The announcements could hardly be surpassed in terms of clarity. CSU boss Markus Söder condemned the traffic light coalition’s draft law to reduce the Bundestag as “unconstitutional”, CDU boss Friedrich Merz as “unacceptable”. CSU General Secretary Martin Huber even accused the traffic light of “organized election fraud” that reminded him of “rogue states”. And CSU regional group leader Alexander Dobrindt said that a draft law that “so blatantly disregards the will of the voters” must “ultimately end up before the constitutional court, of course.” In view of these statements, it was considered certain that the Union would sue in Karlsruhe. But now there is a surprising problem.
For a norm control action before the Federal Constitutional Court, the support of at least 25 percent of the members of the Bundestag is required. There are currently 184. In the past, the Union faction would have easily brought this number together. But since the collapse of the Union parties in the federal elections, the CDU and CSU have only 197 MPs. The meetings of some CDU state groups on Monday evening and the meeting of the entire parliamentary group on Tuesday afternoon showed that there are numerous CDU MPs who do not share the furor of their CSU colleagues by far to the same extent. And that is why it is not yet clear whether there will be a lawsuit in Karlsruhe.
A lawsuit against a reduction in the size of the Bundestag could go down badly
Many CDU MPs are still angry about the brutal way in which the CSU prevented solutions to downsize the Bundestag in the past legislative period. At that time, the CSU had also implemented a special regulation for overhang mandates, from which it benefits. There are now 736 MPs in the Bundestag, although the standard size is only 598. Parliament is thus larger than ever before in its history.
Angela Merkel and Wolfgang Schäuble had repeatedly pointed out in the CDU presidency during the past legislative period that the CDU ran the risk of getting on the defensive when it came to reducing the size of the Bundestag if it did not act on its own in good time. Now the CDU and CSU are in opposition – and no longer have any leverage to influence the rules. The right to vote can be changed in the Bundestag with a simple majority.
The tone in which CSU General Secretary Huber condemned the traffic light bill is considered inappropriate right up to the CDU leadership. In addition, several CDU MPs point out that a lawsuit by the Union against the traffic light law would be perceived by the citizens as a lawsuit against the reduction of the Bundestag and could therefore go down badly. And then you are not at all sure that you will win the lawsuit – in that case you would also be a loser.
In addition, there are also imbalances in the applicable electoral law. According to participants, at the meeting of the parliamentary group executive committee, Union parliamentary group vice-president Mathias Middelberg pointed out that the CDU had received 60,000 votes for one member of the Bundestag in its state association in Lower Saxony, but 44,000 votes would have been enough for the CDU in Baden-Württemberg.
Merz and Dobrindt write a letter at the traffic light
In view of this situation, the CSU now seems to be becoming more cautious. In his most recent statement on the subject, Alexander Dobrindt only said: “The lawsuit is an option.” In addition, Dobrindt, together with Merz, wrote a letter to the parliamentary group leaders of the SPD, Greens and FDP, it is the Süddeutsche Zeitung Before. In it, Dobrindt and Merz complain that the traffic light coalition has gone public with its draft law without the Union’s prior involvement – but changes to the electoral law should be supported by a large majority.
In addition, Merz and Dobrindt declare that they are not prepared “to agree to an electoral law that fundamentally calls into question the acceptance of a constituency mandate that has been won.” The Union faction is “convinced that an electoral law that denies a candidate directly elected by the people the entry into the German Bundestag violates the principle of equality of elections, the immediacy of the election and the principle of democracy”.
Nevertheless, Dobrindt and Merz are not announcing any legal action against the traffic light coalition’s draft law. Instead, they offer the SPD, Greens and FDP joint talks about “the further course of action”.
The traffic light coalition wants to abolish all overhang and compensation mandates
In the past twenty years, the Bundestag has grown in size. This was due to the overhang and compensation mandates. Overhang mandates arise when a party wins more direct mandates in a federal state than it is entitled to according to the result of the second vote. To ensure that the other parties are not disadvantaged as a result, there have also been compensatory mandates since the 2013 federal election. The draft law of the traffic light factions now provides for a radical cut. There should be no more overhang and compensation mandates in the future. As a result, the Bundestag will always have its standard size of 598 MPs. As a result, however, it can happen that a candidate who achieves the most votes in a constituency is still not allowed to enter the Bundestag.
An example: If the CSU in Bavaria won all 46 direct mandates, but was only entitled to 41 seats in the Bundestag based on its second vote result, the five constituency winners with the lowest first vote result would not get a Bundestag mandate. The traffic light coalition considers this to be acceptable – also because there are now MPs in Germany who won their constituency with less than 20 percent of the votes. The traffic light coalition does not want to change the number of Bundestag constituencies in Germany – there are currently 299. This avoids a complicated reshaping of the constituencies.
In their letter to the leaders of the traffic light coalition, Merz and Dobrindt propose the introduction of trench voting rights instead. Half of the MPs should be elected via the constituencies, “the other half via the state lists of the political parties,” the letter says. If this right to vote had already applied in the last federal election, the CDU and CSU would have a significantly higher proportion of MPs in parliament today – the Greens, FDP, Left and AfD a significantly smaller one. The draft law of the traffic light coalition, on the other hand, would only change the majority situation minimally.