Unsuccessful application for preliminary injunction against amended Federal Elections Act

Press Release No. 73/2021 of 13 August 2021

Order of 20 July 2021
2 BvF 1/21

In an order published today, the Second Senate of the Federal Constitutional Court rejected an application for preliminary injunction lodged by 216 members of the Bundestag from the parliamentary groups Bündnis 90/Die Grünen, Die Linke and FDP. The applicants had sought a suspension of Art. 1 nos. 3 to 5 of the Twenty-Fifth Amendment Act to the Federal Elections Act (Bundeswahlgesetzänderungsgesetz – BWahlGÄndG, hereinafter: the ‘Amendment Act’) so that the relevant provisions would not be applied in the upcoming Bundestag elections.

With its order in the present preliminary injunctions proceedings, the Court did not decide on whether the challenged provisions are compatible with the Basic Law but reserved this decision for the principal proceedings. The application for abstract judicial review of statutes lodged in the principal proceedings is neither inadmissible from the outset nor clearly unfounded. Therefore, the decision in the present preliminary injunction proceedings had to be taken on the basis of a weighing of consequences, the outcome of which is not in favour of the applicants: the reasons for issuing the injunction sought do not sufficiently justify the resulting encroachment upon the competences of the legislator.

Facts of the case:

[Under Germany’s electoral system of proportional representation combined with candidate-centred elements, citizens entitled to vote in Bundestag elections can cast two votes on the ballot paper: the first vote is cast for candidates nominated for direct election in the constituencies, the second vote is cast for party lists, the so-called Land lists. The strength of a party in Parliament is in principle determined by the second votes received.]

Art. 1 nos. 3 to 5 of the Amendment Act entered into force on 19 November 2020, essentially revising § 6(5) and § 6(6) of the Federal Elections Act (Bundeswahlgesetz – BWahlG), which govern the procedure for the distribution of seats in Bundestag elections. In its amended version, § 6 BWahlG now sets out the following procedure: For the initial distribution of seats – which is not affected by the amendment – the total number of seats allocated to each Land (federal state) is determined on the basis of its share in the German population using a divisor (so-called overall allocation). In a second step, the seats in each Land are distributed between the party lists competing in that Land based on the proportion of second votes each party received (so-called specific allocation). In this distribution, only the parties that have cleared the five-percent-threshold (Sperrklausel – threshold clause) or have gained at least three direct constituency seats (Grundmandatsklausel – minimum representation clause) are taken into consideration. The number of direct constituency seats won by that party in the respective Land is deducted from the number of seats allocated to a Land list, in accordance with § 6(4) BWahlG. The party retains these direct constituency seats even if their number exceeds the number of seats allocated to its Land list (‘quasi-overhang mandates’).

In the next step, an increase of the total number of seats takes place under § 6(5) BWahlG. Basically, that provision states that, following the deduction of direct constituency mandates, the remaining number of seats is increased until each party, in the second distribution round as per § 6(6) BWahlG, has received at least the total number of seats falling to their Land lists. At the same time, § 6(5) fourth sentence BWahlG provides that “up to three seats won in the constituencies” are to be disregarded for the purposes of calculating the additional number of seats required (overhang mandates not compensated by balance seats, hereinafter ‘uncompensated overhang mandates’).

In the following second round of distribution, based on the amended § 6(6) BWahlG, the seats resulting from the increase under § 6(5) BWahlG are distributed at the federal level among all parties entitled to seats; this is done on the basis of the divisor procedure used in the initial distribution. For each party, the seats are then distributed among the party’s Land lists, again using the divisor procedure. From the number of seats allocated to a Land list in this way, the number of direct mandates won by that party in the constituencies of the respective Land are deducted. In any case, the party keeps all direct constituency mandates even where they exceed the number of seats established for that party in the second distribution round pursuant to § 6(6) first sentence BWahlG. In this event, the total number of seats is increased by the difference, but there is no recalculation of the distribution. The remaining seats go to candidates nominated in the Land list in the order laid down in it, disregarding those candidates who have already won a direct constituency seat.

The applicants challenge Art. 1 nos. 3 to 5 of the Amendment Act, claiming that the amendment violates the requirement of legal clarity derived from Art. 20(3) in conjunction with Art. 20(1) and Art. 20(2) of the Basic Law (Grundgesetz – GG) as well as the principles of equal suffrage (Art. 38(1) first sentence GG) and of equal opportunities for political parties (Art. 21(1) GG).

Key considerations of the Senate:

The application for preliminary injunction is admissible but unfounded.

I. The application for abstract judicial review of statutes lodged in the principal proceedings is neither inadmissible from the outset nor clearly unfounded.

1. It cannot be ruled out completely that § 6 BWahlG in its amended version is incompatible with the requirements of legal specificity and clarity, in particular regarding the envisaged new procedure introduced by the Amendment Act.

a) The principle of the rule of law (Art. 20(3) GG) gives rise to the requirement that legal provisions be sufficiently specific, which obliges the legislator to make provisions as specific as is possible with regard to the particular nature of the subject matter addressed and in consideration of the legislative objective pursued. When it comes to electoral law in particular, a sufficient degree of specificity in designing legal provisions is necessary as elections serve as the constituent act by which the continuous process for the formation of the political will of the people is channelled into the formation of the political will of the state.

b) It is not ascertainable from the outset that § 6 BWahlG, as amended, satisfies these constitutional requirements. The wording of § 6(5) fourth sentence BWahlG does not specify whether the “up to three seats won in the constituencies”, which are to be disregarded in calculating the increase of the total number of seats, refers to the constituencies won in each Land or won by each party or whether it generally refers to all parties in all the Länder. It may appear plausible that the statutory clause in question, by way of interpretation, is to be understood as providing that in total up to three ‘quasi-overhang mandates’ resulting from the initial distribution are to be disregarded in the further calculations meaning that they do not lead to the creation of ‘balance seats’. However, the final determination of this issue must be left to the principal proceedings. As for § 6(6) BWahlG, it cannot be ruled out from the outset that determining how that provision is to be understood could reveal contradictions of such nature that reaching a conclusive interpretation, in line with the requirement of legal clarity, would ultimately be impossible.

2. To the extent that in the application for judicial review lodged in the principal proceedings, the applicants assert a violation of the electoral principles of equal suffrage and of equal opportunities for political parties, their application also does not appear manifestly unfounded.

a) The revised distribution procedure entails the possibility that overhang mandates won in the constituencies are not fully compensated by the creation of balance seats. As a consequence, the so-called success value (Erfolgswert) of votes cast in the elections differs, given that by casting their first vote for constituency candidates, voters could create direct constituency mandates that are not offset against the seats allocated to the party lists. This also affects the right to equal opportunities for political parties given that a party gaining uncompensated overhang mandates is essentially allocated more seats in relation to its share in second votes than would be the case for a party not gaining uncompensated overhang mandates. In an electoral system of proportional representation (second vote) in combination with a candidate-centred element (first vote), as operated in Germany, this discrepancy can only be justified to a limited extent. In the past, the Court already held that in such a system, electoral law must strike an appropriate balance between ensuring that the allocation of seats in Parliament is as close as possible to a proportional representation of second votes on the one hand and the interest in keeping all direct mandates gained by constituency candidates on the other. The Court also found that an electoral design is no longer appropriate if the number of overhang mandates is more than roughly half the number of seats needed to form a parliamentary group (i.e. more than 15 mandates).

b) Based on these considerations, it appears possible that allowing the creation of overhang mandates not compensated by balance seats could in fact be compatible with the constitutional requirements deriving from Art. 38(1) first sentence GG and Art. 21(1) first sentence GG. Yet this would require a determination as to how the resulting interference with the aforementioned electoral equality guarantees can be justified under constitutional law. One possible ground for justification could be a strengthening of the direct candidate-based element of the electoral system. Should it turn out that allowing (up to three) uncompensated overhang mandates is not necessary for achieving this purpose, another constitutionally protected interest of equal weight, on which justification could possibly be based, is the proper functioning of the Bundestag. Yet the underlying issues of constitutional law cannot be resolved in preliminary injunction proceedings but require further examination in the principal proceedings.

3. Lastly, the judicial review application lodged in the principal proceedings could prove to be well-founded because § 6 BWahlG, as amended, might be objectionable on the grounds of constitutional concerns beyond the ones raised by the applicants. In this regard, it is yet to be determined whether § 6 BWahlG, with all subsections read together, is compatible with constitutional law, especially with the requirement that legal provisions be sufficiently clear and comprehensible.

a) The requirement of legal clarity, which arises from the principle of the rule of law, serves to ensure that the persons addressed and bound by a legal provision can understand its normative content. In this respect, it appears possible – without prejudice to further examination of this question in the principal proceedings – that constitutional law imposes on the legislator an obligation to design the electoral process in a manner that allows voters to determine, before they cast their vote, what impact their voting decision could have on the electoral prospects of candidates standing for election.

b) It can in any case not be ruled out completely that § 6 BWahlG, as amended, falls short of these requirements. Even in its former version, i.e. before the challenged amendment was enacted, the procedure set out in § 6 BWahlG had reached a considerable degree of complexity, starting with the initial distribution of seats followed by an increase in the number of seats before a second distribution round takes place, combined with the interim steps required for the ‘overall allocation’ and the ‘specific allocation’ of seats in each distribution round. The challenged amendment now inter alia provides that “up to three overhang mandates” are to be disregarded for the purposes of calculating the increase in the number of seats, adding yet another element to the process and thus another layer of complexity.

II. In light of the foregoing, the decision in the present preliminary injunction proceedings had to be taken on the basis of a weighing of consequences, which in the present case does not result in a decision for the applicants: the reasons in favour of issuing the injunction sought by the applicants do not justify the resulting encroachment upon the competences of the legislator.

1. a) If the preliminary injunction were not issued but the new procedure for the distribution of seats were later found to be unconstitutional, this would considerably impair the principles of equal suffrage and of equal opportunities for political parties. The upcoming Bundestag elections would thus be marred by an electoral error, impairing the underlying function of the elections, which is to provide democratic legitimation. Taking into account the paramount importance attached to equal suffrage and equal opportunities for political parties, the resulting impairment would carry significant weight. It is further aggravated by the fact that the allocation of uncompensated overhang mandates, based on § 6 BWahlG in its current version, might influence parliamentary majorities. At the same time, it can be assumed that the challenged changes to the procedure for the distribution of seats would effectively only have an impact on a relatively small number of seats. According to the legislative materials, the expected effect would on average concern 8.6 seats. The actual effects of the challenged electoral amendment could thus very well be within a range that is not objectionable under constitutional law.

b) If the amended electoral framework, specifically § 6(5) fourth and fifth sentence BWahlG and § 6(6) fourth and fifth sentence BWahlG, indeed proved to lack sufficient specificity, organs of the executive branch tasked with implementing the elections would have considerable influence over the distribution of seats after the upcoming Bundestag elections, which would not be compatible with constitutional law. Yet even though this would impair the main function of the elections, which is to provide democratic legitimation, the actual impairment would be less severe the fewer uncompensated overhang mandates were allowed by the implementing electoral bodies. In the present situation, it can reasonably be assumed that the electoral bodies will apply the amended electoral framework with the understanding that only up to three uncompensated overhang mandates in total will be allowed.

Moreover, the potential consequences arising from the Court’s rejection of the application for preliminary injunction could be mitigated by the fact that the alleged violations of constitutional law could be challenged by way of an electoral complaint, which – if successful – could potentially lead to new elections being ordered.

2. As for the potential consequences arising if the preliminary injunction were issued, the former version of § 6 BWahlG (in force until 18 November 2020) would then have to be applied in the upcoming elections. This could lead to a relative increase in parliamentary seats given that ‘quasi-overhang mandates’ would be fully compensated by the creation of balance seats under § 6(5) BWahlG (former version). In this regard, it can be assumed that the actual increase would be quite moderate: According to modelling conducted in the legislative process, the application of the amended electoral framework in the 2017 Bundestag elections would have led to 686 seats as opposed to the current 709 seats that resulted from the former statutory framework. In any case, it does not appear realistic that applying the former statutory framework in the upcoming elections would lead to a (further) increase in seats of such scale that it would jeopardise the proper functioning of the Bundestag. However, there are other consequences to be taken into account if the Court issued the preliminary injunction sought but the application for judicial review of the amended electoral framework were later rejected as unfounded. In this event, the distribution of seats on the basis of the former electoral framework would have led to the creation of balance seats to offset overhang mandates contrary to what the legislator intended, going against Art. 38(3) GG, which specifically puts the federal legislator in charge of designing the electoral framework. This would impair the functions of the elections, which serve as an integrative process for the formation of the political will of the people and to provide democratic legitimation. Moreover, if the Court issued the preliminary injunction sought, it would not merely create a provisional legal situation until a decision is rendered in the principal proceedings. Rather, the effects of an injunctive order not to apply the amended electoral framework in the 2021 Bundestag elections would de facto last for the entire parliamentary term. It follows that issuing such an injunction would amount to a considerable intrusion upon the legislative branch.

3. When weighing these consequences, the reasons in favour of issuing the preliminary injunction sought do not outweigh the reasons against it.

With regard to the function of elections to provide democratic legitimation, the weighing of consequences leads to a similar conclusion: If the preliminary injunction were not issued but the application for judicial review were later successful, a distribution of seats in the next Bundestag elections determined on the basis of the amended electoral framework would lead to significant legitimation deficits due to the fact that up to three overhang mandates might not be compensated by balance seats; this is all the more significant because it could impact parliamentary majorities. However, if the preliminary injunction sought were issued but the application for judicial review were ultimately not successful, this would also impair the legitimising function of the upcoming elections. In this case, the preliminary injunction would suspend an amendment to electoral law that was in fact constitutional. This would lead to more balance seats being created to fully offset ‘quasi-overhang mandates’ – seats that too could impact majority relations in Parliament – than would have been the case had the amended (constitutional) electoral framework been applied as intended by the legislator.

Based on these considerations, the potential consequences arising from not issuing the preliminary injunction do not carry sufficient weight to justify the encroachment upon the competences of the legislator, which would potentially be the consequence of issuing the injunction sought. The reasons in favour of issuing the preliminary injunction do not clearly outweigh the reasons against it, and thus do not provide the special grounds of justification necessary for provisionally suspending a law in preliminary proceedings.