Definition and Legal Foundations of Postal Voting
Die Postal voting is a procedure that enables eligible voters to cast their vote in political elections or referendums without being physically present at the polling station. It serves as an alternative to in-person voting and is particularly significant in the context of mobility restrictions, stays abroad, as well as in exceptional situations—such as during a pandemic.
Legal Framework for Postal Voting in Germany
Constitutional Basis
According to Article 38 of the Basic Law (GG), Bundestag elections must be general, direct, free, equal, and secret. The option of postal voting serves to safeguard the universality of the election and to include those individuals who cannot personally appear at the polling station on election day. Postal voting is fundamentally permissible under constitutional law, as long as the principles of electoral law are upheld. This has been confirmed several times by the Federal Constitutional Court.
Statutory Provisions
The implementation of postal voting is governed in particular by the Federal Election Act (BWahlG) as well as the Federal Election Regulations (BWO):
- Section 14 BWahlG: Specifies that a voter receives a polling card upon request, which makes postal voting possible.
- Sections 36 et seq. BWO: Governs the issuance of polling cards, dispatch and return of voting documents, as well as the conduct and safeguarding of postal voting.
Corresponding regulations also exist for state parliament, municipal, and European elections in the respective election laws and regulations of the states as well as in the European Election Act.
Application and Process of Postal Voting
Application Procedure
Postal voting is not granted automatically; it must be applied for. Justification is no longer required since the 2008 electoral law reform.
Responsibility and Deadline
Applications for postal voting must be submitted to the competent municipal authority. The application can be made in writing, electronically, or in person. An informal application—stating name, date of birth, and address—is sufficient. Deadlines for applications are oriented to the particular election day; as a rule, applications can be submitted until the Friday before the election, and in justified exceptional cases even up to election day itself.
Delivery of Postal Voting Documents
After the application, the applicant receives:
- An official ballot paper
- A polling card
- A ballot paper envelope
- A postal ballot envelope (usually red in color)
- An information leaflet with instructions for postal voting
Completing and Returning
The voter fills out the ballot paper independently, places it in the ballot paper envelope, and signs the affirmation and statutory declaration on the polling card. The sealed envelope, together with the polling card, is placed in the postal ballot envelope and returned to the address indicated on the envelope (usually the competent electoral office). The postal ballot must arrive there by 6 p.m. on election day at the latest. Return postage is free within Germany.
Legal Requirements for Postal Voting
Safeguarding Electoral Principles
The conduct of postal voting is subject to special requirements in order to ensure the observance of electoral principles:
- Secrecy of the ballot: The voter must be able to fill out the ballot paper without being observed.
- Freedom of the ballot: The electoral decision must be made without external influence; influence or manipulation by third parties is not permitted.
- Equality of the ballot: Participation in postal voting must not be associated with disadvantages compared to voting at the polling station.
The first two principles, in particular, are more difficult to guarantee in a domestic environment than in the protected area of the polling station. Nevertheless, by means of a polling card signed by hand and by statutory declarations subject to penalty, the independence of the vote is legally safeguarded.
Invalidity and Challenge of Postal Votes
Errors in the use of postal voting documents, such as missing signatures, late submission, or incomplete documents, render the postal vote invalid. In such cases, the postal ballot is excluded from the vote count. Abuse of postal voting can have criminal consequences, for example as election fraud pursuant to Section 107a of the Criminal Code (StGB).
Data Protection and Data Security
The requirements for the protection of personal data according to the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG) must be observed in postal voting. The processing of personal data is limited to the purpose of conducting the election, and unauthorized disclosure to third parties is not permitted. Polling cards and postal ballots are processed exclusively by authorized electoral bodies.
International Perspectives and Differences
Postal voting is also widespread in other countries, but there are country-specific characteristics regarding application procedures, legal requirements, and the monitoring mechanisms implemented to ensure electoral principles. In some countries, postal voting is broader (e.g., all-postal voting), while in others it is severely restricted (such as only for citizens living abroad).
Case Law on Postal Voting
The Federal Constitutional Court and other courts regularly deal with issues relating to postal voting. In various decisions, particular emphasis has been placed on the compatibility of postal voting with the principle of secret and free elections, and the necessity of effective safeguards has been underlined. Legal assessments have also been made regarding the validity of postal votes, the permissibility of digital elements (such as online application), and the protection of legitimate expectations.
Reforms and Current Developments
With the aim of increasing voter turnout and ensuring fair access to elections, postal voting is continuously developed. Current developments mainly concern the digitization of the application process, security measures against election manipulation, and technical as well as organizational measures to improve the verification of proper vote casting.
Summary
Postal voting is a central element for safeguarding voter participation and is comprehensively regulated by law. It is subject to specific formal and substantive requirements to protect the principles of electoral law. With ongoing digitalization and societal developments, postal voting remains an important factor in the German and international electoral system.
Frequently Asked Questions
What formal requirements must be met to apply for postal voting?
In order to apply for postal voting, the applicant must be eligible to vote in accordance with Section 14(1) of the Federal Election Act (BWG) and be entered in the electoral roll of the relevant municipality. An application for the issuance of a polling card, which entitles the holder to vote by post, can be submitted in writing or verbally—but not by telephone. Electronic applications, for example by email or via online portals, are also permitted if the municipality offers such a service. The application may be submitted as soon as the polling notification is received, but no later than the Friday before the election at 6 p.m. In the event of a proven sudden illness, the application can still be submitted until 3 p.m. on election day. A signed application is mandatory, as authorization for another person to submit the application is possible (Section 27 of the Federal Election Regulations—BWO), provided that the authorization is granted in writing.
What legal rules apply to the issuance and use of postal voting documents?
The issuance of postal voting documents is subject to the provisions of Section 27 BWO. After the application has been reviewed, the municipal authority issues a polling card to the applicant and hands over or sends the postal voting documents to the address specified in the application. These documents include the official ballot paper, an official ballot paper envelope, a postal ballot envelope, and an information leaflet on postal voting. Eligible voters are obliged to cast their vote personally and unobserved, as prescribed in Section 36(4) BWO. For visually impaired persons or those who do not speak German, assistance by a helper is permitted; however, the helper must maintain the secrecy of the voting procedure (Section 50 BWG).
What deadlines must be observed in postal voting?
Legally strict deadlines apply to postal voting. The polling card may be applied for up to and including the Friday before election day at 6 p.m. (Section 27(1) BWO). In exceptional cases, for example in the event of a sudden illness or verifiable unforeseen hindrance, an application on election day itself is possible until 3 p.m. (Section 27(4) BWO). The completed postal voting documents must be received in good time at the address indicated on the postal ballot so that they arrive there by 6 p.m. on election Sunday at the latest (Section 36 BWO). If the documents reach the electoral authority later, they will no longer be included in the count.
How is the secrecy and personal casting of the vote legally secured in postal voting?
The legal requirement for secret and personal voting is found in Section 14(4) BWG and Section 36(4) BWO. The eligible voter must personally and unobserved mark the ballot paper and place it in the ballot paper envelope. Handing over the ballot paper to third parties for completion is generally prohibited. Only in exceptional cases—such as in the case of a disability—is assistance by a trusted person permitted, who is then obliged to maintain the secrecy of the ballot. Unlawful influence or coercion of the voter is punishable under Section 107 of the Criminal Code (StGB).
What obligations exist regarding the return of the postal ballot?
After completing the ballot, the voter must seal the postal ballot and send it to the address indicated on the postal ballot envelope or hand it in personally. The legal obligation is to complete all documents correctly: the statutory declaration on the polling card must be personally signed (Section 36(2) BWO). The postal ballot must arrive before the end of voting. Electoral authorities are obliged to store the postal ballots received in good time unopened until counting and to check for manipulation (Section 41(1) BWO).
What are the consequences of violations of postal voting regulations?
Violations of the regulations governing postal voting, for example by improper influence, forgery, or misuse of the polling card, are subject to criminal prosecution. The main criminal offences are election fraud (Section 107a StGB), voter bribery (Section 108b StGB), or false statutory declaration (Section 156 StGB). Depending on the scope and severity of the violation, the election result in affected districts may be declared invalid (Section 46 BWG). Failure to fulfil formal requirements, such as a missing or incorrect signature, also renders the postal ballot invalid.
Are there any options for tracking or correcting a postal vote decision?
Legally, once the postal voting documents have been submitted to the electoral authority, correcting or changing them is not possible. As long as the postal ballot has not yet been delivered, a new polling card can be requested and a new ballot paper can be issued; the old polling card thus becomes invalid (Section 27(5) BWO). However, if the first postal ballot has already been received, there are no legal options to change or withdraw the vote retrospectively. In individual cases, the dispatch may be tracked in case of loss via the postal service, but this does not fall within the responsibilities of the electoral authority.
