Top German court finds fault with electoral law reform

There has long been cross-party agreement that the Bundestag, the lower house of parliament, is far too big. With the last general election in 2021, it had ballooned to 736 members, making it larger than any other democratically elected parliament in the world — and very expensive.

In March 2023, the three ruling parties — the center-left Social Democrats (SPD), the Greens and the neoliberal Free Democrats (FDP) — together passed a new electoral law aiming to limit the size of Germany's lower house of parliament, the Bundestag, to 630 seats. 

The opposition center-right Christian Democrat Union (CSU), the Left Party and others took the new law to the Federal Constitutional Court. They feared for their seats in parliament. 

The Constitutional Court in Karlsruhe, essentially approved the electoral law reform which several previous governments had failed to achieve. Partly because the German electoral system is so complicated. The fact that the Bundestag is becoming smaller has now been approved.

"The Federal Constitutional Court has saved this law, has made it watertight to a certain extent," political scientist Albrecht von Lucke told DW after the verdict was published.

However, the court overturned one of the points of this electoral law reform. "The 5% clause in its current form is not compatible with the Basic Law," it wrote, referring to the threshold a party needs to cross to secure representation in the Bundestag.

In Germany, the "five percent clause" generally applies to federal and state elections. This hurdle is intended to ensure that not too many small and splinter parties enter the parliaments. 

The ruling parties had sought to abolish the "Grundmandatsklausel" (basic mandate clause), which enabled a party that won at least three constituencies ("direct mandates") to enter the Bundestag with a full parliamentary group even if failed to clear the 5% threshold.

The Constitutional Court has declared this to be unlawful, arguing it could lead to too many votes not being counted at all.

Jubilant Left Party and CSU

Two parties in particular can be pleased with the Constitutional Court's ruling: The Left Party and the center-right Bavarian Christian Social Union (CSU), which forms a parliamentary group in the Bundestag together with the Christian Democratic Union (CDU). The regional CSU party runs only in Bavaria, where it almost always wins all direct mandates. However, it only garners just over 5% of the total national vote.

The Left Party also benefited from the "basic mandate clause" in the 2021 election. It had won only 4.9% of the vote, but because three of its candidates won their respective constituencies, the party got to fill 4.9% of the Bundestag seats, giving it a parliamentary group of 39 members.

Gregor Gysi of the Left Party was one of those who won a direct mandate for his party. In an interview with DW, the lawyer described the verdict as "a success for the Left and the CDU/CSU" and a "failure" for the governing parties. 

He said he expects a new electoral law to be passed by September. Although he would like to see the five-percent hurdle lowered, he does not believe it will happen.

Left Party co-chair Janine Wissler agrees. She was jubilant in her first reaction to the verdict. She wrote on X, formerly Twitter, of a slap in the face of the government, "who wanted to weaken the opposition via the electoral law."

What will now become of the electoral law reform?

The next federal general election is expected to take place in September 2025. Not much time, therefore, for the government to again adapt its electoral law reform in line with the constitution. The government could, for example, lower the five percent hurdle for representation. 

All in all, the governing parties are satisfied with the Constitutional Court's ruling. Political scientist Albrecht von Lucke also praised the government's reform in principle: “Thanks to the correction by the Federal Constitutional Court, the current federal government has managed to achieve something with this law that has been an unfulfilled mission for decades.”

The opposition CDU/CSU, however, has voiced criticism of the constitutional judges' ruling: it has announced that it will roll back the electoral law reform should the party win next year's election and form the next federal government.

The announcement of the Constitutional Court's verdict was overshadowed by a glitch or leak. The night before the actual announcement, the text of the court ruling was made public. The Court's Vice President Doris König said that the court regrets this error, which "may have been due to a technical error."

This article was originally written in German.

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