The persistence of debates on voting rights for foreign residents in Germany | Migration und politische Partizipation | bpb.de

In the last five decades the history of the right to vote across democracies opened a new chapter: enfranchising foreign residents, that is immigrants who have not yet naturalized. Globally about 30 countries partake in this trend – especially in Europe and Latin America –, but if we consider subnational political communities, the number ascends to 50 (for instance, Argentina as a federation has not enfranchised foreign residents, but most of its provinces have). In Germany, only foreign residents who are EU citizens have voting rights in local level elections (and to the European Parliament). Although Germany remains an unsuccessful case of implementing local voting rights for foreign nationals to this date, it is a case like no other in the world in terms of the length and complexity of successive attempts to give voting rights to foreign nationals. In the late 1980s, two (out of four) such attempts became laws in two Länder (Hamburg and Schleswig-Holstein) but were later, in 1990, dismissed by the German Constitutional Court.

The German debates have presented, over the years, various important justifications to enfranchise resident immigrants. From the perspective of migrant's wellbeing, enfranchisement is key to recognize their contribution to society, represent their voice, and give them equal participation rights to elect authorities under which they live. From the perspective of the wellbeing of the receiving community, the fact that migrants reside in a place for a long time but lack a formal political voice affects the legitimacy and quality of democracy as self-rule. Both perspectives intersect in Germany, since around 8.2 percent of the population are "third-country nationals" (foreigners from non-EU countries) with no voting rights, regardless of how long they live in Germany .

The first debates in Germany

The first proposals for extending voting rights to foreign residents in Germany emanated in the late 1970s, in a context of rising controversy about the treatment of immigrants. In comparison to Vertriebenen and Aussiedlern , who had immediate access to citizenship and all its attached rights, Gastarbeiter , were not supposed to acquire residence rights, and much less to acquire citizenship. The contrast between the groups suggested that it was ethnic belonging and ancestry, not socialization, socioeconomic contributions, birth, or residence in the German territory which mattered for gaining the quintessential rights of citizenship. In civil society, scholars, workers', and religious organizations quickly identified that the concept of "people" would be key in opening discussions about who gets to exercise which citizen rights and how. Articles 20 and 28 of the German constitution restrict voting rights to "the people", but it was unclear if only German nationals were meant or if the concept would encompass categories such as residents, population, or persons.

The proper parliamentary debates on foreign residents' enfranchisement began in Germany in the late 1980s, after Interner Link: Scandinavian countries and the Interner Link: Netherlands had already enfranchised immigrant residents for municipal elections. Since it was clear that there would be no majority at the federal level (that is in the Bundestag) to support the introduction of (local) voting rights for foreign citizens, attempts took place at the Länder level where parties that supported denizen enfranchisement on the local level were in the government: the Social Democratic Party of Germany (SPD), alone or in coalition with the Free Democratic Party (FDP). In all four Länder processes (in Hamburg, Schleswig-Holstein, Bremen and Berlin) similar arguments came to the fore, with nuances related to historical and political circumstances of each Land and differences in tone depending on the parties that were present in the legislatures. The pioneer was Hamburg, where expert hearings laid the main arguments for most debates. Two dividing lines became clear. The first was a stance regarding matters of procedure: whether it was possible to enfranchise foreign residents without a federal constitutional reform. The second was a normative stance about migrants' deservingness of the vote and the exclusivity of nationality as the path to voting rights. The Christian Democratic Union (CDU) always opposed the reform, from both procedural and principled perspectives arguing that citizenship and its associated rights lose value if they are easy to acquire for foreigners and held in parallel to other nationalities. There were, however, much more radical opposing stances from (extreme) right-wing parties, such as the Republicans (Republikaner), the German People's Union (DVU) and lately the Alternative for Germany (AfD), which questioned that non-Germans could ever integrate in Germany and went as far as to propose that their residence and integration should not be a policy goal. With such manifold arguments, opponents of the foreign resident's franchise managed to deviate the debates from the justifications based on migrants' and communities' wellbeing from a democratic perspective. Proponent groups became split over how much immigrants were integrated, whether representation and participation were owed to them at all, or if instead they had yet to demonstrate being worthy of membership, with the implication that the path to citizenship should stay difficult for it to be valuable.

After the pioneer debates of Hamburg in the late 1980s, other Länder followed. In Bremen, civil society actors had been working for some time on the question of how foreign nationals could be more involved in political decision-making processes. This paved the way for parliamentarians to place the right to vote for foreigners on the political agenda. Once the legislative process opened, however, an extreme right-wing party politicized the debate. Schleswig-Holstein was next, with a moderate process that succeeded in locally enfranchising foreigners residing with a residence requirement of five years and a reciprocity requirement – that is, this law only benefited residents from countries where German immigrant residents had the right to vote. The smoother process in Schleswig-Holstein is explained by a relatively stronger argument: that Land has a legally recognized historical Danish minority (most of them – but not all – hold German citizenship) that could be said to suffer an unfair treatment vis-à-vis the German minority residing in neighboring Denmark, where foreign residents had been enfranchised already. The proponents of this reform, the SPD government together with the Südschleswigscher Wählerverband (the party representing the Danish minority) agreed to the requirement of reciprocity as a concession made to opponents and trusting that after some experiences of letting the Danish citizens vote, trust support could be gained for enfranchising all foreign residents. Last but not least was (West) Berlin, where debates did not quiet even after the Federal Constitutional Court, in 1990, suspended the application of the Hamburg and Schleswig-Holstein reforms . The (West) Berlin debates were deeply symbolic: At this point the Constitutional Court's intervention gave little hope of success of introducing voting rights for foreigners, yet proponents used the process to send a signal against the anti-immigrant politics proposed by the Republikaner party amid the process of German reunification.

But how did the decision of the Federal Constitutional Court come about in 1990? Addressing a "norm control" requested by parliamentarians of the CDU and her Bavarian sister party the Christian Social Union (CSU), the Federal Constitutional Court intervened and decided in the spring of 1990 that the people alluded in the Constitution as the body from which authority emanates for in all elections is the German people . In its ruling, the Court noted that it was democratically sound to strive to give voting rights to foreign residents, but that the governing legal framework only offered two paths for federal parliamentarians to do so: redefine who is the people (through a constitutional reform, which requires a 2/3 majority in the two chambers of the German Parliament, that is the Bundestag and the Bundesrat) or make it easier for foreign residents to become German citizens.

The four Länder parliaments that had attempted enfranchisement appraised the ruling: proponents admitted defeat but interpreted it as legitimating their cause through the path of facilitating naturalization. A reform of the nationality law at the turn of the century precisely accomplished this .

New impulses since the 1990s

Debates on foreign residents' enfranchisement did not end neither with the Federal Constitutional Court's ruling, nor with the reform of the nationality law. In the last 22 years, there have been multiple proposals made by opposition parties – mostly the Greens (Bündnis 90/Die Grünen) and the Left Party (Die Linke) at the federal level in the Bundestag, and of various Länder in the Bundesrat. In 2014, Bremen, which has the oldest organs for local-level consultation of foreigners in local policymaking , prompted its constitutional court (Staatsgerichtshof der Freien Hansestadt Bremen) to reexamine the 1991 Federal Constitutional Court ruling on Bremen's attempt to grant voting rights to foreign residents in city district parliaments (Beiräte). Although the decision confirmed the Federal Court's ruling, attempts persist and ever since all Länder reformed their electoral laws to enfranchise foreign residents from EU member countries at the local level (a right laid down in the German constitution since 1992), a new argument is to address the unfairness that only some foreign residents may vote. Thus, Germany is not yet part of the foreign resident’s enfranchisement trend, but its process is alive since almost 40 years, powered by scholars, politicians and organizations in which Germans and non-Germans work together with similarly motivated people across national borders with the aim of making democracy stronger.