Groko’s plans
Karlsruhe decides on electoral law reform light
November 29, 2023, 8:15 a.m
Ideally, an issue that is central to Germany’s political system, such as the right to vote, will be decided by widespread political agreement. But that has long been pure theory. In fact, questions of voting rights are also questions of power – and therefore political issues. That is why the Federal Constitutional Court must announce a decision on the electoral law reform of the GroKo of the Union and SPD from 2020 this Wednesday. Which is a bit bizarre because the traffic light coalition decided on a much more far-reaching reform last March and the former plaintiffs are no longer interested in the process.
Why was voting law reformed at all?
With the 15th electoral term that began in 2002, the Federal Election Act set the target size of the Bundestag at 598 members. This number was initially roughly maintained. But from election to election, more representatives moved into the Reichstag building, and in 2017 there were 709. Overhang and compensatory mandates were responsible for the Bundestag’s growth to an XL format. Overhang mandates arose when a party won more direct mandates than the number of seats it received based on the second vote result. She was allowed to keep this, but the other parties received compensatory mandates in return. All parties advocated downsizing, but could not find a common denominator.
What did electoral law reform look like in 2020?
The GroKo electoral law reform consisted of two parts. The first part was applied in 2021, the second part should only apply to the 2025 election. It has already been determined for 2021 that a party’s excess mandates should be partially offset against its list mandates in other countries. If the standard size of 598 seats is exceeded, up to three overhang mandates should not be compensated for by compensatory mandates. However, the number of 299 constituencies was not affected. These should only be reduced to 280 in the second step from 2024. In addition, a reform commission should be set up on electoral law issues after the 2021 federal election.
What could bother the judges?
The oral hearing in April focused heavily on the question of whether voters still understand the impact of their vote. Or has voting law become too complicated and needs to be simplified?
Has the new reform perhaps already achieved this?
In a way, yes. The new electoral law limits the number of seats in the Bundestag to 630. In order to achieve this, there are no longer any overhang or compensatory mandates. The only decisive factor for the strength of a party in parliament is its second vote result. The basic mandate clause is also no longer applicable. According to her, parties entered the Bundestag based on the strength of their second vote result even if they were below five percent but won at least three direct mandates. In the future, every party that wants to get into the Bundestag must receive at least five percent of the second votes nationwide.
What did the 2020 reform actually achieve?
Not much. Critics complained from the start that it was just a small reform with little impact. The Bundestag did not become smaller, but even larger. Since the 2021 election it has included 736 MPs. Ultimately, only the increase was slowed down. For electoral law experts, however, it is clear that the Bundestag could have become much larger if the citizens’ voting behavior had only been slightly different. Shortly before the election, Robert Vehrkamp from the Bertelsmann Foundation even believed that a Bundestag with a good 1,000 representatives was possible.
How did the reform become a case for the Federal Constitutional Court?
The FDP, the Greens and the Left, who were in opposition when the GroKo reform was passed, had agreed on their own bill that would have had significantly more impact. According to him, for example, the number of constituencies should be reduced from 299 to 250. In February 2021, they submitted a so-called abstract norm review in Karlsruhe to check the electoral law reform of the Union and SPD for its compatibility with the Basic Law.
Are the plaintiffs still happy with that?
No. The FDP, the Greens and the Left would have preferred to shelve their complaint in view of the reform of the traffic light coalition. In mid-March, the 216 MPs who had once submitted the application for regulatory review requested that the procedure be suspended. Vain. There is a “significant interest” in determining whether the current Bundestag was created on the basis of a constitutional right to vote, said Vice Court President Doris König at the oral hearing.
Why is this still relevant given the new reform?
Due to the many mishaps on election day in Berlin, the federal election is to be repeated in some electoral districts of the capital following a decision by the Bundestag. Proceedings on this matter are also ongoing in Karlsruhe. On December 19th, the Federal Constitutional Court wants to announce in how many electoral districts this has to happen and whether it is enough to only cast the second vote. The repeat election would have to follow the same rules as the main election.
What could that mean?
Things could get tricky. If the changes are declared invalid and not just unconstitutional, “in the event of a partial repeat election in Berlin, the entire federal election result would essentially have to be calculated again according to the old electoral law from before 2020,” explains political scientist Sophie Schönberger, the plaintiff for the Greens , FDP and the Left. This would increase the size of the current Bundestag even further. “A possible solution in principle would be to apply the law that existed before this reform,” says the Bundestag representative, Professor Bernd Grzeszick. Theoretically, a kind of “transitional or emergency” voting law would also be possible, which the Bundestag could only issue in this case. However, all of these scenarios are extremely problematic from a legal point of view for various reasons.
Can the ruling also have consequences for the new reform?
In Berlin, the ruling on the 2020 electoral law reform will be examined closely. The judges may write a few general principles on voting law in their ruling, which could also have an impact on the latest reform. The Free State of Bavaria and the CSU are already suing against this. The CDU/CSU parliamentary group and the Left have also announced lawsuits. Assuming that Karlsruhe rejects the new reform, the old voting law might come into effect in 2025.