Definition and Significance of a By-Election
A by-election is an electoral procedure conducted to fill a vacancy in a mandate or office outside of a regular election date. The term encompasses elections in public bodies such as parliaments, municipal committees, and councils as well as in private-law associations such as clubs, foundations, or cooperatives. The necessity for a by-election typically arises from the departure of a mandate holder before the end of their term of office or as a result of an invalid election outcome.
Legal Foundations of By-Elections
By-Elections in Public Law
Constitutional Provisions
In the area of public law, by-elections are regulated in particular by the constitution as well as the respective electoral laws. For instance, the Basic Law of the Federal Republic of Germany (§ 39 para. 3 GG) provides the basis for conducting federal elections and stipulates that further details are to be regulated by federal law. The same applies to the constitutions of the federal states and municipalities, which set out differentiated rules for by-elections in their respective electoral laws.
Federal and State Electoral Laws
For federal elections, the Federal Election Act (§ 46 BWahlG) contains provisions in the event that a Bundestag mandate expires prematurely, for example due to death or resignation. According to legal requirements, either the next candidate on the party list moves up (list election), or a by-election is held if a direct mandate is affected and there are no available substitute candidates.
Likewise, the state election acts contain detailed rules regarding the conduct, deadlines, and procedures for a by-election, which may differ in certain aspects. Municipal legal provisions regulate by-elections in district assemblies, municipal councils, or district committees.
Occasions and Requirements
Typical occasions for by-elections in public law are:
- Death of a mandate holder
- Resignation or withdrawal from office
- Loss of eligibility or grounds for incompatibility
- Declaration of invalidity of the original election (e.g., due to serious electoral law violations)
Depending on the reason, the procedures and deadlines within which a by-election must be conducted may vary.
By-Election in Private Law
Association Law and By-Election
In the area of private-law organizations, the German Civil Code (§ 27 BGB) as well as the respective articles of association of the club or organization regulate the procedure for the by-election of board members and other representatives. Members elected in a by-election generally assume their office for the remainder of the current term, unless otherwise specified by the articles of association.
Cooperatives and Foundations
For foundations or cooperatives as well, legal provisions and articles of association stipulate by-election procedures when, for example, a board or supervisory board member departs prematurely. These regulations are generally modeled on the provisions of association law.
Special Features of By-Elections in Corporate Bodies
In corporations, such as stock corporations or limited liability companies, the by-election of supervisory or board members is determined by the Stock Corporation Act, the Limited Liability Companies Act, and, where appropriate, the articles of association. The Works Constitution Act also contains provisions for by-elections for the works council (§ 13 BetrVG).
Procedure and Process of the By-Election
Preparation and Conduct of the By-Election
The essential steps of a by-election include:
- Determination of the necessity for a by-election, for example by formal resignation or death.
- Timely announcement of the by-election to members, voters, or eligible voters in compliance with statutory or legal deadlines.
- Renewed nomination of candidates or lists, insofar as no substitute candidates are available.
- Conducting the election in accordance with the relevant legal regulations and organizational requirements.
- Subsequent determination of the election result as well as certification and notification to the relevant authorities.
Deadlines and Exclusion Periods
For the conduct of a by-election, binding deadlines usually apply:
- In the public sector: A by-election must generally be held within a few months after the vacancy is established.
- In the private sector: The deadline is usually derived from the association’s articles, and is often set for the next regular general meeting.
Validity and Legal Consequences of a By-Election
The validity of a by-election depends on the proper compliance with all relevant regulations. Violations can lead to challengeability or nullity. The person elected regularly assumes office immediately upon determination of the by-election result.
Distinction from Related Electoral Procedures
A distinction must be made between by-election, substitute election, and replacement appointment. In a substitute election, the next available list position is filled, whereas a by-election requires a new election. Replacement appointment occurs when an additional seat is allocated to a list, for example, to maintain proportional representation.
By-Election and Its Significance for the Legal Order
By-elections serve a central function in ensuring the operability of democratic bodies and private-law organs. They guarantee the continuous democratic legitimacy and functionality of elected representations by ensuring that vacated mandates are promptly replaced according to the principles of the rule of law.
Source note: This article is based on authoritative legal sources, including the Basic Law for the Federal Republic of Germany, the Federal Election Act, the respective state election acts, the German Civil Code, the Stock Corporation Act, as well as relevant articles of association from private-law associations. These provisions provide a comprehensive insight into the complexity of the by-election procedure under German law.
Frequently Asked Questions
Who is entitled to participate in a by-election and what requirements must be met?
All persons who would have been eligible to vote in the original election at the time of the by-election are generally entitled to participate in a by-election. The requirement is that they remain eligible to vote on the reference date of the by-election, meaning in particular that they have the required age and nationality and have their main residence in the relevant electoral area (such as a municipality or federal state). Moreover, there must be no ground for exclusion from voting, such as disenfranchisement by court decision. The legal situation at the time of the by-election is decisive, so that any changes in the person of the eligible voter occurring in the meantime (such as moving away, death, loss of nationality) can exclude voting rights for the by-election. The relevant electoral laws of the federal states or the federation are decisive in this context.
For what reasons may a by-election be necessary?
A by-election is necessary if not all mandates could be filled in the prescribed electoral procedure on the first attempt, or if other legally relevant circumstances necessitate a repeat or continuation of part of the election. Typical reasons may include the death of a candidate prior to or during the election process, significant electoral errors (e.g., incorrect ballot papers, irregularities in voting or vote counting), timely detected violations of electoral law, or the non-opening of a polling station. The specific reasons are regulated by law, for example in the Federal Election Act, the state election acts, or corresponding implementing regulations. Courts may also order a by-election in electoral review proceedings if the election result has been affected by legal errors.
What is the legal procedure for conducting a by-election?
The legal procedure for a by-election essentially follows that of the original election. The relevant election acts and ordinances are decisive: These contain detailed provisions on deadlines, public announcement of the by-election, nomination and admission of candidates or lists, review of voting rights, postal voting, and any special election provisions. The competent election authority (local election office, state election official, or federal election official) is obliged to duly convene the by-election and supervise its conduct. New election notifications must be issued, electoral registers updated, and, where legally stipulated, new voting documents provided. All statutory deadlines (e.g. for objections and complaints) apply analogously as for the main election.
To what extent does a by-election affect the original election result?
The impact of a by-election on the original election result depends on the type and scope of the by-election. If individual electoral districts or constituencies vote again, or individual mandates are subject to a by-election, the results of the by-election are incorporated into the overall result of the original election. This can lead to changes in the distribution of mandates, especially if additional votes are cast for a particular party or candidate as a result of the by-election. In special cases, a by-election may even result in an entirely new composition of the elected body or organ. The concrete legal implementation, such as the calculation method for seat distribution and the way in which the by-election results are incorporated, is determined by the respective electoral laws.
Which legal deadlines must be observed in a by-election?
Several legal deadlines are crucial in connection with a by-election: These include, in particular, the deadline for ordering the by-election (e.g., within days of learning of the reason for the by-election), the deadlines for submitting nominations, the notification of affected voters, the deadline for casting votes (for both postal and ballot voting), as well as for asserting legal remedies against the result of the by-election. The exact deadlines are set out in the respective electoral acts or corresponding regulations and articles of association and may vary according to the type of election and the affected corporate body. Compliance is mandatory, as violations may result in candidacies or votes not being counted or the by-election as a whole being open to challenge.
Can legal action be taken against the result of a by-election?
Yes, the same legal remedies that apply to the result of the main election are generally available against the result of a by-election. Eligible voters, candidates, or parties may, for example, lodge objections to the legality of the by-election in the context of an election review procedure. The deadlines and formal requirements are set by the relevant provisions, usually regulated by electoral law. The complaints are then examined by the election review commissions or the competent courts. If significant violations are found, the by-election result may be annulled and a repeat by-election ordered.
How are by-election results published and when do they become legally binding?
The publication is carried out by the competent election authority after counting and determining the by-election result, usually by public announcement (in the local official gazette, on official websites and/or in press releases). However, the by-election result is only legally binding once the legal deadlines for objections and election review procedures have expired and no appeal has been lodged or any challenge has been legally rejected. Only then does the by-election result take legal effect, in particular with respect to the filling of mandates and the commencement of office by those elected.
