2024-08-05 19:01:46
Federal Constitutional Court
Karlsruhe examines traffic light voting law: only partially unconstitutional
Updated on 30.07.2024Reading time: 4 min.
In order to curb the expansion of the Bundestag, the traffic light coalition reformed the electoral law in 2023. The core of the reform is constitutional, parts are unconstitutional. Both sides see themselves as winners.
A decision published too early and a sigh of relief on both sides: In the dispute over electoral reform, the Federal Constitutional Court has officially announced its ruling. The new regulation introduced by the traffic light government in 2023 was largely confirmed by the Karlsruhe judges – but a not insignificant part was declared unconstitutional. This concerned the repeal of the so-called basic mandate clause.
According to this clause, parties under the old electoral law were able 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 the rule for the time being until the legislature has passed a new regulation. The limitation of the Bundestag to 630 members and the elimination of the so-called overhang and compensatory mandates – a core element of the traffic light reform – remained in place.
However, there was no question of a highly anticipated verdict on Tuesday morning. The decision of the Second Senate could already be found on the Internet the evening before it was announced. “The court is currently examining how this could have happened,” said the Senate’s presiding judge and vice president of Germany’s highest court, Doris König. “We regret that, possibly due to a technical error, it was possible to access the verdict on the Internet as early as yesterday.”
In the said ruling, the Federal Constitutional Court declared the second vote coverage stipulated in the electoral law to be compatible with the Basic Law. This means that in future the second vote result of a party alone will determine the number of seats it has in parliament. This also applies if it has won more direct mandates via the first vote. In this case, the constituency winners with the worst first vote result will go away empty-handed.
In addition to the basic mandate clause, the coalition of the SPD, the Greens and the FDP had eliminated overhang and compensatory mandates. Overhang mandates were created 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 elimination of these mandates was considered to be in accordance with the constitution. The legislature has a wide scope for action, emphasized König several times.
At one point, the constitutional judges showed the reform the red card. The five percent hurdle in its current form – i.e. without a basic mandate clause – is not compatible with the Basic Law and must be modified, explained König. The legislature must design the threshold clause in such a way that it does not go beyond what is necessary to ensure the functionality of the Bundestag. Various options were put forward to solve the problem.
On the one hand, the basic mandate clause could be retained – as the court has determined for the period until a new regulation is introduced. König discussed in detail an option in which the Union parties would be considered together for the threshold clause – so the CSU would have to reach over five percent nationwide, not alone, but together with the CDU.
It is possible that the CSU will not be considered in the allocation of seats in the next federal election if it does not exceed the five percent hurdle nationwide, explained König. If it were considered, the CSU MPs would “sufficiently certainly” form a parliamentary group with the CDU. “In this case, the aim of the threshold clause will be achieved in the same way if the second vote results of parties that cooperate in this way are taken into account together,” she explained.
There was a lot at stake for the CSU, as well as for the Left. In 2021, the CSU, which is only running in Bavaria, received 5.2 percent of the nationwide second votes. If it were to slip below the five percent mark in the next election, it would be thrown out of the Bundestag under the new electoral law if the basic mandate clause were to be abolished without replacement – even if it had again won the vast majority of constituencies in Bavaria directly.