Term and Definition of Election Obstruction
Als Election Obstruction refers to all circumstances under German law that hinder, unlawfully influence, or prevent the exercise of the active or passive right to vote. The term encompasses physical, psychological, as well as legal obstacles that may impede free and equal participation in elections. Election obstruction must be distinguished from election influence, which refers to targeted and unlawful interference with voters’ decision-making.
Legal Foundations
Election Obstruction in the Basic Law
The Basic Law (GG) protects the right to vote as a central element of democratic will formation. According to Article 20 GG in conjunction with Article 38 GG, the right to vote must be universal, direct, free, equal, and secret. Any obstruction of elections thus constitutes a particularly serious violation of this fundamental right.
Federal and State Election Laws
The protection against election obstruction is further specified by federal and state legal regulations, in particular the Federal Election Act (BWahlG), the Federal Election Officer Act (BwahlLG), state election laws, and election regulations. These rules contain detailed provisions intended to remove or prevent electoral obstacles.
Relevant provisions include, among others:
- §§ 31 ff. Federal Election Act (BWahlG) concerning the procedures and conduct of the election
- § 107 Criminal Code (StGB), which defines the obstruction of elections as a criminal offense
- State election laws and ordinances, which in particular include rules on accessibility and assistance for eligible voters
Forms and Examples of Election Obstruction
Physical Election Obstructions
Physical election obstructions particularly affect people with disabilities, elderly individuals, or persons with temporary health restrictions. Typical examples include:
- Non-accessible polling stations
- Lack of aids in polling stations
- Insufficient information regarding the possibilities for postal voting or assistance
The Federal Government and the states are obligated, under the principle of accessibility, to ensure participation of all eligible voters. Requirements for this are specified, among others, in the Equal Opportunities for Persons with Disabilities Act (BGG) as well as in the respective implementing provisions of the electoral laws.
Legal Election Obstructions
Legal election obstructions can result from the wrongful refusal to enter a person into the voter register, non-admission of electoral proposals, or erroneous deprivation of voting rights (for example, in case of disputes regarding eligibility).
Violations of electoral principles, such as during election scrutiny, manipulations, or incorrect conduct of the election, may also be qualified as legal election obstructions.
Psychological and Social Election Obstructions
This includes intimidation, threats, or pressure on voters. According to § 107 StGB, any unlawful influence on the free electoral decision is a criminal offense (e.g., by threatening disadvantages or promising advantages).
Social election obstructions can also arise from discrimination, inadequate information, or societal barriers that systemically prevent people from certain groups from participating or make voting difficult.
Legal Consequences of Election Obstruction
Criminal Sanctions
According to § 107 StGB, obstructing an election is punishable by imprisonment for up to five years or a fine. This includes the use of violence, threats, or other means to impair voters’ freedom of will and decision during elections.
Election Review Procedures
If there is suspicion of election obstruction, affected individuals may file an objection to the election result (§ 49 BWahlG). The election challenge can lead to judicial review and, if applicable, annulment and repetition of the election, provided the established obstruction was relevant to the election or the mandate.
State Duty of Protection
The state is obligated to actively counteract election obstructions. This includes ensuring accessibility, providing information in appropriate formats (e.g., in plain language), and implementing measures to protect free formation of will. The state must also ensure that individuals needing support can exercise their voting rights.
Distinctions and Related Legal Terms
Election Influence
Election obstruction must be differentiated from Election Influence, which may also affect the election but focuses on targeted steering or manipulation of voting decisions, for example through deliberate disinformation.
Disenfranchisement
Disenfranchisement occurs when a person’s right to vote is lawfully revoked, for example in cases of limited legal capacity or due to criminal conviction (§ 13 BWahlG). This does not constitute election obstruction in the strict sense.
Violation of Voting Rights
Violation of voting rights refers to any breaches of electoral principles or regulations, regardless of whether a deliberate obstruction is present.
Measures Against Election Obstruction
Facilitation of Access
Measures to prevent election obstruction include consistent implementation of accessible voting procedures, provision for postal voting, information in plain language, and options for assistance at polling stations.
Monitoring and Oversight
Electoral authorities and independent bodies (such as election observers) are called upon to detect and prevent potential election obstructions in advance. This applies in particular in cases of suspected unlawful influence or organizational deficiencies.
Legal Protection Mechanisms
Eligible voters affected by election obstruction may avail themselves of various legal remedies (e.g., objection to the voter register, election challenges, or reporting criminal offenses related to elections).
Conclusion
Election obstruction refers to any impermissible restriction of the exercise of voting rights and is comprehensively prohibited and sanctioned under German law. Clear legal regulations and a comprehensive system of protection ensure the integrity and functionality of the democratic electoral process. Individual violations may have criminal, administrative, as well as electoral-organizational consequences to safeguard the principles of free, equal, and secret elections and to protect the fundamental right of participation.
Frequently Asked Questions
What legal requirements must be met for election obstruction?
In a legal context, election obstruction must be based on specific statutory grounds. It arises when it becomes impossible or significantly more difficult for an eligible voter to exercise their voting rights for legal or factual reasons, provided the obstacles do not originate from the voter themselves. The central requirement is therefore that the obstacle is causally linked to actions or omissions by the relevant electoral authority, public bodies, or third parties. In Germany, the Federal Election Act (BWahlG), state election laws, and election regulations specifically set out which actions, omissions, or errors are considered obstructive to elections—such as improper delivery of the election notice, errors in registration in the voter register, or denial of access to polling stations without just cause. If foreseeable, avoidable, or unlawful obstacles are absent, election obstruction is generally not assumed.
What legal remedies are available in case of election obstruction?
If election obstruction is established, electoral law regularly provides specific legal remedies. For federal and state parliament elections, the election review procedure is decisive: eligible voters or candidates may file an election challenge with the competent parliament (e.g., German Bundestag under § 2 WahlPrG) within the legally prescribed periods. In other cases, a complaint may be lodged with the electoral authority or the administrative court, insofar as administrative action is involved, such as refusal of entry into the voter register. Successfully pursuing a complaint or challenge requires the precise statement of the obstruction, its cause, and its impact on the election result. Formal requirements and deadlines must be strictly observed, since violations usually result in the inadmissibility of the legal remedy.
Can electoral actions still be rectified after an election obstruction?
Legally, it is possible for election obstruction to be remedied if the affected eligible voter is able to exercise their right before completion of the voting process, for example by being subsequently included in the voter register on election day or by facilitated access to postal voting. Electoral laws, especially § 46 BWahlO, provide options to correct errors before and during the voting process. If the exercise of voting rights is demonstrably and finally thwarted and the error cannot be corrected in due time, the only remaining legal option is to challenge the election. In such cases, the electoral review authority must decide whether a repeat election is required or other remedial measures are to be taken.
Can organizational problems during election conduct count as election obstruction?
Organizational shortcomings can legally constitute election obstruction if they substantially impair access to voting or the ability to cast a ballot. Examples include delayed opening of polling stations, missing or incorrect election materials, inadequate accessible access, or failure to provide information to voters as required by law. It is important that the impairment typically affects several eligible voters, not just individuals, in order for such errors to result in a valid challenge. Minor or trivial delays generally do not amount to legally recognized election obstruction.
How is it determined in legal review whether election obstruction exists?
Determining election obstruction is based on a comprehensive legal assessment of the specific factual and legal situation. The review examines whether there has been an unlawful restriction of voting rights caused by action or inaction of an entity responsible under electoral law. Decisive factors are the relevant legal provisions, organizational procedures of the electoral process, and the specific conduct of involved parties. An individual assessment of evidence is often required, for example through witness statements, documents, or other proof. The legal assessment also examines whether the obstruction was the cause of the (non-)exercise of voting rights and what significant effects it could have had on the election outcome. Key review criteria include the legal requirements, the method of evaluating evidence, and the balance between individual and collective infringements on voting rights.
When does election obstruction lead to a repeat election?
Election obstruction only leads to an order for a repeat or partial repeat of the election if it is significant under electoral law, meaning it could have affected the result of the election. The legal standards for review are strict: it is not enough that individual eligible voters were obstructed; rather, there must be a detectable, mandate-relevant impact on the election result, or at least it must not be ruled out. The electoral review bodies (e.g., Bundestag, state parliaments or courts) decide, after considering all circumstances, whether the electoral error is substantial and the election must be repeated to the relevant extent. Insignificant obstructions, which do not affect the result, do not lead to a repeat election.
What are the differences between legal election obstruction and organizational inconveniences?
The legal distinction between election obstruction and mere organizational inconveniences lies in the severity and consequences of the impairment. Legal election obstruction makes the exercise of the right to vote impossible or unreasonably difficult and violates statutory requirements, whereas minor organizational problems such as short waiting times, errors in training election helpers, or temporary disruptions do not constitute legally relevant election obstruction. Only substantial disadvantages affecting access to voting, resulting from an unlawful error, are legally relevant. The distinction is regularly defined within the context of interpretation by the courts and electoral review bodies.
