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stention as “nearly a brave deed since everybody anticipated that the confi-

dentiality of the ballot would not be observed”.3

Nonetheless, large-scale electoral fraud does not seem to have occurred

in the Third Reich, which makes it possible to compare individual election

results. Thus, between the election of November 1933 and the plebiscite

held nine months later, the regime’s popularity fell. In the summer of 1934,

the first signs of wear and tear after the initial seizure of power began to

show, and the state-sanctioned murders committed during the so-called

“
Röhm-Putsch”
had created feelings of unease. In addition, the ballot following Hindenburg’s death appeared more a matter of domestic policy,

even though for Hitler its primary importance lay in its impact on foreign

policy, so that many voters did not see the need to present a united front

to an international public. With 89.9 per cent of the valid votes cast, the

regime achieved results that were more than 5 per cent less than those

achieved the previous year, which was interpreted by the regime as well as

by observers hostile to the regime as a failure.4 Thus, the National Socialist

regime became very early on a victim of its own world view, a view that

had absolute faith in the
mission
of its own
movement
, and that would accept no stagnation or regression. Jung is correct, therefore, in his claim that,

following this negative experience, Hitler was resolved not to use this

instrument for the time being (Jung 1995, 77), thereby contradicting his

earlier announcement, broadcast during the “election campaign”, that a

referendum would be held annually so that National Socialist rule could be

legitimized by the people.5

Dissolution of the Concept of the Plebiscite (1935–1938)

That the plebiscite had lost some of its credibility can be seen in the fact

that, in spring 1935, when the
Stresa Front
, set up by the allies of the First World War, opposed Germany’s reintroduction of conscription, there were

——————

3 Diary entry of November 14, 1933 (Klemperer 1999, 68).

4 Goebbels made the struggle between church and state primarily responsible for this. Cf.

the diary entry of August 20, 1934: “Initial results: very bad. Then better. Finally over 38

million for the
Führer
. I expected more. The Catholics failed. Rosenberg!” (Fröhlich 1998-2006).

5
Völkischer Beobachter
, August 7, 1934. In Werner Patzelt’s terminology, this is the
legitimating function
, which plays the most significant role in these considerations. Cf. Patzelt’s contribution in this volume.

44

M A R K U S U R B A N

no concrete plans to hold one. This was certainly due to the minor crises,

such as the covert struggle with the church, that the regime faced at the

time. Above all, the National Socialists viewed the results of the
Volkstag

elections in the Free City of Danzig, which were announced at this very

time, as a cruel defeat: despite the sophisticated and expensive propaganda

campaign, fewer than 60 per cent of the electorate voted for the NSDAP.6

Therefore, Hitler made use of the less risky, but also less spectacular, in-

strument of plebiscitary acclamation and convened—for the only time that

year—the
Reichstag
on May 21 in the Berlin Kroll Opera House. It is apparent that his speech before the
Reichstag
on this occasion was intended to fulfill a similar function as a referendum or a
Reichstag
election: arguing that his position had already been legitimized through the earlier plebiscite,7 he

devoted much of his speech to attacking foreign countries and to stressing

once again the German will for freedom and equality. Since the National

Socialists, for propaganda purposes, had moved the
Reichstag
sessions to the evening, the entire German population, and potentially also a European public, could listen to the live radio broadcast, transmitted as it was at

the prime time of 8 pm.8 Following the two-hour speech, the members of

the
Reichstag
rose to their feet, and President Göring proclaimed that the occasion signified the uniting not only of the
Reichstag
but of “the entire people today as well”.9

Although, from the National Socialist point of view, the crisis had been

averted, since the
Stresa Front
was unable to prevent Germany’s revision of the Treaty of Versailles, Hitler resorted once again to the referendum in

the following year. The opportunity presented itself in March 1936, when

German troops invaded the demilitarized Rhineland and made military

action—especially by France—a real possibility. In the same
Reichstag
as-

——————

6 Cf. Goebbels’ diary entry of April 9, 1935: “Late evening Danzig results: only 60 per cent […] Jubilation from abroad. A heavy defeat”. (Fröhlich 1998-2006). Originally the National Socialists had anticipated a two-thirds majority, which would have enabled them to make a constitutional amendment. Minister of Propaganda Goebbels even had to persuade
Gauleiter
Alfred Forster not to announce a false result of 67 per cent, which would probably have led to an escalation of the situation at this time.

7 At the outset of the speech, he referred to the fact that “with 38 million votes the German people had elected only one member of parliament, him, to be its representative”.

www.reichstagsprotokolle.de/Blatt2_w9_bsb00000142_00044.html.

8 Cf. Uhde (1936, 25): “German radio broadcast this
Reichstag
session, the content of which was primarily directed at a foreign audience, at other European and non-European countries”.

9

www.reichstagsprotokolle.de/Blatt2_w9_bsb00000142_00060.html.

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sembly of March 7 in which he announced the invasion, Hitler declared the

Reichstag
dissolved and proclaimed that a ballot would take place on March 29. The tactical nature of this decision is shown by the fact that the
Reichstag
was not dissolved immediately, as would have been the case in the

Weimar Republic
. Rather, Hitler scheduled the dissolution of the
Reichstag
officially for election day. Thus, any semblance of an intermediary phase

was avoided, and it would have been possible—should the need have

arisen—for Hitler to have convened the
Reichstag
to make a formal decla-

ration on foreign affairs (Hubert 1992, 129). The election result was once

again a great success for the NS regime, which won 98.7 per cent ap-

proval.10 A closer scrutiny reveals two radical features to this vote, how-

ever. First, the mechanism to exclude so-called
Gemeinschaftsfremde
(aliens to the community) from the group of eligible voters was already in operation,

since the German Jews were no longer allowed to take part in the elec-

tion.11 Second, those arguing for a legalistic course within the regime found

themselves increasingly on the defensive as it became known that Minister

of the Interior Frick, under the directive of the Ministry of Propaganda,

was no longer allowed to make a separate record of spoilt ballot papers.12

Furthermore, the
Reichstag
, in the absence of occasions suitable for propaganda, did not convene once for a constitutive meeting during the first

nine months following the election, which clearly violated the procedure

stipulated in the
Reich’s
constitution.

The reason why Hitler decided in March 1936 to hold a
Reichstag
elec-

tion rather than a referendum can no longer be determined with certainty.

More important, though, is the fact that the National Socialists themselves

barely distinguished between these two modes of balloting at the time.

This is evident not only from the numerous intentional and unintentional

terminological muddles, which can be attributed in part to a certain secre-

tiveness, but also from the fact that Hitler liked to take decisions at short

notice.13 At this time also, the majority of experts in National Socialist

——————

10 Cf. Goebbels’ diary entry of March 31, 1936: “Triumph upon triumph. […] We hadn’t imagined it like this in our wildest dreams”. (Fröhlich 1998-2006).

11 Through Heinrich Himmler’s intervention, the inmates of concentration camps were no longer allowed to vote after 1938.

12 Goebbels’ diary entry of March 31, 1936: “I am correcting a stupid legal nonsense by Frick: ‘valid and invalid votes!’ what a load of nonsense”. (Fröhlich 1998-2006).

13 In this way Frick announced a referendum in the
Frankfurter Zeitung
on March 9, 1936.

Conversely, Goebbels spoke, at least internally, in August 1934 about the impending

“election”, as in all of his diary entries stemming from this time. (Fröhlich 1998-2006).

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M A R K U S U R B A N

constitutional law were interpreting this development as showing that there

were no clear borders “between ‘election’ and ‘referendum’”, with both

being “essentially one and the same” (Uhde 1936, 7; Hubert 1992, 235).

Especially illuminating in this context is Gustav Uhde’s dissertation of

1935, which clearly shows that the
Gesetz über Volksabstimmung
, which was passed in July 1933, and which made possible a referendum on an “intended measure”, had already become obsolete. In reality, it was measures

that had already been decided that Hitler presented to the German people

in the form of a
Sachentscheidung
(substantive decision), of which in Uhde’s view the
Reichstag
election was also a part, since voters only had to respond to the single question: “Do you stand on the side of the state, which has

made this personnel decision [on the unified list of candidates of the pre-

selected
Reichstag
members]?” (Uhde 1936, 19). And, since the
Reichstag
was solely an institution of acclamation, Uhde was able to draw the logical

conclusion that it also had in the meantime become a plebiscitary instru-

ment: “Today the
Reichstag
has a similar task to the referendum as […] do the people in entirety” (Ibid., 33). The fact that such developments caused

not only the terminology but also the established certitudes of constitu-

tional law to become muddled can be seen in the discussions on the topic

within the academic discipline at the time. Even the established experts

found it difficult to understand that, with respect to referenda, the legisla-