How can the Bundestag, which has become too big, be trimmed down to normal – fair and just for all parties? There is currently a heated argument about this, but the question has been driving politics for years. In 2020 there was already a reform of the electoral law, enforced by the black-red coalition. The FDP, the Greens and the Left, all of whom were in opposition at the time, had therefore turned to the Federal Constitutional Court. Hearings will now take place in Karlsruhe on Tuesday – although the plaintiffs of yore are far from pulling together when it comes to voting rights.
Why should the electoral law be reformed at all?
According to the law, the target size of the Bundestag is 598 members. But due to overhang and compensation mandates, there are now significantly more parliamentarians. Overhang mandates arise when a party wins more direct mandates than it is entitled to seats according to the result of the second vote. As a result, there are 736 MPs in the current Bundestag, more than ever before.
Why is there a dispute?
Depending on which screw you turn, one party benefits more than the other. And nobody wants to lose power and influence because of the reform. That is why, despite a few attempts, it has never been possible to find a compromise that everyone supports.
What is the current standing?
On March 17, the traffic light parliamentary groups of the SPD, Greens and FDP decided to change the electoral law, which is intended to permanently shrink the Bundestag to 630 MPs. The plan is to completely abolish the overhang and equalization mandates. In addition, the so-called basic mandate clause is to be dropped. So far, it has ensured that parties get into the Bundestag with the strength of their second vote result if they are less than five percent but win at least three direct mandates. This would have a particularly negative effect on the CSU and the left. This reform will therefore almost certainly end up in Karlsruhe. However, the legislative process is not yet complete.
What is Karlsruhe about now?
About the electoral law version, according to which the current Bundestag was elected in 2021. The changes made by the CDU/CSU and SPD in 2020 were significantly less extensive. They consist essentially in the fact that compensation only takes place from the fourth overhang mandate and that direct mandates are also counted towards list mandates of the same party in other federal states.
Why is this relevant when the next reform is already under way?
Due to the many mishaps on election day, the Bundestag elections are to be repeated in some Berlin electoral districts according to a decision by the Bundestag. It’s not that far yet, because there is also a process going on in Karlsruhe. However, the repeat election would have to follow the same rules as the main election. According to the judges, there is therefore a public interest in clarifying whether these rules are constitutional.
What does this mean for the parties involved?
The competent Second Senate is now going through with the procedure – even if the FDP, Greens and Left would prefer to shelve it in view of the new reform. The 216 MPs who once jointly submitted their so-called norm control application unsuccessfully applied in mid-March to order the proceedings to be suspended. At that time, the court had already summoned the hearing.
What can you expect in terms of content?
The judges have already spoken out in mid-2021. At that time it had to be decided whether the changed law could be applied in the upcoming election. This urgent decision raises some concerns – such as the concern that the distribution of seats could have become so complicated that it is no longer transparent for the voters. Nonetheless, the green light was given. Because the judges assumed that the changes would only affect relatively few mandates. The regulations are only now being examined in detail.
What impact could the judgment have?
In the regulatory review process, the Senate formally only decides whether a provision is constitutional or not. What would happen if there were complaints cannot be predicted with any certainty. A new election would be a very unlikely extreme scenario. Election scrutiny complaints are also pending for the 2021 election. It is therefore also conceivable that these procedures will then examine how serious the electoral error is and what consequences it would have for the current Bundestag. The verdict will be announced in the coming months.
