This article considers the content of the amendments to the Federal Elections Act (Bundeswahlgesetz) that were implemented in 2023. It then draws implications for the direction of the proposed amendments to the Public Official Election Act. The following is a summary of the contents of this article.
First, German personalised PR system, which has become a model for legislation around the world due to its high degree of proportionality, created 34 overhang mandates and awarded 103 balance seats in the 2021 Bundestag elections, resulting in an increase of 137 seats. This massive increase in seats was a direct trigger for the reform of Federal Elections Act in 2023.
Second, a key part of this reform, which was passed by the Bundestag on the initiative of the Social Democratic Party, was the abolition of overhang mandates. In the case of overhang mandates the apportionment process should be determined by the second vote basis procedure (Zweitstimmendeckungsverfahren). In other words, if the number of successful candidates who won a majority of first votes in their respective constituencies exceeds the number of seats that a party’s Land list receives based on their second vote, then those candidates with the lowest percentages of first votes are not assigned a seat (§ 6(1) and (4) first and second sentence Federal Elections Act).
Third, on 30 July 2024, in abstract judicial review proceedings brought by the State of Bayern and 195 members of the Bundestag from the Christian Social Union and Christian Democratic Union, the Second Senate of the Federal Constitutional Court held that provisions relating to the second vote basis procedure were compatible with Art. 38(1) first sentence, Art. 38(3) and Art. 21(1) of the Basic Law (Grundgesetz), but that the provisions concerning the 5% electoral threshold were unconstitutional as violating Art. 21(1) and Art. 38(1) first sentence of the Basic Law and ordered their continued application until amended.
Fifth, in my view, the constitutional obligation of the legislature to design the electoral process in such a way that every voter can predict how his or her vote will affect success or failure of a candidate is also part of the principle of direct elections. Therefore, the provisions violates the principle of direct elections. It is also reasonable to conclude that the provisions relating to the second vote basis procedure violate the principle of democracy underlying the majority rule, as they violate the very essence of the first-past-the-post system, which is based on the universal recognition that the candidate who receives the most votes in a direct election is the winner.