The 2020 Federal Elections Act is constitutional

Press Release No. 111/2023 of 29 November 2023

Judgment of 29 November 2023 - 2 BvF 1/21

In a judgment pronounced today, the Second Senate of the Federal Constitutional Court held that Art. 1 nos. 3 to 5 of the Twenty-Fifth Act Amending the Federal Elections Act (Fünfundzwanzigstes Gesetz zur Änderung des Bundeswahlgesetzes – BWahlGÄndG; hereinafter: the Amendment Act) of 14 November 2020 is compatible with the Basic Law (Grundgesetz – GG).

With their application in abstract judicial review proceedings, 216 members of the 19th German Bundestag – from the parliamentary groups BÜNDNIS 90/DIE GRÜNEN, DIE LINKE and Freie Demokratische Partei (FDP) – challenge Art. 1 nos. 3 to 5 of the Am

In a judgment pronounced today, the Second Senate of the Federal Constitutional Court held that Art. 1 nos. 3 to 5 of the Twenty-Fifth Act Amending the Federal Elections Act (Fünfundzwanzigstes Gesetz zur Änderung des Bundeswahlgesetzes – BWahlGÄndG; hereinafter: the Amendment Act) of 14 November 2020 is compatible with the Basic Law (Grundgesetz – GG).

With their application in abstract judicial review proceedings, 216 members of the 19th German Bundestag – from the parliamentary groups BÜNDNIS 90/DIE GRÜNEN, DIE LINKE and Freie Demokratische Partei (FDP) – challenge Art. 1 nos. 3 to 5 of the Amendment Act. The amended provisions under review here – § 6(5) and (6) and § 48(1) second sentence of the Federal Elections Act (Bundeswahlgesetz – BWahlG) – changed the procedure for the distribution of seats in Bundestag elections and the rules of succession from party lists [when a seat becomes vacant]. Given that the size of the Bundestag increased to 709 deputies following the 2017 Bundestag elections, the aim of the amendment was to counteract future increases in the number of Bundestag seats.

The application for judicial review is admissible but unfounded. Art. 1 nos. 3 to 5 of the Amendment Act is compatible with the constitutional requirement of specificity and with the principles of equal suffrage and of direct elections as well as with the principle of equal opportunities of political parties.

This decision was taken with 5:3 votes. Vice-President König and Justices Müller and Maidowski filed a dissenting opinion.

Facts of the case:

[Under Germany’s electoral system in which proportional representation is combined with a candidate-centred element, citizens entitled to vote in Bundestag elections have two votes: 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 provisions of the Amendment Act under review here entered into force on 19 November 2020. Like the previous legal framework, the provisions set out a procedure for the distribution of seats that is divided into two distribution rounds. For the initial distribution round – which is purely arithmetical – the number of seats allocated to each Land (federal state) from a total of 598 seats is determined on the basis of its share of the German population; the seats in each Land are then distributed between the lists of the parties competing in that Land based on the proportion of second votes each party received. In the next step, the total number of seats is increased to largely compensate the overhang mandates that have arisen in the initial distribution. In the subsequent second distribution round – the actual distribution – the seats are distributed across all Länder according to the second votes cast for the respective parties. For each party, the seats are then distributed among the party’s Land lists.

The Amendment Act essentially provides that overhang mandates accrued in the first distribution round, which arise if the number of direct constituency seats won by a party exceeds the number of seats allocated to its Land list, are only compensated if the number of overhang mandates exceeds three. In addition, the Act allows direct constituency seats to be deducted from seats allocated to the list of the same party in other Länder to a limited extent. Moreover, § 48(1) second sentence of the Federal Elections Act cancels the usual rules of succession from party lists if a party has overhang mandates in a given Land.

By order of 20 July 2021 (cf. Press Release No. 73/2021), the Federal Constitutional Court rejected an application for preliminary injunction by which the applicants sought the provisional suspension of Art. 1 nos. 3 to 5 of the Amendment Act so that the challenged provisions would not be applied in the elections to the 20th German Bundestag. The Bundestag elections were held on 26 September 2021. Seats were distributed on the basis of the Amendment Act.

The Act Amending the Federal Elections Act and the Twenty-Fifth Act Amending the Federal Elections Act of 8 June 2023 again changed the procedure for the distribution of seats in Bundestag elections and deleted § 48(1) second sentence of the Federal Elections Act.

The applicants consider that the challenged provision – Art. 1 nos. 3 to 5 of the 2020 Amendment Act – violates the principle of legal clarity and the principles of equal suffrage and direct elections as well as the equal opportunities of political parties.

Key considerations of the Senate:

The application for judicial review is admissible but unfounded.

I. Art. 1 nos. 3 to 5 of the Amendment Act satisfies the requirements arising from the principle of specificity.

1. The requirement that legislation be sufficiently specific and clear amounts to a single premise; it is not generally possible to separate the requirement of specificity from the requirement of legal clarity in the sense that a provision could be deemed to be sufficiently specific, while nonetheless violating the requirement of legal clarity. The general requirements regarding the specificity and clarity of legislation also apply to electoral law.

2. When interpreted according to accepted methodology, § 6(5) of the Federal Elections Act indicates how the number of Bundestag seats is to be increased and what effects this will have on the overall number of seats.

a) § 6(5) first sentence of the Federal Elections Act sets out in a sufficiently specific manner how and until what point the number of seats in the German Bundestag is to be increased. Insofar as the provision states that the number of seats is increased until ‘each party, in the second distribution round as per § 6(6) first sentence of the Federal Elections Act, has received at least the total number of seats falling to their Land lists pursuant to § 6(5) second and third sentence’, it becomes clear that the number of Bundestag seats is to be increased in an iterative process until the actual distribution pursuant to § 6(6) first sentence of the Federal Elections Act results in each party receiving the total number of seats falling to its Land lists under § 6(5) second and third sentence of the Federal Elections Act.

b) § 6(5) second and third sentence of the Federal Elections Act set out in a sufficiently specific manner which number of seats must be allocated to each Land list and/or party when the overall number of seats in the German Bundestag is increased pursuant to § 6(5) first sentence of the Federal Elections Act. § 6(5) second sentence of the Federal Elections Act guarantees that each Land list retains the number of seats directly won by candidates of the respective party in the Land – i.e. the number of direct constituency seats. If this number is lower than the mean value (rounded up to a whole number) between the number of direct constituency seats won by the respective party and the seats allocated to the party’s Land list according to the calculations in the first distribution round, this mean value is used instead. The higher of the two values – the number of constituency seats or the aforementioned mean value – is used. Moreover, § 6(5) third sentence of the Federal Elections Act provides that each party receives at least the seats allocated to its Land lists in the first distribution round.

c) Pursuant to § 6(5) fourth sentence of the Federal Elections Act, up to three seats won in the constituencies, which cannot be deducted from the number of seats allocated to each Land list in the first distribution round pursuant to § 6(4) first sentence of the Federal Elections Act, are disregarded in calculating the increase in the total number of seats.

When interpreting the meaning of ‘up to three seats’, it must be concluded that § 6(5) fourth sentence of the Federal Elections Act only refers to up to three overhang mandates in total. Insofar as § 6(5) fourth sentence of the Federal Elections Act provides that these overhang mandates ‘are disregarded’, this means that these mandates are not included in the increase in the overall number of Bundestag seats, and are thus not compensated.

d) Pursuant to § 6(5) fifth sentence of the Federal Elections Act, the overall number of Bundestag seats is increased by the ‘difference’. There are no serious doubts that this means the differential between the regular number of seats of the Bundestag laid down in the law and the higher number of seats resulting from the calculated increase in the total number of seats.

3. The procedure for the second (actual) distribution round set out in § 6(6) of the Federal Elections Act also satisfies the specificity requirements when the provision is interpreted according to accepted methodology.

a) Firstly, this applies to § 6(6) first sentence of the Federal Elections Act. The phrase ‘seats to be allocated in keeping with § 6(5) of the Federal Elections Act’ refers to the increase in the number of seats excluding overhang mandates.

b) Insofar as § 6(6) second sentence of the Federal Elections Act goes on to provide that for each party, the seats are distributed among the Land lists in accordance with the calculation procedure set out in § 6(2) second to seventh sentence of the Federal Elections Act on the basis of the number of second votes, this must be taken to mean the number of seats including any uncompensated overhang mandates. Therefore, pursuant to § 6(6) second sentence of the Federal Elections Act, up to three more seats are allocated to the Land lists than in the context of the overall allocation to the parties pursuant to § 6(6) first sentence of the Federal Elections Act.

Furthermore, § 6(6) second sentence of the Federal Elections Act is sufficiently specific in providing for the procedure for the specific allocation of seats to Land lists. It follows from the reference to the calculation procedure under § 6(2) second to seventh sentence of the Federal Elections Act that the specific allocation for each party is done on the basis of the divisor procedure with standard rounding in accordance with the Sainte-Laguë/Schepers method. At the same time, § 6(6) second sentence, second half-sentence of the Federal Elections Act provides that at least the number of seats determined for each Land list in accordance with § 6(5) second sentence of the Federal Elections Act is allocated to the respective Land list. Therefore, the divisor must be determined in such a way that the Land lists which (also) had seats allocated to their list candidates in addition to direct constituency seats after the first distribution round receive all their direct constituency seats and at least half of the remaining seats allocated to the list after these direct constituency seats have been deducted.

c) § 6(6) third sentence of the Federal Elections Act is sufficiently specific in ordering that the direct constituency seats be deducted from the results of the proportional representation part of the election – this being a determinative feature of an electoral system in which proportional representation is combined with a candidate-centred element.

§ 6(6) fourth sentence of the Federal Elections Act then provides that a party keeps all its direct constituency seats even where they exceed the number of seats allocated to that party pursuant to § 6(6) first sentence of the Federal Elections Act. When interpreted according to accepted methodology, this must be understood to mean that a party keeps the direct constituency seats won in the constituencies of a Land even if they exceed the number of seats falling to the respective Land list on the basis of the increased overall number of seats (§ 6(6) first sentence of the Federal Elections Act) without consideration of the minimum number of seats allocated to a Land (§ 6(6) second sentence, second half-sentence of the Federal Elections Act).

4. § 48(1) second sentence of the Federal Elections Act also satisfies the requirements arising from the principle of specificity. According to that provision, seats that become vacant are not filled with the next candidate on the party’s Land list [as would usually be the case in accordance with the rules of succession from party lists under § 48(1) first sentence] if the party in question still holds seats as per § 6(6) fourth sentence of the Federal Elections Act, i.e. uncompensated overhang mandates, for the respective Land. It is sufficiently clear from the provision at what point and in which Land such a scenario can occur.

5. A different constitutional assessment of the challenged provisions is not merited by the fact that citizens entitled to vote will probably not be able to understand the details of § 6(5) and (6) and § 48 of the Federal Elections Act on the basis of the text of the law alone, without the help of other sources of information.

a) §§ 6 and 48 of the Federal Elections Act are primarily addressed to the electoral organs in their capacity as bodies applying the law; they do not directly address voters.

b) The requirement of sufficient specificity and clarity of legislation only mandates that legislation be as specific and clear as possible with regard to the particular nature of the subject matter addressed and in consideration of the legislative purpose pursued. It is therefore acceptable that the provisions regarding the procedure for the distribution of seats are phrased in such a way that the responsible electoral organs can apply them properly, but citizens entitled to vote will generally not be able to understand them by only reading the text of the law, having instead to rely on other sources of information to grasp the details.

c) The legislator’s decision to opt for an electoral system of proportional representation in combination with a candidate-centred element is compatible with the Constitution. In such an electoral system, a certain degree of complexity as regards the procedure for the distribution of seats cannot be avoided. The legislator additionally opted for the compensation of overhang mandates, which means that the absolute number of seats of the Bundestag is not laid down in the law. The system becomes even more complex because the legislator decided to also take into account federalist elements. Another factor that again increases the system’s complexity is the legislator’s decision to strengthen the candidate-centred element for Bundestag elections and to limit the increase in the number of Bundestag seats.

d) This complexity notwithstanding, it is guaranteed that voters can obtain reliable information regarding the general impact of their vote on the calculation and distribution of seats. In this respect, §§ 6 and 48 of the Federal Elections Act also satisfy the requirements arising from the principle of democracy, according to which elections in a constitutional democracy serve the particular function of an integrative process for the people. The provisions do not contain any phrasing that would disguise their true content. Moreover, Art. 1 nos. 3 to 5 of the Amendment Act did not serve to establish a new electoral system. Voters can therefore also draw on past experiences and previous elections to understand the new provisions. The amendment under review here was also the subject of intense political debate. In this context, extensive model calculations were drawn up, which the Federal Returning Officer made available to the public. With the help of these calculations, the details of the determination and distribution of seats become clear.

II. The modification of the procedure for the distribution of seats by the Amendment Act violates neither the principles of equal suffrage and of direct elections (Art. 38(1) first sentence of the Basic Law) nor the principle of equal opportunities of political parties (Art. 21(1) of the Basic Law).

1. By allowing the allocation of up to three overhang mandates without compensation, § 6(6) third sentence of the Federal Elections Act interferes with the principles of equal suffrage and of equal opportunities of political parties. However, this interference is justified by the aim of having a system of proportional representation with a candidate-centred element, which is a legitimate aim under constitutional law.

Allowing up to three uncompensated overhang mandates is suitable and necessary to achieve the aim of preserving and strengthening the candidate-centred element. The new provisions are within the legislator’s leeway to create an electoral system combining proportional representation with a candidate-centred element. It is irrelevant in this respect whether allowing overhang mandates is a deliberate consequence or an unintended side effect of the legislative decision in favour of this system.

2. To the extent that § 6(6) second sentence, second half-sentence in conjunction with § 6(5) second sentence of the Federal Elections Act allows the direct constituency seats won by a party to be deducted from the seats falling to the party list of the same party in another Land, this also infringes the principle of equal suffrage, but is justified by the interest in strengthening the candidate-centred element, which is a legitimate interest under constitutional law.

The possibility of offsetting direct constituency seats against seats falling to the party lists across different Länder serves to ensure that all direct constituency seats can be allocated, which strengthens the candidate-centred element. It helps to preserve all the direct constituency seats won by a party, ensuring a roughly equal number of direct constituency seats and seats falling to party lists. There are no means that interfere less with the principle of equal suffrage while being equally effective in achieving this aim.

3. The procedure for the distribution of seats under review here does not result in a ‘negative voting weight’ effect (negatives Stimmgewicht) that would be significant under constitutional law and would violate the principles of equal suffrage, of direct elections and of equal opportunities of political parties.

Regardless of the differing views on the question of whether the Amendment Act can give rise to an effect of negative voting weight, it appears that this effect, if it does occur under the Amendment Act, does not reach a constitutionally significant degree. It is true that allowing uncompensated overhang mandates means that an increase in second votes for a party can result in the loss of an uncompensated overhang mandate. However, such an increase in votes does not lead to the affected party losing actual seats contrary to expectations. Rather, the number of seats allocated to that party would remain the same. An uncompensated overhang mandate would merely be replaced by a direct constituency seat based on second votes. It is not the case that this effect can – in some paradoxical manner that would contradict the spirit and purpose of democratic elections – end up disadvantaging a party that increased its share of second votes. The same applies to the opposite case, where a loss of second votes can result in an uncompensated overhang mandate.

Dissenting opinion of Vice-President König and Justices Müller and Maidowski:

The decision of the Senate majority does not fully appreciate the substance and significance of the constitutional requirement of clarity in electoral law. It therefore does not accord this requirement the necessary weight and ultimately leaves voters in the dark as regards the effects of the exercise of their essential right to democratic self-determination. This does not live up to the noble character of the act of voting, which is central to democracy, and denies voters the respect they deserve in their role as the source of democratic legitimation. The decision does not satisfy the constitutional requirements arising from the principle of democracy in conjunction with the principle of the rule of law. According to these principles, the electoral law itself must be so clear as to enable voters to make a free and self-determined decision on how to cast their vote while being aware of the impact their vote may have on the composition of Parliament. Based on these considerations, the provisions under review are unconstitutional.

1. a) The principle of democracy and the right to democratic self-determination derived therefrom require that electoral law be designed in such a way that voters can themselves discern how their vote may affect the election result, and adjust their voting decision accordingly.

aa) Parliamentary elections – as the constituent act in a democratic state – confer democratic legitimation on the German Bundestag, and thereby indirectly on all other state organs. However, elections can only provide such legitimation if voters can cast their vote in a self-determined manner and are aware of the impact of their vote.

bb) Free and equal elections can only be guaranteed if the average voter is able to grasp the essential electoral framework. An electoral procedure that does not allow voters to discern, before they cast their vote, what impact their voting decision could have on the electoral prospects of candidates standing for election is incompatible with these principles.

cc) Based thereon, the requirement of clarity in electoral law applies to all essential steps of the electoral process, and in particular to the provisions of electoral law that govern the exercise of voting rights. The principle of democracy affords citizens a claim to equal participation in the formation of the political will in the context of Bundestag elections; this claim cannot be reduced to their right to cast a vote. Political participation requires that citizens be able to foresee the impact of their vote with sufficient specificity and to take this impact into account when casting their vote. The provisions of electoral law must reflect this. When it is only the electoral organs that can understand the wording of provisions material to the voting decision based on the text of the law and citizens are unable to do so without the help of additional sources of information, this does not satisfy the requirements arising from the principle of democracy for the free and self-determined participation in the electoral process.

b) Contrary to the view of the Senate majority, the requirement of clarity in electoral law is not satisfied by a procedure for the distribution of seats that can be sufficiently grasped by the electoral organs.

aa) The procedure for the distribution of seats is crucial for the exercise of the right to vote. Voters can only exercise their right to vote in a free and self-determined manner if they can foresee the impact their vote may have on the composition of Parliament. Yet this requires that voters can understand the procedure for the distribution of seats. Given that elections are a matter of the whole people and a common affair of all citizens, it is especially important that the key provisions of electoral law, including the provisions on the distribution of seats, can also be understood by voters who do not have any legal training.

bb) The Senate majority argues that clear provisions regarding the distribution of seats are not needed; this is not convincing.

The Senate majority points out that the provisions regarding the distribution of seats are primarily addressed to the electoral organs and do not directly address voters. It is unclear how this could restrict, let alone lift, the requirement of legal clarity. What is decisive is whether the contents of a provision are material to the decision on how to cast one’s vote. If this is the case, the provision must be so clear that voters can adjust their decision on how to cast their vote accordingly. This applies also and especially to the provisions regarding the distribution of seats.

Contrary to the Senate majority’s view, it is not sufficient that ‘voters can get a rough idea of how individual votes are translated into seats’. Such vagueness regarding the right to participation does not satisfy the requirements arising from the principle of democracy for the participation of the individual in the formation of the political will and the legitimation of state power.

The argument that voters are guaranteed to be able to obtain reliable information about the basic impact of their vote on the calculation and distribution of seats is also not persuasive. The Senate majority makes reference to the information and model calculations provided by the Federal Returning Officer in particular. However, it is the legislator that must satisfy the requirement of legal clarity; the legislator cannot evade the obligation to enact sufficiently specific and clear electoral provisions by pointing to the endeavours of third parties.

d) The legislator must satisfy the requirements regarding the specificity and clarity of electoral law when exercising its legislative duty under Art. 38(3) of the Basic Law. While the legislator may be free to opt for a complex electoral system, it is still bound by the obligation to set out this electoral system in clear provisions that allow voters to make a free and self-determined decision on how to cast their vote. The limits of legislative leeway might be reached at least when the chosen electoral system is so complex as to render it impossible to enact clear provisions that can be understood by voters and when voters are no longer able to take into account the impact of their vote on the distribution of seats when casting their vote. In this case, the one-sided emphasis on the legislator’s mandate to shape electoral law would amount to giving priority to Art. 38(3) of the Basic Law over other constitutional requirements and principles. The Senate majority does not give any reasons arising from constitutional doctrine for releasing the legislator from its obligation to observe the requirement regarding the clarity of electoral law derived from Art. 20(2) and (3) of the Basic Law when exercising the mandate to shape electoral law conferred on it by Art. 38(3) of the Basic Law.

2. The provisions under review do not satisfy the constitutional requirements regarding the clarity of electoral law set out above. Citizens entitled to vote are unable to understand the content of § 6(5) and (6) and § 48(1) second sentence of the Federal Elections Act, as amended by Art. 1 nos. 3 and 5 of the Amendment Act, on the basis of the text of the law alone, without the help of other sources of information or legal advice. Therefore, the provisions violate the requirement of the clarity of electoral law.