Die Entscheidung des Berliner Verfassungsgerichtshofs zur Abgeordnetenhauswahl 2021 – des Dramas zweiter Akt

Abstract

On 26 September 2021, the administration of the city state of Berlin had to cope with the election of the state’s House of Representatives, the election of the Bundestag and a referendum . Preparing for all of them together amounted to a large number of organizational shortcomings in the preparation and to an unusually large number of electoral errors . The Berlin Constitutional Court had to decide on numerous objections and by judgment of 16 November 2022 decreed that the election to the state parliament must be repeated in all of Berlin . The errors were found to be so comprehensive and serious that only a complete repetition was suitable to restore the damaged trust . This article summarizes the judgment’s main reasons as well as the dissenting opinion of one judge, and it examines whether the Berlin decision is consistent with the case law of the Federal Constitutional Court . It turns out that the Berlin court deviates from the principles developed by the Federal Constitutional Court on essential issues and that a preliminary ruling would therefore have been needed from Karlsruhe . Whether or not the Bundestag election in Berlin’s electoral districts, which was affected by the same organizational shortcomings, is valid, will be decided there, anyway . If Karlsruhe upholds its previous lines of argument, there is a risk of a serious divergence between the jurisprudence of the two constitutional courts .