Federal Constitutional Court negotiates electoral law reform | tagesschau.de

The Federal Constitutional Court is negotiating the latest electoral law reform for two days. The CSU and the Left have turned to the highest German court because they fear significant disadvantages from the new rules.

The electoral law reform is under constitutional scrutiny. It’s not just the Bavarian state government, the CDU/CSU parliamentary group in the Bundestag and Die Linke that are complaining. Over 4,000 private individuals, represented by the “More Democracy” association, have also filed constitutional complaints.

Everyone has one thing in common: they believe the new voting law is unconstitutional, but they criticize different things. The CSU and the Left fear that the new rules will put them in a significantly worse position in the next federal election. “More Democracy” wants to ensure that the five percent hurdle is abolished altogether.

The Bundestag should be smaller

Last year, the Bundestag, with the majority of the traffic light coalition, passed the new voting law, which would apply for the first time in the 2025 federal election. The goal: The Bundestag should be significantly smaller. Instead of over 700 representatives, there will only be 630 seats in the next legislative period.

So far, the number of MPs has continued to rise. The reason for this: so far in the election, certain imbalances between the parties have been compensated for with additional seats. For example, if a party got a lot of first votes because its candidates were very popular, but it didn’t do so well with the second votes, it received more seats than it was basically entitled to – the so-called overhang mandates.

So that the other factions were not the losers, they also received so-called compensatory mandates. With the recent electoral law reform, all of this will be abolished. A party now only gets as many seats as it is entitled to based on the second vote result. And that can mean that some candidates no longer enter the Bundestag, even if they have won their constituency.

abolition of the Basic mandate clause

And something else has changed. Until now, only parties that won at least five percent of the second votes could enter the Bundestag. Unless they received three direct mandates in the first votes – the so-called basic mandate clause. This was intended to ensure that people who are particularly valued by voters also take part in parliament, even if their party is not particularly strong.

The Left benefited from this basic mandate clause in 2021. She did not reach the five percent threshold for the second votes, so she would normally not have been represented in the Bundestag. But she still moved in because she won three direct mandates.

The CSU could also be affected by the removal of the basic mandate clause. Because it typically receives many direct mandates in Bavaria, but nationwide it only gets a little more than five percent of the second votes.

Also the five percent hurdle topic

The structure of the Federal Constitutional Court’s proceedings shows: Equality of election and equal opportunities for the parties will play a large part in the oral discussion with the judges. The five percent hurdle will also be an issue.

In its complaint, “More Democracy” analyzed all elections since 1949 and came to the conclusion that this rule was unnecessary. In fact, with the threshold clause lowered to three percent, there was no fear of excessive party fragmentation and the formation of a government was not made more difficult. In contrast, many millions of votes were lost and that was undemocratic and unconstitutional.