After the traffic light parliamentary group’s proposal for a reduction in the size of the Bundestag, several constitutional experts have raised constitutional concerns. “If the winner of the constituency does not get the mandate, that is a break with the majority vote in the constituency,” says Bernd Grzeszick, director of the Institute for Public Law and Constitutional Theory at Heidelberg University. “The Bundestag works a little better with fewer MPs. However, there is no threat of inoperability that would be necessary for an interference with electoral equality.”
The electoral law experts of the coalition factions, Sebastian Hartmann (SPD), Till Steffen (Greens) and Konstantin Kuhle (FDP) had suggested in a guest article for the “FAZ” that winning a Bundestag mandate by winning a constituency should be linked to the condition that a cover is given by the list votes.
Overhang mandates would be eliminated, i.e. those mandates that a party receives if it can send more directly elected MPs to the Bundestag than it is entitled to based on the result of the second vote. Only the constituencies with the most first votes would be counted. Constituencies in which there would previously have been overhang mandates are allocated to another party, including so-called substitute votes.
Constitutional lawyer Grzeszick considers it counterintuitive that citizens should vote for a candidate from another political camp with this substitute vote. “This is an encroachment on party freedom, since voters from outside the party can have a say in who is placed in the constituency,” says Grzeszick. If the replacement candidate actually gets a chance, there is also a legitimacy problem: the constituency would then not be represented by the winner, but by a loser.
In fact, in such a case, the elected representative would only obtain the majority in a second round, in which the substitute votes are counted. Those who chose the first place get a second chance – and are better off than everyone else. For some, the alternative vote is counted, for others not.
“This is a fundamental violation of suffrage equality,” criticizes Sophie Schönberger, Chair of Public Law at the University of Düsseldorf. “I think it is constitutionally inadmissible to give the mandate to someone who has not won the majority,” she told WELT. “Fundamental questions of democratic legitimacy are disregarded.”
The legal scholar, on the other hand, considers linking the gain of a constituency to the additional condition of list coverage to be an “effective and constitutionally unproblematic method” that guarantees the standard size of the Bundestag. This would not take away anyone’s mandate. A report by the scientific services of the Bundestag came to this conclusion in December 2019. “It is constitutionally permissible in principle not to allocate the mandate to a constituency candidate who was elected with a relative majority,” it says.
Grzeszick sees other problems. If, as a result, the constituency winners were given fewer votes and the candidates on the list were given more votes, the citizens would be able to make fewer decisions. “Anyone who wants elections close to the people cannot agree to this proposal,” says the law professor. “That will not increase the public’s acceptance of politics and the responsibility of politicians for citizens’ concerns, but will further weaken it.” It is also constitutionally problematic that a non-partisan individual candidate can no longer be elected because his result is not covered by second votes can.
His colleague Schönberger disagrees on both points. For the theoretical possibility of an election victory for a non-partisan individual candidate, she considers it “constitutionally unproblematic” to integrate this into the system. Her suggestion: the non-partisan individual candidate could always get the mandate even without covering second votes if he wins a relative majority. With the exception of the Bundestag, which existed between 1949 and 1953, such a case never existed.
Regarding the feared weakening of closeness to the citizen, Schönberger says: “The big narrative of the personal connection to the constituency deputy wafts through the constitutional literature, but cannot be empirically proven.” In any case, the proportion of constituency deputies is much lower according to the current model. “Due to the constant inflation caused by more and more list candidates, the ratio shifts to the detriment of the constituency deputies, not due to the desired model of non-allocation.”
In the federal elections last September, there were 34 overhang mandates. Currently 299 out of 73 MPs are constituency winners, according to the traffic light proposal it would be 265 out of 598. In absolute terms there would actually be fewer directly elected MPs. In parliament, they are more independent of party influences. “They dare to bring an argument into the debate that goes against the party line. There will be less of that,” Grzeszick fears.
Both Grzeszick and Schönberger were appointed as experts to the Bundestag commission for the reform of electoral law and the modernization of parliamentary work. Both criticize the timing of the proposal from the coalition. “The proposal by the traffic light groups anticipates our deliberations,” says Grzeszick. “It calls into question the seriousness of the activities of these groups in the Commission if you put a proposal in the daily newspaper in advance and not even forward it to the Commission at the same time.”
Schönberger says: “I recognize the desire to be specific in view of the very tight time frame, but I think that it is not entirely beneficial for the balanced search and finding of a solution to already prioritize one option out of many.”
In the past legislative period, the commission, in which proposals for downsizing the Bundestag are to be discussed, along with other questions, consisted of nine MPs and nine experts. In this legislative period, the body consists of 13 MPs and 13 experts.
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