It is not a reform of the electoral law that the Union and the SPD are bringing into the Bundestag on Thursday. It’s not even a re-form. The new electoral law is the bad product of bad producers. Coalition representatives can still stress that there will be at least slightly fewer members in the future parliament than under the previous regulation, which is obviously inappropriate.
Whoever comes to the lectern for CDU, CSU and SPD in the debate should blush with shame. Maybe they are talking with a mask.
This law is nothing more than a bold bet that it will not end as bad as one should fear. That there will currently be fewer MPs than the 709, with a normal size of 598 seats. That the two built-in mitigation measures can result in a number below 700. You can then imagine that to the population you supplied.
There may be even more inflation from the Bundestag
But both measures – compensation of overhangs with state-list mandates and three overhangs without compensation – are void in their effect and may be unconstitutional. From today’s perspective, the likelihood that the next Bundestag will be greater than the current one is greater than a reduction in the number of seats. You could expect that such a development would be impossible in any case. But the coalition did not even succeed. As the saying goes, sit down, six.
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So the question arises, and the opposition is wondering whether a quick trial in Karlsruhe is needed in view of the disaster. On the one hand, the starting points would be the inadequate clarity of the standards of the new electoral law (all experts in Monday’s hearing called it even more complex and incomprehensible to ordinary people than the previous one). The ominous phenomenon of a negative vote weight, which has already been rebuked by the Constitutional Court, is apparently resurfacing.
Violation of Equal Success Value?
And third, most importantly, it is possible violations of the equality of success of the votes due to the listing and the three unbalanced overhangs that could warrant a lawsuit. On the one hand they disturb the proportional representation of the countries, which may still be possible, but on the other hand they also disturb the proportional representation of the parties. It can be assumed that in the coming electoral periods the Union will push for increasing the number of unbalanced overhangs and thus increasing the disruption of proportional representation – at least as long as the CDU and CSU benefit from it, ie as long as the overhanging mandates pile up.
In Karlsruhe it would also be about the “basic character” of our electoral system. According to the Constitutional Court, the system, which is not changed by the government law, is fundamentally that of proportional representation. The core principle is to convert the share of votes between the parties into mandates as accurately as possible. Under the electoral law it is “proportional representation in connection with the election of persons”. The CDU and CSU justify a deviation from the proportional representation by stating that the personalization component allows it.
Upstream or embedded?
However, in this camp (including ex-constitutional judges) this definition is only interpreted as being proportional representation related to majority voting. And this majority of votes is, according to Heidelberg law professor Bernd Grzeszick, who is regularly appointed as an expert by the Union, “upstream”. This in turn justifies that the direct mandates obtained must be guaranteed. According to current surveys, the CDU and CSU are likely to supply about 270 of the 299 constituency winners. The election in the constituency is currently practically the same as the election for the Bundestag.
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But is the majority vote actually upstream, is it more or less autonomous? Or does it not take place in the context of proportional representation, which dominates voting behavior? The conditions are of course slightly different from a real majority election such as in Great Britain. As a result, many direct mandates can be won with percentages below 35, in extreme cases even below 25 percent, which is very unusual with a true majority vote. Within the system of personalized proportional representation, a fake majority is more likely to exist.
Questionable direct mandate guarantee
In other words, the second vote is decisive, the first vote (determining the electoral district winner) is of secondary importance as an element of personalization. The second vote determines the seat ratio, the first vote influences who sits on these seats. Nothing more nothing less. The direct mandate guarantee for constituency winners, the core element of true majority elections, can be seen as questionable at the very least in the context of personalized proportional representation.
A trial in Karlsruhe could finally resolve the very core problem of the electoral mess that has been going on for years: the disagreement over what “personalized proportional representation” actually is or could be. The court could help bring about a legal peace that does not currently exist. That the possibilities for reform are increasing. There is really nothing against going to Karlsruhe – except for the fear that the judges would navigate their way through again, as in previous rulings.