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Friedrich Merz calls for an online party conference from the CDU with subsequent vote-by-mail from the party leader. However, there are some legal hurdles to consider. The postponement of the party congress is not without legal problems either.
By Kolja Schwartz, ARD Legal Editor
Almost everyone in the CDU agrees on one point: in early December, due to the development of the crown, there can be no presence party conference with 1001 delegates. The question the candidates disagree on is: Postpone it until it works again or choose another path?
Online voting is possible according to the statute of the CDU
If you read the statute of the CDU, you might think that online voting is also possible without any problem. That is why it says in § 43: “The elections of the members of the federal executive committee (…) are carried out by ballot.” A few more sentences are clarified: “A ballot in the sense of this statute is also a certified and recognized electronic voting form that guarantees compliance with democratic electoral principles, protection and data security.” Depending on the wording, this voting form could also be used remotely.
Decisive parties law
But it’s not that simple. Because what the party law says is decisive for the parties. And according to Section 9 of the Political Parties Law, party conferences are conceived as assemblies. Congregation means that people come together in person. At least that’s the prevailing opinion among lawyers.
Now, the legislature has hastily changed and supplemented some laws in the context of the Covid 19 pandemic. After that, online party conferences are now possible as well. However, the election of a party leader is not yet allowed online. The only possibility: Vote by mail after an online match conference with the corresponding presentation of the candidates. Possibly two votes by mail, if the CDU still had a second round.
Constitutional concerns
An online voting would be much easier, but the current legal situation does not allow it. Furthermore, it is extremely controversial whether the law could be amended accordingly or whether there is a procedure that complies with democratic electoral principles.
The Federal Constitutional Court ruled in 2009 that the use of voting computers violated the “principle of public voting.” “The use of voting machines that electronically record voters’ votes and electronically determine the outcome of elections only meets constitutional requirements if the essential steps of voting and determining the results can be verified reliably and without special knowledge “. At the time it was about the 2005 Bundestag elections, but many believe that nothing else can apply to the election of party leaders. After all, they also have a particularly important meaning under the Basic Law.
The change is not without its problems either
But the postponement of the CDU party congress until spring 2021 is not without legal problems. According to Article 9 of the Political Parties Law, the party’s congress meets “at least once every two calendar years”. According to § 11, the election of the board of directors must also take place “at least every two calendar years”. The last CDU party congress with board elections took place in Hamburg in 2018. Actually, an election in 2020 would be mandatory.
Now, the legislature decided in October, under Covid-19 legislation, that a member of a party’s board of directors after the end of his term will remain in office until he is removed from office or until his successor is appointed. Annegret Kramp-Karrenbauer would remain president of the party for the time being, even if no successor was elected in 2020. Although this would mitigate the consequences of the non-election, it would still be illegal. Many lawyers are of this opinion.
