The federal government is currently working in the eye of a hurricane, in the creation of which the Federal Constitutional Court plays a key role. A budget must be drawn up, debts must be avoided or legally justified. Good news from Karlsruhe comes in handy. The current Bundestag, which supports the traffic light coalition, is at least constitutionally composed. This was decided by the Second Senate, which is now known in Berlin as the Debt Brake Senate. Albeit with an extremely narrow majority: three of the eight Senate members would have liked to give the government a new construction site.
The norm control lawsuit, brought by the Left faction and the then opposition parties Greens and FDP, concerned a past that is no longer relevant, namely the electoral law of 2020, which was replaced this summer by a reform to reduce the size of the Bundestag. The plaintiff factions from the Left and (then in opposition) FDP and Greens even wanted to call off the proceedings, but the court did not accept this because of the possible repeat election in Berlin.
“Read Section 6 of the Federal Election Act, you’ll probably fall into a coma.”
It was about a regulation that far surpasses all prejudices about the incomprehensibility of legal language. Paragraph 6 of the electoral law at the time stipulates that surplus mandates are no longer fully compensated; in fact, three of these mandates remain without compensation. Parties that win many constituencies, especially the CDU and CSU, benefit from this. In addition, to a limited extent, direct mandates are offset against the list mandates of the same party in another federal state.
So far, so good, but how it works in detail is probably only understood by someone who has a double degree in law and math. In particular, Peter Müller, who was responsible as rapporteur, took the crooked paragraph as an opportunity to ask the question of all questions in the legal state of Germany: “Does it have to be clear to voters how their vote affects the allocation of mandates?” He initiated the negotiation in April. He had long since answered the question for himself. In a FAZ podcast in October 2022, he said: “If you can’t fall asleep in the evening, read Section 6 of the Federal Election Act, you’ll probably fall into a coma.”
Now Müller finds himself in the outvoted minority. He wrote a special opinion together with Vice President Doris König and Ulrich Maidowski. According to the reasons given, the majority don’t seem particularly happy about the monster norm. But the court did not want to establish a new principle according to which a paragraph is unconstitutional simply because the citizen and the voter do not understand it.
“These regulations are primarily aimed at the electoral bodies as legal practitioners.”
“Clarity of standards,” it makes clear, is primarily important where onerous measures are involved. People have to be able to adapt to this, which requires a certain level of comprehensibility of the regulations – as the court had already decided in 2020.
However, the court does not consider an increased level of clarity specifically for the right to vote as a core democratic set of rules to be appropriate. “The principle of certainty does not require that the content of legal regulations must fundamentally be recognizable to citizens without the aid of legal expertise,” the judgment states. “These regulations are primarily aimed at the electoral bodies as legal practitioners, but not directly at the citizens who are entitled to vote,” explained König when the verdict was announced. Eligible voters could access “other sources of information”; During the hearing there was talk of the Federal Returning Officer’s explanatory videos.
Of course, it can be seen from the judgment that the court is quite sensitive on this point. Voters should be able to understand “in broad strokes” how votes are transformed into mandates. The Senate refers to its previous calls on the legislature to “place the network of regulations governing the calculation of seat allocation in the German Bundestag, which is now difficult for voters to understand, on a clear and understandable basis.” But these were merely appeals and not hard constitutional sentences, the court made clear.
Citizens have to obey laws, but don’t necessarily have to understand them? The court’s conclusion, which is surprising at first glance, has to do with the peculiarities of German electoral law. The system of personalized proportional representation applies: one party vote, but also a direct vote for the constituency candidate. Added to this are the usual federal entanglements and the goal, which was declared in 2020, of reducing the size of the Bundestag. This means that such a complex system cannot be formulated as clearly as the election of the board of directors in the allotment garden association. And the Federal Constitutional Court does not want to force the legislature to forego direct election elements, for example, just to slim down the paragraphs.
The court only hinted at another reason. A “general constitutional standard for the maximum permissible level of complexity” cannot be developed. Without such a standard, the court would be free in the future to repeatedly stomp down the right to vote as incomprehensible. The court wanted to avoid so much power in its own hands.