“Systematic blocking attitude”: Berlin AfD sues against the non-election of their city councils

Because three of the four city councilors assigned to the Berlin AfD have not been elected to office despite numerous ballots, the party is now going to the Berlin administrative court. A corresponding complaint on behalf of the AfD parliamentary groups from Spandau, Lichtenberg and Marzahn-Hellersdorf will be filed with the court this Thursday, party spokesman Ronald Gläser said on Wednesday.

“We want to force the district assemblies to allow our people to hold office,” said Gläser, accusing the other parties represented there of practicing a “blockade attitude”. Party leader Kristin Brinker also spoke of a “systematic blockade attitude” that violated “the spirit of the democratic community”.

According to party information, the reason for the lawsuit by the AfD factions is now 41 ballots in which the three city council candidates concerned, Andreas Otti (Spandau), Michael Adam (Marzahn-Hellersdorf) and Frank Elischewski (Lichtenberg) were rejected by the members of the district parliaments.

Of the four remaining city council posts after the election in September 2021, the AfD was able to Bernd Geschanowski in Treptow-Köpenick occupy only one. Geschanowski was elected city councilor for regulatory affairs in the fourth ballot at the beginning of February. Even then it seemed foreseeable that his three other party friends would not succeed.

AfD: District assembly is part of the administration

In view of this, Andreas Otti, who was city councilor for buildings and the environment from 2016 to 2021 and had to endure eleven unsuccessful ballots by Wednesday evening, spoke of “illegal” behavior by the district councilors. From the point of view of the former CSU politician and his party, these are part of the administration and therefore – unlike the members of the House of Representatives, for example – cannot invoke the freedom of the mandate or constitutional privileges.

“I think it’s difficult that we have to sue now,” Otti said, describing the move as “not good for democracy at all.” Adam and Elischewski also emphasized that they would have liked to have avoided the lawsuit. Attorney Adam, who had been legal counsel for the state association for a long time and who, surprisingly for many, had replaced the actual city council candidate Birgit Malsack-Winkemann in Marzahn-Hellersdorf, spoke of a “blatant violation of the provisions of the district administration law”. Adam has failed six ballots so far, and he even missed votes from his own faction on the first attempt.

So far not re-elected: city council candidate Andreas Otti.
So far not re-elected: city council candidate Andreas Otti.
© dpa

Legally and practically, the parliaments in the districts work differently than those at the state or federal level: there, the composition of the district office depends on the results of the BVV elections, the members of the district office are elected by the district parliaments. The special thing about this is that any coalitions that are called census communities at district level play no role. Parliamentary groups have the right to nominate city councillors. However, a right to their election cannot be found, at least literally, in the District Administration Act.

The House of Representatives, in turn, had already dealt with a corresponding application by the AfD and ultimately rejected it. In it, the Senate should be asked to ensure, as a “district supervisor” in the three relevant district assemblies, that the city council candidates proposed by the AfD parliamentary groups would be confirmed. The AfD’s application said that the party’s nominations had not been rejected due to a lack of professional qualifications, but for political reasons. This behavior is against the law.

Internal administration refers to the free choice of the decreed

The application was discussed at the meeting of the interior committee in mid-September. Interior Secretary Torsten Akmann (SPD) said there that intervention by the Senate was not possible. The district office is filled by election, and the deputies are free to choose. A certain voting behavior cannot be forced. However, the AfD factions could nominate people with a majority as candidates.

Akmann referred to a similar case in which the Federal Constitutional Court had rejected a lawsuit by the AfD in March of this year: their candidate for the post of Bundestag Vice President had always failed to win the majority in the past legislative period. The Karlsruhe judges declared that the MPs were free to choose and could not be obliged to vote in such a way that the result was in favor of the AfD.

It is foreseeable that the administrative court will not make a decision on the matter before February 12th and thus the date for the repetition of the elections to the House of Representatives and the district assemblies. According to Adam, the AfD is counting on the oral hearing taking place at the beginning of next year, but that is not certain.

After the election, the problem could gain in urgency. Current polls predict a significantly stronger result for the AfD than the eight percent that the party got across Berlin on September 26, 2021. If the trend is confirmed, the number of city council posts to which she is entitled should rise sharply after the election.

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