Electoral Law Blues

With the next scheduled federal election about 14 months away, Germany has a problem. On July 25, 2012 the Federal Constitutional Court ruled that most, if not all, of the electoral law passed in late 2011 is unconstitutional.  In fact it is so unconstitutional that the Court refused to allow any “temporary,” stop-gap version of the old law for 2013. What happens if the Merkel government falls before then (unlikely, but always a possibility in a parliamentary system)?  No one knows.

How did all this happen?  It starts in 2005 with the untimely death of a candidate (NPD) for a safe CDU district in Dresden. His death during the campaign meant that a new election in that district had to be held about two weeks after the regular national vote.  In the interim, party strategists and electoral system junkies quickly figured out that on the basis of the votes already cast, the CDU, which was going to win the seat, could actually lose a seat in another Land if they won by too great a margin in Dresden.  And, they even had the number. If the CDU in Dresden won with over 42,000 votes, they would lose a seat in North-Rhine Westphalia. This type of calculation could only be made in this unique case of a separate election after the national vote. In other words, voting for a party could actually hurt the party. This was subsequently termed: the negative vote or negatives Stimmgewicht.

The Dresden case was a gift from heaven for long-time opponents of the law who had argued that such a bizarre event could take place. Until Dresden came along, these opponents were unable to prove any such possibility could occur. Now, they had concrete evidence and off to Karlsruhe (seat of Germany’s Federal Constitutional Court) they went.  In 2008 the court ruled that the law was indeed unconstitutional. It was specifically the Dresden case that sealed the law’s fate. The Court ordered parliament to come up with a new law by June 30, 2011.  They also ruled that the current law, though flawed, could be used for the 2009 election.

Like college students facing a paper deadline, the parliament waited until the last minute to write a new law.  It was not until 2011 that hearings were held, and as the deadline approached it was clear that there would be no all-party consensus.  The CDU-FDP proposed a minimalist solution to the problem. A negative vote could be avoided if the distribution of list seats took place at the state rather than the national level, i.e. each state would be an independent unit distributing the seats it was entitled to based on its proportion of the total vote. This, they argued, would eliminate any “win one in Dresden, lose won in North-Rhine Westphalia” repeat. Problem solved. The opposition of course disagreed. The SPD wanted to equalize excess mandates, i.e. the extra seats awarded to a party if it wins more direct mandates than it would be entitled to under proportional representation, through “compensatory mandates.”  This procedure, common at state elections, provides an additional seat, which then goes into a pool and is awarded on a proportional basis to the parties who did not get an excess mandate, i.e. they get compensated.  In 2009 this would have enlarged the Bundestag by an additional 24 seats for a total of 646 (598 “regular seats”, 24 excess mandates and 24 compensatory mandates). The Greens said the whole problem could be solved if  excess mandates were offset by subtracting a list seat in another state for every excess mandate won.  Thus, in 2009 the CDU’s 24 excess mandates would have resulted in a loss of 24 list seats in states where the party did not win any excess mandates.  Neither the SPD nor the CDU liked this idea. According to some reports, the CDU would have been willing to accept some parts of the SPD proposal, i.e. some compensatory seats, but the FDP vetoed the idea.

In late June, with the deadline just days away, the CDU-FDP said it would need more time. The problem was that the FDP had figured out that it would be hurt by what the government  was proposing. They came up with yet another new wrinkle: the Reststimmenverwertung, or “remainder vote”.  All votes at the state level that were not used in the initial distribution of seats would be swept up, deposited in a new pool at the national level, and then awarded to the parties as even more additional mandates. This, they argued, would benefit above the smaller parties and would be especially attractive to the Court, which in the past has expressed particular concern for them. An example for the patient, but confused reader: assume it took 60,000 votes to be awarded a list seat in a given state. Your party received 70,000; you get, of course, one seat, but the remaining 10,000 are “wasted”.  Not with Reststimmenverwertung. The remainders from all the 16 states get pooled and a few supplemental seats get awarded.

On September 29, 2011, on a pure party-line vote, this new law passed parliament and went into effect on November 30, 2011.  The ink was hardly dry on the President’s signature before the opposition parties, interest groups, and over 3,000 concerned citizen petitioned Karlsruhe challenging the constitutionality of this by now highly complicated revision of a highly complicated law. Most experts predicted that this law did not have a chance. They were right.

Karlsruhe, June 5, 2012: A Bad Day for the Government
The hearing before the Second Senate took place on June 5.  At the outset it was clear that the CDU-FDP law was in trouble. The Court was also not amused.  First, the Chairman of the Court’s Second Senate, Andreas Voβkuhle, gave the authors of the bill a tongue lashing. They were late − about five months late.  It is never a good idea to be late with anything or for anything in Germany. The law was also a pure government bill. We wanted, Voβkuhle stated, a consensus bill. The electoral system is too fundamental to be enacted on a pure, party line vote.

Then the Court, relying on a bevy of experts, went after the substance of the law. First, the law did not eliminate the negative vote. Second, they had serious doubts about the new wrinkle − the Reststimmenverwertung. The Court questioned the fairness of this procedure and suggested that smaller parties would still be handicapped, thus violating the “equal weight” mandate of the Basic Law stating that all votes must count equally. Thirdly, it questioned whether all those excess mandates − twenty-four in 2009 − were undermining the fundamental proportional character of the law.  The hearing clearly went very badly for the government.
Karlsruhe, July 25, 2012, Decision Day
In a unanimous decision, the Court ruled that the 2011 law was unconstitutional. They did not favor the state by state distribution, the remainder vote provisions, or all those excess mandates. They did not declare excess mandates per se unconstitutional, but they ruled that they should be limited to “around fifteen”.  The court also did not like the law’s treatment of the negative vote problem and in fact argued the government had made it worse. In short, it was back to the drawing board to devise a law that has some semblance of all-party support and that passes constitutional muster.
The Reaction
The SPD, Greens, and even the Left party hailed the decision. “A good day for our democracy”, declared Thomas Oppermann, the SPD’s point man for the challenge. “They now have to negotiate; no more Alleingang.”  The Greens joined in and spoke of a legal-political disaster for the government. The Left charged that the government had deliberately tried to undermine the Basic Law.

The President of the Bundestag, Norbert Lammert, clearly tried to put as much distance as possible between himself and his party “friends” who wrote the law (Lammert did, however, vote for the law).  He called on the CDU-FDP to take a self-critical view of what they had done.  According to Lammert, “a consensual solution” (einvernehmliche Lősung) involving all parties was urgently needed.  He insisted that all options are now open and on the table.

The CDU-FDP authors of the failed law claimed a partial victory. They rejoiced that the excess mandate provision was not completely dumped. They claimed that there were only some technical details that had to be worked out. Most observers wondered what opinion they were talking about.

At the Chancellery, Angela Merkel tried to stay as far away from the law as possible (She was in Warsaw when the law passed in September 2011 and did not vote).  Instead, she sent out a Deputy Press Secretary to read her statement.  She “respectfully acknowledged” the Court’s decision on a very “complex and complicated issue.”  She then emphasized that only the parliament had the requisite authority (Hoheit) to finally resolve the problem. In short, the ball is in your court, not mine. Some observers noted that this is the classical Merkel approach when something goes wrong. Her reaction, or lack thereof, usually has the desired effect of maintaining her ultra-high (currently at 80 percent) approval rating.

What Next?
The Court has given the parliament clear marching orders: come back with a new law in time for the fall 2013 election, and make sure this time that the law is a product of a multi-party consensus and not just a party-line vote. The Court also wants a better approach to the negative vote problem, as well as a law that ensures all votes will count equally, including those for small parties. Furthermore, whatever else the parliament decides, the new law must ensure the fundamentally proportional character of the electoral law; the limitation on excess mandates to a specific number (no more than “around fifteen”) is unprecedented in the Courts electoral law jurisprudence. It is also not clear how the Court arrived at the number 15. Some observers believe that a majority of the Court wanted to eliminate excess mandates altogether. However, in order to secure unanimity, it settled on the “Golden 15” provision.[i]  Finally, the Court recognizes the advantages of the direct, district mandate as a means to maintain and strengthen the voters’ attachment to particular candidates in their home districts.   The district mandate is probably safe. Everything else, including compensatory mandates, is on the table.

This was a landmark decision and a real Sternstunde for the Court.  It is  the most  comprehensive and far-reaching decision  the Court has ever made in the electoral law area. This is due in no small part to the high quality of the technical advice the Court received. It drew on the works of some of the best legal scholars, as well as political scientists.  Indeed, its statements about the erosion of the proportional character of the law have been the subject of recent empirical political science research..

President Lammert wants the parties to be back to work on this by mid-August. They are now on the clock and the Court is watching.