- Green light for new voting rights - with one restriction
The proposal has been on the table for a few days: On September 28, 2025, the federal government wants the new Bundestag to be elected. It was previously uncertain whether the reform of the Bundestag election law introduced by the traffic light coalition could serve as the basis for this. Several lawsuits regarding this had to be examined by the Federal Constitutional Court. Just reading out the long list during the announcement took almost six minutes, and greeting the present representatives took about the same amount of time.
The most important question upfront: Can the election take place next year?
Yes. The highest German court has declared the reform largely constitutional. Only the five-percent threshold without a so-called "basic mandate clause" violates the Basic Law. According to this rule, the threshold for the nationwide share of second votes for those parties that have won at least three direct mandates is abolished. In the 2021 election, the Left benefited from this, as they only entered the parliament in faction strength because three of their people won the most first votes in their constituencies.
Is a reform still necessary?
Not immediately. The court has decided that the basic mandate clause deleted by the traffic light reform will remain in force until the Bundestag creates a new regulation. Therefore, if nothing changes by autumn 2025, the election will take place under these conditions.
Consequently, representatives of the government coalition such as Till Steffen (Greens) and Sebastian Hartmann (SPD) appeared relaxed after the ruling. First, the ruling must be examined in detail, then possible steps will be discussed - also with the Union. A quick shot still before the Bundestag election 2025 did not sound like that. On the other hand, SPD faction leader Rolf Mützenich told the "Rheinische Post" (Wednesday) that a change in the election law according to the new guidelines could be possible before the next election.
Was a reform necessary at all?
In principle, everyone agrees: Yes. Because the Bundestag continues to grow under the current regulations - and thus also becomes more expensive. In the 2021 election, the number of Members of Parliament increased from 709 to 736 - making the German Bundestag still the largest elected parliament in the world. The previous reform of the grand coalition of CDU/CSU and SPD only succeeded in braking the increase in the number of Members of Parliament.
What did the new reform look like?
The new election law passed by SPD, Greens, and FDP in 2023 caps the number of seats at 630 Members of Parliament. To achieve this, above all, overhang and equalization mandates were abolished. Overhang mandates arose when a party won more direct mandates than it was entitled to seats based on the second vote results. These mandates it could keep. The other parties received equalization mandates to adjust their strength to the shares of the second votes. And the basic mandate clause was also abolished with the reform.**
What consequences could the reform have had?
In addition to the Left, the Union had a lot at stake with the changes. In the 2021 Bundestag election, the CSU, which only runs in Bavaria, won 45 direct mandates. Eleven of these were overhang mandates that it would no longer receive under the new election law. The CDU won a further twelve overhang mandates in Baden-Württemberg. Together, these were 23 of the 34 overhang mandates, which in turn resulted in 104 equalization mandates.**
If the CSU were to slip below the five percent threshold nationwide in the next election, it would be out of the Bundestag, even if it were to win the vast majority of Bavarian direct mandates again. In the 2021 election, the CSU received 5.2 percent of the second votes nationwide.
What has the court decided?
The limitation of the Bundestag to 630 members and the abolition of overhang and equalization mandates remain valid. The so-called second vote coverage procedure is constitutional, the Senate decided unanimously. Accordingly, the 630 seats are initially distributed among the parties and their state lists. In the allocation, direct candidates move up the state list in the order of their vote shares. Only in the last step do all candidates receive their mandates in this order.
Only the current five percent hurdle is considered unconstitutional by seven of the judges - with one dissenting vote. Therefore, the Senate essentially reinstates the old rule that allows a party to enter parliament with faction strength if it wins at least three direct mandates.
The court also sees no problem in the possibility that some constituencies may not be represented by a politician or politician in the Bundestag. Nor does the electoral law have to be designed in such a way that candidates from each federal state enter the Bundestag according to their population share. "It would be misguided to view constituency members as delegates of their constituency," said presiding judge Doris König. They are representatives of the entire people according to the Basic Law and responsible only to their conscience. (Az. 2 BvF 1/23 et al.)
What are the options for the hurdle?
Especially with a view to the long-standing and still pursued cooperation of CSU and CDU with a joint election program and a joint faction, the Senate proposes to also consider cooperating parties together when applying the hurdle. However, it is stated in the next sentence that other variants of change are also conceivable. The legislature has in principle a lot of room for maneuver and may, in the opinion of the Senate, also introduce innovations in the electoral law that "require voters and candidates and parties to rethink".
Who are the winners and losers of the decision?
It depends on whom you ask. SPD, Greens, and FDP welcome the fact that the heart of their reform - the cap on 630 seats - has received the green light from the constitutional court. Representatives of the Left and the Union, on the other hand, are particularly pleased about the revival of the basic mandate clause - and that the traffic light coalition has suffered at least a partial defeat.
I'm not going to sugarcoat it: The decision has mixed implications for the parties involved. While the traffic light coalition is celebrateing the validity of their reform's seat cap, the Union and the Left are rejoicing over the restoration of the basic mandate clause.
Regarding the reform, I'm not denying its necessity: The current regulations contribute to the continuous growth and cost increase of the Bundestag, making it the largest elected parliament globally.
