Hamburg Constitutional Court dismisses lawsuit against referendum on basic income

The failed referendum “Hamburg tests basic income” will not be repeated. The Hamburg Constitutional Court has rejected a lawsuit brought by initiators and supporters of the initiative. The court did see an error in the voting process. However, this was not serious enough to subsequently declare the vote invalid.

The initiators had demanded that the referendum from October 2025 be repeated. They accused the Senate and the government factions of the SPD and Greens of intervening in the voting campaign in an unauthorized manner. They also criticized the early dispatch of postal voting documents. This meant that a vote could be taken before the initiative could advertise its cause with its poster campaign.

The Constitutional Court did not follow this argument. The people of Hamburg were sufficiently informed with the draft law and an information booklet with the positions of both sides. In order for voters to make a free decision, it was not necessary for the initiative's posters to have been visible in the cityscape beforehand.

However, the judges found an error in the official information booklet for the referendum. There, the SPD and the Greens presented the costs of the project in a misleading manner. However, that is not enough for a repeat vote. According to the court, a referendum can only be subsequently overturned if an error could actually have had an impact on the result. The judges had serious doubts about this. The referendum was a clear failure: 212,680 Hamburg residents voted yes, 357,619 voted no. The required approval quorum was clearly missed. It seems “remote” that the disputed passage had a decisive influence on the result.

Another part of the judgment, namely the question of what the Senate is allowed to do and what not in the voting campaign, is likely to be of interest for future referendums. The applicants were of the opinion that “the Senate should completely refrain from making its own assessment or statement”. The Constitutional Court expressly contradicted this. The Senate and its members are not required to be neutral in referendums, but to be objective. “As part of its public relations work, the Senate is also allowed to comment objectively on the proposal put to the vote and represent its position on it,” it says in the ruling. The judges even point out that citizens have an interest in knowing “what attitude and arguments the government will use to respond to the referendum.”

The Constitutional Court guarantees the Senate comparatively wide leeway. The judges emphasize that referendums are about deciding a factual issue. The government must therefore have the opportunity to present its view on a proposal. The limit will only be crossed when the focus is no longer on providing factual information to citizens, but rather on influencing them. It is particularly problematic when government agencies “incorrectly provide information about points that are essential for the formation of opinions”. However, the court grants the Senate considerable leeway when it comes to assessments, forecasts and evaluations. Only if these “obviously lack an objective basis” could they be considered objectively incorrect.

In addition, the judges also denied a violation of this requirement of objectivity through statements made by Finance Senator Andreas Dressel (SPD). Because the commandment only applies to him in his position as a senator. What is crucial is that Dressel did not express himself as a public official in the social media posts criticized by the initiative, but as a politician and private person.

Taking on a government office should not deprive a politician of the opportunity to become politically active or express his or her opinion. As a “party politician or private person acting politically” he could rely on freedom of expression. This applies to interviews and social media posts as well as to the call against the referendum signed by several Senate members. The prerequisite, however, is that there is no “recourse to the resources and opportunities associated with the government office”.

The court considered these requirements to be met in the Dressel case. The judges point out that his Instagram appearance was not an official account, but a private one. In addition, Dressel repeatedly pointed out that he was not speaking as a finance senator, but as a citizen and SPD politician. In the joint call against the referendum, the Senate members involved were only referred to by their functions within the SPD.

The judges also did not accept the plaintiffs' argument that Dressel had been announced as a finance senator in interviews and podcasts. The “mere use of the official title, especially by third parties,” is not enough to make it an official statement. In the court's opinion, the fact that government members received greater attention because of their office was part of the "realities of political competition" that should be accepted in a democracy.

The initiators of “Hamburg tests basic income” still viewed the decision as a partial success. Representative Jack Kurfess welcomed the fact that the Constitutional Court had classified the government factions' cost information in the voting booklet as incorrect. “This excessive price tag has unsettled many voters,” explained Kurfess. From his point of view, it remains unclear what influence the disputed information actually had on the voting result.