Voting method

The voting right of Germans living abroad dates back to German Reich legislation relating to public service personnel: public servants and workers in public enterprises who lived abroad were also entitledto vote provided that their place of residence was close to the frontier of theGerman Reich.

This provision was initially carried over into theFederal Elections Acts of 1949 and 1953 and thereafter extended, in the Federal Elections Act of 1956, by a voting right for family members living in the samehousehold. At the same time the requirement was deleted that the place ofresidence be close to the frontier. 

By amendment of the Federal Elections Act in 1985, theprovision was extended considerably through the introduction of the “model ofcombination”. On the one hand, a voting right was introduced for an unlimitedperiod of time for all Germans living in the respective member states of theCouncil of Europe, provided that they had had a place of residence in theformer territory of the Federal Republic after 23 May 1949 or had otherwise hadtheir habitual abode there for an uninterrupted period of at least 3months (“Council-of-Europe solution”).

On the other hand, a voting right was established under the same condition for all Germans living in other territories outside the Federal Republic of Germany, provided that their relocation had not takenplace more than 10 years earlier (“time-limit solution”). In 1998 the timelimit was extended to a period of 25 years.

By amendment of Section 12 (2) of the Federal ElectionsAct in 2008, a uniform provision applicable to all Germans living outside the Federal Republic of Germany was created in accordance with the “Council-of-Europesolution”. Pursuant to that provision, which was first applied in the 2009 Bundestag Election, all Germans living outside the Federal Republic of Germany had the right to vote if they had had a place of residence in the present territory of the Federal Republic, that means either in the “old” or the “new”L?nder, after 23 May 1949 or otherwise had had their habitual abode there foran uninterrupted period of at least 3 months, provided that the other conditions laid down in electoral legislation were met.

The above-mentioned time limit of 3 months did notapply to returnees.

By decision of 4 July 2012 (file references: 2 BvC1/11 and 2 BvC 2/11), the Federal Constitutional Court ruled that Section 12(2), first sentence, of the Federal Elections Act was incompatible with the principle that elections should be general, which results from Article 38 (1)of the Basic Law, and declared it invalid.

Federal Elections Act (BWG)

Section 12 Eligibility to Vote

 (2) Provided the other conditions are fulfilled, Germans as defined in Article 116 paragraph (1) of the Basic Law who are resident in other territories outside the Federal Republic of Germany onthe day of election shall also be eligible to vote provided that after May 1949 and prior to their departure, they had a domicile or were otherwise permanently resident in the Federal Republic of Germany for an uninterrupted period of at least three months. 1) A previous domicile or residence within the meaning ofthe first sentence shall also be any previous domicile or residence in the territory specified in Article 3 of the Unification Treaty. The three-month period pursuant to subsection (1) number 2 shall not apply if a person eligible to vote under the first sentence returns to the Federal Republic of Germany.

(3) For the purposes of this Law, a domicile shall be any enclosed space which is used for dwelling or sleeping. Caravans and houseboats, however, shall only be considered domiciles if they are not moved at all or only occasionally.

(4) If persons eligible to vote do not have or have not had a domicile in the Federal Republic of Germany, a domicile as defined in subsection (1) number 2 or subsection (2), first sentence, shall be:

1. for seamen and the members of their households, the ship occupied by them if the shipis eligible to fly the Federal Flag under the latest version of the Flag Law(in the version promulgated on 4 July 1990, Federal Law Gazette I p. 1342)

2. forboatmen in inland navigation and the members of their households, the shipoccupied by them if the ship is enrolled in a ship's register in the Federal Republic of Germany,

3. for persons serving a term of imprisonment imposed by a court of law as well as for other persons accommodated in an institution or respective institution.

(5) Theday on which the domicile is occupied or the residence begins must be included in the calculation to determine the three-month period pursuant to sub-section (1) number 2 and subsection (2), first sentence

Section 14

(3) Anyonepossessing a polling card may vote in the constituency in which the polling card was issued

a) by casting hisor her vote in any polling district of this constituency, or

b) by postal ballot.

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