Karlsruhe rules on the GroKo's electoral law reform

Karlsruhe rules on the GroKo's electoral law reform

Ideally, an issue that is central to Germany's political system, such as voting rights, would be decided by broad political consensus. However, this has long been mere theory. In reality, questions of electoral law are also questions of power - and therefore political disputes.

This is why the Federal Constitutional Court has to announce a decision on the electoral law reform of the CDU/CSU and SPD grand coalition from 2020. This is somewhat bizarre because the traffic light coalition decided on a much more far-reaching reform last March and the former plaintiffs no longer have any interest in the proceedings.

Why was the electoral law reformed in the first place?

The Federal Elections Act set the target size of the Bundestag at 598 MPs for the 15th electoral term, which began in 2002. Initially, this number was almost adhered to. However, from election to election, more and more MPs moved into the Reichstag building, finally reaching 709 in 2017. Overhang and compensatory mandates were responsible for the growth of the Bundestag to an XL format. Overhang seats were created when a party won more direct seats than it was entitled to according to the second vote result. It was allowed to keep these, but the other parties received compensatory seats in return. All parties argued for a reduction in size, but could not find a common denominator.

What did the 2020 electoral law reform look like?

The electoral law reform of the GroKo consisted of two parts. The first part came into effect in 2021, while the second part was only to apply to the 2025 election. It was already stipulated for 2021 that overhang mandates of a party should be partially offset against its list mandates in other states. If the standard number of 598 seats is exceeded, up to three overhang mandates are not to be compensated for by compensatory mandates. In contrast, the number of 299 constituencies was left untouched. These should only be reduced to 280 in a second step from 2024. In addition, a reform commission was to be set up after the 2021 Bundestag elections to address issues relating to electoral law.

What could bother the judges?

At the hearing in April, the main question was whether voters still understand what effect their vote has. Or has electoral law become too complicated and needs to be simplified?

Has the new reform perhaps already done this?

To a certain extent, yes. The new electoral law limits the number of seats in the Bundestag to 630. To achieve this, there are no longer any overhang or compensatory seats. The strength of a party in parliament is determined solely by its second vote result. The basic mandate clause will also be abolished. According to this clause, parties entered the Bundestag with the strength of their second vote result even if they received less than five percent but won at least three direct mandates. In future, every party that wants to enter 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 outset that it was just a minor reform with little effect. The Bundestag did not become smaller, but even larger. Since the 2021 election, it has 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 citizens' voting behavior had been only slightly different. Shortly before the election, Robert Vehrkamp from the Bertelsmann Stiftung even considered a Bundestag with a good 1,000 MPs possible.

How did the reform become a case for the Federal Constitutional Court?

The FDP, Greens and Left Party, who were in opposition when the GroKo reform was passed, had agreed on their own bill, which would have had considerably more impact. According to it, for example, the number of constituencies was to be reduced from 299 to 250. In February 2021, they filed what is known as an abstract review of legal norms in Karlsruhe to examine the electoral law reform by the CDU/CSU and SPD for its compatibility with the Basic Law.

Are the plaintiffs still happy with this?

No. The FDP, Greens and Left Party would have preferred to shelve their lawsuit in light of the reform by the traffic light coalition. In mid-March, the 216 MPs who had once submitted the application for a review of the constitution requested that the proceedings be suspended. In vain. There was a "considerable interest" in establishing whether the current Bundestag had come into being on the basis of constitutional electoral law, said Deputy Court President Doris König at the hearing.

Why is this still relevant in view of the new reform?

Due to the many mishaps on election day in Berlin, the Bundestag election is to be repeated in some constituencies of the capital following a decision by the Bundestag. This is also the subject of proceedings in Karlsruhe. On December 19, the Federal Constitutional Court will announce in how many constituencies this is to take place and whether it is sufficient to cast only the second vote. The repeat election would have to follow the same rules as the main election.

What could that mean?

It could be tricky. If the changes are declared null and void and not just unconstitutional, "in the event of a partial repeat election in Berlin, the entire Bundestag election result would basically have to be recalculated according to the old electoral law from before 2020," explains political scientist Sophie Schönberger, who represents plaintiffs from the Greens, FDP and Left Party. This would increase the size of the current Bundestag once again.

"One possible solution in principle would be to apply the law in force before this reform," says the Bundestag's representative, Professor Bernd Grzeszick. Theoretically, a kind of "transitional or emergency" electoral law could also be considered, which the Bundestag could enact just for this case. However, all of these scenarios are highly problematic from a legal perspective for various reasons.

Could the ruling also have consequences for the new reform?

The ruling on the 2020 electoral law reform will be closely scrutinized in Berlin. This is because the judges may include a few general guidelines on electoral law in their ruling, which could also have an impact on the latest reform. The Free State of Bavaria and the CSU are already taking legal action against this. The CDU/CSU parliamentary group and the Left Party have also announced legal action. Assuming that Karlsruhe rejects the new reform, the old electoral law may come into effect in 2025.

1. The Bundestag debated the implications of the Federal Constitutional Court's decision on the electoral law reform, which was initiated by the FDP, Greens, and Left Party, questioning whether the new reform adequately simplifies the electoral process as per the concerns raised by the court.
2. The GroKo's electoral law reform aimed to reduce the size of the Bundestag, but the 2020 reform only moderately affected the number of MPs, causing some parties to question if the reform adheres to the Constitution as per the requirements outlined by the Federal Constitutional Court.
3. If the Federal Constitutional Court deems the 2020 electoral law reform unconstitutional, the Bundestag may need to consider electoral law reform once again, considering the guidelines and input from the court to ensure that future elections align with the Constitution and ensure electoral fairness.

Source: www.dpa.com