Concept and Significance of the Active Right to Vote
Das active right to vote refers to the right to participate in political elections by casting a vote to directly influence the composition of political bodies, such as parliaments or councils. It is one of the fundamental democratic participatory rights and is protected by various legal sources at both the national and supranational levels.
The active right to vote must be distinguished from the passive right to vote, which describes the right to stand for election and be elected.
Constitutional Basis in Germany
Regulation under the Basic Law
The active right to vote is guaranteed in the Basic Law of the Federal Republic of Germany—particularly in Article 38(1) of the Basic Law for the election to the German Bundestag. There it states: “The members of the German Bundestag shall be elected in general, direct, free, equal, and secret elections.” These principles apply accordingly to other elections, such as those to state parliaments, local councils, or the European Parliament.
The details of the right to vote are further regulated by electoral laws at the federal and state levels (e.g., Federal Election Act, State Electoral Laws, Municipal Electoral Laws).
Principle of Universality, Directness, Freedom, Equality, and Secrecy
Universality of Elections
The right to vote is generally granted to all citizens who meet the relevant requirements, regardless of income, origin, gender, or religion.
Directness of Elections
Votes are cast directly for candidates or party lists, without intermediaries such as electors.
Freedom of Elections
Votes must be cast free from coercion and undue influence.
Equality of Elections
Each vote counts equally. Any different weighting of votes is excluded.
Secrecy of Elections
Votes are cast in secret to protect freedom of choice.
Requirements for the Active Right to Vote
Citizenship
In Germany, possession of German citizenship is generally required for federal and state elections. For municipal elections and elections to the European Parliament, the active right to vote is also granted under certain conditions to EU citizens with their main residence in Germany.
Minimum Age
The active right to vote requires a legally defined minimum age. For federal elections, this is 18 years; for some state and municipal elections, the minimum age has been lowered in part (e.g., 16 years).
Residence/Duration of Stay
Participation in certain elections requires residence or a minimum length of stay in the relevant electoral area. This is particularly relevant in municipal elections.
Grounds for Exclusion
Individuals may be excluded from the active right to vote, for example, due to a final criminal conviction to specific prison sentences or by court order on grounds of legal incapacity. The statutory grounds for exclusion are exhaustively regulated and must be interpreted restrictively to protect the right to vote as a fundamental right.
Structure and Exercise of the Active Right to Vote
Voting Modalities
The active right to vote is generally exercised by casting a personal ballot at the polling station or by postal vote. Postal voting was introduced to enable those prevented from voting in person on election day to participate.
Eligibility to Vote and Election Notification
Eligible voters receive an election notification in advance of the election. Entry into the register of voters is a prerequisite for exercising the right to vote. Incorrect registers can be corrected by means of an objection procedure.
Legal Protection and Significance
Legal Remedies
Violations of the active right to vote can be challenged through legal channels. Various procedures are available, including election review proceedings or a constitutional complaint to the Federal Constitutional Court.
International and Supranational Regulations
The active right to vote is also established at the level of international law, for example in Art. 25 of the International Covenant on Civil and Political Rights (ICCPR) and in Art. 3 of Protocol No. 1 to the European Convention on Human Rights (ECHR).
Citizens of the European Union also have an active right to vote for elections to the European Parliament and for municipal elections in their country of residence.
Special Features and Current Developments
Electoral Law Reforms and Discussions
In Germany, there are regular political and social debates about lowering the voting age as well as possible expansions or restrictions of the active right to vote. Progress, such as the introduction of the active right to vote for EU foreigners in municipal elections or the expansion of access to postal voting, reflect the ongoing dynamism of this area of law.
Importance of the Active Right to Vote in a Democracy
The active right to vote is a fundamental component of democratic legitimacy. It ensures the participation of citizens in political decision-making processes and expresses political self-determination and popular sovereignty.
References and Further Information
- Federal Election Act (BWG)
- Basic Law for the Federal Republic of Germany (GG)
- Electoral Laws of the States and Municipalities
- ICCPR and ECHR
Conclusion: The active right to vote forms the foundation of political participation in a democracy. It is comprehensively regulated by law, constitutionally protected, and subject to national, European, and international rules and developments. The high significance of the active right to vote secures democratic legitimacy and the inclusion of the population in the political process of forming opinion and will.
Frequently Asked Questions
What legal requirements must be met to exercise the active right to vote?
The active right to vote is regulated in the Basic Law (GG) and in the respective electoral laws of the federal and state governments. Voters must generally possess the citizenship of a specific state, be of legal age, and must not be excluded from the right to vote. For federal elections, for example, Germans as defined in Article 116(1) GG are eligible to vote if they have reached the age of 18 on election day and have had their residence in the Federal Republic of Germany or another EU member state for at least three months. Anyone who has been deprived of the right to vote by a judicial decision is excluded from the election. Special rules apply for EU citizens in municipal and European elections if they reside in Germany. The corresponding provisions can be found in the Federal Election Act (BWG), the European Elections Act (EuWG), and in the respective state electoral laws.
What legal grounds for exclusion from the active right to vote exist?
Exclusion from the active right to vote is subject to strict legal requirements. Exclusion may apply, for example, to persons who have lost the right to vote by virtue of a criminal conviction under section 45 of the Criminal Code. In addition, persons for whom a guardian has been permanently appointed for all matters (§ 13 BWG) may under certain circumstances lose their active right to vote—however, this has been significantly restricted by the Federal Constitutional Court (BVerfG). Furthermore, people are excluded from voting if they are permanently unable to manage their own affairs due to severe mental disability and are under legal guardianship. These provisions have been increasingly relaxed in recent years through legislative amendments, so that broad exclusions from voting are now regarded as constitutionally critical and greatly restricted.
What deadlines and formalities must be observed when exercising the active right to vote?
The right to vote can only be exercised within specific deadlines and in compliance with legal formalities. Before an election, each eligible voter is entered ex officio into the electoral register of the respective municipality and receives an election notification at least three weeks before election day. For postal voting, an application must be submitted within the period stipulated by law. Postal ballot papers must be returned in time before election day in order for the vote to be validly counted. The active right to vote can also be exercised on election day by appearing in person at the polling station; a valid identity card or passport must usually be presented for identification.
Which laws govern the active right to vote in Germany, and how do they interact?
The active right to vote is governed by a number of laws, but primarily by Article 38 GG, the Federal Election Act (BWG), the Election Verification Act (WahlPrG), the Federal Electoral Regulations (BWO), and in individual cases by special laws such as the European Elections Act (EuWG) or state electoral laws. Article 38 GG sets out the principles for the election of the German Bundestag, particularly universality, directness, freedom, equality, and secrecy of the vote. The BWG specifies these rules for conducting federal elections and regulates eligibility, grounds for exclusion, and election procedures. The BWO clarifies organizational issues such as the keeping of electoral rolls, the course of the vote, and the determination of results. These provisions interact as follows: the Basic Law serves as the framework and guiding norm, and the statutory provisions further define and operationalize this framework.
Do German citizens living abroad have the active right to vote in German elections?
German citizens who live permanently abroad can—if certain conditions are met—exercise their active right to vote. For federal and European elections, it is decisive whether they are still entered in a register of voters or actively apply to be entered. Regarding the right to vote in federal elections, German citizens living outside Germany are eligible to vote if, after the age of 14, they have lived continuously in Germany for at least three months and this stay was not more than 25 years ago (see Section 12(2) BWG), or if for other reasons they are familiar with and affected by the political conditions in Germany. Applications must be submitted in writing within certain time limits before the election. If timely entry into the register of voters does not take place, the right to vote cannot be exercised.
Are there any restrictions on the active right to vote for incarcerated persons?
The active right to vote for incarcerated persons is generally upheld unless legal grounds for exclusion—particularly exclusion by court order under section 45 of the Criminal Code—are present. Imprisonment as such does not automatically result in the loss of voting rights. Therefore, prisoners belong to the group of those entitled to vote unless individually excluded. Inmates are permitted to vote in correctional facilities, usually by postal vote. The administration of these facilities is required to make organizational arrangements to enable voting.
What legal options are available for complaints about the right to vote?
If a qualified voter believes they have been wrongly omitted from the electoral register or unlawfully excluded from the active right to vote, they have specific legal remedies available. First, within the statutory period, they can file an objection to the electoral register with the responsible municipal authority (§ 21 BWG), which must be processed promptly. In the case of a federal election, after the election, election review proceedings pursuant to Article 41 GG and § 2 WahlPrG may also be pursued, in which the Bundestag reviews the validity of the election upon objection of the affected person. An appeal can be lodged against the Bundestag’s decision with the Federal Constitutional Court. The regulations stipulate strict time limits and formal requirements to ensure effective legal protection.
