questions and answers
Federal Constitutional Court rules on GroKo electoral law reform – how understandable does an electoral law have to be?
The grand coalition wanted to reduce the size of the Bundestag with its electoral law reform
© Christoph Soeder / DPA
According to a ruling by the Federal Constitutional Court on the electoral law reform of the GroKo, complicated facts can also be presented in a more complicated manner. But not all constitutional judges see it that way.
The right to vote is a permanent construction site. There have been political disputes about this among the parties for years, because in the end no one wants to give up. A far-reaching reform of the traffic light coalition has been in force since June of this year – but it had to happen first The Federal Constitutional Court in Karlsruhe will decide on the previous reform on Wednesday. A verdict that, on the one hand, was clear, but on the other hand, revealed different opinions among the judges.
Why was the electoral law reformed?
The federal election law once set the target size of the Bundestag at 598 members. This number was initially roughly maintained. But from election to election, more representatives moved into the Reichstag building, and in 2017 there were 709. Overhang and compensatory mandates were responsible for the Bundestag’s growth to an XL format. Overhang mandates arose when a party won more direct mandates than the number of seats it received based on the second vote result. She was allowed to keep this, but the other parties received compensatory mandates in return. All parties advocated downsizing, but could not find a common denominator.
What did electoral law reform look like in 2020?
The GroKo electoral law reform consisted of two parts. The first part was applied in 2021, the second part should only apply to the 2025 election. It has already been determined for 2021 that a party’s excess mandates should be partially offset against its list mandates in other countries. If the standard size of 598 seats is exceeded, up to three overhang mandates should not be compensated for by compensatory mandates. However, the number of 299 constituencies was not affected. These should only be reduced to 280 in the second step from 2024. In addition, a reform commission should be set up on electoral law issues after the 2021 federal election.
What did the 2020 reform actually achieve?
Not much. Critics complained from the start that it was just a small reform with little impact. The Bundestag did not become smaller, but grew to 736 members with the last election. Ultimately, only the increase was slowed down.
How did the reform become a case for the Federal Constitutional Court?
The FDP, the Greens and the Left, who were in opposition when the GroKo reform was passed, had agreed on their own bill that would have had significantly more impact. According to him, for example, the number of constituencies should be reduced from 299 to 250. In February 2021, they submitted a so-called abstract norm review in Karlsruhe to check the electoral law reform of the Union and SPD for its compatibility with the Basic Law. The lawsuit has now been dismissed as unfounded.
What was particularly criticized?
The plaintiffs had, among other things, doubted whether voters even understood the impact of their vote. Voting law has become too complicated. In its judgment, the majority of the court now stated that a “certain level of complexity” cannot be avoided in proportional representation associated with the election of people. Voters could obtain reliable information about the fundamental effects of their voting behavior on the calculation of seats and the allocation of mandates. In this respect, the requirements of the principle of democracy are met (ref. 2 BvF 1/21).
However, the Senate’s decision was narrow with a vote of five to three. In a dissenting opinion, Senate Chairwoman Doris König and judges Ulrich Maidowski and Peter Müller complained: “The Senate majority’s decision does not adequately capture the content and meaning of the constitutional requirement of clarity of norms in electoral law, and as a result does not give this requirement the weight it deserves and imposes on those entitled to vote As a result, they are exercising their fundamental right to democratic self-determination ‘flying blind’.”
Why was the ruling on the old electoral law still relevant?
Due to the many mishaps on election day in Berlin, the federal election is to be repeated in some electoral districts of the capital following a decision by the Bundestag. Proceedings on this matter are also ongoing in Karlsruhe. On December 19th, the Federal Constitutional Court wants to announce in how many electoral districts this has to happen and whether it is enough to only cast the second vote. The repeat election can now take place according to the same rules as the main election.
What has the new traffic light reform achieved?
The new electoral law limits the number of seats in the Bundestag to 630. In order to achieve this, there are no longer any overhang or compensatory mandates. The only decisive factor for the strength of a party in parliament is its second vote result. The basic mandate clause is also no longer applicable. According to her, parties entered the Bundestag based on the strength of their second vote result even if they were below five percent but won at least three direct mandates. In the future, every party that wants to get into the Bundestag must receive at least five percent of the second votes nationwide.
How is the current right to choose traffic lights assessed?
The plaintiff’s representative, legal scholar Professor Sophie Schönberger, sees positive signals in the judgment. She is sure that the current reform, against which lawsuits are already pending in Karlsruhe, will hold up before the Federal Constitutional Court. It is significantly clearer, more understandable and simpler than its predecessor.
Ansgar Heveling, however, said on behalf of the CDU/CSU parliamentary group: The court has made it clear that constitutionally compliant measures are possible in the tried-and-tested system of personalized proportional representation to limit the size of the Bundestag. At various points the court clearly pointed out the strengthening of the personal element. The traffic light coalition should reconsider its new voting rights. Because that doesn’t strengthen the personal element, but rather weakens it.