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VerfGBbg, judgment of 23. October 2020 - VfGBbg 55/19

Judgment

Question Presented: Whether the gender quota under the Parity Act is constitutional

Alleged Acts: The complainants highlight a violation of the prohibition of inequality on grounds of gender, freedom of party, their right to vote and the principles of universal choice, freedom, and equality of choice. They concern the so-called Parity Act (Second Law amending the Brandenburg State Election Act - Parité Act (GVBl.I/19, [No. 1]), which obliges the political parties to take women and men into account alternately when drawing up their state lists for the elections to the Brandenburg state parliament.

Summary: The complainants' constitutional complaints are partly successful. The Constitutional Court of the State of Bradenburg clarified that according to the constitution of the state of Brandenburg, the principles of electoral law, according to which elections are general, direct, equal, free and secret, are fundamental rights that can be reprimanded. The same right of citizens to vote and be elected is one of the essential foundations of the state order and to be understood in the sense of strict and formal equality in admission to election to parliament. Equality in eligibility (passive electoral equality) is no longer guaranteed for the complainants with the requirements of the Parity Act, because unlike persons of the opposite sex, they have access to certain list places or Prevent pre-lists in the intra-party candidate list, can prevent access to a country list at all and give the complainants of the complainants further candidacy options. The regulation links directly to the gender of the applicant for access to the pre-lists and thus to the list places of a party and at the same time leads to a disadvantage for women and men because of their gender in any case compared to persons of the third gender. For the reasons already explained in the organ dispute procedure of the Landesverband der NPD, the Constitutional Court did not consider the legislature entitled to adopt the regulations affecting the fundamental rights of the complainants

Conclusion: The constitutional complaints of the AfD members against the law were essentially successful (VfGBbg 55/19). The Constitutional Court found a violation of its fundamental rights for equality of choice in the form of passive electoral equality and the prohibition of gender inequality and annulled the rules calling for equal composition of electoral lists.

Legal Issue(s)

Applicable Law(s): § 25 para. 3 sentences 2 to 6 Brandenburg State Election Act; § 25 para. 3 sentence 7 and § 30 para. 1 sentence 2 no. 2 sentence 3 Brandenburg State Election Act

Language of Decision

Geolocation

Latitude: 52.52

Longitude: 13.405