One of the rituals of the Federal Constitutional Court is to establish attendance at the beginning of an oral hearing. Vice President Doris König will have to call many names this Tuesday; those named will stand up, perhaps indicate a bow; Men like to fasten their jacket buttons. Significant parts of political Berlin have traveled to Karlsruhe, after all it is about the new voting law, i.e. the origin of all political existence. And among the people in the meeting room with the wooden federal eagle there will be many who have a lot to lose.
This is most clearly seen in the case of Martin Schirdewan, the co-chairman of the Left, legally represented by veteran Gregor Gysi. Alexander Dobrindt, chairman of the CSU regional group in the Bundestag, will also be somewhat tense about the proceedings. The political opponents are united by the fear of falling into national political insignificance.
Without direct mandates, the Left would not have entered the Bundestag in the last election
Because in the new electoral law of June 14, 2023, the traffic light coalition deleted the so-called basic mandate clause. That was the life insurance of regionally solidly anchored parties that balance on the five percent hurdle nationwide. The Left would not have entered the Bundestag in the last election with its 4.9 percent without its three direct mandates in Berlin and Leipzig. And even at the CSU, their penchant for powerful rhetoric cannot hide the sober numbers: nationwide, they received 5.2 percent in 2021.
The CDU also has something to lose. It is traditionally strong in the constituencies, and under the previous rules there were at least three overhang mandates without compensation – a small plus. Party and parliamentary group leader Friedrich Merz has announced his presence at the hearing. But the Karlsruher Runde also has its risks for the traffic lights. The fact that in her overzealous reform she deleted the basic mandate clause at the last second, which, as seen above, is vital for certain parties, could be interpreted as a politically unfair move. And since the court always closely examines electoral law to see whether a government is tailoring the laws to its own advantage, there is a constitutional risk involved.
So this is the list for the major trial, which is scheduled to last two days: The Union parliamentary group in the Bundestag and the Bavarian government have submitted applications for regulatory review, plus there are organ lawsuits from the CSU and the Left, as well as individual lawsuits and a constitutional complaint from a good 4,000 plaintiffs, brought together by the organization “Democracy Now “. An assault on the new electoral law.
The traffic light reform is the first viable attempt to solve the problem
On the plus side, the traffic light coalition can at least claim this: its reform is the first viable attempt to end the bloat of the Bundestag. In 2013 the parliament had 631 members, in 2017 there were already 709, and in 2021 there were already 736 members, 138 above its nominal strength. The drivers were overhang and compensation mandates – i.e. everything that has now been deleted as a result of the reform. According to the law, the future Bundestag will be capped at 630.
It took the legislature ten years to achieve this feat. The so-called first vote pays the price of the reform: the cross for the constituency candidate has been drastically devalued. Not to zero, but it is already a fall in value on the order of Argentine inflation.
From now on, the seat ratio between the parties will be based solely on the second vote. The personal element still plays a role because the constituency winners with the best results enter the Bundestag. However, if the seats to be distributed based on the party vote fall short of the constituencies won, then the winners with the narrowest constituency results do not make it into the Bundestag – because they are only taken into account up to the “second vote coverage”.
The CDU lawyers see a violation of “equality of choice”
Constituency winners remain outside, and instead constituency losers from other parties may enter parliament, as Professors Bernd Grzeszick and Heinrich Lang put it in their application for the Union faction. Of course that sounds somehow unfair, but it certainly should. The CDU lawyers see this as a violation of “equality of choice”. But you can also formulate it like the professor trio Christoph Möllers, Florian Meinel and Jelena von Achenbach, legal representatives of the Bundestag, do. The legislature has completed the “basic character of proportional representation.”
According to their thesis, the reform took the step towards true proportional representation. A system in which the party vote is the measure of all things. Before the reform, people spoke of proportional representation with personal elements because the victories of many constituency candidates could increase the number of Bundestag mandates for a party – through overhang mandates. This is now over. 30 percent of the votes for the CDU/CSU means 30 percent of the seats. Their successes in the constituencies determine who from the Union sits in the Bundestag – but not how many.
If Karlsruhe accepts the system change argument, then it will be difficult for the Union. The court ruled in 2012 that the legislature enjoys a “wide scope for design” when it comes to electoral law. This also includes “an extension of the proportional representation principle to the entire distribution of seats with appropriate weighting of the direct mandates,” it says there. The court wrote at the time that the legislature could also have introduced a completely different system, such as having half of the Bundestag filled by majority voting and half by proportional representation. But he didn’t. It could be that the reform is simply a democratic fact that Karlsruhe also accepts.
A professor believes that lowering the five percent threshold is necessary
And the politically disreputable move with the basic mandate clause? The constitutional complaint raised by “Democracy Now” could play a role here. It was formulated by Thorsten Kingreen, professor in Regensburg. Although he actually has a completely different concern: he believes that the five percent threshold should be lowered.
The argument goes like this: A threshold clause is a democratic problem anyway, because the votes of voters become irrelevant if they vote for the wrong party, namely a party that is too small. The left, for example: its supporters may value their support for wealth redistribution or their skepticism about arms deliveries. They would have failed at the five percent hurdle in the last election, which would mean that the vote of 2.27 million people would not be reflected in the Bundestag.
This means that the deletion of the basic mandate clause, which has barely opened a door for the left, increases the pressure on the five percent clause. The court itself has overturned threshold clauses in European elections several times. If the Federal Constitutional Court orders the hurdle to be lowered, the CSU and the Left would be helped – the removal of the basic mandate clause would then no longer be a problem.
The democratically grotesque effect of such clauses could also suggest a mitigation: the lost votes, warns Kingreen, can even help political competition. Elections will take place in Saxony in the fall. SPD, Greens, FDP, Left, they could all end up below five percent. And this is exactly what could give the AfD an absolute majority.