A good six weeks before the Bundestag election, it is now clear which rules will be used to determine the members of the next legislative period: The Federal Election Act as amended in November last year applies.
The Federal Constitutional Court rejected the opposition's motions against the amendment.
With the votes of the grand coalition, the Bundestag decided that in future up to three overhang mandates will not be supplemented by compensatory mandates.
Helene Bubrowski
Political correspondent in Berlin.
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Until now, the advantage of a party that directly wins more constituencies than it is entitled to seats after second votes had to be offset by additional mandates for the other parties.
The change in electoral law was the result of years of conflict between the parties on how to prevent further inflation of the Bundestag.
In the current legislative period, there are 709 members of the Bundestag, 111 more than the minimum legal requirement.
Plaintiffs have valid arguments
The amended electoral law ended up in Karlsruhe because the parliamentary groups of the FDP, the Greens and the Left had filed a lawsuit. The three opposition factions had presented a joint reform proposal: They want to reduce the number of constituencies. They accuse the coalition that the amendment violates the principle of equality, since the union parties in particular benefit from the overhang mandates without compensation. In addition, the amendment to the law is so unclear that it violates the principle of clarity of norms.
The Second Senate of the Constitutional Court rejected the applications in the end, but it is absolutely correct when Marco Buschmann, the parliamentary manager of the FDP parliamentary group, says that Karlsruhe “attested the plaintiffs' arguments to be valid”. In an urgent procedure, the constitutional judges came to the conclusion that the motion against the new law is neither inadmissible from the outset nor obviously unfounded. The Federal Constitutional Court did not clarify whether the law meets the requirements of the Basic Law, but referred to the main proceedings in several places.
The judges of the Second Senate only waived an interim order because after weighing up the consequences they could not determine that the reasons for the revocation of the new electoral law “clearly outweighed”.
Only in this case would the substantial interference “in the legislative sphere” have been justified, the decision states.
If Karlsruhe had forbidden the application of the new law for the upcoming federal elections, this would have caused some political turmoil, which of course is not mentioned in the resolution.
The coalition would have been exposed, some voters would have been unsettled, enemies of democracy could have triumphed.
Up to 800 MPs?
It didn't turn out that way, but the Second Senate made its doubts about the new electoral law very clear. Since up to three overhang mandates will not be compensated in the future, Karlsruhe sees equal opportunities for political parties as affected. In fact, the second votes are not worth the same if the overhang mandates are not compensated: If a party wins an overhang mandate without corresponding compensation, each of its seats will receive fewer second votes than the parties to which this does not apply.
Karlsruhe cites the preservation of the functionality of the Bundestag as a possible justification for this interference with the principle of electoral equality.
A further increase - meanwhile forecasts were based on more than 800 MPs in the future Bundestag - would undoubtedly be a financial and organizational burden.
Karlsruhe has not yet answered where the border is, this requires “closer examination in the main proceedings,” says the decision.
The new law has become even more complicated
In the later proceedings, it should also be clarified to what extent the amendment to the law meets the constitutional requirements for the clarity and comprehensibility of legal norms. Karlsruhe addresses a problem that everyone who has dealt with German electoral law is familiar with: Even before the most recent reform, the procedure for allocating seats was difficult to understand. The first distribution, the increase in the number of seats, and the second distribution in connection with the intermediate steps of the respective upper and lower distribution were regulated in a single provision.
The change has increased the level of complexity even more, criticized Karlsruhe. The judges also raised concerns because the new provision does not make it clear what the three direct mandates refer to, which should not be taken into account in the future when the number of seats is increased: three mandates per country or per party or in total from all countries and parties?
The judges justified the fact that Karlsruhe came to the conclusion that it is better to conduct the Bundestag election on the basis of a law that could later prove to be unconstitutional than not to apply a law that could later turn out to be constitutional Consideration: The alleged violations of the constitution could also be determined in the context of an election review complaint, which could result in the ordering of a new election. That reads almost like a tip to the loser on September 26th.