Is the Bundestag heading into a dead end again when trying to reform the electoral law? After the last of seven meetings of Parliament’s electoral law commission, which were used for the factual debate, it can be stated that a cross-party consensus for a reform model was not achieved. The discussion has boiled down to two competing proposals. The commission is to show ways of making the Bundestag smaller again. He currently has 736 MPs, the “normal size” is 598 seats.
On the one hand there is the traffic light proposal. He sticks to the system of personalized proportional representation and continues to create overhangs. But he takes this away again afterwards by not allocating direct mandates to a party that has the weakest percentage results in the constituencies in the event of overhangs.
Overhangs, the cardinal problem of the current electoral system, arise when a party wins more direct mandates from the first votes in the constituency than it is entitled to based on the second vote share of seats. In the future, some constituency winners would no longer get into the Bundestag if their direct mandate is not covered by the second votes of their party.
That sounds simple and practicable, but the model is subject to constitutional doubts, which were raised in the Commission above all, but not only by the Union side. For example, it was noted that the additional element of the substitute vote (so that another candidate in the constituency gets the chance if a direct mandate is cut) could contradict the principle of equality of elections. In addition, there would be two ways of allocation – on the one hand the previous one (constituency victory means mandate), but in the case of an overhang situation the other with capping and allocation of substitute votes. That too could raise constitutional concerns.
The union proposal, on the other hand, has already been described as fundamentally possible in decisions by the constitutional court. The Union calls it “true two-vote suffrage,” commonly known as the trench system. Half of the mandates would be awarded by majority vote, the other half according to party representation, but without offsetting as before.
The Berlin law professor Christoph Möllers, an expert on the commission, speaks of a “revolutionary event in the history of the Federal Republic” if this departure from pure proportional representation were implemented. In the Bundestag, only the Union is in favor, so there is no majority.
Traffic light and union face each other with models that are not compatible. It boils down to confrontation rather than consensus. SPD, Greens and FDP could decide their model with a simple majority. They also have the AfD on board, they have previously proposed the capping model.
Halina Wawzyniak, a former member of the Bundestag for the left and now an expert member of the commission, considers the development to be unfortunate. “It’s a shame that party politics with the usual rituals is now taking over in the electoral law commission,” she tweeted after the meeting on Thursday, in which only the trench and capping model was discussed in great detail. “A nice scientific debate would have been something.”
Wawzyniak herself submitted a paper for the round in which she proposes the two-list model as a compromise. According to this, half of the deputies would be determined by the constituency results (by constituency lists that result for each party on election day), the other half by the state lists determined at party congresses. That would be a pure proportional representation, without a majority vote in the constituencies. Since there are no overhangs, there is no need to cut. It would be close to the traffic light model. But it would also fulfill a concern of the Union – strengthening voting in the constituency.
In the reform proposal by the FDP, Left and Greens, presented two years ago, the two-list model was mentioned as a possible alternative. Sophie Schönberger, a lawyer at the University of Düsseldorf, is also in favor of this. She had been nominated by the FDP as an expert, but has now resigned her membership. “The work of the Commission to date has convinced me that I cannot contribute my scientific expertise here in a way that would promote a productive solution to the issues to be dealt with,” she explains.