The New Electoral Law – or: Good Things Don't Always Come to Those Who Wait

Abstract

In the year 2008, the German Federal Constitutional Court ruled that the formerly applicable Electoral Law was unconstitutional due to the effect of the so-called ‘negative voting weight’. After a five-year debate, the new Electoral Law was passed in spring 2013, according to which the following parliamentary elections were conducted in autumn. This new law mainly fulfils the regulations laid down by the Constitutional Court, although not to their full extent. Through the introduction of adjustment mandates for overhang mandates, the proportional representation between the parties represented in the German Parliament Bundestag was guaranteed for the first time. At the same time, however, an abundance of new problems such as a procedural return which is hard to reason, and the risk of a severely inflated Bundestag, are created.

ABOUT THE AUTHOR

Joachim Behnke is Professor for Political Science at the Zeppelin University in Friedrichshafen, Germany. His main research topics are electoral systems, modern political theory, justice and redistribution, game theory and electoral behaviour.

Notes

1. For a detailed presentation of the reform process, see also Niels Dehmel and Eckhard Jesse, ‘Das neue Wahlgesetz zur Bundestagswahl 2013: Eine Reform der Reform der Reform ist unvermeidlich’, Zeitschrift für Parlamentsfragen 44/1 (2013), pp.201–13.

2. Hans Meyer, ‘Der Überhang und anderes Unterhaltsames aus Anlaß der Bundestagswahl 1994’, Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft 77/4 (1994), pp.312–62.

3. Joachim Behnke, ‘Strategisches Wählen bei der Nachwahl in Dresden zur Bundestagswahl 2005’, Politische Vierteljahresschrift 49/4 (2008), pp.695–720.

4. See BT Drucksache 17/6290 (Draft by the CDU, CSU and FDP from 28 Jun. 2011), BT Drucksache 17/5895 (Draft by the SPD from 24 May 2011), BT Drucksache 17/5896 (Draft by the Left Party from 25 May 2011) and BT Drucksache 17/4694 (Draft by the Green Party from 9 Feb. 2011).

5. BVerfGE 95, pp.365–6 (decisions of the Federal Constitutional Court).

6. For a detailed description of the distribution of seats according to the old law see Joachim Behnke ‘The Strange Phenomenon of Surplus Seats in the German Electoral System’, German Politics 16/4 (2007), pp.496–517.

7. Ibid., pp.510–11.

8. These 236 ‘cases’ accord with eight different phenotypes of the negative voting weight in the form of ‘If party A in a Land loses/wins X votes, they win/lose one or more seats’.

9. For the investigated effect, the actual distribution is not of importance, as in the end the enlargement of the Bundestag will only be dependent on the share of second votes of the CSU, meaning that the Bundestag will be enlarged until the direct mandates won can be compensated with these second votes.

10. This applies starting from the election result of 2013. However, depending on the distribution of the votes, it is possible that five to six CSU overhang mandates can result if they achieve a share of only just under 40 per cent of the second votes, with an approximately comparable leverage effect. A substantial enlargement of the Bundestag therefore lies within the realms of very realistic election results.

11. It is expedient to make use of the Electoral Law from 2008 as a reference, as here only the second votes are decisive for the seat distribution, and therefore no inconsistencies occur as is the case in the new Electoral Law.

12. Joachim Behnke ‘Das neue Wahlgesetz, sicherlich nicht das letzte’, Recht und Politik 49/1 (2013), p.7.

13. Furthermore assuming that under both the new and the old law, no overhang mandates would have resulted for the CDU with otherwise identical results.

14. ‘An electoral system on which the mandate distribution is based must always remain free of arbitrary and incongruous effects.’ BVerfG, 2 BvC 1/07 from 3.7.2008, para. 1–145, para. 105, translated by the author. The Federal Constitutional Court refers here to Jörn Ipsen, ‘Wahlrecht im Umbruch’, JuristenZeitung 57/10 (2002), pp.469–75.