By EUDO-CITIZENSHIP expert Luicy Pedroza. 

The Bremen Constitutional Court (Bremer Staatsgerichtshof) will decide on January 31, 2014, whether the law proposal (Gesetz zur Ausweitung des Wahlrechts) that would  give voting rights to foreign residents (at state-level elections for EU-citizens, and at local council elections for “third-country nationals”) is compatible with the Constitution of Bremen (in particular with article 140, paragraph 1). This judicial process was called for by the Bremen parliament as a “preventive norm control”, after the bill’s successful passing in a first voting in the plenary. If the Constitutional Court of Bremen confirms its constitutionality, the Bremen parliament expects to pass the law in the still-pending and necessary second voting.

According to the judicial decisions so far at the state (Länder)- and national-levels in Germany (most prominently, the famous Federal Constitutional Court ruling of 31 October 1990, but also a ruling of the Bremer Constitutional Court in 1991) the constitutionality of such a reform is contested. Still, in the last two decades there have been many proposals to extend voting rights to third-country nationals at all levels in Germany, all of which have attempted to reinterpret those rulings or to find a way around them. Bremen has been involved in these efforts before any other state in Germany and to a deeper level regarding the constitutional discussion because of its city-state structure and its unique local councils (Beiräte), which mix characteristics of self-government and self-administration.

For example, the transposition of the 94/80/EC directive that demanded the extension of voting rights at the communal level to EU citizens, reopened the contentious constitutional debate on the voting rights of foreign residents in Bremen. Since the city-state structure of Bremen did not differentiate local and state-level votes, the introduction of only communal voting rights for EU-citizens gave rise to a dilemma for the law-makers: to change the Bremen constitution by creating separate levels, or to let EU-citizens vote simultaneously for the state parliament, as German citizens do. While the former option was defended by CDU parliamentarians, the later was defended by the Greens, who in this case fiercely opposed a reform of the Bremen constitution. A coalition committee was created to cut short a process that quickly became deeply controversial. In the short term, the application of the EU directive was accepted, although it was inconsistent with Bremen laws, and the Bremen parliament passed the two contradictory proposals of the Greens and of the CDU, obliging them to negotiate. An agreement came only two years later: a special voting procedure was introduced to distinguish city and state-level voting, including EU citizens in the first only. 

The proponents (SPD and Greens) of the law proposal currently under preventive judicial review in Bremen are thus, again, pushing the boundaries of previous rulings regarding the unconstitutionality of letting “third- country” nationals participate in the local-level (Beiräte) elections and EU-citizens participate in the state-level elections. This time, the Bremer parliament is conducting the process very meticulously. Before the first reading, a committee of 18 parliamentarians called for extensive consultations. Among others, Prof. Ulrich K. Preuß considered that the objections posed in the past are no longer valid and that the proposed law is constitutionally feasible. Yet, before moving on to the necessary second reading and voting on the law, the parliament has requested the Bremen Constitutional Court to give an authoritative judicial backing to it.