With its proposal for an electoral law reform, the traffic light coalition surprised the public last week – and also the opposition in the Bundestag. Now there are increasing doubts as to whether the proposal of wisdom is the last word. Constitutional concerns are also raised.
Union parliamentary group leader Friedrich Merz has already threatened to sue in Karlsruhe if the coalition, presented by the three MPs Sebastian Hartmann (SPD), Till Steffen (Greens) and Konstantin Kuhle (FDP), should push through the model with their majority in parliament .
What does the traffic light want? Using the term “joined majority rule” the existing system of “personalized proportional representation” is justified somewhat differently, but essentially continued. One of the advocates, the political scientist Robert Vehrkamp, writes about the new approach to the allocation of mandates that the “success of personal elections in the constituency is subject to a sufficient share of second votes from proportional representation”.
This second-vote coverage of the direct mandates means that in the case of overhangs – i.e. if a party wins more direct mandates from the first votes than it is entitled to based on the second-vote proportional representation – direct mandates are not allocated. This would ensure that the Bundestag no longer grows beyond its normal size of 598 seats.
Ultimately, this means that two allocation systems, so to speak, exist side by side. Which one is used only emerges on the evening of the election during the counting. If there are no overhangs in a federal state, allocation would continue as before without any changes. The direct mandate guarantee for constituency winners, a basic rule of majority voting, applies.
If there are overhangs – this was the case in nine countries in the 2021 election – the direct mandate guarantee will no longer apply. The constituency winners with the lowest proportion of first votes are then not allocated seats until the overhang has disappeared. It is therefore a capping model.
A substitute vote will be introduced so that all constituencies still have an elected direct deputy in the Bundestag. This third vote from voters of the unallocated candidate would be attributed to the other candidates. Whoever is ahead after their own first votes plus substitute votes has the mandate.
However, the Düsseldorf law professor Sophie Schönberger is critical of this combination. On the one hand, constituency candidates should always be determined according to the majority rule, but on the other hand, the mandate could be assigned to “a candidate other than the one with the relative majority”. That was “constitutionally unacceptable”. The substitute vote “gives the voters of the first constituency a double chance of success” – because initially they have an opportunity to influence their first vote, but if a mandate is not allocated, they also have a say in the second round, unlike all other voters in the constituency. According to Schönberger, this violates the principle of electoral equality.
The lawyer also points to another deficiency that clearly leads to unconstitutionality. It could happen that voters would no longer have a vote at all. This is the case (using the example) if a CDU candidate is not granted the mandate and the substitute votes of his voters would help the SPD candidate to get the mandate, but she – since her party also has overhangs – does not get a mandate either. There would then be a third round of distribution, in which, however, the ballot papers of the voters of the CDU candidate, who gave their substitute vote to the SPD, would no longer have a chance because the CDU and SPD were effectively eliminated. “The constellation is not very likely, but it could happen – that’s crucial,” says Schönberger.
The electoral law expert Halina Wawzyniak, a former Left Party member of the Bundestag and now (like Schönberger) an expert in the Bundestag’s electoral law commission, also sees a violation of electoral equality because of the double success value of votes. She also criticizes the traffic light proposal because it adheres to the current system of personalized proportional representation, “but ignores the case law on the impossibility of eliminating the direct mandate for the constituency winners”.
A decision by the Federal Constitutional Court in 2012 states that through direct elections in constituencies “at least half of the MPs should have a closer personal relationship with their constituency”. However, this goal can only be achieved “if the successful candidate receives his constituency mandate even if the seat contingent on his party’s state list determined according to proportional representation is not sufficient for offsetting”. According to Wawzyniak, constituency winners must therefore be given the mandate they have won.
In addition, the question arises as to whether the traffic light model does not conflict with the principle of the immediacy of the election, says Wawzyniak. Karlsruhe has stated that this principle requires an election procedure in which the voter can recognize before the act of voting “how one’s own vote can affect the success or failure of the election candidates”. Wawzyniak sees this as a violation in the traffic light model. “With the model, I don’t know whether my first vote will lead to a direct mandate or not, if necessary, only my substitute vote.”
