The Federal Constitutional Court deemed “partially unconstitutional” the reform of the electoral law, which the federal government carried out last year, with the main aim of limiting the number of members of the Bundestag. The judges are now calling for a review of the clause dealing with the 5% threshold for a party to enter the Federal Parliament, as the proposed change is inconsistent with constitutional requirements.

According to the amendments that were deemed constitutional, in the upcoming elections his seats Federal Parliament is to be reduced to 630 from 733, thus precluding further enlargement. However, the Court also suggested a fix, maintaining for now the basic mandate clause, that is, the rule that a party that wins three constituencies enters the Federal Parliament, even if it has not exceeded the 5% threshold.

This clause contributes to the survival of the party of the Left (Die Linke), but it is also extremely important for the Christian Social Union (CSU), as according to the latest opinion polls the percentage of the party at the federal level is at 5.2%. However, the parliamentary group of the Christian Union CDU/CSU, the CSU and the Bavarian state government, as well as the Left and more than 4,200 voters supported by the organization “Mehr Demokratie” (More Democracy) had appealed against the electoral law. The Left had mainly opposed the repeal of the basic mandate clause, while the CDU and especially the CSU opposed the substance of the reform.

By reforming the electoral law, the federal government aimed to ensure that the Bundestag would not continue to grow. Otherwise, according to calculations, the number of deputies could reach 800 or even 900. Only the second vote, i.e. the vote of the parties, should henceforth be decisive for the number of seats, the new legislation states, which was approved by the Constitutional Court. Although the first vote increases the chances of the winner of the constituency to enter the Federal Parliament, it does not guarantee victory, since if a party has more winners in the constituency than the number of seats it is entitled to according to the result of the two votes , then those who are lower in preference do not enter the Parliament.

In Germany, the system of proportional representation has been and will continue to be valid, enriched with elements of personalized voting, with the only difference being that the balance has shifted to some extent – within a constitutional framework – as proportional representation prevails over the personal element.

However, the Court also confirmed the importance of the 5% clause, which, as stated in the decision, does lead to unequal treatment, because the votes in favor of smaller parties do not have an impact on the result, it is however justified, as, “preventing the fragmentation of Parliament in many small groups”, its working and functional capacity is maintained.

However, the Supreme Constitutional Court corrects the provision specifically for the case of real cooperation between two parties, such as e.g. of the CDU with the CSU, so the 5% limit does not apply. This provision does not exist, however, in cases of electoral alliances between parties which are in fact competitors. “In this way, the court gave a ‘guarantee’ of survival to the CSU, as long as it does not break with the CDU”, comments the Süddeutsche Zeitung.

The unconstitutionality in other words concerns the 5% clause to some extent and changes should be made, the Court ruled. But because time is of the essence, a transitional solution is preferred until the new regulation is passed. The existing basic mandate clause will continue to apply and whoever wins three constituencies will secure entry to the Bundestag. In the meantime the federal government will now have to plan the new changes.

At the same time, the Federal Constitutional Court is investigating the premature posting of its decision on its website. The verdict was due to be published today at 10:00 (local time), but it had already been posted since the previous evening, prompting a backlash from politicians. For its part, the Court expressed its regret for the incident, spoke of a “possible technical error” and reserved itself to investigate the circumstances that led to it.