The government coalition led by Chancellor Olaf Scholz has made use of its parliamentary majority to carry out a reform of the electoral law that the opposition as a whole has already announced that it will denounce the Constitutional Court. “This reform is a manipulation of the electoral right and a fraud to the voters,” said the leader of the Christian Democratic Union (CDU), Friedrich Merz. For the Left party, the reform promoted by social democrats, liberals and greens could be signed by the Hungarian Prime Minister Viktor Orban. “You want us to disappear from Parliament,” their deputies denounced. Also for the Bavarian Social Christian Union (CSU) the reform is a heavy blow.
The debate was expected to be tough, since the reform, which arises from the need to curb the number of seats in a Bundestag that grows in each election, and there is consensus on that, very directly affects the parties with the most local and regional roots. In order to limit the chamber permanently to 630 seats – it now has 736 – the parties in government have scissored the compensatory mandates by suppressing the so-called basic mandate clause.
This clause allowed a party to enter the Bundestag according to its results in the second ballot even if it does not reach the 5% percent barrier but obtains at least three direct mandates. These mandates arise from the second ballot to be filled out by the voters, and unlike the first, which contains the party list, this one elects people. This system has allowed parties like La Izquierda or the CSU, deeply rooted at the local level, to make up for their lack of votes as parties with people.
Surplus mandates occur when a party wins more Bundestag seats through direct mandates than it would have received based on second ballot results. It is allowed to keep those seats and the other parties receive compensatory mandates in exchange. According to the new rules, in the future it may happen that a candidate wins his constituency directly, but still does not enter the Bundestag. This angers the CSU above all.
Had the now eliminated clause not existed, the Left, for example, would not be represented in the Bundestag today because it only obtained 4.9% of the second votes in the 2021 Bundestag elections. The CSU obtained 5.2 percent. percent nationwide, a historically bad number. If he had fallen below the 5% barrier, he would not have won any of the 45 direct mandates obtained with the new model.
SPD, Greens and FDP argue that the reduction affects all parties equally. Therefore, the reform is fair and constitutional. The internal policy spokesman for the SPD parliamentary group, Sebastian Hartmann, stated that the goal of the proposal is “a simple and understandable electoral law.”
The leader of the CSU parliamentary group, Alexander Dobrindt, countered that the plan was intended to expel the left from Parliament and question “the CSU’s right to exist.” “You are doing a reform here” to cement the “pretense of power of the traffic light”, in reference to the colors that identify the parties of the government coalition.
The CDU/CSU and the Left made it clear that they wanted to appeal to the Constitutional Court. “Such a disrespectful electoral law must end up in the Constitutional Court,” said Dobrindt. The leader of the parliamentary group of The Left, Dietmar Bartsch, announced that his formation will also present an appeal. “This reform is an attack against democracy. It disregards the will of the voters, it ends the direct relationship that many local politicians have with the voters of their constituencies,” he denounced.
The reduction in the size of the Bundestag has been debated for years and it remains to be seen if the reform approved by the Bundestag puts an end to the discussion. In 1997, the Federal Constitutional Court declared constitutional the basic mandate clause of the electoral system in force at that time. According to the Court, the legislature can also deduce the special political strength of a party – and, therefore, its consideration in the allocation of seats – from the number of direct mandates that a party has obtained. However, the Federal Constitutional Court did not consider a basic mandate clause mandatory, even in the old system. In other decisions, however, this court has stressed that the electoral law must be free of “perverse effects.” It remains to be seen if a basic mandate clause would be foreign to the system and unconstitutional or, conversely, if its absence would lead to the unconstitutionality of the reform.
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