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Germany’s top court has declared parts of a major government reform of the country’s electoral system unconstitutional, after smaller and regional parties complained it infringed on their democratic rights.
But parties in chancellor Olaf Scholz’s coalition still welcomed the verdict, saying it had left large parts of the reform intact. These include the introduction of a cap on the number of MPs in the country’s rapidly expanding legislature, a move that would reduce the number of lawmakers by 100 from its current level after Germany’s next election in 2025.
The Bundestag lower house of parliament has ballooned in recent years and has 736 MPs, making it one of the largest legislatures among the advanced democracies. The US Congress, by contrast, has 535 voting members.
Successive governments have looked for ways to curtail its size, with an eye on the burden such a large number of MPs places on the public purse.
“After this verdict, the most important thing stands: the German Bundestag will be made smaller, in a way that is in accordance with the constitution,” said Dirk Wiese, a senior MP from the governing Social Democrats (SPD). “We are safeguarding the functionality of the Bundestag and the effective work of parliament with a fair, transparent and simple new electoral law.”
Some in Scholz’s coalition of SPD, Greens and liberals had feared the constitutional court might strike down the whole law, in what would have been a humiliating defeat for the government.
In the end the judges ruled that one of the key elements of the reform, the abolition of so-called “overhang” and “equalising” seats in the Bundestag, was in conformity with the constitution.
But the judgment in the constitutional report blocked the government’s attempt to get rid of the “base mandate clause”, a rule that benefits smaller and regional parties.
The verdict was greeted by Markus Söder, prime minister of Bavaria and leader of the Christian Social Union, a Bavarian party whose representation in the national parliament might have shrunk if the law had passed in its current form and had challenged it in the constitutional court.
“This is a clear success for the CSU and Bavaria — and a big blow for the coalition,” Söder said.
Germany has a fiendishly complicated electoral system which combines a UK-style “first-past-the-post” regime with elements of proportional representation to ensure parties get the number of parliamentary seats that correspond to their share of the vote.
In the Bundestag, some seats are awarded to candidates who win the most votes in their constituencies, on a winner-takes-all basis, while others are awarded according to the party’s vote in each of the 16 federal states.
Sometimes a party can win more constituency seats than it would receive under the proportional system. The German system used to allow them to keep these “overhang” seats, with the Bundestag simply increasing in size beyond the original 598 seats.
Parties that did not benefit from overhang seats and ran the risk of being under-represented based on their share of the vote were allocated extra, or “equalising”, seats. That meant that in theory, the Bundestag could keep growing until its composition reflects the overall split of the vote.
The court has now agreed with the government that these “overhang” and “equalising” seats can be abolished. From now on, 299 MPs will be elected from the constituencies and 331 from party lists.
But in their proposed reform, Scholz’s coalition went further. Parties in Germany can only enter parliament if they win more than 5 per cent of the overall vote. But the “base mandate clause” dictates that even parties that get less than 5 per cent nationally can make it into the Bundestag if they win at least three direct seats in individual constituencies. The coalition parties wanted to do away with this clause.
The move was strongly opposed by the CSU. The party won in 45 constituencies in Bavaria in the 2021 elections but only garnered 5.17 per cent of the vote nationally. Without the base mandate clause it might not have made it into parliament.
The abolition of the base mandate clause was also strongly resisted by Die Linke, a small hard-left party. It got only 4.9 per cent in the 2021 election but was able to enter parliament because its candidates won in three constituencies. If the coalition’s reform had been approved, it would no longer be able to benefit from this rule.