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A hand putting a voting slip into a ballot box before a German flag
Image: picture-alliance/dpa

Sent back for repairs

July 26, 2012

A new election law has been found to be illegal by the Constitutional Court. It says the law will have to be changed before the next election.


It's a big blow to the German government: the Constitutional Court has found that its new election law is incompatible with the constitution and thus null and void. That means there is currently no legal basis for determining the distribution of seats in the German parliament, the Bundestag.

The next elections must take place by October next year - and the Bundestag will have to have passed a new election law by then.

The law that's been thrown out was pushed through at the end of 2011 by the current governing coalition of Christian Democrats and liberal Free Democrats against the wishes of the opposition Social Democrats and Greens. Those two parties challenged the law in court, as did some 3,000 citizens.

Not easy to understand

German members of parliament are chosen in a combination of "first-past-the-post" constituency elections and regional lists. The lists are used to boost the number of seats a party has so that parties have the same proportion of seats as they have votes. But if a party wins so many constituencies that it already has more seats than it should, then it keeps them - and those extra seats, say the complainants, are not fair.

An interior view of the Bundestag
The court says the Bundestag does not quite represent the votersImage: picture-alliance/dpa

It's the big parties which almost always win those extra seats, since they are the ones who win the constituency votes. In 2009, all the 24 extra seats went to the Christian Democrats, although they would have still had a majority with their coalition partners even without them.

Not at all easy to understand

The Constitutional Court has ruled that the rule allowing extra seats prevents the parties from having equal chances. Another issue they dealt with was the so-called "negative vote-weighting." What that means is that, for certain very complicated reasons, a party can end up with no more seats even if it gets more votes - it can even lose a seat.

The Constitutional Court has already visited this territory. Back in 2008, they told the Bundestag to pass a new law by July 2011. That should have given the parties enough time, but they ended passing a new law five months late. The president of the court, Andreas Vosskuhle described that as "disappointing."

'Find a joint solution'

Now the court says it wants the Bundestag to limit the number of extra seats so that "they match the basic character of the election result." Vosskuhle says that 15 such seats might be acceptable.

The judges in court
The judges were critical of the politicians for taking so longImage: picture-alliance/dpa

He added that it was a primary task of the political institutions, the parties and the parliaments "to draw up a new election law which conforms with the guarantees of the constitution."

There's not much time left if the new Bundestag is to be elected in fall 2013. A government spokesman said it was the job of the Bundestag, and the president of the Bundestag, Norbert Lammert, recommended to the parties that they should "find as fast as possible a joint solution, so that they can avoid any appearance that one or other party or candidate is benefitting or being disadvantaged" by the new law.

'Abuse of electoral law'

The opposition Social Democrats, who brought the case, say they are satisfied with "a good day for our democracy and for citizens." The coalition was being made to pay for the fact that it wanted to abuse the election law to cement its power. All the same, the party knows that it too has benefitted in the past from these extra seats. In 2005, it won nine - two more than the Christian Democrats

Author: Marcel Fürstenau / mll
Editor: Andreas Illmer

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