GER-2013-2-015
a)  Germany / b)  Federal Constitutional Court / c)  Second Panel / d)  09-07-2013 / e)  2 BvC 7/10 / f) / g)  to be published in the Federal Constitutional Court’s Official Digest / h)  Juristische Schulung 2013, 858-859; CODICES (German).
 
Keywords of the systematic thesaurus:
 
 
Institutions - Elections and instruments of direct democracy - Voting procedures - Casting of votes.
Fundamental Rights - Civil and political rights - Electoral rights - Freedom of voting.
Fundamental Rights - Civil and political rights - Electoral rights - Secret ballot.
 
Keywords of the alphabetical index:
 
Postal voting, voting by absentee ballot / Election, public / European elections.
 
Headnotes:
 
Offering postal voting (voting by absentee ballot) without requiring reasons for this in European elections is constitutional.
 
Summary:
 
I. The applicant lodged a complaint requesting review of an election against the validity of the European elections held in 2009. He contended that it was no longer necessary to state reasons for participating in the postal ballot and complained of what he considered to be a lack of security against falsification and the heightened risk of inadvertently casting invalid votes in the postal ballot.
 
Under the previous law, a person could only receive the ballot paper necessary to cast a postal vote if he or she, on the day of the election, was outside his or her constituency for an important reason, had moved to another constituency and had not yet been entered in the electoral roll of the new constituency, or was unable to visit the polling station for professional reasons or because of illness, due to advanced age, physical disability or otherwise because of his or her physical state, or was unable to do so without considerable difficulties. The reasons for being issued a ballot paper had to be plausibly stated.
 
The law on European and federal elections was reformed in December 2008 so that a voter who is entered in the electoral roll now receives a ballot paper on application. It is no longer necessary to state reasons and to make a plausible case for them.
 
II. The application is unfounded.
 
Public control of balloting is reduced in the case of postal voting. Nor is the integrity of elections guaranteed to the same degree as in ballot box voting in a polling station. Granting a postal vote, however, serves the purpose of achieving a voter turnout which is as high as possible, hence doing justice to the principle of general elections. The principle of general elections – at least in connection with the postal vote – constitutes a fundamental constitutional decision that may run counter to the principles of free, secret and public elections. This decision can, in principle, justify restrictions of other fundamental decisions taken in the Constitution. It is primarily up to the legislator to suitably bring the colliding fundamental decisions into balance when organising the right to vote. It must, however, ensure that none of the electoral principles is disproportionately restricted or might become considerably less effective. This is evidently not the case at present. The Panel has hence repeatedly decided that the postal vote is constitutionally justified.
 
This assessment does not change if it is no longer necessary to provide reasons (and make a plausible case for them) in order to be issued a ballot paper. Waiving this requirement is based on comprehensible considerations, and is still within the margin to which the legislator is constitutionally entitled.
 
When amending the law on European elections, the legislator – concurring with the legislator in the corresponding amendment to the law on elections to the German Bundestag – reacted to the increasing mobility in today’s society, as well as to the greater interest in individual lifestyles. It was guided by the goal of achieving the highest possible electoral turnout.
 
According to the legislator, the obligation to make a plausible case for reasons preventing voters from voting in person had been practically useless. It was not possible to examine even a small sample of the reasons that were stated. Considering the decreasing willingness to cast votes in a polling station, it is comprehensible and unobjectionable under constitutional law to hold the view that any attempt to tighten the requirements to give reasons or to regulate access to participation in postal voting by other means would risk causing further decline in voter turnout.
 
The legislator also considered that a marked increase in the number of postal voters could conflict with the constitutional idea of personal balloting. Drawing in particular on experience from Landtag (state parliament) elections, the legislator for the Bundestag elections argued that one need not fear that waiving the obligation to make plausible one’s reasons for applying would lead to a considerable increase in postal voting. There are no indications that this assessment is incorrect in a constitutionally relevant manner, or that it might not be transferable to elections to the European Parliament.
 
Contrary to the applicant’s submission, there are currently no indications that the existing provisions of electoral law do not offer adequate protection against dangers which may be posed by implementing postal voting; namely dangers to the integrity of elections and to having secret and free elections. The legislator took account of the relevant constitutional requirements when reforming the law on European elections.
 
Languages:
 
German.