The traffic light coalition wants to come to an electoral law reform quickly. On Tuesday, the parliamentary groups of the SPD, Greens and FDP dealt with the proposal that three MPs from their ranks presented in mid-May. It doesn’t seem to have been discussed yet. In any case, there are also concerns, at least in the SPD parliamentary group – which sound similar to those that came from the Union parliamentary group and also the left-wing parliamentary group.
The state group of Brandenburg Social Democrats has even submitted its own position paper, which states that the majority of the ten MPs are against the proposal of the three traffic light representatives in the Bundestag’s electoral law commission. But this Thursday it will be incorporated into the key points that the commission is to present to the Bundestag. The concerns about the proposal that have been raised since May are not included in the traffic light draft for the interim report, which is available to the Tagesspiegel.
The Brandenburgers justify their skeptical attitude with arguments that are also put forward by the Union faction and the Left faction. “The present proposal,” says the paper, “makes it possible for the candidate with the most first-election votes not to receive a mandate.” According to the Brandenburg Social Democrats, this contradicts “people’s understanding of democracy” and also decisions of the Federal Constitutional Court, according to which it is important in electoral law that voters can understand what happens with their vote.
The traffic light wants to get a model off the ground – possibly very soon with its own draft law – that prevents the Bundestag from inflating due to the overhang and equalization mandates and usually always leads to a Bundestag with 598 seats. That is the legal starting point – but in 2017 there were 709 mandates and last year even 736. According to the traffic light model, the procedure would basically continue as before, but in the event that a party in a federal state had overhangs, this party would have fewer Allocated direct mandates – always those with the weakest proportion of first votes.
In 2021, this “cap model” would have meant that the CDU would have lost twelve, the CSU eleven and the SPD ten direct mandates. The state of Brandenburg would have been hardest hit by the Social Democrats. Three out of ten direct mandates would not have been allocated. The national group is currently assuming that, based on current surveys, there could even be four.
The reason: the SPD is strong enough to win all direct mandates in the country, but the result of the second vote is not strong enough to prevent overhangs. They always arise when a party wins more constituencies (and thus direct mandates) than it is entitled to based on the party proportional representation (which is determined with the second vote). The situation in Mecklenburg-Western Pomerania is similar. There were also cut SPD direct mandates in Schleswig-Holstein, Hesse, Lower Saxony and Saarland. “The complication of the electoral law cannot be the answer to a too large Bundestag,” said the Hessian member of the Bundestag Kaweeh Mansoori the portal “Pioneer”.
The Brandenburg state group points to an effect of the capping model, which also affects the CSU in a similar way. Entire regions would thus be “systematically excluded from an SPD Bundestag mandate, which will lead to a weakening of the SPD’s impact in the area and of the party structures on site”; it says in the position paper. While the problem with the SPD in the east tends to affect rural constituencies, with the CSU it is the big cities – it would have lost all direct mandates in Munich, Nuremberg, Augsburg, Fürth and Erlangen in 2021.
The Brandenburg comrades are also critical of a regulation in the traffic light proposal that in “cut-off constituencies” a substitute vote (“third vote”) should be used to determine which applicants from another party would have a chance and be assigned a direct mandate. Precisely this point is classified as constitutionally questionable by electoral law experts. The Brandenburg Social Democrats note more in terms of practical elections that in the election campaign “the use of the third vote and the conscious decision for another party and person would have to be explained”.
The Union faction has already announced that it will go to Karlsruhe if the traffic light implements the model – which it can easily do, because the right to vote can be decided with a simple majority. Opinions differ as to whether the capping of direct mandates is really against the constitution. But there are also electoral concerns. At a time when polls run well into Election Day, these are relevant.
Although polls do not anticipate the election result, they do have an influence on the election process. Surveys can be used to determine whether a country could experience an overhang situation. In addition, there have also been public forecasts down to constituency level for a long time. The potential “capping candidates” can thus be identified with a certain degree of probability.
In these constituencies, however, the election campaign is changing. The competition of a potential constituency winner can convey to the electorate that the vote is worthless – because the direct mandate will be cut anyway. With regard to the CSU, this could always be the case in the Bavarian metropolitan constituencies. Or in the more rural constituencies in Brandenburg with a view to the SPD. It ultimately boils down to the question of equal opportunities for direct candidates.
The draft resolution of the traffic light representatives for the government factions on Tuesday states that the model excludes the creation of overhang mandates. This is actually not the case – otherwise it would not have to be capped. According to the paper, it hits the “candidates with the relatively poorest first vote results” – they no longer have the “second vote coverage” that should be necessary in the traffic light model for the allocation of a direct mandate. At first glance, this may seem logical, because it then affects candidates whose democratic legitimacy appears to be less.
But if majority voting applies, and that is still the case in the traffic light proposal, it is difficult to create a hierarchy here. In addition, in an overhang situation, it is not possible to decide specifically what the overhang mandates actually are. Because the insufficient coverage of second votes initially applies to all direct mandates. Instead of capping those with the weakest results, there could also be a draw to decide who does not get into the Bundestag.