27 May 2022

Slugs of Berlin

The utter abjectness of the Berlin civil service is a matter that fairly everyone in Germany will immediately and effortlessly agree upon. Of course we do. After all, it’s perfectly true what they say and write, as every Berliner can confirm from their own experience. Every day, the hugely popular Tagesspiegel Checkpoint newsletter arrives with a new long list of blissful sarcasms about what has been screwed up and gone wrong again in this or that branch of the Senatsverwaltung. Every day you keep shaking your head: this can’t be happening, there’s no way it can go on like this. But of course it can go on like this. It has been going on like this for so many years. In the meantime, shaking our heads has become a habit that we no longer want to do without. There are less pleasant things to do with your head than shaking it. One could almost think that the republic affords itself this dysfunctional federal capital as a kind of symptom carrier and designated patient whose existence allows it not to have to confront its own unresolved conflicts.

One of the things the Berlin civil service is known to have achieved with particular aplomb was to mess up the state and federal elections last September in the most spectacular way. We have written intensively on this matter here, and Christian Waldhoff’s report from his own experience was ultimately even instrumental in the resignation of the Berlin state election commissioner. In the case of electoral errors, unlike botched airport planning or unavailable civil service appointments, however, one doesn’t necessarily have to resign to sarcasm and head-shaking. There is a legal process in place to make sure that there will be consequences. Or so one would think.

The Bundeswahlleiter (Federal Election Commissioner) has lodged an objection against the election in six Berlin constituencies, and the Bundestag’s Electoral Review Committee sat in judgement on it in oral proceedings last Tuesday. This sentence already encompasses the peculiarity of this event: It is a court procedure implanted in parliament. There are contentious hearings on questions of fact and law. Members of parliament, the lawful creation of which is the subject of the proceedings, are sitting on the bench. The plaintiff is nominally the head of the process whose defectiveness he is objecting to. And while the chairperson of the committee, Daniela Ludwig (CSU), emphasised her intention to “avoid any tribunal character”, the chairs on which the representatives from Berlin have taken their seats did indeed seem to bear a distinct resemblance to the dock.

The most peculiar thing about this whole setup seems to me to be the Bundeswahlleiter himself. Not the person of course – the incumbent, Georg Thiel, leaves no doubt about his determination to enforce the law and the constitution in general and against the failure of the Berlin civil service in particular – but the office.

In Germany, the Federal Election Commissioner is appointed by the Federal Ministry of the Interior for an indefinite period of time and a career civil servant of that very Ministry himself, traditionally the President of the Federal Statistical Office. In its self-understanding, the office is not part of the state administration but, as an electoral organ (Wahlorgan), an “institution of social self-organisation not bound by instructions”. I cannot seem to find any norm that explicitly safeguards this independence, though. And either way, its institutional link to the Home Secretary already shows that the correct conduct of democratic elections in Germany in 2022 is still considered a sort of policing matter.

This strong link to the executive branch is balanced by the fact that the Bundeswahlleiter’s powers are limited by the federal design of the election administration. Even though they are federal elections, their actual administration is mostly carried out at the state and municipal level. When the first federal elections were held in 1949, there was no federal election commissioner at all; the state election commissioners did the job on their own account. And even today, the Federal Election Commissioner has no authority over the state election commissioners on how to conduct their business. He has neither the authority to issue instructions nor to interfere. There are no reporting obligations towards him. The fact that he is informed at all about what went wrong during the election is based on a mere “gentlemen’s agreement”, as Thiel put it at the hearing on Tuesday. And if a state, like Berlin now apparently, finds it useful to discover to the Federal Election Commissioner only a segment of all that went wrong, then it can. The Berlin state election administration, for its part, shrugs its shoulders regretfully: They didn’t possess any exact knowledge of what has been going on, either. Unfortunately, that’s the responsibility of the district administration.

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It seems to me that the problem lies not only in the personal or structural inadequacy of the actors involved, but in the institutional set-up. Why does Germany not have, as other countries, a proper and meaningful, independent Federal Election Commission, which has all the necessary competences for the correct conduct of a federal election and then can also be held responsible for anything that goes awry, no matter at which level?  What is this “self-organisation” between the municipal, state and federal levels but diffusion of responsibility?

But also materially, the sense of the electoral review system that is in place in Germany does not seem entirely self-evident to me. Its aim is to investigate whether and which electoral errors have occurred exactly, and whether they were “mandate-relevant”, i.e. serious enough to have a mathematical effect on the composition of the Bundestag. With only 802 more votes, the SPD would have got an additional seat. That means, according to Thiel’s calculation, that only three votes more for SPD per affected polling station in Berlin on average would have sufficed to change the composition of the Bundestag. But how does one determine whether or not an electoral error is big enough to make that appear likely if it consists of votes not cast and thus not recorded to begin with? Can one, as the Berlin election administration suggests, simply extrapolate from the general voter turnout and the vote shares of the parties? If a statistical guess like will do, to quote the CDU/CSU MP Patrick Schnieder, why take the trouble of actually counting votes in the first place?

Assuming the impact on the composition of the Bundestag is a given – what is the legal consequence? How does one correct such an error? What is gained by repeating the compromised election at a (much) later date? How democratic is it when six Berlin constituencies are allowed to re-elect an already elected Bundestag months after the fact in a completely different political situation? What is this whole electoral review procedure but, at best, a placebo, and at worst, a procrastination measure to process all flaws into oblivion until it’s disposed of through the passage of time?

So, would a repeat election be a proportionate remedy for these errors? This question was also hotly disputed in the hearing. According to the Berlin state election administration, it would be disproportionate to ask 900,000 Berliners to cast their votes anew because a few thousand voters were deprived of theirs’. To this, the Federal Election Commissioner Thiel objected with the, in my view, valid argument that one man, one vote is also about minority protection. If you deprive a small minority of their right to vote, you can’t argue that a correction be disproportionate because their number appears small in relation to the majority whose rights you left untouched. In Thiel’s view, it is absolutely imperative to repeat the election in the six constituencies concerned, as a matter of principle. The price, however, would be most likely a significantly lower turnout, he admitted, which then, via overhang and compensatory mandates, might even impact the distribution of mandates throughout Germany.

What about those who have moved away from or to one these Berlin constituencies in the meantime? Would this make a repeat election disproportionate? Thiel’s answer was again categorically no. This distortion was inherent in the system and already priced in by election law and thus can no longer be included in the proportionality test.

My impression is that the willingness to actually throw out the flawed Berlin election is distinctly more pronounced in the CDU/CSU than in the SPD. Unsurprisingly so. This is still Parliament, not a court. The party of Olaf Scholz and Franziska Giffey presumably has little desire to test in practice whether their victories of last September can be replicated under current conditions. So it’s quite possible that this election review procedure will end as they always do. The case will end up in Karlsruhe, and by the time a verdict is reached at the Bundesverfassungsgericht, the legislative period will be over anyway.

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Stellenausschreibung DFG-Forschungsgruppe „Menschenrechtsdiskurse in der Migrationsgesellschaft (MeDiMi)“

Gibt es eine „Vermenschenrechtlichung“ migrationsgesellschaftlicher Diskurspraxis, und welche Reichweite, Formen und Folgen hat sie?

Im Rahmen der DFG-Forschungsgruppe „Menschenrechtsdiskurse in der Migrationsgesellschaft (MeDiMi)“ sind an der Professur für Öffentliches Recht und Europarecht (Jürgen Bast) zum 1.9.2022 zu besetzen: 1 wiss. Mit. (Postdoc, 100 %), 2 wiss. Mit. (Promotionsstellen, 65 %) und 1 Projektkoordinator*in (Wissenschaftsmanagement, 50 %). 

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Which is why we should perhaps ask about the institutional set-up here, too. I spoke on the phone today with the political scientist Oliver Lembcke. He makes a radical but interesting suggestion: If the Bundestag has been elected in such a flawed way, why don’t we try to fix this before it convenes, instead of (months and years) afterwards? Why not install an independent Federal Election Commission that has the power to intervene and order in such a case that the flawed elections are repeated right away, as quickly as possible, without further delay? Look, Berlin, before we can establish a valid election result, the new Bundestag can’t convene, the new Chancellor can’t be elected and the new government can’t be appointed. So you’d better get your act together immediately. Of course, that would be terribly stressful, complicated and expensive, both administratively and politically. But perhaps for that very reason it would also be a sanction that both the state and the federal level would really want to avoid at all costs. Instead of just shrugging and saying: Too bad, sorry, but nothing can be done now anyhow, the way the Berlin administration does now in their usual sluggish manner. That’s just not good enough.

I would like to thank Tobias Gafus, Oliver W. Lembcke and Christian Neumeier for their valuable input.

The week on Verfassungsblog

… is summarized by PAULINE SPATZ:

Taking in millions of Ukrainian refugees, European civil society has shown how well it can interact with refugees when borders are opened and inhibiting regulations are removed. States have been learning in recent weeks to be supportive rather than controlling. DIETRICH THRÄNHARDT argues in favor of using these experiences to question more critically than before to what extent restrictions on the free movement of refugees make sense.

Unsurprisingly, the Federal Constitutional Court has ruled the so-called facility-based mandatory vaccination to be constitutional in its decision of April 27, 2022. The decision continues the realignment of the proportionality test that was already advanced in the decisions on the federal emergency brake. For STEPHAN RIXEN, this is a reason to wonder whether the Federal Constitutional Court is about to damage its proportionality case law legacy.

The German Parliament is far too large – this makes it too expensive and hinders its ability to work. Therefore, politicians have been trying for a long time to make it significantly smaller through a reform of electoral law. The representatives of the “traffic light coalition” who were appointed to the electoral law reform commission propose substitute votes as a solution. ALEXANDRA BÄCKER & HEIKE MERTEN explain why this proposal creates more problems than it solves, both constitutionally and politically.

As of May 28, 2022, the EGBGB will have its own provision on fines for the first time. Fines actually serve to safeguard public safety. In this respect, the introduction of the provision on fines into private law is surprising. NIKLAS WOLF takes a critical look at the new Art. 246e EGBGB and shows how consumer interests become part of public order in the sense of “ordre public” through an EU regulation.

Roughly two weeks ago, the European Commission presented its draft for a regulation to prevent and combat child sexual abuse. Associated with this is the introduction of the review of all digitally sent content (“chat control”), which is likely to be the largest state surveillance project in Europe since the end of the Cold War. The “chat control” is obviously a violation of the Charter of Fundamental Rights, argues ERIK TUCHTFELD, because this way, the Commission would basically abolish the digital secrecy of correspondence while nothing would be gained in terms of child protection.

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 Wissenschaftliche Stelle beim Fachinformationsdienst für internationale und interdisziplinäre Rechtsforschung

Der von der Deutschen Forschungsgemeinschaft an der Staatsbibliothek zu Berlin angesiedelte Fachinformationsdienst für internationale und interdisziplinäre Rechtsforschung unterstützt die wissenschaftliche Community mit spezialisierten Informationsressourcen und -infrastrukturen jenseits der bibliothekarischen Grundversorgung vor Ort.

Hierfür und insbesondere für Zielgruppenkommunikation und Open Access-Beratung ist eine wissenschaftliche Stelle als Elternzeitvertretung vakant. Die Ausschreibung finden Sie hier.

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The Constituent Assembly in Chile is in the finishing stages before the final proposal is to be published on July 5, 2022. But for several weeks now, polls show a slim majority intending to vote against the new constitution. SVENJA BONNECKE suspects that this is mainly due to communication failures of the Constituent Assembly and blames both the media and the members.

Illiberal autocrats may tend be nationalist – but they have no problem with international cooperation and networking, as seen in the meeting of US conservatives in Budapest a week ago. Typical for these occasions is the careful selection of trustworthy participants based on strong personal connections and shared values across different religions and continents. RENÁTA UITZ traces the efforts of illiberal actors to build a global alliance.

In response to public pressure and criticism from survivors, many states have begun to investigate actions taken and decisions made during the COVID-19 pandemic. The question of who investigates and what is investigated may be as important here as the results themselves. JOELLE GROGAN analyzes “partygate,” the Sue Gray report, and the failure of governments to learn from their mistakes.

In Kenya, the High Court has ruled that there is a right to safe abortion. JOSHUA MALIDZA NYAWA celebrates the decision as a sign of what the Global South has to contribute to the global constitutional debate, also in contrast to the US, where the Supreme Court appears to be on the verge of taking down this very right.

At last count, the federal government had 39 Bundesbeauftragte (commissioners). Their titles are as diverse as the scope of their tasks. Their constitutional framework is largely undefined. Bundesbeauftragte act on behalf of the federal government, but they do not govern – what functions do they assume,