German electoral law reform partly unconstitutional
Published: Tuesday, Jul 30th 2024, 11:20
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The reform of German electoral law passed by the ruling "traffic light" coalition is unconstitutional in parts. This was ruled by the Federal Constitutional Court in Karlsruhe on Tuesday. The aim of the reform was to reduce the number of MPs in the national parliament, which had become ever larger in recent years.
The decision by Germany's highest court concerns the abolition of the so-called basic mandate clause in the new electoral law. According to this clause, parties entered the Bundestag based on the number of votes they received even if they were below the five percent threshold but won at least three direct mandates.
The court has now reinstated this for the time being until the legislature has passed a new regulation. In any case, the number of MPs is to be limited to 630. The next Bundestag election is scheduled to take place on September 28, 2025.
A reform was years overdue, as the German Bundestag had grown ever larger with the electoral law in force until the 2021 elections. The standard size is 598 seats, but after the last election, 736 MPs joined the parliament instead. It is already the largest freely elected parliament in the world.
Complicated German electoral law
The reason for this is the complicated mixed system of proportional representation and majority voting in Germany. In a Bundestag election, every voter has two votes. The first vote is used to elect a member of parliament in the 299 constituencies. The second vote determines the proportional distribution of seats. If a party won more seats in a federal state with the first vote than it was entitled to with the second vote, it previously received so-called overhang seats. For decades, this only happened very rarely. Since the 1990s, however, the number of overhang seats has increased because the German party system has changed and the vote shares of the mainstream parties CDU/CSU and SPD have shrunk.
The new regulation pushed through by the coalition of the SPD, FDP and Greens has been in force since June 2023 and is to be applied for the first time in September 2025. Overhang and compensatory mandates have been abolished. In the view of the judges in Karlsruhe, this is in line with the constitution.
The Bavarian state government, 195 members of the CDU/CSU parliamentary group in the Bundestag, the Left Party in the Bundestag and the CSU and Left parties had taken action against the law in Karlsruhe. In addition, more than 4,000 private individuals had filed a constitutional complaint. The applicants and complainants saw two fundamental rights in particular as being violated: equal voting rights under Article 38 and the right to equal opportunities for political parties under Article 21 of the Basic Law.
Regional parties can breathe a sigh of relief
The basic mandate clause, which the "traffic light" had removed, favors parties that are significantly stronger at regional level than at national level. This applies in particular to the CSU in Bavaria and the Left Party in eastern Germany, which had therefore railed against the law.
In the 2021 election, the Left Party only achieved 4.9% of the national vote, but still made it into the Bundestag because it won three direct mandates in eastern Germany. At the beginning of this year, the party split and former parliamentary group leader Sahra Wagenknecht founded her own party, which performed significantly better than the Left Party in the European elections in June.
The CSU, which only contests in Bavaria, won 45 out of 46 constituencies there directly in the most recent election. Converted to national level, however, its share of the vote was only 5.2 percent. It was in danger of being thrown out of the Bundestag with a result that was only 0.3 points worse, even though it has been the dominant party in Bavaria for decades. Karlsruhe has now allayed this fear.
The ruling was already circulating online late Monday evening. The document was temporarily available on the website of Germany's highest court, and several media outlets reported on it. It initially remained unclear how the publication came about.
©Keystone/SDA
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