Chance for Wagenknecht? Former President of the Constitutional Court calls election process "not unproblematic"

In the end, around 13,400 votes were missing. The Sahra Wagenknecht Alliance (BSW), which has had astonishing success in elections in its short history, narrowly failed to clear the five percent hurdle in the federal election . This means that the party will not be in parliament - if it stays that way. On Monday, the BSW leadership announced that it would have the result "legally reviewed."

Sahra Wagenknecht, the party leader, justified this with the 230,000 registered voters abroad: Due to the short deadlines before the new election, many had not been able to cast their vote. Media had previously reported that many Germans abroad had not received their postal voting documents. This could have been decisive for the BSW, in theory. The European MP Fabio De Masi even hinted at a possible lawsuit before the Federal Constitutional Court. Could this be successful?

Hans-Jürgen Papier was the President of the Supreme Court until 2010. Given that an election must comply with the principle of universality according to the law, the "process surrounding the current elections of Germans abroad is not unproblematic from a constitutional point of view," says Papier to the Berliner Zeitung. "All citizens should in principle be able to take part in the election."

Hans-Jürgen Papier on election: Bundestag decides on its own behalf

The tight deadlines are indeed set by the Basic Law , says Papier. In the event of the Bundestag being dissolved, a new election will take place within 60 days. "However, the voting procedure for Germans living abroad could have been adapted in good time to these time limits and the current circumstances so that this group of eligible voters can actually exercise their right to vote," says the former President of the Constitutional Court.

Whether possible election errors should be taken into account depends on the extent to which they are relevant to the election. "There must therefore be a concrete and not entirely remote possibility that the election errors could affect the distribution of seats." This is possible: after all, the BSW is only a few thousand votes short. At this point in time, he cannot judge this, as the election process is still being clarified, says Papier.

Before the Constitutional Court can deal with the election, the Bundestag must take up the matter. The electoral committee examines the complaints. Hans-Jürgen Papier sees this as a problem, saying that the procedure for examining the election is "very unsatisfactorily regulated in the Basic Law." "The election examination is first and foremost a matter for the Bundestag, which in a way decides on its own behalf. A complaint to the Federal Constitutional Court is only admissible against the Bundestag's decision. Timely decisions in the context of an election examination are therefore unlikely." Legal reform has been called for for a long time. But nothing has happened.

Federal election: Party lawyer sees “need for legal action”

Party law expert Sophie Schönberger can understand the frustration of Wagenknecht's party. "I understand the anger very well and see a clear need for legal action here," says the legal expert. Nevertheless, she does not think that challenging the election is a promising option. From a legal point of view, there is no "right to the most convenient way of participating in the election." The Federal Constitutional Court explicitly stated this for the last election in Berlin. "In this respect, postal voting only expands the options for Germans living abroad," Schönberger told this newspaper. In theory, everyone has the opportunity to vote locally, i.e. in Germany, and is therefore not excluded from the right to vote.

"The fact that this is not possible for those affected in many cases is essentially a risk to their own lives by their decision to move abroad," says the party law expert. Nevertheless, urgent consideration should be given to whether the voting options for Germans living abroad could not be made significantly easier. One possibility is that they could be allowed to vote in embassies.

Influence on seat allocation? There is probably no need for exact proof

Niklas Simon from the University of Freiburg also does not think that challenging the election is promising. The research assistant is doing his doctorate at the Institute for Public Law and recently wrote for the "Verfassungsblog" about the voting of Germans living abroad. It is conceivable in principle that additional BSW votes would affect the distribution of seats. "Especially since the Federal Constitutional Court does not accept any exact proof of this, but only a concrete possibility," says Simon. "However, most of the problems arose with the postal vote of Germans living abroad who only make up a small proportion of Germans living abroad."

In addition, according to the Constitutional Court, potential voting behavior may be taken into account. "The BSW will therefore not be able to simply argue that one must assume that all those whose ballots did not arrive voted for BSW." Relevance to the mandate is therefore by no means certain.

The election review process would probably fail, says Niklas Simon. At the moment it looks as if the Federal Returning Officer, the local authorities and the foreign representations have done everything possible to ensure that people participate in the election - "in particular by expanding the use of the official courier route," he says. "They have therefore not violated any regulations." If the Constitutional Court takes a different view, Simon believes that the entire federal election would have to be declared invalid, not just a part of it. "Because the problems with postal voting by Germans living abroad did not just affect individual constituencies, but the entire election." According to case law, this is now possible in exceptional cases.