analysis
Status: 08/13/2021 2:58 p.m.
The opposition failed with its urgent motion in Karlsruhe to reform the electoral law. But little changes for this choice anyway. The exam afterwards becomes more decisive.
Despite the electoral reform implemented by the Union and the SPD almost a year ago and its provisional confirmation by today’s decision of the Federal Constitutional Court that it is applicable: The next Bundestag could be bigger than ever before. Because the reform launched by the governing parties in October 2020 does not actually deserve this name, rather the title “Reformchen” – after a long disagreement between the two coalition partners, it had become a minimal compromise. According to the unanimous opinion of electoral law experts, the goal of actually solving the fundamental XXL problem of the Bundestag was not achieved at the time.
“It may well happen that the next Bundestag will not be smaller in any case – and that is not even unlikely,” says the political scientist Uwe Jun tagesschau.de. In their current assessment, the Karlsruhe judges also refer to their model calculation that the number of seats would only have decreased by 23 places with the adopted reform applied to the 2017 federal election results.
For the upcoming federal election, everything will ultimately remain in the subjunctive. “In any case, an increase in the number of seats in the German Bundestag up to and including its actual inability to function is unlikely,” said the court in its decision today. The size of the new parliament cannot really be predicted – it can only be calculated seriously and reliably with the election result. In particular, experience has shown that the direct mandates then achieved by the CDU, the largest party in terms of votes and polls, have an impact on the number of Bundestag mandates.
Overhang mandates continue to be a problem
This is still due to the complicated regulation of overhang and compensatory mandates, which has often led to an enlargement of the parliament. Surplus mandates are awarded if a party wins more direct mandates through first votes than it would be entitled to according to the second vote result. The Union in particular had benefited from this in the past.
Because overhang mandates have to be compensated by compensatory mandates. This has meant that the number of members of the Bundestag has increased even more – most recently in 2017 from the minimum size of 598 to 709 seats. In this election, up to three overhang seats should not be compensated if the standard size of the Bundestag is exceeded by 598 members.
Even after the reform of the electoral law, the goal of reducing mandates may well be missed this time too. On the contrary: Experts suspect that even after these federal elections more seats may have to be built in parliament: electoral law expert Robert Vehrkamp from the Bertelsmann Foundation assumes that in extreme cases up to 1,000 members could move into the next parliament. But that is difficult to predict and depends on various variables, says the head of the “Future of Democracy” program.
Opposition remains optimistic
And the Constitutional Court is already indicating unanswered questions and legal doubts. Therefore, despite this first rapid defeat, the FDP parliamentary group is now quite satisfied that the court can understand the arguments of the applicants: “Let’s see what the main decision will bring”, it says there quite optimistically. Because only one urgent motion is lost for the time being – the examination of a comprehensive judicial review complaint by the three opposition parties, the FDP, the Left Party and the Greens, is still pending. The Karlsruhe judges will only decide later whether the new right to vote before the constitutional court exists. Today it was only about whether the new rules can be applied to the election at the end of September. This will not change anything for voters. The rules only affect how votes are converted into mandates.
“The fact remains: Parts of the new electoral law are unconstitutional,” tweeted FDP parliamentary group manager Marco Buschmann in response to the Karlsruhe decision. The merger in this matter of the three opposition parties, which are otherwise very different and even contradict their content, shows what it is all about: the smaller ones fear an advantage for larger parties in terms of the final number of Bundestag seats in accordance with the current electoral reform. Since the right to vote guarantees a seat to winners of direct mandates, there are always overhang mandates if a party already wins more seats in the constituencies than it should have according to its second share of the vote. This distortion of the will of the electorate is compensated for by compensation mandates for other parties. If, according to the GroKo reform, up to three overhang mandates for other parties no longer have to be compensated – the party that wins the most constituencies will benefit more than average – according to the current state of affairs, the Union.
“Overhang mandates no longer in keeping with the times”
Large parties are clearly preferred, criticized the left-wing MP Friedrich Straetmanns in the Bundestag debate. Green parliamentary group leader Britta Haßelmann accused the coalition of deceiving the electorate: it is likely that “because it is likely that with this compromise the upcoming Bundestag will even grow further”. According to model calculations by the Greens, the Bundestag could grow to up to 798 seats – based on election survey results from 2020. Even for the FDP domestic politician Konstantin Kuhle, the reform does not provide an answer to the pressing problem of an XXL Bundestag. The CDU MP Philipp Amthor, however, rejected this in the Bundestag debate last October. The coalition had found “a fair and constitutional model”.
The electoral law expert Vehrkamp sees it completely differently: Overhang mandates would have no place in a multi-party system. They could distort majorities and, in extreme cases, prevent majorities capable of governing. This requires a fundamental ruling by the Constitutional Court on the right to vote.