Illegal campaign financing: Does the election in Saxony-Anhalt have to be repeated?

“The AfD’s election campaign in Saxony-Anhalt was largely financed from parliamentary group funds,” said law professor Sophie Schönberger to Spiegel. “This was obviously illegal and could, as a consequence, lead to the state election being successfully contested.” What's true about this statement? Will there be new elections soon in Saxony-Anhalt?

The ARD magazine “Kontraste” had already researched in April that the AfD’s very well-attended “citizen dialogues” were largely financed with funds from the AfD parliamentary group. The state parliamentary groups are also allowed to do public relations work with the funds they receive from the state parliament, that is, to provide information about the work of the members of parliament. But Saxony-Anhalt's parliamentary group law clearly states in paragraph 2 what is not possible: “These services may not be used for the purposes of the parties.”

In fact, at the “Citizen Dialogues” there was a lot of campaigning for the AfD, i.e. supporting the party. Ulrich Siegmund was introduced as the AfD's top candidate, the AfD's election programs were promoted and people were called to vote for the AfD in the state elections. Law professor Sophie Schönberger said in the “Kontraste” report that this was problematic.

However, “Kontraste” suggested, somewhat resignedly, that little could initially be done to combat the misuse of the parliamentary group's funds. The State Audit Office does audit the parliamentary group's finances, but only after the end of the electoral period, i.e. only after the state elections. Law professor Schönberger said at the time: “The worst thing that can happen is that the parliamentary group has to pay the money back to the state budget.”

In the meantime, Schönberger has found another lever: covert party financing during the election campaign could lead to the invalidity of the election, according to the leading German election and party law expert who teaches at the Free University of Berlin.

According to the state's election audit law, any eligible voter can object to the results of the Saxony-Anhalt state election. However, the one-month period only begins with the publication of the official election results in the ministerial gazette, which has not yet taken place.

According to general case law, the election would have to be repeated if there is a “concrete and not entirely remote” possibility that the violation of equal opportunities had an influence on the distribution of seats in the state parliament. In addition to this “mandate relevance”, the “existing interest” of the elected representatives must also be taken into account. Nobody can say today how the balance will ultimately turn out.

The objection will first be examined by the election audit committee of the state parliament. It can be assumed that most MPs are not very interested in a repeat election because the AfD might become even stronger in a new election and other parties such as the Greens, SPD and BSW could fail at the five percent hurdle.

That's why it will ultimately come down to the state constitutional court in Dessau-Roßlau, which can be appealed to as soon as the state parliament has rejected the objection. However, it will probably take one to two years from today until the court decides. Even if an election objection is ultimately successful, there will be no quick re-election. Or to put it another way: If the AfD comes into government in Saxony-Anhalt, it can start for now, but cannot definitely count on a four-year government term.