Stephan Bröchler speaks of a “Herculean task” that will cost Berlin 39 million euros, three times as much as the first edition in 2021. However, all of this will probably no longer have any further personal consequences.
The then state returning officer Petra Michaelis resigned shortly after the debacle. The then Interior Senator Andreas Geisel, who was responsible for the legal supervision of the proper conduct of the elections, is still a member of the Berlin state government as a building senator. He is refusing to resign because, like Governing Mayor Giffey, he says: Berlin caused the election debacle together.
Statements that make many voters angry. However, they cannot automatically deselect the two of them in the repeat election: the legislative period does not end with the second attempt, it simply continues. Despite the election debacle, Franziska Giffey will definitely remain in office after February 12. Unless she resigns – or the newly assembled House of Representatives initiates a vote of no confidence.
