The electoral law reform implemented by the traffic light enrages the CDU/CSU and the Left alike. Your last hope is now the Federal Constitutional Court.
The federal election law is an ongoing issue in Karlsruhe. The Federal Constitutional Court only made a ruling on this at the end of November 2023 – now it has to deal with it again. At that time, the electoral law reform of the grand coalition from 2020, which was already outdated at the time, was being put to the test. Now it’s about the much more extensive reform of the traffic light coalition from last year.
Why has the voting law been changed again?
The electoral law reform passed in 2020 by the grand coalition of CDU/CSU and SPD simply did not achieve what it should have achieved – a reduction in the size of the Bundestag. Derided from the outset by its critics as a reform, it only managed to slow down the increase in the number of representatives. The Bundestag grew from 709 to 736 members in the 2021 election – making it still the largest freely elected parliament in the world.
How did the new reform change the electoral law?
The new electoral law, passed last year with the votes of the SPD, Greens and FDP, caps the number of seats at 630. Voting continues with first and second votes. However, there are no longer any overhang or compensation mandates. Previously, overhang mandates arose when a party won more direct mandates in the Bundestag via the first vote than the number of seats it acquired based on the second vote. She was allowed to keep these overhang mandates. The other parties received compensatory mandates in return. This system led to an ever-increasing bloat of the Bundestag. In the future, the number of seats a party has in parliament will depend solely on its second vote result.
The basic mandate clause is also no longer applicable. According to her, parties that were below the five percent threshold were able to enter the Bundestag based on the strength of their second vote result, even if they won at least three direct mandates.
What bothers the plaintiffs about these regulations?
In the future, each party will only receive as many mandates as it is entitled to based on its second vote result – even if it has won more direct mandates. Then the constituency winners with the worst first vote result go away empty-handed. This is criticized primarily by the CSU, but also by the CDU.
The reason is simple: In the 2021 federal election, the CSU won 45 direct mandates, but only achieved a nationwide second vote of 5.2 percent. This gave her 11 overhang mandates that she would no longer have under the new electoral law. The CDU won a further 12 overhang mandates in Baden-Württemberg. Together, there were 23 of a total of 34 overhang mandates, which in turn resulted in 104 compensation mandates.
Are only the CDU and CSU attacking the reform?
No. The removal of the basic mandate clause also outrages the left. Because she has particularly benefited from this regulation so far. In the 2021 federal election it only received 4.9 percent of the second votes, but Gregor Gysi (Berlin), Gesine Lötzsch (Berlin) and Sören Pellmann (Leipzig) each won a direct mandate – and the Left entered the Bundestag with 39 members . In the 1994 election, the left-wing predecessor party PDS only got 4.4 percent of the second votes. But thanks to four direct mandates won in Berlin, they had 30 seats in the Bundestag.
Things could be particularly bitter for the CSU. If, extrapolated nationwide, it slipped below the five percent mark, it would be kicked out of the Bundestag under the new electoral law – even if it would again win the vast majority of constituencies in Bavaria directly.
Who is actually suing in Karlsruhe?
The negotiations are on two regulatory control proceedings (195 members of the CDU/CSU parliamentary group, Bavarian state government), three organ dispute proceedings (CSU, Left, Left Bundestag faction) and two constitutional complaint proceedings (more than 4,000 private individuals, Bundestag members of the Left with over 200 other private individuals).
A regulatory review procedure examines whether a law is compatible with the Basic Law. The organ dispute procedure is a dispute between the highest federal bodies or those with equal status over their rights and obligations under the Basic Law. Individual members of the Bundestag and political parties are also eligible to apply. Anyone can lodge a constitutional complaint on the grounds that a fundamental right or certain articles of the Basic Law have been violated by public authority.
Which of their rights do the plaintiffs believe have been violated?
According to the Federal Constitutional Court, the applicants and complainants believe that two fundamental rights in particular have been violated: equal voting rights under Article 38 of the Basic Law and the right to equal opportunities for parties under Article 21 of the Basic Law.
When can a verdict be expected?
That’s not decided yet. But the Federal Constitutional Court cannot take too long. The next Bundestag will be elected regularly in autumn next year. And the Venice Commission of the Council of Europe has stipulated in a code of conduct that its rules should be established about a year before an election. Accordingly, a judgment would have to be announced immediately after the parliamentary summer break at the latest.
The commission, which advises states on constitutional issues including electoral law, looked at the new German electoral law in June last year. It concluded that the reform was in line with international electoral law standards. However, it was critically noted that there was a lack of broad support across party lines.
What might a judgment look like?
This cannot be predicted at all. Federal President Frank-Walter Steinmeier had no constitutional concerns and therefore signed the law. The Federal President’s Office made it clear that, according to the Basic Law and the case law of the Federal Constitutional Court, the legislature was very free to shape the right to vote. That’s true. Nevertheless, the right to vote is also a controversial issue at Germany’s highest court, as the ruling on the reform of the grand coalition from November last year showed: It was extremely close with five to three judges’ votes.