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Will German expatriates forfeit their right to vote in the upcoming (German) federal parliamentary elections?

Germans who have been living abroad for more than 25 years face the risk of losing the right to vote.  All German nationals living abroad must sign up for entry in the electoral register by 3 September 2017, or else they forfeit the right to participate in the next federal parliamentary elections, called for 24 September 2017!

A potential scandal that has so far gone all but unnoticed by the German public concerns the disenfranchisement of numerous German expatriates (i.e., German nationals whose place of residence is outside Germany) with respect to the Bundestag elections on 24 September 2017.  Especially at risk are German citizens who have had no primary place of residence within the Federal Republic of Germany for the past 25 years. This is because of a change to the 2013 Federal Electoral Law ("Bundeswahlgesetz", or BWahlG).   More than one million German citizens presently live in other EU countries alone; all told, the number of German expats may be up to 3.5 million (no one keeps

precise statistics, and no one knows how many German citizens may now face the risk of forfeiture of their right to vote).

The rationale behind changing the Federal Electoral Law (BWahlG) was the fact that the Federal Constitutional Court declared on 4. July 2012 the old rule unconstitutional, under which the franchise was conditional upon a primary place of residence in Germany of up to three months after one's 14th year of age, and which the court found to be in violation of the prohibition of arbitrary action and of the requirement of certainty.   In lieu of the old rule, the amended arrangement of 2013 says: all Germans have a right to vote if they had a primary residence in Germany for at least three months (after their 14th year of age and less than 25 years ago), or if they can show that they "have for other reasons gained personal and direct familiarity with the political circumstances in the Federal Republic of Germany and are affected by them".  It appears that the old unconstitutional rule has simply been replaced by a new unconstitutional rule – at least as the second alternative is concerned: after all, the new rule ("personal and direct familiarity") is wholly uncertain and vague. 

Those German nationals who live abroad but are still registered as being resident in Germany are entered in the electoral register at their home municipality and will receive a poll card at the given address. Things have thus remained unchanged for this category of German nationals, and they do not have to apply for entry in the electoral register. Conversely, Germans who no longer have their place of residence in Germany (but did at one point after their 14th year of age, for more than three months, and only abandoned it less than 25 years ago), must before each Bundestag election reregister to be


put on the list of voters at the municipality where they last resided (however, the 14 year old-rule is illogical, as the right to cast a vote is granted only to those, who are 18 years old). The relevant application must be submitted three weeks prior to the elections, i.e., no later than on 3 September 2017, on an original physical deed (i.e., applications via e-mail, scan copies, fax etc. will be disregarded).  The decisive moment for determining whether the applicant filed its application in time is the moment in which the application is received by the municipality.

Having said all that, the real trouble awaits those German expats who for more than 25 years have had no official place of residence in Germany, or who never lived (or only lived for less than three months or before their 14th year of age) in Germany.  They must engage in an additional exercise, again within three weeks prior to the elections, i.e., no later than on 3 September 2017, vis-a-vis the last municipality in which they were registered or with which they have the closest ties: they must demonstrate their familiarity with the political circumstances in Germany, and show that they are affected by them.  The passive consumption of media is not sufficient proof.  Conversely, it is apparently enough for the applicant to be actively engaged in the local chapter of a political party abroad, or to be a local employee at the German embassy, the Goethe Institute, or other state institutions.  The case groups put together by the Foreign Office and by the Federal Election Commissioner are quite absurd: reading them, you can see the red tape shining through, crimson and clear. 

The issue with these (very likely unconstitutional) changes is this: the loss of franchise is definite in the sense that it can only be challenged by taking legal action after the election is over, in the form of an election review complaint brought first before the Bundestag and then before the Federal Constitutional Court. This, incidentally, was how the 2012 court ruling came about – which concerned the exclusion of two German nationals living in Belgium from the 2009 federal parliamentary elections.

With all this in mind, we advise all expatriate Germans to register for the elections as soon as possible with their last municipality of residence, and to demand written confirmation of their entry in the electoral register.  In the opposite case, many expatriate Germans will risk the definite forfeiture of their right to vote, in the most important elections of 2017.

Source: Federal Electoral Law (BWahlG)

 

Web Links:
Auswärtiges Amt – German Foreign Office – Německé MZV:
http://www.konsularinfo.diplo.de/wahl
Bundeswahlleiter / Federal Election Commissioner / Úřadu spolkového úředníka pro volby:
https://www.bundeswahlleiter.de/bundestagswahlen/2017/informationen-waehler/deutsche-im-ausland.html