Debate about expanding voting rights: Who are the people?

As soon as the exploratory talks have been successfully concluded, the big population change is about to take place in Berlin - at least if you believe the right-wingers. “The red-green-red plans are also an attempt at a coup by replacing the Berlin electorate,” says AfD MP Marc Vallendar. Hardly distinguishable in terms of content, the failed CDU top candidate Stefan Evers raves on

The reason for the right-wing meltdown: The Left, the Greens and the SPD want to work to expand the right to vote at the state level to include Berliners without a German passport. In the future, anyone who has lived in Berlin for more than five years should be able to vote. So far, only EU citizens can vote at local level.

If you look at Berlin's demographic data, the accusation that the Left wants to "create a new electorate" by expanding the right to vote seems like a reversal of social conditions. Around a quarter of Berliners over the age of 16 were not allowed to vote in the House of Representatives elections because they do not have a German passport. The people are already there, but they are not allowed to vote.

This proportion is likely to increase even further in the future. According to data from the Berlin-Brandenburg Statistics Office, Berlin's population growth is primarily due to immigration from abroad. As a “start-up metropolis”, the federal capital has been recruiting skilled workers from abroad for years. At the same time, many families, mostly with German citizenship, are increasingly moving to the Brandenburg area. Especially in districts within the Berlin S-Bahn ring, it is not uncommon for over half of the population not to be allowed to vote.

"People who live here have all the obligations, but are not allowed to vote. This is a democratic problem," Elif Eralp told the taz on Tuesday. The left-wing politician, who has good prospects for the post of governing mayor after successful coalition negotiations, has been campaigning for years to extend voting rights to Berliners without a passport.

The advance by red-green-red is therefore no surprise. As early as 2022, the coalition, which was then still led by the SPD, passed a resolution that justified the expansion of the right to vote in detail: “The persistent lack of opportunity for such a large part of the population to participate represents a significant democratic deficit that must be remedied.” Ultimately, the implementation failed due to the new elections in 2023, which the CDU won.

The CDU and AfD criticize that such a step would contradict the Basic Law. In doing so, they are alluding to Article 20 of the Basic Law, according to which all “state power comes from the people”.

Eralp clearly contradicts this: “In my view, there is no need to change the constitution.” The passage “all state power comes from the people” is a matter of interpretation. The concept of the people could be defined more broadly than just for people with German citizenship. According to Eralp, a more contemporary view would be to understand the concept of people as the population of a state-sovereign area. This means that people without German citizenship would also be included in the concept of the people in the Basic Law if their center of life is in Germany.

What speaks in favor of this view is that the corresponding passage in the Basic Law does not mention either the “state people” or the “German people”.

However, the question has long been controversial among constitutional lawyers. In 1990, the Federal Constitutional Court ruled against the possibility of granting local voting rights to people without a German passport in two groundbreaking judgments on “foreigners’ voting rights”. The court based its decision on a narrow interpretation of the concept of the people, which, according to the Federal Constitutional Court, is congruent with the entirety of the German state people.

“According to the current jurisprudence of the Federal Constitutional Court, this would require an amendment to the Basic Law,” says constitutional lawyer Sophie Schönberger to the taz.

“The assessment is also increasing among constitutional law experts that this interpretation of the Basic Law is outdated and that state law ways of expanding voting rights are permissible,” the application states.

One of these experts is Tarik Tabbara, professor at the University of Economics and Law. It does not do justice to the problem of a lack of representation to “dismiss advances […] like a mantra with reference to decisions of the Federal Constitutional Court that are over 30 years old,” argues Tabbar in an article published in the Constitutional Blog in June.

Even the Federal Constitutional Court agreed in 1990 that it corresponded to the democratic idea “to establish a congruence between the holders of democratic political rights and those permanently subject to a certain state rule”. But this congruence should be resolved through the right to naturalization and not through the expansion of the right to vote.

But the Berlin Migration Council also criticizes that this has not happened in the past 36 years after the verdict. Even after the reform of the naturalization law in 2023, which now allows naturalization after five years of residence and dual citizenship, the hurdles are too high.

“There are challenges in nationality law that mean that naturalization is not an option for every group,” says Edwin Greve, spokesman for the Berlin Migration Council. The naturalization law currently excludes people who are below a certain income limit or who have received certain social benefits in the last five years, explains Greve. The Migration Council considers linking these conditions to be fundamentally wrong. “The point is that all people who live here should be able to shape social life and therefore have a say”

Elif Eralp also shares the criticism: "Many of the guest worker generation cannot be naturalized because of their income. These are people who have lived here for 40 years and have helped build the country," says Eralp.

But the hurdles before the right to vote can actually be expanded are high. If a change to the Basic Law is necessary, the state would have to initiate a Federal Council initiative. The application from 2022 already provides for this.

It would also be absolutely necessary to change the state constitution, which still explicitly mentions the “German people”. This requires a two-thirds majority in the House of Representatives, for which the not very enthusiastic CDU would currently have to be brought on board. “Of course we know that there are some tough things to drill. But it is important to push the debate and take the first concrete steps,” said Eralp.