What You Need to Know About the New Right to Vote
In the future, the Bundestag will have only 630 members. That's still a lot, but the ever-growing expansion of the parliament has been stopped. Also stopped is an anti-CSU clause in the new election law.
The ruling of the Federal Constitutional Court on the election law reform of the traffic light coalition only partially fits into the categories of victory and defeat. Probably the best way to see it is: The judges have approved the core of the reform unanimously - a victory for the traffic light coalition. At the same time, they declared the abolition of the so-called basic mandate clause unconstitutional - which can certainly be seen as a setback for the coalition.
The Setback
The basic mandate clause (also called the constituency clause) is a peculiarity of the German election law. It regulates the following: If a party remains below the five percent hurdle, but wins at least three direct mandates, the five percent hurdle is practically suspended for this party. In concrete terms: Not only do the three constituency winners enter the Bundestag for this party - but the party receives as many seats as it would have based on the second vote result. This has happened in four federal elections so far, most recently in 2021. The Left only received 4.9 percent, but still entered the Bundestag with 39 members because three of its constituency candidates won a direct mandate.
The abolition of this basic mandate clause planned by the traffic light coalition was declared unconstitutional by the Federal Constitutional Court and thus stopped. This not only relieves the Left, but above all the CSU. Although it has never fallen below 5 percent in any federal election - the so-called threshold clause - it was only 5.2 percent last time. Without the basic mandate clause, it is conceivable that the CSU could win all or almost all constituencies in Bavaria and still not be represented in the German Bundestag.
The Federal Constitutional Court did not want to accept such an anti-CSU clause: "If parties that intend to form a common faction are treated jointly in the application of the threshold clause, this means unequal treatment compared to other parties," the judges explained in their reasoning. This means: The cooperation between CDU and CSU is so long and close that it would be very unfair to keep the CSU out of the Bundestag with a strict five percent hurdle. It will be interesting to see how this very concrete relationship between CDU and CSU will be cast into an abstract law. But for now, that's not necessary, because the basic mandate clause remains in its old form until a new regulation.
It's different with the proportional representation system**: Then, not individuals, but lists - i.e., parties - are elected. For example, in the Netherlands, a party that receives 20 percent of the votes is also represented in parliament with 20 percent of the seats - at least more or less, as mathematical reasons require a minimum number of votes for a party to win one of the 150 seats.
In Germany, the second vote follows the proportional representation system (though not via nationwide lists, but via state lists; nationwide lists only exist for European elections). This second vote was strengthened by the reform.
No more overhang and leveling mandates
The central goal of the electoral reform was to stop the permanent expansion of the Bundestag. Since the 15th legislative period (2002 to 2005), the statutory size of the Bundestag has been 598 seats. Nevertheless, there have always been more members: first a few more, then increasingly more, and currently many more. After the 2021 Bundestag election, the parliament had 736 seats - the most it has ever had. This is due to the so-called overhang and leveling mandates, which are intended to balance the contradiction between proportional and majority voting systems.
Until now, it was the case that a party that received more direct mandates with the first vote than it was entitled to (based on the second vote result) received overhang mandates. To prevent the second vote result from being distorted too strongly, other parties simultaneously received leveling mandates. The more the second votes are distributed among more parties, the more overhang and leveling mandates there are. After the Bundestag election, there were 34 overhang mandates and 104 leveling mandates. The majority of overhang mandates went to CDU and CSU, while the majority of leveling mandates went to SPD, which also received ten overhang mandates.
In the future, there will be no more overhang and leveling mandates; the Federal Constitutional Court had no objections to this reform. Instead, the judges explained that overhang mandates "adversely affect the equality of opportunity." They also declared the second vote coverage procedure, which the traffic light coalition has newly introduced, to be constitutional - unanimously.
The core of the reform - and the victory of the traffic light coalition
This is the central element of the reform: It is intended to ensure that the composition of the Bundestag first corresponds to the second vote result, and second, that it does not burst at the seams. Because the reform creates a fixed upper limit of 630 members. This is still a lot compared internationally, but at least the growth has stopped.
The second vote coverage procedure works as follows: Based on the second vote result, it is determined how the 630 seats are distributed among the parties. It is also taken into account how strong the results of the parties are in the individual federal states - if, for example, a party performs significantly better in Rhineland-Palatinate than in Saxony, then there will also be more members from Rhineland-Palatinate in its faction than from Saxony, although both federal states have roughly the same population.
However, if a party wins more direct mandates in a federal state than it is entitled to according to this procedure, then cuts are made from below: The constituency winners with the worst results do not make it. This can result in a constituency no longer being represented in the Bundestag by its own member in the future. The CSU, in particular, criticizes this, as it has particularly benefited from the system of overhang and leveling mandates. At this point, it wants to reverse the reform.
"That the constituencies are not allocated is, for me, not a permanently acceptable state - we must change this in the next legislative period," said Andrea Lindholz, deputy leader of the Union faction, at the early start of ntv. Here, the debate is going in circles: Without second-vote coverage, the Bundestag would continue to grow unchecked - unless the number of constituencies is drastically reduced, for example from the current 299 to 200. Even the Grand Coalition could only agree on a reduction to 280 constituencies.
What happens next?
CDU leader Friedrich Merz has offered the Traffic Light coalition talks on a new electoral reform. At the same time, he announced: "If the Traffic Light coalition is not ready for this, the electoral law must be changed again in the next legislative period." And he linked the offer of talks with massive criticism: "The Traffic Light coalition's attempt to eliminate political competitors using the electoral law has failed." CSU leader Markus Söder even spoke of a "failed electoral manipulation" that "has been exposed and rejected".
This criticism, in turn, has upset the Traffic Light coalition: "The Union is grossly overstepping the mark in its tone," said SPD faction manager Katja Mast on ntv.de. "It's high time to verbally de-escalate." Criticism is okay, "but what's happening here is dangerous for the acceptance of the court ruling and our democracy."
Given such statements, it is doubtful that there will be another electoral reform before the next federal election in autumn 2025.
The Federal Constitutional Court's decision to declare the abolition of the basic mandate clause unconstitutional is a relief for parties like the CSU, as its strict five percent hurdle would potentially exclude it from the Bundestag if this clause was implemented. The German Bundestag will continue to have 630 members in the future, due to the Court's approval of the core of the electoral reform, which aims to stop the permanent expansion of the parliament.
