The 2023 Federal Elections Act is largely compatible with the Basic Law – only the 5% electoral threshold is currently unconstitutional, but it will continue to apply under certain conditions

Press Release No. 64/2024 of 30 July 2024

Judgment of 30 July 2024 - 2 BvF 1/23, 2 BvF 3/23, 2 BvE 2/23, 2 BvE 9/23 , 2 BvE 10/23, 2 BvR 1523/23, 2 BvR 1547/23

In a judgment pronounced today, the Second Senate of the Federal Constitutional Court held that the procedure whereby a political party’s constituency candidates are given a mandate only if their seats in the Bundestag are supported by the result of the vote for the respective party list (‘second vote basis procedure’ - Zweitstimmendeckungsverfahren), provided for in § 1(3), § 6(1) and (4) first and second sentence of the Federal Elections Act (Bundeswahlgesetz – BWahlG), is compatible with the Basic Law (Grundgesetz – GG). However, the 5% electoral threshold in the current version of § 4(2) second sentence no. 2 of the Federal Elections Act violates Art. 21(1) and Art. 38(1) first sentence of the Basic Law. This provision will continue to apply until a new law is enacted, subject to the condition that political parties that receive less than 5% of the second vote will still take part in the distribution of party list seats in Parliament if their candidates win a majority of first votes in at least three constituencies.

The Bavarian Land Government, 195 members of the parliamentary group of the CDU/CSU in the Bundestag, and the CSU political party submitted an application challenging the new second vote basis procedure. According to this procedure, electoral candidates who receive the majority of votes in a constituency (‘first votes’) only receive a seat in the Bundestag if the assignment of such seat is supported by the amount of party list votes (‘second votes’) that their political party received overall. These applicants also challenge, along with the party DIE LINKE, its parliamentary group in the Bundestag and several individuals, the 5% electoral threshold. This threshold requires that a political party obtain at least 5% of the second vote in order to receive any seats in the Bundestag. The original draft act provided that, as an alternative, winning three constituencies would be sufficient. This corresponded to the rule in the prior law.

The second vote basis procedure is compatible with the Basic Law. The legislator’s decision to reform electoral law is not subject to any special requirements. Under the current legal and factual circumstances, an electoral threshold of 5% is not fully necessary in order to safeguard the proper functioning of the Bundestag.

The decision as to the second vote basis procedure is unanimous. The decision as to the electoral threshold was taken with a vote of 7:1.

Facts of the case:

On 17 March 2023, the Bundestag, with a majority of the parliamentary groups of the governing parties, passed legislation changing the Federal Elections Act. Pursuant to these changes, the following rules apply to elections to the Bundestag:

Each voter has two votes: the first vote is for a candidate in the voter’s constituency and the second vote is for a list of candidates nominated for the respective Land by a political party (hereinafter ‘Land list’). The 630 seats in the Bundestag (§ 1(1) first sentence Federal Elections Act) are first distributed among the parties: Each party receives seats based on its respective share of the nationwide second vote (§ 4(2) Federal Elections Act). These seats are then allocated to the respective party’s Land lists (§ 4(3) Federal Elections Act). The order in which seats are allocated to the candidates is determined as follows: Successful candidates, that is, those who have won a majority of first votes in their constituencies, move to the top of their party’s Land list and are given priority when seats are assigned. For this purpose, they are ranked according to the percentage of first votes that they received. If the number of seats that a party’s Land list receives based on their second vote exceeds the number of candidates who won a majority of first votes in their respective constituencies, then the additional seats are conferred to other candidates on the list. If the number of successful candidates exceeds the number of seats a party’s Land list receives based on the second vote, then those candidates with the lowest percentages of first votes are not assigned a seat (§ 6(1) and (4) first and second sentence Federal Elections Act).

Pursuant to § 4(2) second sentence no. 2 of the Federal Elections Act, political parties who receive less than 5% of the second vote do not receive any seats (5% electoral threshold). Their candidates are not elected to the Bundestag.

The Bavarian Land Government and 195 members of the parliamentary group of the CDU/CSU in the Bundestag submitted an application for judicial review to challenge the second vote basis procedure as well as the 5% electoral threshold as an absolute hurdle to receiving any seats in the Bundestag. The CSU, as a political party, initiated Organstreit proceedings (dispute between constitutional organs) against the Bundestag challenging the adoption of the Act to Amend the Federal Elections Act introducing these provisions; the CDU joined these proceedings. The political party DIE LINKE and the then-parliamentary group of the DIE LINKE in the Bundestag also submitted Organstreit applications against the Bundestag. In addition, 212 of their ‘voters / supporters’ submitted a constitutional complaint to challenge the removal of the minimum representation provision (Grundmandatsklausel), pursuant to which a political party was able attain seats in the Bundestag if its candidates won a majority of first votes in at least three constituencies, as an exception to the electoral threshold. In addition, 4,242 individuals submitted constitutional complaints challenging the electoral threshold as such.

Key considerations of the Senate:

A. The judicial review proceedings are admissible. The Organstreit applications and constitutional complaints are only admissible in part.

In particular, the Organstreit application of the former DIE LINKE parliamentary group is inadmissible. It need not be decided what consequences the dissolution of the parliamentary group on 6 December 2023 had on the application, as there is no standing in any event. A parliamentary group does not have the right to remain in the Bundestag after the next election, nor can it, as a parliamentary group, assert the rights of individual Members of the Bundestag to deliberation and decision making that are guaranteed under Art. 38(1) second sentence of the Basic Law.

B. The provisions relating to the second vote basis procedure are compatible with Art. 38(1) first sentence, Art. 38(3) and Art. 21(1) of the Basic Law. The 5% electoral threshold is not compatible with these constitutional standards.

I. In terms of formal constitutional requirements, the challenged provisions are not objectionable. In particular, there is nothing to indicate that the German Bundestag exceeded its leeway to design in regard to the way in which the parliamentary proceedings on the legislation were structured. While the electoral law reform was not adopted by consensus but instead by a parliamentary majority of the governing parties, Art. 38(3) in conjunction with Art. 42(2) of the Basic Law expressly provide for this possibility.

The fact that the removal of the ‘revised minimum representation provision’, which had been in the draft law, (only) took place in the final committee deliberations also does not constitute disregard for the rights of Members of Parliament or the principle of public proceedings. Parliamentary deliberations serve precisely to allow opportunities to amend draft legislation. In the present case, sufficient information regarding the significance of the ‘revised minimum representation provision’ or the consequences of its omission was made available to Members of Parliament during the legislative proceedings.

II. The applications for judicial review are successful in part.

1. Art. 38(3) of the Basic Law directs the legislator to enact federal law setting out the specific rules for federal elections. The legislator’s power to design electoral law is limited by the electoral principles set out in Art. 38(1) first sentence of the Basic Law, which provides that Members of the German Bundestag shall be elected in universal, direct, free, equal and secret elections. The principle of equal elections requires that all those eligible to vote be able to exercise the right to vote and to stand for election in as formally equal a manner as possible.

The legislator must also ensure equal opportunities for political parties (Art. 21(1) of the Basic Law). This requires that all political parties be given equal opportunities in the entire electoral process, meaning that they have equal chances of obtaining parliamentary seats. The right of political parties to equal opportunities is closely linked to the principles of universal and equal elections.

The principles of equal elections and equal opportunities for political parties do not give rise to an absolute prohibition against differentiation. When deciding on the design of the electoral framework, the legislator is afforded some leeway for differentiation.

2. Based on these standards, the second vote basis procedure is compatible with the Basic Law.

a) The legislator is permitted to introduce new rules that depart from prior electoral law and require a new approach to elections, not only from candidates and parties, but also from voters. The legislator’s decision to reform electoral law is not subject to any special requirements.

aa) The second vote basis procedure does not constitute a departure from the fundamental way in which electoral law was previously structured. Within the context of its broad leeway to design, the legislator chose to retain the use of both constituencies and proportional representation through Land lists.

On the other hand, the legislator chose to redesign the necessary reconciliation between the election results in the constituencies and those of the proportional representation vote, which also falls within the context of the legislator’s broad leeway to design. Under the old law, seats in the Bundestag were allocated both based on the results in the constituencies and those of the party Land lists: First, candidates who received a majority of votes in their constituency would receive a direct mandate. Then, a reconciliation based on the second vote would take place. As part of the procedure to assign seats to the party lists, the seats won by direct mandate would be offset against the seats on the party’s Land list.

According to the new procedure, no mandates are conferred prior to the reconciliation. The 630 seats in the Bundestag are first allocated to the parties and their Land lists. The order in which each of these contingents of seats are assigned to candidates is then determined. Here, successful candidates move to the top of their party’s Land list and are ranked according to the share of first votes that they received. Only in the last stage are mandates conferred, based on the accordingly established order of candidates on the Land list.

The criticism that the legislator has failed to choose either a pure direct election or a pure proportional representation system overlooks the fact that according to established case-law of the Federal Constitutional Court, proportional representation can be combined with a direct vote for individuals. However, the retention of a combination of proportional representation and constituencies does not mean that the same reconciliation procedure must be retained or that it cannot be redesigned. The legislator may choose a different combination. To the extent that it is contended that second vote basis procedure violates a requirement for regional representation or representation based on constituencies, no support for such a requirement can be found in the Basic Law or previous electoral law.

bb) The additional criticism that the new law contains contradictions and the second vote basis procedure lacks logical consistency is not compelling, as it is based on a conceptual adherence to principles derived from the prior rules of reconciliation.

When a Bundestag mandate is not assigned to the candidate with the most first votes in a particular constituency and the constituency is represented instead by other Members of Parliament selected from the Land lists, a contradiction only appears if voters in a constituency view the first vote as the sole decisive vote for the distribution of a mandate. However, pursuant to the second vote basis procedure, the results in the constituency are not solely decisive for the conferral of a mandate. Rather, this procedure serves to ensure that each Member of the Bundestag is legitimated through the second votes cast for their political party.

b) The second vote basis procedure does not violate the principle of equal elections under Art. 38(1) first sentence of the Basic Law.

aa) It is true that votes for a candidate who is not affiliated with a political party, but who wins their constituency, will not be treated in the same way as votes for a successful party-affiliated candidate. In particular, an unaffiliated candidate receives a direct mandate in accordance with § 6(2) of the Federal Elections Act regardless of the second vote basis.

However, this unequal treatment is justified. Under the Federal Elections Act, the second vote basis procedure provides for a reconciliation between the results of the first and second votes. If such a reconciliation is not possible because there is no connection between the unaffiliated candidate in the constituency and a party’s Land list, then special consideration of such cases is warranted. The possibility to nominate unaffiliated candidates in a constituency safeguards the nomination right of voters as a core part of a citizen’s right to actively participate in elections independent of political parties.

bb) Beyond this, the second vote basis procedure does not result in an unequal treatment of votes. Each vote counts in the same way. To the extent that voters vote for a party-affiliated candidate with their first vote, this vote will be tallied in the vote count as a vote for this specific candidate.

The chances of success for each first vote are also the same. Each first vote will lead to the conferral of a mandate for the candidate, if the candidate receives the most first votes in that constituency and the Land list of their respective political party receives sufficient second votes to allocate a seat to all successful candidates with an equal or greater percentage of first votes. Both conditions are solely dependent on the results of the election.

Likewise, the votes for a successful candidate who is given a mandate through the second vote basis procedure and votes for a successful candidate in another constituency, who is not given a mandate, are not treated unequally. That a successful candidate is not given a mandate because the second vote achieved by their party did not result in a corresponding number of seats for the party’s successful candidates is a product of the mechanism chosen by the legislator, which is based on two prerequisites (obtaining the most first votes in the constituency and the party obtaining sufficient second votes for the candidates on their Land list). The chances of success of each vote are determined by both of these prerequisites.

c) The principle of direct elections under Art. 38(1) first sentence of the Basic Law is not violated by the second vote basis procedure. This procedure does not change the fact that a voter’s first vote can be attributed to a specific candidate in a constituency. The only thing that is uncertain at the time a vote is cast is whether that vote will be for a successful candidate. That is determined afterwards, by the – consistently applied – electoral process and the subsequent procedure of seat allocation provided for by the law. The answer to the question of the order in which the successful candidates will be conferred a mandate or, in the case of insufficient second votes for the party, which successful candidates will not be conferred a mandate, is determined solely by the election results and is set out in the electoral statute.

d) The second vote basis procedure does not violate the requirement of equal opportunities of political parties (Art. 21(1) of the Basic Law). The Senate does not share the view that this procedure places particular burdens on opposition parties. The second vote basis procedure serves to ensure that the composition of the Bundestag reflects the parties’ proportionate shares of the vote, just like the previous system of balance seats (Ausgleichsmandate) to offset overhang mandates (Überhangmandate). Despite what the term ‘cap’ might suggest, the second vote basis procedure does not result in a reduction of any party’s contingent of seats in the Bundestag. It is true that, assuming in the next elections the same results as before, all parties will send fewer Members to the German Bundestag. But this is merely the consequence of adhering to the statutorily defined size of the Bundestag by means of this allocation process.

3. The electoral threshold in § 4(2) second sentence no. 2 of the Federal Elections Act in its current form is incompatible with the Basic Law.

a) The electoral threshold prevents political parties from being considered in the allocation of seats in the Bundestag when they have received less than 5% of the second vote nationwide even though they numerically qualify for seats. This is unequal treatment in comparison to votes for parties with a higher percentage of the second vote.

b) Safeguarding the proper functioning of Parliament can constitute a legitimate reason that justifies an electoral threshold for proportional representation. The decisive factors for assessing an electoral threshold for elections to the German Bundestag are the central functions accorded to it under the constitutional order of the Basic Law.

c) The electoral threshold is suitable for safeguarding the proper functioning of the Bundestag. An electoral threshold prevents elections from leading to a splintering of Parliament into many small groups and thereby secures the conditions for the Bundestag to function. The electoral threshold establishes the conditions that allow associations of Members with similar political goals in the Bundestag (parliamentary groups) to have a certain minimum size. Setting the electoral threshold at 5% of the second vote nationwide is adequate for this purpose. This assessment, which is confirmed by the established case-law, remains unchanged even in view of the legal and factual changes that have occurred in the meantime.

d) Under the present legal and factual circumstances, the design of the electoral threshold in § 4(2) second sentence no. 2 of the Federal Elections Act is nevertheless not fully necessary. Safeguarding the proper functioning of the Bundestag does not require that a political party not be considered in the allocation of seats, when their Members would join a joint parliamentary group with Members of another party and both parties together would reach the 5% quorum.

aa) There is an actual possibility that, in the next Bundestag election, the CSU will not be considered for any seats due to failing to clear the 5% nationwide threshold. If they were considered for the allocation of seats, they would with sufficient certainty form a joint parliamentary group with the Members of the Bundestag from the CDU. The basis for such assumption is the long-time cooperation between the two political parties.

bb) The cooperation of the CSU with the CDU is characterised by three elements: first, the intent to create a joint parliamentary group based on similar political goals; second, the fact that such a joint parliamentary group already exists in the Bundestag; and third, the parties’ avoidance of competition with one another, in that their Land lists are submitted in separate Länder.

Since the founding of the Federal Republic of Germany, the CDU and CSU have made it clear in electoral campaigns that they pursue similar goals and seek to form a joint parliamentary group. In particular, the CSU regularly campaigns for the lead candidates of the CDU. Since 1976, both parties present joint electoral programmes for Bundestag elections. Since 1949, their Members have formed a joint parliamentary group in the Bundestag. While the CSU only puts forward candidates in Bavaria, the CDU forgoes putting forward any candidates there.

cc) The goal of the electoral threshold can equally be achieved if the results of the second vote of parties who cooperate in this manner are considered together. The resulting unequal treatment is justified.

Such cooperation does not alter the conditions of parliamentary function, which the electoral threshold is intended to safeguard. Its very goal is a joint parliamentary group. In this respect, it goes beyond a pure electoral alliance that is merely aimed at allowing both parties representation in Parliament. In addition, unlike a coalition, such cooperation does not only refer to working together in a government, but also applies to participation in the opposition. Thus, the cooperation directly relates to the activities in the Bundestag and encompasses all of the parliamentary functions. In forming a joint parliamentary group, the Members of the participating parties submit to parliamentary organisational structures such that they do not hold the rights and duties of a parliamentary group individually, but jointly. This allows the parties to jointly represent a political current in Parliament.

If parties that cooperate in this manner are jointly considered for purposes of applying the electoral threshold, this constitutes an unequal treatment in comparison with other political parties. They receive – unlike other parties – seats in the Bundestag, even if each party alone has not fulfilled the requirement of § 4(2) second sentence no. 2 of the Federal Elections Act.

It need not be decided to what extent joint consideration of parties in the context of overcoming the electoral threshold is justified when only one of the three aforementioned elements exists. In any event, under the current legal and factual circumstances, their joint existence justifies preferential treatment of a cooperation such as the one practiced by the CDU and CSU.

e) The legislator is obliged to design the electoral threshold in such a way that it does not, under the current legal and factual circumstances, go beyond what is necessary to safeguard the proper functioning of the Bundestag. However, it is not limited to introducing a possibility of joint consideration of two parties that cooperate in the aforementioned manner. It can also modify the electoral threshold in another way.

D. The constitutional complaints are – to the extent that they are admissible – well-founded. § 4(2) second sentence no. 2 of the Federal Elections Act violates the rights of the complainants under Art. 38(1) first sentence of the Basic Law.

E. I. The Organstreit application of the CSU is well-founded. The decision of the Bundestag of 17 March 2023 adopting the Act to Amend the Federal Elections Act violates the party’s right to equal opportunities. It is affected by the circumstances that arise by virtue of the electoral threshold exceeding what is necessary to safeguard the proper functioning of Parliament.

II. The Organstreit application of the party DIE LINKE is unfounded. Its own rights are not affected by the constitutional violation identified here. Its Members of the Bundestag do not form a joint parliamentary group with those of any other political party. Nor does it appear that the party intends to do so in the future.

F. The conditions under which the electoral threshold will continue to apply, i.e. with recourse to the provision in the draft act allowing for seats for those parties who have successful candidates in at least three constituencies, are familiar to the political parties and voters alike and will serve to strengthen trust that the electoral law reform does not disadvantage any political party.