Germany constitutional court declares parts of 2023 electoral reform unconstitutional News
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Germany constitutional court declares parts of 2023 electoral reform unconstitutional

Germany’s Federal Constitutional Court declared parts of the new electoral reform aimed at reducing the size of the Bundestag, the federal parliament, unconstitutional in a judgment on Tuesday. Set to be implemented for the upcoming federal elections in 2025, this change would have primarily disadvantaged smaller parties.

In particular, the court held that the 5 per cent electoral threshold enshrined in the current version of Article 4(2) second sentence no. 2 of the Federal Elections Act violates Articles 21(1) and 38(1) of the Basic Law and thus must be changed. The electoral threshold, called the ‘Grundmandatsklausel’, stipulates that parties must receive at least 5 per cent of the nationwide vote to gain representation in the Bundestag. It was introduced to prevent parliamentary fragmentation and ensure its functionality.

On March 17, 2023, the three ruling coalition parties —the Social Democrats, the Greens and the Free Democrats— successfully passed an electoral reform that would have abolished the only exception to this rule. This exception allowed a party that received less than 5 per cent of the votes to be represented in the Bundestag if it won at least three constituencies. With this change, smaller opposition parties such as the Bavarian Christian Social Union and the Left Party feared for their representation and took the reform to court.

Fearing that many votes would not be counted, the Federal Constitutional Court ultimately declared the change unlawful and the exception will continue to apply to smaller parties. Other changes to the electoral reform which abolished the current allocation of so-called overhang and compensatory mandates, in an effort to reduce the size of the Bundestag from 736 to 630 members in the future were approved.

The record-breaking size of the Bundestag ultimately presents the result of Germany’s complex electoral law. In the country, each voter has two votes: one for a candidate in their constituency and one for a party in their state. Furthermore, seats are allocated to parties based on the proportion of the party votes they receive. Under the old law, if a party won more local constituencies than its proportional share of the vote, it would be awarded additional seats, known as overhang mandates. However, to ensure accurate proportional representation, the other parties would also be awarded compensatory seats.

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