The traffic light wants to take the electoral reform one step further this Tuesday. The parliamentary groups of the SPD, Greens and FDP have received a key issues paper as a draft resolution, the focus of which is the traffic light reform model previously presented within the framework of the Bundestag’s electoral law commission. With the consent of the three parliamentary groups, there is finally a majority-capable solution how further inflation of the Bundestag can be avoided and the size of 598 seats can be maintained permanently. The AfD has already signaled approval of the model.

The right to vote can be changed with a simple majority. However, the traffic light groups also want to “involve the Union and the left in the design of the reform” and signal a willingness to talk in the key issues paper. According to her proposal, party overhangs would be reduced in the future by not allocating direct mandates to these parties until party representation is achieved again.

Traditionally, there is talk of a capping solution. The traffic light now justifies the measure with the fact that direct mandates (which are distributed according to first votes) must have second vote coverage. If this is not the case, the direct mandates with the weakest share of votes in the constituencies will not be allocated. In 2021 that would have been the case in 34 cases – twelve times with the CDU, eleven times with the CSU, ten times with the SPD and once with the AfD.

The Union rejects the proposal. She considers the traffic light procedure to be unconstitutional. Thorsten Frei, the parliamentary manager of the Union parliamentary group, explained to the Tagesspiegel why the CDU and CSU will go to Karlsruhe if the traffic light should implement their model. “In our view, the traffic light’s proposal for electoral law reform is unconstitutional because the capping of direct mandates can mean that MPs who are elected by a majority do not receive a seat in the Bundestag, which could violate both the principles of electoral law and the principle of democracy,” said Frei.

“If the allocation of a constituency mandate is based on how many list votes a party has won in percentage terms, it is not possible for the individual voter in the constituency to estimate the success value of his or her votes.” According to Frei, the decisive factor is then the voting behavior of the voters in other constituencies, whether an elected candidate will be assigned a mandate in a constituency.

Second, the Union faction would challenge another point in the traffic light model. SPD, Greens and FDP plan that in constituencies in which constituency winners do not get a chance because of the capping, the direct mandate will be awarded to an applicant from another party via a substitute vote (or third vote). The substitute votes of the first voters of the “capped” candidate would then be distributed to the respective other applicants, whoever then has the most votes will be awarded the contract.

Frei considers that questionable. The concept of the substitute voice is “constitutionally per se to be viewed critically”. In connection with the five percent clause, the Federal Constitutional Court once decided that the introduction of a contingent vote in the event that the party elected with the main vote fails to meet the blocking clause is constitutionally problematic.

“The arguments put forward by the Constitutional Court in this decision can be transferred to the substitute votes construct in the traffic light model,” said Frei. Karlsruhe had complained that in such a model the counting value of the votes was different, depending on who you voted for. “For some voters, only the first vote is counted, for others first and then a substitute vote. In view of the principle of the immediacy of the election, the substitute vote can pose problems.”