Federal Constitutional Court - Press office -
Press release no. 68/2008 of 3 July 2008
Judgment of 3 July 2008 – 2 BvC 1/07, 2 BvC 7/07 –
Provisions of the Federal Electoral Act from which the effect of
negative voting weight emerges unconstitutional
The effect of negative voting weight brought about by § 7.3 sentence 2
in conjunction with § 6.4 and 6.5 of the Federal Electoral Act
(Bundeswahlgesetz - BWahlG) may lead to a situation in which in certain
constellations second votes cast for parties which obtain what are
known as "overhang mandates" in one Land (state) have a negative impact
inasmuch as these parties lose mandates in the same or in another Land.
Conversely, it is also possible that not casting a voter's vote is
beneficial to the party to be supported.
This effect of negative voting weight violates the principles of the
equality and directness of elections. The provision is therefore
unconstitutional insofar as the effect of negative voting weight is
facilitated thereby. This was decided by the Second Senate of the
Federal Constitutional Court by judgment of 3 July 2008. The electoral
error impacts the composition of the 16th Deutscher Bundestag, but does
not lead to its dissolution since it is outweighed by the interest in
maintenance of the status quo of the representation of the people
composed in confidence in the constitutionality of the Federal
Electoral Act. The legislature was obliged to hand down a
constitutional provision by 30 June 2011 at the latest.
In connection with the complaint requesting review of an election that
was lodged, the Second Senate also had to rule on the question of
whether the non-public re-count of votes in some constitutions by the
district returning officer violated the principle of the public nature
of elections. The Senate stated that it did not.
In essence, the ruling is based on the following considerations:
I. Insofar as the applicant re 2. complains of the non-public
re-count of the votes in some constituencies, the requested review
of an election is unfounded. It does not follow from the principle
of the public nature of elections that all acts related to
ascertaining the result of the election must be carried out in
public. The proper functioning and comprehensibility of the
ascertainment of the result of the election is not questioned if
for individual re-counts by the district returning officer in the
context of his or her preparatory tasks the necessary openness is
only indirectly brought about by the result of such re-counts
being subject to review by the district electoral committee, which
in turn decides in an open meeting. An electoral error can only be
ascertained in this context if there are indications that the
preparatory re-count entailed irregularities and the competent
electoral committee did not carry out its tasks. No such electoral
error has been asserted.
II. The effect of the negative voting weight violates the principle of
the equality of elections.
1. The equal contribution towards success requires the
contribution of each vote towards success to be equal, whatever
party it was cast for. This also means that it must be able to
have a positive effect for the party for which it was cast. An
electoral system which is designed or at least in typical
constellations permits an increase in the number of votes to
lead to a loss of mandates or the electoral proposal of a party
to achieve more total mandates if it itself attracts fewer
votes, or if a competing proposal attracts more votes, leads to
arbitrary results and to a situation in which democratic
competition for the approval of the electorate appears to be
paradoxical. The effect of the negative voting weight however
also impairs the equality of chances for success of the votes.
Such equality permits - as for instance in the majority voting
system - votes not to be measured, but not for a vote having
inherent in itself both the chance to contribute to the
intended success, and to impair the own goal in voting.
2. The impairment of the equality of elections by the negative
voting weight effect cannot be justified by "imperative
reasons".
The regulations from which the negative voting weight effect
emerges serve interests of the federal proportional
representation election system. Federative interests can in
principle be taken into account when drafting electoral law.
These aspects do not however constitute an imperative reason by
means of which the negative voting weight effect can be
justified. The effect of negative voting weight constitutes a
major encroachment on the equality of elections. It leads not
only to a different weighting of the electorate's votes in
allotting the mandates, but its effect is also that the will of
the electorate is turned full-circle. By contrast, the
federative element does not assume sufficient weight here,
especially since the legislature has in many ways accommodated
the federative state structure, and the structure of the
parties which follows from it, in electoral law and the
corresponding regulations are independent of those regulations
from which the negative voting weight effect emerges. When
weighting the matter of a federative allocation of the votes,
it must also be taken into account that the Bundestag election
is the election of the unitary representation body of the
federal people. The federal legislature is not obliged to
account for federative aspects in such an election.
The negative voting weight effect is also not a necessary
consequence of a system of proportional representation combined
with the personal election of candidates. The effect depends on
various factors, but above all on the model of setting off the
first-vote mandates with the second-vote mandates, which do not
determine the electoral system as such. The legislature is not
constitutionally prevented from ordering a system of
proportional representation election combined with the personal
election of candidates without the negative voting weight
effect.
III. The regulation also violates the constitutionally guaranteed
directness of elections. Voters are unable to recognise whether
their vote always has a positive impact on the party to be elected
and its candidates, or whether they are bringing about the failure
of a candidate of their own party by their vote.
IV. § 7.3 in conjunction with § 6.4 and 6.5 BWahlG is hence
unconstitutional insofar as it brings about the effect of the
negative voting weight.
The electoral error is also relevant in terms of mandates. This
effect is not a very rare exception, but as a rule has an impact
on the result of elections if "overhang mandates" are created in
an election to the Deutscher Bundestag. This also applies to the
election to the 16th Deutscher Bundestag, where there were a total
of 16 "overhang mandates". In Hamburg for instance, if roughly
19,500 fewer second votes had been cast for the SPD, this party
could as a result have claimed one more seat in the Deutscher
Bundestag.
Nonetheless, the electoral error does not lead to the election
being declared invalid, and hence to the dissolution of the 16th
Deutscher Bundestag. The error results from a paradox of the valid
Federal Electoral Act which cannot be quite easily understood, and
on the whole relates to only a few mandates of the Deutscher
Bundestag. The dissolution of the Deutscher Bundestag without
previously affording Parliament the opportunity to amend the
Federal Electoral Act would also create a situation in which the
Bundestag then to be elected would have to be elected on an
unconstitutional legal basis. In contradistinction to this, the
consequences of a decision which approves of the present legal
situation for a suitable transitional period is constitutionally
acceptable.
V. The legislature is to be granted a suitable deadline to remedy the
unconstitutionality of the valid electoral system. The remedy of
the unconstitutionality of these provisions relates not only to
the sub-distribution of seats among list combinations of a party,
but also to the entire calculation system of the seat allocation
in the Deutscher Bundestag. The legislature has several
possibilities for a new regulation which each have a substantial
impact on the valid regulations for the allocation of seats in the
Deutscher Bundestag. With regard to the fact that the negative
voting weight effect is indivisibly linked to the "overhang
mandates" and to the possibility of list combinations, a new
regulation can tackle the emergence of the "overhang mandates" or
the setting off of direct mandates with the second-vote mandates,
or indeed the possibility of list combinations. Depending on the
alternative selected, there is an impact on the entire electoral
system. Taking into account the considerable complexity of the
regulatory mandate and of the statutory deadlines to prepare
Bundestag elections, it hence appears to be inappropriate to
instruct the legislature to amend the electoral law in good time
prior to expiry of the present electoral period. Such a short
period poses a danger that the alternatives cannot be considered
and discussed in the necessary manner. The legislature would hence
also be deprived of the possibility to place the intertwining of
regulations for the calculation of the allocation of seats in the
Deutscher Bundestag - virtually indecipherable for voters - on a
new basis of clear and comprehensible provisions.
This press release is also available in the original german version.
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