Federal Constitutional Court - Press office -

Press release no. 12/2012 of 22 February 2012

Order of 31 January 2012 – 2 BvC 3/11 –

The allocation of constituencies on the basis of the German residential 
population does not render the 2009 Bundestag election unconstitutional


The Federal Constitutional Court has dismissed a complaint challenging 
the validity of the election to the 17th German Federal Parliament 
(Bundestag) in 2009. The complaint concerns the division of the 
electoral territory into constituencies. 

The relevant principles are laid down in § 3 of the Federal Electoral 
Act (Bundeswahlgesetz – BWG). According to this act, the 299 
constituencies are allocated on the basis of the German residential 
population. The number of constituencies in the states (Länder) must 
correspond as closely as possible with their share of the population. 
The population size of each constituency should not deviate from the 
average population size of all constituencies by more than 15 %. In the 
case of a deviation of more than 25 % the boundaries of a constituency 
must be redefined. When determining the population size, resident aliens 
are not counted, whereas all Germans, including minors, are counted, no 
matter whether or not they are eligible to vote. 

The complainant claims particularly that the principle of equal suffrage 
(Art. 38.1 sentence 1 of the Constitution (Grundgesetz – GG)) is 
violated by the fact that the allocation of the constituencies is based 
on the size of the German residential population instead of the number 
of citizens eligible to vote. Given that their ratio varies 
significantly in comparison between the constituencies, equal chances 
for each vote cast had not been guaranteed. 

The Second Senate of the Federal Constitutional Court found that the 
allocation of the constituencies for the 2009 Bundestag election met the 
requirements of the principle of equal suffrage. In the future, however, 
the legislator must take into account the share of minors among the 
population when assigning the constituencies. 

In essence, the decision is based on the following considerations: 

1. The principle of equal suffrage (Art. 38.1 GG) states that each vote 
must have the same value and the same legal prospect of success. For the 
election of the Members of Parliament in the constituencies according to 
a “first-past-the-post” system, the principle of equal suffrage requires 
that all voters must be able to participate in the election in 
constituencies that are as equal in size as possible. The legislator is 
obliged to review the allocation of the constituencies regularly and to 
correct it where necessary. This obligation applies to the process of 
allocating the constituencies as well as to the respective legal 
framework and the statistical conditions. 

Equal suffrage is, however, not subject to an absolute ban on 
differentiation. Rather, the legislator has a certain freedom when 
creating and evaluating the division of the electoral territory into 
constituencies. Deviations in the size of a constituency are hence 
acceptable within the framework defined by Art. 38.1 GG particularly 
with regard to the desirable identification of any Member of Parliament 
with their constituency, as well as to the continuous change in 
population size. 

In principle, equal suffrage requires the constituencies to be allocated 
on the basis of the number of citizens eligible to vote. The principle 
of equal suffrage laid down in Art. 38.1 GG corresponds with the right 
to vote, and thus demands equality between voters, not residents. Equal 
suffrage is, however, not impaired if the German residential population 
is taken as a basis for assigning the constituencies as long as the 
share of minors among the German population differs only negligibly 
across the country: With a more or less equal distribution of minors 
among the constituencies, a sufficiently comparable number of votes is 
necessary in each constituency in order to win a seat in Parliament. It 
is only when serious discrepancies occur between the population and the 
number of voters that a different allocation of the constituencies 
becomes necessary. 

2. The legislator drafting the electoral law has so far regarded an 
allocation of constituencies based on the German residential population 
as being permissible presuming that the share of minors among the 
population did not differ seriously across the country. As was indicated 
by the statistical material presented to the Court, however, this 
presumption did not turn out to be thoroughly sustainable. 

The statistical data calls into question the legislator’s presumption of 
a more or less equal spread of minors over the electoral territory. It 
does, however, not imply a violation of the principle of equal suffrage 
in the 2009 Bundestag election. In allocating the constituencies for 
this election the legislator has adhered to the requirements laid down 
in § 3.1 of the Federal Electoral Act, and hence has respected the goals 
of a transparent, consistent legislation. The presumption of an equal 
spread of minors across the electoral territory is still justified for 
the Länder. The fact that it is not thoroughly sustainable related to 
the constituencies does not render the election of the 17th German 
Bundestag unconstitutional. The presumption of a more or less equal 
regional spread of minors had not been questioned in the past. Any 
impairment of equal suffrage has been marginal at most, as only 15 out 
of a total of 299 constituencies, and hence a relatively small number, 
have been affected by relevant deviations in the election to the 17th 
German Bundestag. 

3. In the future when assigning the constituencies the legislator will, 
however, have to take into account the share of minors among the 
population, both in relation to the Länder and in comparison between the 
constituencies. 


This press release is also available in the original german version.