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New procedure for allocating delegates’ seats in the German Bundestag unconstitutional
Press Release No. 58/2012 of 25 July 2012
Judgment of 25 July 2012
2 BvF 3/11
In its judgment pronounced today, the Second Senate of the Federal Constitutional Court ruled that the new procedure for allocating delegates' seats in the German Bundestag which had been introduced through the amendment of the Federal Elections Act (Bundeswahlgesetz - BWG) violates the principles of equal and direct elections, as well as that of equal opportunities of the parties. This first concerns the fact that the number of seats allocated to a Land (state) is calculated by the number of voters (§ 6 sec. 1 sentence 1 BWG), because this facilitates the negative voting weight effect. Moreover, the principles of equal elections and of equal opportunities of the parties are violated because additional mandates are allocated pursuant to § 6 sec. 2a BWG, and insofar as § 6 sec. 5 BWG permits overhang mandates with no compensation to a degree which eliminates the fundamental nature of Bundestag elections as proportional representation elections.
The Senate found the provisions of § 6 sec. 1 sentence 1 and § 6 sec. 2a BWG to be null and void, and declared the provision regarding the allocation of overhang mandates with no compensation (§ 6 sec. 5 BWG) to be incompatible with the Basic Law. As a consequence, there is no valid provision regarding the procedure for allocating delegates' seats in the German Bundestag. The previously applicable provisions are not restored because the Federal Constitutional Court declared them to be unconstitutional by its judgment of 3 July 2008 (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts - BVerfGE 121, 266) and to continue to be applicable only for a transitional period, which has now expired.
Facts of the Case:
By its judgment of 3 July 2008 (see also Press Release no. 68/2008 of 3 July 2008, which is available in English on the Federal Constitutional Court's website), the Federal Constitutional Court regarded an election system which, in typical constellations, permits an increase in the number of votes to lead to the loss of a mandate, or a loss of votes to lead to winning a mandate (negative voting weight effect) as incompatible with the principles of equal and direct elections. It therefore declared the previous provisions of § 7 sec. 3 sentence 2 in conjunction with § 6 secs. 4 and 5 BWG to be unconstitutional insofar as the offsetting of constituency and list mandates that it ordered could trigger the negative voting weight effect. At the same time, it instructed the legislature to bring about a constitutional provision by 30 June 2011 at the latest.
The legislature wished to remedy the unconstitutional state by forgoing in future elections the nationwide combining of parties' lists, and by calculating the number of delegates to which the Land lists are entitled separately in each case in the individual federal Laender. The Amending Act, which came into force on 3 December 2011, implements this by repealing the previous § 7 BWG and correspondingly modifying § 6 sec. 1 BWG. Each federal Land is allocated a number of seats in line with the number of voters for which only the Land lists of the parties standing in the Land compete. Additionally, according to § 6 sec. 2a BWG, additional mandates are awarded to parties standing in several Laender, the number of which corresponds to the total obtained by nationally adding up rounding-off losses in the individual Land lists ("residual votes").
These amendments were challenged by the application for abstract judicial review filed by 214 members of the SPD and ALLIANCE 90/THE GREENS parliamentary groups, by a constitutional complaint lodged jointly by 3,063 complainants, and by an application made in Organstreit proceedings (proceedings dealing with a dispute between constitutional organs) brought by the party ALLIANCE 90/THE GREENS. Essentially, it is challenged that the new procedure for awarding delegates' seats in the German Bundestag violates the principles of equal and direct elections, as well as that of equal opportunities of the parties. The applicants object to the decision to calculate the number of seats allocated to the Laender according to the number of voters (§ 6 sec. 1 sentence 1 BWG), and to the allocation of additional mandates pursuant to § 6 sec. 2a BWG. In addition, they put forward that the procedure in which the seats are attributed continue to result in a significant number of overhang mandates, without any justification existing for this. Finally, they hold the view that the negative voting weight effect could occur in a constitutionally unacceptable manner even with the amended federal electoral legislation.
The Decision is Essentially Based on the Following Considerations:
I. The negative voting weight effect
In the elections to the German Bundestag, the spread of the mandates among the parties in line with the ratio of the totals of votes may, as a matter of principle, not lead to a situation in which the number of seats accruing to a party correlates with the number of votes corresponding to this party or to a competing party in a manner that is contrary to expectations (negative voting weight effect). Such paradoxical relationships of cause and effect between voting and the success of a vote not only impair equal elections and the equal opportunities of the parties, but also violate the principle of direct elections, because it is no longer recognisable for the voter how his or her voting can affect the success or failure of the electoral candidates. A procedure for allocating seats is incompatible with the Constitution to the extent that it brings about such effects not only in rare, unavoidable exceptional cases.
§ 6 sec. 1 sentence 1 BWG stipulates that each Land is allocated a number of seats calculated by the number of voters for which only the Land lists of the parties standing in the Land compete. The allocation of seats according to the number of voters permits the negative voting weight effect to occur, because the number of seats accruing to the Land is not determined by a quantity which is established prior to the casting of the votes, as for instance the total population or the number of persons entitled to vote, but is determined by the respective voter turnout. The negative voting weight effect can always come about if the increase in the number of second votes of the Land list of a party does not impact its number of seats - because the additional votes are insufficient for the attribution of a further seat, or because the Land list has already won more constituency mandates than list mandates because of the first-vote result - if however at the same time an increase in the number of voters accompanying the increase in the number of second votes increases the number of seats of the Land as a whole by one seat. Then, the seat added in this Land can fall to a competing Land list, or the Land list of the same party can lose a seat in another Land. The same applies, conversely, if the loss of second votes of a party's Land list does not impact its seat allocation result, but the accompanying reduction in the number of voters reduces the number of seats of the Land by one seat. One must expect such effects to occur if a change in the number of second votes coincides with a corresponding change in the number of voters, for instance because voters do not participate in the election; there is a considerable probability for such a coincidence.
The negative voting weight effect cannot be accepted arguing that it cannot be predicted in concrete terms and that individual voters are virtually unable to influence it. Already ballot results that are objectively arbitrary make democratic competition for the approval of the electorate appear paradoxical. Moreover, the negative voting weight effect is not a natural consequence of proportional representation elections linked with the personal election of candidates in list constituencies at Land level forgoing nationwide list combinations. The legislature is free to prevent this causal link from occurring within the electoral system created by the legislature by, for instance, taking, instead of the number of voters, the total population or the number of those entitled to vote as a basis for determining the number of seats of a Land. II. Additional mandates
The award of additional mandates according to § 6 sec. 2a BWG also violates the principles of equal elections and of equal opportunities of the parties. The provision aims to compensate for rounding losses in the allocation of seats at Land level by a nationwide offsetting system (utilisation of residual votes, Reststimmenverwertung).
Not every voter can take part in the award of these additional seats in the Bundestag with equal prospects of success. This is because utilisation of residual votes affords to a section of the votes a further chance to have an effect on mandates. This unequal treatment is not justified. The objective pursued by the legislature to compensate for differences in contribution to success occurring by virtue of the attribution of seats within a Land is not constitutionally objectionable. The provision is however not suited to achieve this objective. It one-sidedly takes into account the rounding losses of a party's Land lists and disregards its rounding gains. This may make the votes which were previously unsuccessful effective in terms of mandates, but the comparatively greater success of the currently over-weighted votes remains unchanged. Hence, additional mandates are not awarded to create equality of contribution to success, but in deviation from this. The provision is also not suited to compensate for a distortion of the equality of contribution to success linked to the overhang mandates. III. Overhang mandates
§ 6 sec. 5 BWG violates the principles of equal elections and of equal opportunities of the parties insofar as overhang mandates with no compensation are permitted to a degree which may eliminate the fundamental nature of Bundestag elections as proportional representation elections. This is the case if the number of overhang mandates exceeds roughly half the number of delegates necessary to form a parliamentary group.
Notwithstanding the fact that the constituency candidates are elected directly according to the allocation principle of majority voting, the German electoral system, as created by the legislature, is fundamentally based on proportional representation. By counting the constituency mandates towards the list mandates of the respective party, the total number of seats is spread among the parties in a manner corresponding to the ratio of the totals of the second votes cast for them, whilst the first vote as a matter of principle only decides on which persons enter the Bundestag as constituency delegates. If the number of seats won by a party in the constituencies exceeds the number of seats to which it would be entitled by the result of the second vote, the party nonetheless retains the seats. In this case, the total number of seats is increased by the difference, without any new proportional compensation taking place.
The allocation of overhang mandates without compensation or offsetting leads to unequal treatment of votes in the seat allocation procedure because, accordingly, in addition to the second vote, influence on the distribution of seats in the Bundestag also accrues to the first vote. The unequal weighting of votes is justified in principle by the constitutionally legitimate objective to enable voters within the framework of proportional representation elections to also vote for personalities. However, in the system of proportional representation, linked with the personal election of candidates, as it has been created by the legislature, overhang mandates are only acceptable to a degree which does not eliminate the fundamental nature of the election as a proportional representation election.
Should overhang mandates occur in a number corresponding to roughly more than half the size of a parliamentary group, the principles of equality of elections, as well as of equal opportunities of the parties, are violated. On the one hand, this scale is orientated in line with the quorum of at least five percent of Members of the Bundestag that is required by the Bundestag's rules of procedure for the status as a parliamentary group; on the other hand, it takes into account the will of the legislature, which has been confirmed again by the new provision on the so-called second votes from Berlin (§ 6 sec. 1 sentence 4 last alternative BWG), to reduce where possible the influence of the first vote on the spread of the list mandates. In order to place future elections on a reliable legal foundation, and to counter the risk of the dissolution of Parliament in proceedings for the scrutiny of elections, the Court considers it to be necessary to bring together the statutory evaluations on a manageable scale. This gives rise to a limit of roughly 15 permissible overhang mandates.
Taking into account the actual development in overhang mandates, whose number has markedly increased since the German reunification and has recently reached a considerable extent, and in view of the changed political circumstances, which increasingly favour the occurrence of overhang mandates, one may expect with a considerable degree of probability that in the foreseeable future, their number will regularly exceed by far the number that is constitutionally acceptable. The legislature must therefore take precautions to prevent excessive numbers of overhang mandates occurring without compensation.