Electoral law: Bundestag needs citizens' advice

Timo Klostermeier / pixelio.de

The German Bundestag is too big. Instead of the 598 representatives envisaged, the parliament currently has 736 members. Actually, no one in the Bundestag wants such a large parliament. All parliamentary groups agree that the electoral law must be changed in order to prevent the parliament from becoming even larger. The only thing they cannot agree on is HOW.

On 8 October 2020, the Bundestag passed an electoral law reform with the votes of the CDU/CSU and SPD. With the 2021 federal election, parliament has grown from 709 to 736 seats. And it could become even bigger in the future. A reform commission is therefore now to set things right.

Parties and parliamentary groups are biased

The coalition of the SPD, the Greens and the FDP has set up a commission to reform federal electoral law and modernise parliamentary work. This commission met for the first time on 7 April 2022. The commission deals with the goal of equal representation of women and men in parliament and discusses the legal framework.The commission is also to examine proposals for bundling election dates, extending the legislative period to five years and limiting the term of office of the Federal Chancellor.  The final report of the commission is targeted for mid-2023.

Parties and parliamentary groups are naturally biased when it comes to electoral law. For how many seats a party gets in the Bundestag depends not only on the election results, but also on the electoral law. For example, it is a question of whether other parties receive compensation if a party gets more seats in parliament than it is entitled to. This is the case if more MPs are elected for a party in the constituencies via the first vote than the second votes counted nationwide would allow. Depending on the electoral law, these so-called "overhanging mandates" can be fully or only partially compensated for by "compensatory mandates" for the other parties. Or an upper limit is set for the Bundestag mandates, regardless of how many MPs would actually have to sit in parliament according to the election results.

Citizens' Assemblies in Canada

In Canada, citizens' assemblies have already been given the task of formulating guidelines for the electoral law. In the Canadian province of British Columbia, the government set up a citizens' assembly in 2004 to discuss changes to the electoral system. The citizens' assembly consisted of 161 members. One man and one woman were randomly selected from each of British Columbia's 79 electoral districts. In addition, there were two Indigenous members and a chairperson. The members of the Assembly were randomly selected, which ensured gender balance and equitable representation by age groups and the geographical distribution of the population.

The Citizens' Assembly went through a 12-week "learning phase" with presentations by experts, group discussions and access to a range of sources on voting rights. The work included a review of the different electoral systems in use around the world and their various impacts on the political process. This was followed by a public consultation period lasting several weeks. Citizens' Assembly members held over 50 public hearings and received a total of 1,603 written submissions. The members then deliberated on the electoral system to be recommended, identifying three criteria they considered most important: adequate representation of voters, provincial districts and voter decision-making.

Reform proposal

As a result of the deliberations, the Citizens' Assembly proposed to replace the existing first-past-the-post electoral system with the Single Transferable Vote system. This was to eliminate the problem of ineffective votes in the pure majority voting system and to bring about a better representation of all votes cast. This procedure determines several winners per constituency. It explicitly serves the election of persons, not the election of party lists.

This recommendation was put to the voters in a referendum held at the same time as the 2005 provincial elections. A "super majority" was required for the result to be binding. This included the approval of 60 per cent of all voters and simple majorities in 60 per cent of the 79 districts. In the referendum, the second of these thresholds was met with the approval of 77 of the 79 voting districts. However, the proportion of votes in favour was 57.7 per cent, which was below the 60 per cent mark. The Citizens' Assembly's recommendation was therefore not implemented.

Citizens' Assembly in Ontario

The Citizens' Assembly in British Columbia was nevertheless a model for a similar citizens' assembly in the Canadian province of Ontario. It compared the electoral system in use at the time with possible alternatives. In May 2007, the assembly recommended by a majority of 94 : 8 that Ontario should introduce a mixed form of majority and proportional representation with first and second votes, as is used in Germany. However, the Citizens' Assembly's recommendation was rejected by voters in a referendum on 10 October 2007. Sixty-three per cent of the voters voted against.

According to participation expert Peter MacLeod, the most important factor for the "no" vote in Ontario was a lack of identification with the Citizens' Assembly. "The strongest link to a 'yes' vote was not knowledge of the specifics of the electoral system, but familiarity with the Citizens' Assembly," MacLeod explains. In British Columbia, he says, identification with the citizens' assembly was incomparably higher. MacLeod is one of Canada's leading experts on citizen engagement and deliberative democracy, and the founder and chair of MASS LBP. Since 2007, this organisation has been working to engage citizens in difficult policy decisions. At the same time, it is pioneering the use of randomly selected citizens' assemblies.

Currently, the initiative "Fair Vote Canada" is calling for a citizens' assembly on the national electoral law in Canada, in which the MPs are also determined by majority voting. As a result, many electoral votes are lost and small parties are disadvantaged. "Fair Vote Canada" wants Canadians to discuss alternatives.

A Citizens' Assembly on electoral law for Germany

Citizens' assemblies on electoral law enable a broad consultation on an important question of democracy without party-political interests being in the foreground. Citizens, whose composition is a reflection of the population, can formulate their demands on an electoral system. Members of parliament learn which criteria an electoral system must fulfil in the opinion of the voters. Since citizens' assemblies are accompanied by intensive media coverage, their deliberations are an important learning process for society as a whole.

"Randomly selected assemblies are useful when there are blockades in politics. In Germany, for example, the development of a new electoral law would be a good example," says Prof. Hubert Buchstein, political scientist at the Institute for Political Science and Communication Studies at the University of Greifswald. "In view of its political controversial nature, it is worthwhile to remove the right to vote from the party dispute and outsource it to a randomly selected citizens' assembly. Such an independent, party-politically neutral body, supported by 'normal' citizens and advised by experts, can ensure that considerations about one's own (re-)election chances do not play a role," he already wrote in 2017 together with political scientist Dr. Michael Hein on the Verfassungsblog. Parliamentary decisions on electoral law suffered from a "neutrality deficit", he said. "As is well known, questions of electoral law are questions of power. If they are decided in parliament, this is inevitably influenced by the parties' assumptions about future advantages or disadvantages," the two democracy experts said. The electoral law experts Prof. Florian Grotz and Prof. Friedrich Pukelsheim also advocate a citizens' assembly on the subject of electoral law in an essay podcast for the FAZ.

So there are many arguments in favour of letting people have their say on the subject of electoral law in Germany, too, by means of a citizens' assembly.

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