Federal Constitutional Court: How fair is the new voting law? – Negotiation in Karlsruhe

Does the traffic light government’s electoral law reform stand up to constitutional concerns? Among other things, the project was intended to stop the growth of the Bundestag due to overhang mandates.

The Federal Constitutional Court in Karlsruhe is taking aim at the new federal election law, which is to be applied in next year’s federal elections. At the start of the two-day oral hearing there was harsh criticism from the plaintiffs. Among others, the Bavarian state government, members of the Bundestag from the CDU/CSU parliamentary group, the CSU and Left parties and a group of more than 4,000 private individuals are taking action against the new voting law.

The law with its significant changes was passed hastily without the opposition being able to consult, said CDU leader Friedrich Merz. Almost at the last minute, the traffic light deleted the so-called basic mandate clause. This clause previously ensured that a party was represented in the Bundestag even if it had previously failed to pass the five percent hurdle but had won at least three direct mandates. Smaller parties such as the CSU and the Left, which are among the plaintiffs for the reform, could be severely affected by the removal of the basic mandate clause.

Government wants to counteract image of “bloated Bundestag”.

On the federal government’s side, the Parliamentary State Secretary of the Interior Ministry, Mahmut Özdemir (SPD), emphasized that the MPs are representatives of the entire German population, not just their constituency. Something must be done about the population’s increasing acceptance problem – which the SPD politician derived from terms such as “bloated Bundestag” and “XXL Bundestag”. The barrier clause is “inevitable”.

The Second Senate had many questions. For example, it needs to be clarified whether this clause might need to be examined more strictly. Is the threshold too high because too many votes are not represented in the Bundestag? Are there any exceptions to the barrier clause? perhaps for state parties, asked the rapporteur at the Federal Constitutional Court, Astrid Wallrabenstein. It is also important to consider how constituency candidates would differ from their parties.

Experts warn of a loss of legitimacy

Experts were sometimes very clear about the requirements for democratic elections. The right to vote should be permanent and not an expression of temporary majorities and should enable fair competition between the parties, explained democracy researcher Hans Vorländer. If a large number of voters are not represented, democratic institutions lose legitimacy. In this context, the political scientist Frank Decker clearly advocated lowering the threshold of 5 percent – and thus reducing the proportion of votes not taken into account.

A large proportion of voters in the constituencies are not even aware of direct candidates, said Decker. Political scientist Thorsten Faas said that the decisive factor for their voting decision is party preference, not personal preference, even for the first vote – most voters would therefore give both votes to the same party. And: very few voters even know the difference between the votes. Many people don’t know that the second vote is the decisive one.

Bavaria fears deserted constituencies

With the new traffic light regulations, the number of seats in the Bundestag is to be capped at 630. To achieve this, overhang and compensation mandates, which have previously allowed the Bundestag to continue to grow, should be eliminated. After the last federal election, parliament had 736 members. In the future, the number of seats a party has in parliament will be determined solely by its second vote result – even if it has won more direct mandates. Then the constituency winners with the worst first vote result go away empty-handed. This would particularly affect the Union parties.

The CSU, for example, sharply criticized the planned elimination of overhang mandates. If the new electoral law had already been in force at the last federal election, seven of the successful constituency candidates out of 46 won constituencies in Bavaria would not have made it into the Bundestag. “This leads to frustration among voters,” said Bavarian Interior Minister and member of the state parliament Joachim Hermann. Entire constituencies remained orphaned, entire regions and their concerns were then ignored in the Bundestag.

Negotiations will continue on Wednesday. However, a verdict is unlikely to be made for a few months – as far as possible before the next federal election in autumn next year. If the highest court demands changes to the reform, these would still have to be incorporated.