Non-voters against their will: On the disenfranchisement of Germans living abroad in the last Bundestag elections

Deutsch

By Manuel Müller

Germans living abroad can only vote in the Bundestag elections by post. And this year, many of them couldn’t even do that.

For the first time in my life, I did not vote in last Sunday’s German federal election. Involuntarily, like probably tens of thousands of other Germans living abroad. Given the expected tight schedule (the Federal Returning Officer had warned already in early November that there might not be enough time to prepare if the elections were held in January or February), I took the first opportunity in December to register to vote and request an absentee ballot.

Unlike voters living in Germany, Germans living abroad have to register each time they want to take part in an election. This year, for the first time, this could be done by e-mail – which led to the number of registered voters abroad rising by around two-thirds compared to the last Bundestag election, from just under 130,000 to over 210,000. But with an estimated 3-4 million Germans living abroad, this is still a remarkably low proportion.

My ballot paper never arrived

I was eligible to vote in Berlin-Mitte because that was my last place of residence before leaving Germany. Given the notoriously overburdened Berlin administration, I asked for an acknowledgement of receipt for my voter registration, which I promptly received. The German embassy in Helsinki also did what it could and organised a special courier for 18 February to take the ballot letters to Germany. Some of my friends were able to use this to take part in the election. But for me and many others, all efforts were in vain: The postal voting documents – which were sent out in Berlin-Mitte from 10 February on – have still not reached me.

According to Deutsche Post, the standard transit time for Priority letters from Germany to Finland is 5-8 working days; longer transit times are possible and experience shows that they are not uncommon. So even in the best-case scenario, I would have needed a bit of luck to get my ballot paper in time. And I wasn’t the only one: A letter to the USA, where many German expats live, has a standard transit time of 6-10 days. In the EU capital, Brussels, many people were affected, too (also due to a strike by the Belgian postal service). Even the German ambassador in London did not receive his ballot paper. It is not known exactly how many German expatriates were unable to vote, but the number is likely to have been in the five-figure range.

Will the election have to be repeated?

All this is not only personally frustrating, but could also affect the validity of the election. Two conditions would have to be met for the election to be at least partially re-run: First, the fact that so many absentee ballots did not arrive in time would have to be an electoral error. And secondly, the error would have to be serious enough to have at least a potential impact on the distribution of seats in the Bundestag.

The post-election public debate in Germany has focused mostly on the latter. This is mainly due to the left-conservative party Bündnis Sahra Wagenknecht (BSW/–), which missed out on entering the Bundestag by less than 13,500 votes. Immediately after the election, Wagenknecht announced that the party would challenge the election, referring in part to the voting problems of Germans living abroad.

However, this focus on the BSW and the five-per-cent threshold is somewhat misleading. An electoral error already has “mandate relevance” if any party could have won an additional seat by winning a large proportion of the uncounted votes. In this case, according to the provisional results, the CDU (EPP) would have needed less than 13,000 additional votes to win one more seat in the Bundestag. Compared to the estimated number of affected (non-)voters, this is not a particularly high threshold. The mandate relevance should thus be there – provided, of course, that those affected actually take the trouble to document their prevented participation in the election by lodging an appeal.

The alternative: travel to Germany – but is that a realistic option?

From a legal point of view, however, it is also necessary to consider whether the fact that Germans living abroad were prevented from voting constitutes an electoral error at all. Such an error exists if either the electoral law was not correctly applied or the electoral law itself contradicts higher-ranking law. In this case, Article 38 (1) of the Basic Law, which guarantees that the elections are “general”, is particularly relevant.

In public statements made before and after the election, several legal scholars gave a number of reasons why this might not be the case. There are two main arguments: The first is that it is ultimately the voter’s own responsibility to ensure that their ballot paper arrives at the polling station on time. Instead of relying on postal voting, they could have travelled to Germany and handed in their ballot paper in person. (If, as in my case, the documents had not arrived at all, you could have gone to the electoral office until 12 noon on the day before the election and obtained a replacement ballot paper on the spot).

However, this option of travelling to Germany is only really plausible for expatriates living in one of Germany’s neighbouring countries. For voters who would have to fly for hours to get to their polling station, it hardly seems a realistic or proportionate alternative. Whether this will be enough to save the principle of “general” elections will probably only be decided by the Federal Constitutional Court.

Administrative overload is not constitutionally required

The second argument touches on constitutional law and claims that the problems were real but unavoidable. After all, Article 39 (1) of the Basic Law explicitly states that if the Bundestag is dissolved, new elections must be held within sixty days. As a lex specialis, this provision takes precedence over the principle of universal suffrage. The short deadline is more important for the constitution than ensuring that all Germans actually have the opportunity to vote.

However, this argument implicitly assumes that the effective organisation of overseas elections within the sixty-day period is factually impossible – that the legislature, the government and the administration have really done their utmost to reconcile the two constitutional requirements. This is clearly not the case. Firstly, the overburdening of the German administration, which leads to printing orders being placed late or to the selection of cheaper rather than quicker postal service providers, is neither natural nor required by the constitution, but simply a consequence of understaffing and underfunding. And secondly, a number of changes could also be made to the electoral law to simplify the vote of Germans living abroad and thus comply with the constitutional principle of “general” elections even within a sixty-day period.

An inefficient and bureaucratic system

Compared to other European countries, German electoral law for citizens abroad is remarkably inefficient and bureaucratic.

This starts with the aforementioned obligation to renew your voter registration for every single Bundestag election. (If you’re interested, here is the form.) The background for this is that Germany has no general register of its citizens living abroad. In France, there is the Registre des Français établis hors de France, in which French citizens abroad can register voluntarily and which, in addition to consular services, allows them to vote in national elections. In Italy, until a few years ago, there was the Anagrafe Italiani Residenti all’Estero (AIRE), a compulsory register of Italians living abroad managed by the municipalities; it has since been merged into the single national register ANPR.

Germany, on the other hand, only operates the ELEFAND list, which allows citizens abroad to receive messages from the Foreign Office in crisis situation. Beyond that, Germany does not keep any record of its citizens living abroad – which means not only that their exact number is unknown, but also that they have to register individually for each election.

And there is more: According to Section 12 (2) of the Federal Elections Act, Germans who have been living abroad for more than 25 years even lose their right to vote in the Bundestag completely, unless they can prove that they are “personally and directly familiar with the political situation in the Federal Republic of Germany and are affected by it”. If you wonder what exactly that means, there is a four-page information sheet by the Federal Returning Officer; the relevant form is available here. In practice, the rule does not make much sense. Citizens abroad who are not familiar with the political situation in Germany would hardly bother to vote anyway.

Voting in embassies and consulates

These registration hurdles make voting cumbersome and already deter many German citizens abroad, as evidenced by the relatively low registration rates. However, the problems with voting are even more serious. The fact that online voting (which is possible for all voters in Estonia and for citizens living abroad in France) is not allowed in Germany is perhaps unsurprising in a country known for its digital scepticism. Admittedly, most other European countries have also decided against such a model for security reasons.

But there is also the option of voting in diplomatic missions, i.e. embassies and consulates. This model is widespread in Europe, with two-thirds of EU member states offering it to their citizens abroad. For example, if I were a Finnish citizen in Germany, I could vote in the Finnish parliamentary elections at the Finnish embassy in Berlin. But Germany, which after France has the second densest network of diplomatic missions among all EU countries, does not allow this. If you are a German abroad and want to vote in the Bundestag elections, you can only do so by post.

Abroad constituencies would make voting easier

One reason for this may be that (as mentioned above) Germans living abroad are entitled to vote in the constituency where they last lived before leaving Germany. As each of the 299 constituencies in the Bundestag election has different candidates, embassies would have to stock hundreds of different ballot papers and find the right one for each voter. This would be a considerable administrative burden, even with a unified voters’ register.

But that is not an unavoidable obstacle. Several other European countries – such as France, Italy, and Romania – have specific overseas constituencies in their national parliamentary elections. Why shouldn’t also Germany treat its citizens abroad like a “17^th state” in federal elections, with its own state list and its own constituency candidates, who could be nominated by the abroad branches of the parties?

German expatriates would then no longer be entitled to vote in their former home municipality, but, for example, in a “Europe” or “America” constituency. Exactly how many overseas constituencies there would be and how they would be organised would depend on the number of voters registered on the overseas electoral roll. The 3-4 million Germans living abroad are roughly comparable to the population of Schleswig-Holstein or Saxony. But even if you take only the much smaller number of around 215,000 Germans living abroad who have registered to vote this year, that would still be enough for one Bundestag constituency. (Bremen, with 450,000 eligible voters and 350,000 voters, has two).

Germans abroad lack representation in the Bundestag

Such a model would greatly simplify voting abroad, especially in embassies and consulates, as only one type of ballot paper would be required. At the same time, there are also good democratic reasons for having an overseas constituency. The main purpose of having constituencies in the first place is to ensure a balanced geographical distribution of the members of the Bundestag. This is deemed important because it is assumed that people who live in the same place structurally also have certain common interests, which should be represented by an MP from that place.

However, this logic can also be applied to citizens living abroad: By virtue of their place of residence, they share certain structural interests that distinguish them from citizens living in Germany. In particular, they are more directly affected by the Bundestag’s and the federal government’s foreign and European policy decisions. On the other hand, some Germans living abroad have hardly any ties to their former place of residence, where they are entitled to vote under the current electoral system. And, of course, the MP for the Berlin-Mitte constituency will see herself primarily as a representative of the residents of Berlin-Mitte, and will have little regard for the special needs of her constituents in Helsinki, Beijing or Aix-en-Provence.

Should expatriates be allowed to vote at all?

Finally, a fundamental question: Should citizens living abroad have a right to vote in national parliamentary elections at all? In my view, there would be no good reason for this in a supranational democratic federal system, and even in today’s world I see universal suffrage in the country of residence (where people pay taxes and are subject to local laws in everyday life) as the more important political goal. If I myself could vote in Finnish parliamentary elections and a Finn living in Germany could vote in Bundestag elections, that would make more sense to me than the other way round.

But we are still a long way from such a universal suffrage for residents in national parliamentary elections, and there is no doubt that citizens living abroad can also be strongly affected by decisions taken by the parliament and government of their country of origin. To take an extreme example, consider British citizens living in the EU who, in 2020, found themselves stripped of their European citizenship rights as a result of the UK Parliament’s Brexit decision.

As things stand, good organisation of voting rights abroad is therefore a key prerequisite for the democratic participation of migrants. With its overly bureaucratic procedures, overburdened administration and tight voting deadline, Germany failed its expatriates in this Bundestag election. Whether the election will have to be repeated – at least in part – remains to be seen. What is clear, however, is that the electoral system should be reformed to prevent this from happening again.

Picture: Glenn Carstens-Peters [Unsplash license], via Unsplash.