On June 30, 2024, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) held that a recent reform of electoral law was partially unconstitutional, ruling a requirement that a party must meet an electoral threshold of 5% of votes to get seats in parliament violates the principles of electoral equality and equal opportunities for political parties. However, the court upheld the reform regarding the distribution of seats, which was intended to reduce the size of parliament.
Background
In the election for the Bundestag, Germany’s national parliament, voters cast two votes: one for a candidate in their constituency (their electoral district) and one for a party. Up until 2021, every candidate who won a constituency seat by majority of the first vote became a member of the Bundestag. The number of second votes cast for a party in proportion to the total number of second votes throughout the country determined how many seats in parliament a party was entitled to. Parties who gained less than 5% of second votes were not considered in the distribution of mandates, unless at least three party members won a constituency seat by majority of the first vote. If more party members obtained seats by the first vote than their party was entitled to, the party was accorded additional seats that were not backed by second votes (overhang mandates). To adhere to the principle of proportional representation, additional seats were accorded to the other parties as well (balancing mandates).
However, due to this calculation method, the Bundestag’s size exceeded the number of members provided for in the Federal Election Act (Bundeswahlgesetz). The Bundestag currently has 733 members following the 2021 election, whereas the then-applicable version of the Federal Election Act provided for a size of 598 members only.
To limit the Bundestag’s size in the future, an electoral law reform was enacted in 2023, establishing a second vote basis procedure that eliminated overhang and balancing mandates. (Federal Election Act, § 6, para. 1.) Only independent candidates who win the majority of first votes in a constituency will become members of the Bundestag regardless of the results of the second vote. (§ 6, para. 2.) Additionally, parties with less than 5% of second votes can no longer enter parliament even if three party members win the majority of first votes in a constituency. (BVerfG decision, para. 26.)
Multiple proceedings were initiated against these amendments at the Federal Constitutional Court by opposition parties, members of parliament, the government of Bavaria, and over 4,000 individuals. (Paras. 30 et seq.)
Decision
The Federal Constitutional Court judged the newly established second votes basis procedure to be constitutional. (Para. 169.) The Basic Law, Germany’s constitution, provides that elections have to be universal, direct, free, equal, and secret, but leaves details to be determined by federal law. (Basic Law, art. 38, paras. 1, 3.) The court rejected criticism based on a comparison of the new electoral system with the previous version, stating that as long as the basic principles of article 38, paragraph 1 of the Basic Law are respected, the legislature is free to reform electoral law. (BverfG, paras. 178, 183.) It ruled that specific characteristics of the previous electoral system, such as the representation of each constituency by its own member of parliament, are not constitutionally required. (Paras. 179, 180.)
The court found the constitutional principles for elections to be satisfied. In particular, the court rejected objections that the reform violated the principle of electoral equality, noting that the success of each first vote cast for a party candidate equally depended on the overall election result. (Para. 208.) The court judged the fact that independent candidates are not subject to the second vote basis procedure to be a permissible form of unequal treatment, because independent candidates cannot obtain second votes and thus could not be elected under this procedure. Giving independent candidates a chance to be elected could help prevent a “monopolization” of parliament by established parties, the court said. (Para. 202.)
Referring to its previous case law, the court held the unequal treatment established by an electoral threshold of 5% (Federal Election Act, § 4, para. 2, sentence 2, no. 2) to be generally justified to maintain parliament’s functionality and avoid fragmentation. (Paras. 219, 233, 240.) But the court judged the 5% threshold included in the reform to be too far reaching, because it would exclude parties that were expected to enter into a parliamentary group with another party that combined would reach the 5% threshold. (Para. 249.) The court noted that the Bavarian Christian Social Union (CSU) and the Christian Democratic Union (CDU) have been in a parliamentary group since 1949, plan to continue doing so, and are not in political competition with one another. (Paras. 258, 265, 272.) The court held that by harming the electoral prospects of the CSU despite its longstanding partnership with the CDU, the 5% threshold exceeds what is necessary to safeguard the Bundestag’s functionality. The court found this to be an unconstitutional limitation to electoral equality and parties’ right to equal opportunities. (Paras. 250, 283, 285; Basic Law, art. 21, para. 1, art. 38, para. 1.)
While declaring the election threshold to be unconstitutional, the court determined its application would be allowed under the condition that parties falling short of the threshold will enter parliament if their candidates win a majority of first votes in at least three constituencies. (Para. 288.) The court thereby sought to prevent the risk of a fragmented parliament, as it is uncertain whether a new constitutional electoral threshold could be enacted in time to be applicable for the next election in 2025 without violating the Code Of Good Practice In Electoral Matters established by the Venice Commission. (Paras. 290, 291.)
Reactions to the Decision
The decision was met with positive responses across all parties currently represented in the German Bundestag. The Federal Minister of Justice, Marco Buschmann, summarized the reaction, saying “[e]verybody feels like a winner. This speaks in favor of the decision.” Among legal experts, however, the decision sparked criticism. Two academic commentators, Fabian Michl and Johanna Mittrop, argued that the court’s pragmatic but doctrinally uncertain ruling interfered more than necessary with parliament’s authority to shape electoral law.
Prepared by Lena Bleckmann, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist
Law Library of Congress, August 16, 2024
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