After the AfD election victory in Saxony-Anhalt: forming a government faces a tricky constitutional question

After the AfD's election victory in Saxony-Anhalt, the six factions in the new state parliament are faced with a complicated process of forming a government. The new Prime Minister is only expected to be elected in a few weeks. But eyes are already turning to the state constitution - and especially to Article 65, which regulates this groundbreaking vote. Particularly tricky: What happens if there is also a stalemate in the third round of voting, i.e. a draw?

How the election works

The MPs elect the Prime Minister secretly and without debate. Whoever gets the majority of the 83 representatives behind them in the first round of voting, i.e. at least 42, is elected. If that doesn't work, a new round of voting will take place within seven days. If this absolute majority is still not achieved, the state parliament will vote within another 14 days on whether the electoral period should be ended early. If this is not decided with an absolute majority, a further, third round of voting will take place immediately. Here the bar is lowered: whoever receives the majority of the votes cast is elected.

Why the third round could be important

In this third round of voting, only the votes cast count. Important to know: In this case, abstentions count as votes not cast; this is determined by Article 51 of the state constitution. A thought experiment: All 39 AfD MPs vote for their top man Ulrich Siegmund as the new head of government, while the 5 BSW MPs abstain. All other parties vote against Siegmund, i.e. the CDU, SPD, Greens and Left, which also have a total of 39 votes. This would mean that the votes cast would be equal and no one would be elected.

What happens then

The constitution does not explicitly regulate what happens after a failed third round of voting. The former state constitutional judge Michael Kilian, professor of public law at the Martin Luther University Halle-Wittenberg, explains at the request of the German Press Agency: "If there is a stalemate, elections will continue until a simple majority is found, if necessary through electoral coalitions." His arguments: On the one hand, the constitution aims to avoid a period without a government or with a purely caretaker government. On the other hand, once the people have elected a state parliament, this legitimacy should, if possible, also lead to a government.

His professor colleague Winfried Kluth sees it the same way: “This is not explicitly regulated, but there can be further rounds of voting. As far as I see it, that’s not controversial.”

The speaker of the state parliament also explains in agreement with the law professors: "Since no candidate received the "majority of the votes cast", another round of voting would be necessary to elect a prime minister."