Electoral law: Bundestag needs citizens' advice

Timo Klostermeier / pixelio.de

Many people think the German Bundestag is too big. Instead of the planned 598 MPs, it currently has 734 representatives. 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 734 seats. A reform commission was supposed to do the job of developing proposals for changing the electoral law, but the government parliamentary groups had previously rushed ahead with their own proposal.

Electoral law commission and government proposal

The coalition of the SPD, the Greens and the FDP had set up a commission to reform federal electoral law and modernise parliamentary work. This commission met several times between 7 April and 2 December 2022. The commission dealt with the goal of equal representation of women and men in parliament and discussed the legal framework. The commission also examined proposals for bundling election dates, extending the legislative period to five years and limiting the term of office of the Federal Chancellor. The commission's final report was handed over to Bundestag President Bärbel Bas on 12 May 2023.

Irrespective of this, the Bundestag passed a reform of the electoral law on 17 March 2023 with the votes of the SPD, the Greens and the FDP. The aim of the three parties is to significantly reduce the number of MPs. Originally, they had sought a reduction from the current 734 to 598 MPs. Now they plan to reduce the number of seats to 630.

Basic mandate regulation to be abolished

The reform also abolishes the basic mandate rule. Until now, it has enabled regionally strong parties to enter the Bundestag with a parliamentary party strength if they remain below the five-percent hurdle but win at least three direct mandates. The Left Party benefited from this in the 2021 Bundestag election, entering the Bundestag as a parliamentary group even though it had only achieved 4.9 per cent of the votes nationwide.

The election in the constituencies was also changed quite significantly. The previous basic idea, according to which the winner determined by a majority of the first votes cast in the constituency receives the seat in parliament, was abolished. In order to prevent overhang and compensatory mandates, a second vote cover is provided. A candidate with the most votes in the constituency will only receive a constituency mandate if a seat is available according to the result of the second votes of the respective party.

For the distribution of seats, within a party the candidates who have won the most votes in their respective constituency are ranked according to their constituency vote share. This row is then allocated at most as many mandates as the party is entitled to according to its second vote result in the federal state.

331 instead of 299 list mandates

If a party is entitled to more seats than the number of persons who received the most votes in the constituency, these additional seats will be filled by the list as before. If fewer seats are available, the persons with the lowest constituency vote share lose out and the constituency mandate is not allocated.

According to the reform plan, 331 mandates are to be allocated via the parties' state candidate lists instead of 299 as originally planned. This is to minimise the number of MPs who win a constituency via the first vote and still do not get into the Bundestag.

Organised by the "Mehr Demokratie" association, 4,242 people have lodged a constitutional complaint against the new electoral law. Together with this constitutional complaint, six further proceedings by the CSU and LINKE parties and the CSU-led Bavarian state government were heard by the Federal Constitutional Court on 23/24 April 2024.

Dispute over electoral law since 2008

The dispute over federal electoral law has been dragging on since 2008. In its judgement of 3 July 2008, the Federal Constitutional Court declared the electoral law in force at the time unconstitutional because of the negative voting weight and ordered the Bundestag to adopt a constitutional regulation by 30 June 2011 at the latest.

On 25 June 2012, the Federal Constitutional Court had declared the electoral law previously passed by the Bundestag with the votes of the CDU and FDP unconstitutional, for example because it allowed too many overhang mandates. More than 3,500 citizens had filed a complaint against this. In response, the Bundestag passed a new federal election law on 21 February 2013. Nevertheless, the number of overhang and compensatory mandates continued to grow.

Parties and parliamentary groups biased

According to the opposition parties CDU, CSU and the Left Party, the planned electoral reform violates the Basic Law. The parties have announced to appeal to the Federal Constitutional Court.

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.

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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