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Germany: State Constitutional Court of Thuringia Declares Act on Gender Parity in Politics Unconstitutional

(July 24, 2020) On July 15, 2020, the German State Constitutional Court of Thuringia (Thüringer Verfassungsgerichtshof, VerfGH) held in a 6–3 ruling that the Seventh Act to Amend the State Election Act of Thuringia (Parity Act) is unconstitutional. The goal of the Parity Act was to counter the current underrepresentation of women in the State Parliament of Thuringia, where they make up 31% of parliamentarians despite representing 51.5% of the population eligible to vote in Thuringia. (VerfGH at 54.) In a rare move, the three dissenting justices, which included the court’s two female members, issued two separate opinions on the ruling. (At 46 et seq.)

Background

Germany uses a personalized proportional voting system for federal and state elections that combines a personal direct vote for a particular candidate in a district (first vote) with a party vote (second vote). The seats in parliament are allocated according to the order established on the electoral party lists proportionate to the second votes each party receives. The Parity Act provided that electoral party lists (second vote) had to alternate between a man and a woman, but the parties remained free to decide whether to start the list with or man or a woman. People who were registered as a third gender (“diverse”) in the civil registry could stand independent of these requirements. If the person on the party list ahead of the diverse person was a woman, the person after the diverse person had to be a man, and vice versa. (State Election Act of Thuringia § 29, para. 5, as amended by the Parity Act.) Furthermore, the Parity Act provided that electoral party lists that did not comply with these requirements had to be either completely rejected or partially rejected—that is, rejected up to the place on the party list that still complied with the abovementioned requirements. (§ 30, para. 1, sentence 4.)

Facts of the Case

The Parity Act entered into force on January 1, 2020. The Alternative for Germany (AfD) party filed an application for an abstract review of the Parity Act. (VerfGH at 6.) According to a definition provided on the Federal Constitutional Court website, “[a]bstract reviews of statutes are proceedings that involve the review of all relevant aspects of a statute’s constitutionality regardless of a specific legal dispute and whether the applicant is affected.” The AfD alleged that the Parity Act violated article 44, paragraph 1, sentence 2 (principle of democracy); article 45, sentence 1 (popular sovereignty); and article 46, paragraphs 1 and 2 (right to free and equal elections) of the Constitution of the Free State of Thuringia, as well as the constitutionally guaranteed right of political parties to equal opportunities and freedom of activity. (Thuringia Const. art. 44, para. 1, sentence 2; art. 45, sentence 1; art. 46, para. 1, in conjunction with Basic Law art. 21, para. 1.)

Decision of the Court

The court held that the Parity Act infringed the right to free and equal elections (Thuringia Const. art. 46, para. 1), as well as the right of political parties to freedom of activity, freedom to determine the party program, and equal opportunities (Basic Law art. 21, para. 1). (VerfGH at 27.)

With regard to the right to free and equal elections, the court stated that these rights also apply to preparatory acts, such as setting up the electoral party list. The party list constitutes a necessary requirement for the election itself and therefore directly affects the passive and active right to vote, in the opinion of the court. Free elections require that they not be influenced by the use of coercion or distress by the state, and that voters be free to make up their minds without the state intervening. However, the Parity Act restricted the freedom of the voters to influence the gender distribution in parliament by voting for a party that listed more men or women. Furthermore, the court ruled that the Parity Act forced political parties to institute equal representation of men and women on their party list, thereby eliminating the freedom to organize their own affairs according to their bylaws. The court further stated that the Parity Act violated the right to passive suffrage. The fact that the party lists had to be filled using the “zipper method” (alternating between a man and a woman) eliminated the right to run for any of the places on the party list. (At 27, 28.)

With regard to the right to free elections, the court opined that the Parity Act’s requirement that party lists that did not comply with the requirements of the act had to be either completely rejected or rejected up to the place that still conformed to the requirements diluted the weight of the vote for the party, because the party would receive fewer mandates. Furthermore, party members could not run for every place on the list; half of them were barred and restricted to the other gender. The court pointed out that the right applied to each individual and not a group and that it was therefore irrelevant that the overall chances of receiving a place on the list remained the same. (At 29, 30.)

The court reiterated the jurisprudence of the Federal Constitutional Court with regard to article 21 of the German Basic Law, stating that political parties are free to choose their identifying characteristics, the focus of their party program, and their topics. In particular, parties are free to choose the candidates whom they feel will help them win voters. However, the Parity Act limited this freedom by requiring that the candidates be chosen according to their gender, thereby eliminating the choice to select more men or women. Additionally, in the opinion of the court, parties that believed that having a high number of men or women as candidates proved a certain point of their program were de facto prevented from doing so. (At 31.)

Lastly, the court held that the Parity Act indirectly discriminated against parties that had a significantly greater percentage of male or female candidates by forcing the party to nominate either fewer candidates or less-qualified candidates. The same is true for small parties with a limited number of members that might not be able to fill all places on the party list. Parties whose purpose is to promote one particular gender were also affected. (At 33.)

The court held that neither the principle of democracy nor the concept of “elections as an integration process” justifies the infringement of these rights. Every representative represents the people as a whole, not individuals. Furthermore, protecting the integration process of elections is not aimed at integrating the male and female genders, but the integration of political forces. (At 35, 36.)

The court concluded by stating that the state’s objective in article 2 of the Constitution of Thuringia to “ensure and promote the actual implementation of equal rights for women and men in all areas of public life by enacting appropriate measures” does not give rise to an individual subjective right. Even though a state’s objective can generally justify a limitation of constitutional rights, taking into account the legislative history of the adoption of the Constitution of Thuringia results in a different conclusion. The drafters explicitly rejected a provision that would have required a parity rule for elections. The court therefore concluded that the constitutional drafters did not want to give the legislature the possibility to enact parity rules based on article 2. Such an interpretation would require a constitutional amendment. (At 40, 44.)