You are here:
The allocation of constituencies on the basis of the German residential population does not render the 2009 Bundestag election unconstitutional
Press Release No. 12/2012 of 22 February 2012
Order of 31 January 2012
2 BvC 3/11
The Federal Constitutional Court has dismissed a complaint challenging the validity of the election to the 17th German Federal Parliament (Bundestag) in 2009. The complaint concerns the division of the electoral territory into constituencies.
The relevant principles are laid down in § 3 of the Federal Electoral Act (Bundeswahlgesetz - BWG). According to this act, the 299 constituencies are allocated on the basis of the German residential population. The number of constituencies in the states (Länder) must correspond as closely as possible with their share of the population. The population size of each constituency should not deviate from the average population size of all constituencies by more than 15 %. In the case of a deviation of more than 25 % the boundaries of a constituency must be redefined. When determining the population size, resident aliens are not counted, whereas all Germans, including minors, are counted, no matter whether or not they are eligible to vote.
The complainant claims particularly that the principle of equal suffrage (Art. 38.1 sentence 1 of the Constitution (Grundgesetz - GG)) is violated by the fact that the allocation of the constituencies is based on the size of the German residential population instead of the number of citizens eligible to vote. Given that their ratio varies significantly in comparison between the constituencies, equal chances for each vote cast had not been guaranteed.
The Second Senate of the Federal Constitutional Court found that the allocation of the constituencies for the 2009 Bundestag election met the requirements of the principle of equal suffrage. In the future, however, the legislator must take into account the share of minors among the population when assigning the constituencies.
In essence, the decision is based on the following considerations:
1. The principle of equal suffrage (Art. 38.1 GG) states that each vote must have the same value and the same legal prospect of success. For the election of the Members of Parliament in the constituencies according to a "first-past-the-post" system, the principle of equal suffrage requires that all voters must be able to participate in the election in constituencies that are as equal in size as possible. The legislator is obliged to review the allocation of the constituencies regularly and to correct it where necessary. This obligation applies to the process of allocating the constituencies as well as to the respective legal framework and the statistical conditions.
Equal suffrage is, however, not subject to an absolute ban on differentiation. Rather, the legislator has a certain freedom when creating and evaluating the division of the electoral territory into constituencies. Deviations in the size of a constituency are hence acceptable within the framework defined by Art. 38.1 GG particularly with regard to the desirable identification of any Member of Parliament with their constituency, as well as to the continuous change in population size.
In principle, equal suffrage requires the constituencies to be allocated on the basis of the number of citizens eligible to vote. The principle of equal suffrage laid down in Art. 38.1 GG corresponds with the right to vote, and thus demands equality between voters, not residents. Equal suffrage is, however, not impaired if the German residential population is taken as a basis for assigning the constituencies as long as the share of minors among the German population differs only negligibly across the country: With a more or less equal distribution of minors among the constituencies, a sufficiently comparable number of votes is necessary in each constituency in order to win a seat in Parliament. It is only when serious discrepancies occur between the population and the number of voters that a different allocation of the constituencies becomes necessary.
2. The legislator drafting the electoral law has so far regarded an allocation of constituencies based on the German residential population as being permissible presuming that the share of minors among the population did not differ seriously across the country. As was indicated by the statistical material presented to the Court, however, this presumption did not turn out to be thoroughly sustainable.
The statistical data calls into question the legislator's presumption of a more or less equal spread of minors over the electoral territory. It does, however, not imply a violation of the principle of equal suffrage in the 2009 Bundestag election. In allocating the constituencies for this election the legislator has adhered to the requirements laid down in § 3.1 of the Federal Electoral Act, and hence has respected the goals of a transparent, consistent legislation. The presumption of an equal spread of minors across the electoral territory is still justified for the Länder. The fact that it is not thoroughly sustainable related to the constituencies does not render the election of the 17th German Bundestag unconstitutional. The presumption of a more or less equal regional spread of minors had not been questioned in the past. Any impairment of equal suffrage has been marginal at most, as only 15 out of a total of 299 constituencies, and hence a relatively small number, have been affected by relevant deviations in the election to the 17th German Bundestag.
3. In the future when assigning the constituencies the legislator will, however, have to take into account the share of minors among the population, both in relation to the Länder and in comparison between the constituencies.