- Karlsruhe examines the right to vote in the lighting: only partly unconstitutional
An Early Release and a Sigh of Relief on Both Sides: The Federal Constitutional Court has officially announced its ruling in the dispute over electoral reform. The new regulations introduced by the traffic light government in 2023 have been largely confirmed by the judges in Karlsruhe, but a significant part has been declared unconstitutional. This concerns the abolition of the so-called basic mandate clause.
Under this clause, parties in the old electoral system also entered the Bundestag with the strength of their second vote results if they were below the five percent hurdle but won at least three direct mandates. The court has now provisionally reinstated this rule until the legislator passes a new regulation. The limitation of the Bundestag to 630 members and the abolition of the so-called overhang and balance mandates - a core piece of the traffic light reform - remained in place.
However, there was no talk of a much-anticipated ruling on Tuesday morning. Already the evening before the announcement, the decision of the Second Senate could be found on the internet. "The court is currently investigating how this could have happened," said the presiding judge of the Senate and Vice President of the highest German court, Doris König. "We regret that it may have been possible due to a technical error to already access the ruling on the internet yesterday."
In the aforementioned ruling, the Federal Constitutional Court declared the second vote coverage provided for in the electoral law to be compatible with the Basic Law. This means that in the future, only the second vote result of a party will be decisive for the number of its seats in parliament. This also applies if it has won more direct mandates via the first vote. In this case, the winners of the constituencies with the worst first vote results will go empty-handed.
In addition to the basic mandate clause, the coalition of SPD, Greens, and FDP had abolished overhang and balance mandates. Overhang mandates were awarded if a party won more direct mandates via the first votes than it was entitled to seats based on its second vote result. These mandates could then be kept, while the other parties received balance mandates for this purpose. The abolition of these mandates was considered constitutional. König repeatedly emphasized that the legislator has a wide scope for design.
However, the constitutional judges and judges showed a red card at one point. In its current form, the five percent hurdle - i.e., without the basic mandate clause - is not compatible with the Basic Law and must be modified, König explained. The legislator must design the threshold clause in such a way that it does not exceed what is necessary to ensure the functionality of the Bundestag. Various options were put forward to solve the problem.
The Bundestag has various options open to it.
One option could be to retain the basic mandate clause - as the court has determined for the time being until a new regulation is passed. König went into detail about an option in which the Union parties would be considered jointly for the threshold clause - meaning the CSU would no longer have to achieve five percent alone, but together with the CDU nationwide.
It is possible that the CSU may not be taken into account in the next federal election if it fails to clear the five percent hurdle nationwide, König said. In that case, CSU parliamentarians would "sufficiently certainly" form a fraction with the CDU. "In this case, the objective of the threshold clause is achieved in the same way if the second vote results of parties that cooperate in this form are taken into account together," she explained.
Both the CSU and the Left had a lot at stake. In 2021, the CSU, which only runs in Bavaria, received 5.2 percent of the nationwide second votes. If it slips below the five percent mark in the next election, it would be excluded from the Bundestag under the new electoral law - even if it wins the vast majority of direct votes in Bavaria again.
The Left, on the other hand, only entered the Bundestag with faction strength in the last federal election via the basic mandate clause. The party failed to clear the five percent hurdle in 2021 but won three direct mandates. After the split of the Bündnis Sahra Wagenknecht (BSW), the Left is once again in deep crisis. "Of course, the Left is experiencing a revival today," said long-standing Leftist Gregor Gysi in Karlsruhe.
Traffic light and opposition see themselves confirmed
Who ultimately went out of the courtroom as the winner depends on whom you ask. While traffic light politicians emphasized that the court had not touched the core of the reform, opposition representatives spoke of a defeat for the traffic light. The most important thing is clear after the ruling, said SPD parliamentary group deputy chairman Dirk Wiese: "The reduction of the German Bundestag is accomplished and constitutional." FDP parliamentary group deputy Konstantin Kuhle emphasized: "In the decisive question of the reduction of the Bundestag, the ruling fully and completely confirms the reform."
However, the plaintiffs and opposition parties were also largely satisfied with the decision. In Karlsruhe, the Bavarian state government, 195 members of the Union faction in the Bundestag, the Left in the Bundestag, as well as the CSU and Left parties, had proceeded against the law. In addition, more than 4000 private individuals had filed a constitutional complaint.
Bavaria's Minister President Markus Söder (CSU) called the ruling a "clear success for the CSU and Bavaria - and a slap in the face for the traffic light". BSW federal chairwoman Sahra Wagenknecht interpreted the ruling as a slap in the face for the traffic light coalition.
Adaptations before or after the federal election?
Whether the electoral law will be adjusted before the federal election in 2025 remained initially open. "Whether we now have to take legislative steps, we will discuss within the coalition, but also with the Union," SPD parliamentary group chairman Rolf Mützenich told the "Rheinische Post".
The deputy chairwoman of the Union faction, Andrea Lindholz (CSU), particularly questioned that some winners of the electoral districts could go empty-handed. "That electoral districts are not allocated may be legally tenable - but it is democracy-endangering," said the Member of the Bundestag. "We must abolish this regulation." This has also been demanded by Söder, provided that the majority ratios after the next election allow it.
CSU parliamentary group leader Alexander Dobrindt said: "We will correct this element after the federal election and give the direct election to the German Bundestag in the electoral districts more weight again." However, this is controversial within the Union.
The Federal Constitutional Court's ruling regarding the traffic light government's electoral reform largely upheld the new regulations, but the abolition of the basic mandate clause was declared unconstitutional. This clause, as stated by President of the Second Senate and Vice President of the Federal Constitutional Court Doris König, allows parties to enter the Bundestag with the strength of their second vote results if they fall below the five percent hurdle but win at least three direct mandates.
In the wake of the court's decision, the Bundestag now has various options to address the unconstitutionality of the five percent hurdle without the basic mandate clause. One suggested solution is for the Union parties, including the CSU, to be considered jointly for the threshold clause, ensuring the CSU's representation in the Bundestag if it fails to clear the five percent hurdle nationwide.
