2024-08-08 03:48:51
The decision of the Federal Constitutional Court is in: The new electoral law is partly unconstitutional – and must be revised.
The reform of the Federal Election Law introduced by the traffic light coalition is unconstitutional in parts. This was the ruling of the Federal Constitutional Court in Karlsruhe. This concerns the repeal of the so-called basic mandate clause in the new electoral law.
According to the ruling, parties were allowed to enter the Bundestag based on the strength of their second vote even if they were below the five percent hurdle 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. (Ref. 2 BvF 1/23 et al.)
The verdict was already circulating online late on Monday evening. The document was temporarily available on the website of the highest German court and several media outlets reported on it. How it came to be published remained unclear at first.
The new regulation, implemented by the coalition of the SPD, FDP and the Greens, has been in force since June 2023 and is to be applied for the first time in the federal election next year. The reform is intended to significantly reduce the size of the Bundestag – compared to the current level by more than 100 to a maximum of 630 parliamentarians.
To achieve this, the coalition has eliminated overhang and compensatory mandates. Up until now, overhang mandates were awarded when a party won more direct mandates via the first votes than it was entitled to seats based on the second vote. The party was then allowed to keep these mandates, and the other parties received compensatory mandates in return. The Karlsruhe judges believe that the traffic light coalition has eliminated overhang and compensatory mandates in accordance with the constitution.
In Karlsruhe, the Bavarian state government, 195 members of the Union parliamentary group in the Bundestag, the Left Party in the Bundestag and the CSU and Left Party parties took action against the law. In addition, more than 4,000 private individuals filed a constitutional complaint. The applicants and complainants saw two basic rights violated in particular: the right to vote in accordance with Article 38 and the right to equal opportunities for parties in accordance with Article 21 of the Basic Law.
The planned abolition of the basic mandate clause meant that a lot was at stake, especially for the CSU and the Left. In the 2021 election, the CSU, which is only running in Bavaria, received 5.2 percent of the second votes nationwide. If it were to slip below the five percent mark nationwide in the next election, it would not be able to enter the Bundestag again under the new electoral law – even if it were to win the vast majority of constituencies in Bavaria directly again.
In the last federal election, the Left Party only entered the Bundestag in parliamentary group strength via the basic mandate clause. The party failed to clear the five percent hurdle in 2021, but won three direct mandates. After the split from the Sahra Wagenknecht (BSW) alliance, the Left Party is once again in deep crisis. In the European elections at the beginning of June, it only achieved 2.7 percent.