Is Something Rotten in the State of Germany?

Party competition is an essential part of democracy. For a free and fair election it is critical that every party can take part in the ballot. In Germany, a council called "Bundeswahlausschuss" (Federal Electoral Committee) decides which parties may participate. If the party has at least five deputies in either the Bundestag or any of the sixteen state parliaments, they automatically stand for election. For all other political organizations the Bundeswahlausschuss decides whether or not they qualify to be a party.

This year the Bundeswahlausschuss, a committee which consists of the Bundeswahlleiter (Federal Returning Officer) and eight delegates chosen by parties represented right now in the Bundestag, rejected among others the appeal of three splinter parties: "Die Grauen", "Die PARTEI" and the "Freie Union". "Die Grauen" and "Die PARTEI" were banned from the ballot because, at least in the eyes of the Bundeswahlausschuss, they are no parties as they could not proof to have active state branches and are seriously participating in public political life. The "Freie Union" was eliminated due to a formal mistake: a signature was missing, or more correctly was given not by the party head but instead by a deputy on her behalf.

Those three cases gained major publicity in Germany as each of them is at least questionable. "Die Grauen" have elected members of local parliaments in the state of Berlin. Considering that party competition is a precious good, this alone should proof that a political organization is actively taking part in the political life and hence is a party. "Die PARTEI" says they have branches in nine states - the main reason why they were banned from the ballot was because the Bundeswahlausschuss believed there was only one such state branch. And a missing signature, as in the case of the "Freie Union", is something that can be healed easily and justifies in no way such a harsh "punishment". "Die Grauen" wanted to file an objection against the decision of the Bundeswahlausschuss just to find out that this is legally not possible.

A Group of nine, the Bundeswahlausschuss, is able to finally decide whether a party may be elected for the Bundestag or not? At the moment this seems to be true. It is even more disturbing, that the eight delegates are chosen by parties which are in the Bundestag right now, thus forming a kind of cartel against splinter parties.

Even the Bundesverfassungsgericht rejected the appeal formally because by law an appeal is possible only after the election. The court said nothing about the case itself.

Nonetheless: An immediate objection is not possible. The only way to object is to appeal against the whole election - after the election. And the chances for a success are slim. Only if the allocation of the seats in the Bundestag is affected the Bundesverfassungsgericht will vote for a repetition of the election. Obviously that is not the case for splinter parties that would score well below the 5% threshold.

So is something rotten in the state of Germany? I think it is. The electoral system needs reform in this respect: there has to be a possibility to appeal against such a decision and still take part in the election. Just imagine how the German party system would look like if the Bundeswahlausschuss had decided in the late 1970s that "The Greens" were not a party.

--Matthias Kuhn