Judgment of 25 July 2012

R e a s o n s:

A. 

1

These proceedings concern the rules under federal electoral law for the distribution of seats in the German Bundestag. In particular, the applicants and the complainants seek judicial review as to whether the seat distribution procedure results in an unconstitutional effect in the form of so-called ‘negative voting weight’ (negatives Stimmgewicht) and whether the uncompensated overhang mandates are compatible with the principles of equal suffrage and the equal opportunities of political parties.

I. 

2

1. The procedure for the distribution of seats in the German Bundestag to political parties based on election to Parliament through Land lists is governed by § 6 of the Federal Elections Act (Bundeswahlgesetz – BWG). In the relevant version of Art. 1 of the Nineteenth Act to Amend the Federal Elections Act of 25 November 2011 (Federal Law Gazette, Bundesgesetzblatt – BGBl. I p. 2313), this provision states as follows:

3

§ 6

4

Election through Land lists

5

(1) The number of seats for each Land to be allocated from the total number of seats (§ 1(1)) shall be distributed according to the number of voters in each Land, using the same calculation methods as for the allocation of seats to the Land lists pursuant to subsection (2) second through seventh sentence. The number of successful constituency candidates, as described in the first sentence of subsection (4), shall be deducted from the number of the seats allocated to the Land. For the allocation of seats to the Land lists, the second votes cast for each Land list will be tallied. The second votes of those voters who, with their first votes, voted for a successful constituency candidate who was proposed in accordance with § 20(3) or by a political party which pursuant to subsection (6) is not eligible for the allocation of seats or which has no Land list in the relevant Land, shall not be considered.

6

(2) The remaining seats pursuant to subsection (1) second sentence will be distributed on the basis of the second votes cast and eligible for consideration pursuant to subsection (1) third and fourth sentence as follows: Each Land list shall receive the number of seats equal to the sum of the second votes received divided by an allocation divisor. Fractions of less than 0.5 are rounded down to the nearest whole number, while those greater than 0.5 are rounded up to the nearest whole number. Fractions that are exactly 0.5 shall be rounded up or down in such a way that the total number of seats to be allocated is maintained; if this results in several possible seat allocations, a decision shall be made by lot drawn by the Federal Returning Officer. The allocation divisor shall be determined in such a way that the Land lists receive a total number of seats equal to the number of seats to be allocated. First, the total number of second votes of all the Land lists to be considered is divided by the total number of seats remaining according to subsection (1) second sentence. If, after this, more seats are allocated to the Land lists than the total number of seats to be allocated, the allocation divisor shall be increased so that the calculation results in the number of seats to be allocated; if the number of seats allocated to the Land lists is less than the total number of seats, then the allocation divisor shall be reduced accordingly.

7

(2a) The Land lists of a party will be allocated as many additional seats in the order of the highest residual votes as whole numbers remain after the calculation pursuant to subsection (2) third and fourth sentence, when the sum of the positive deviations of the second votes cast for the Land lists needed for the seats won in the respective Land (residual votes) is divided by the number of second votes required for a seat in the constituency to be awarded. Land lists for which the number of seats won in the constituencies exceeds the number of seats to be distributed in accordance with subsections (2) and (3) shall be given priority in the order of the highest residual votes up to the total of the seats remaining to them in accordance with subsection 5. The overall number of Bundestag seats (§ 1(1)) shall be increased by the amount of the difference.

8

(3) If, in the allocation of seats according to subsections (2) and (2a), a party whose Land list receives more than half of the total second votes cast among all the Land lists eligible for consideration in the electoral area, does not receive more than half the seats to be allocated, then additional seats shall be allocated to the Land lists of this party in the order of the highest residual votes until one seat more than half the seats to be allocated in the electoral area is allocated to the Land lists of that party. In such a case, the overall number of Bundestag seats (§ 1(1)) shall be increased by the amount of the difference.

9

(4) The number of seats to be allocated to that party’s Land list as determined above shall be reduced by the number of seats won by a party in the constituencies of that Land. The remaining seats shall be filled from the Land lists in the order set forth therein, respectively. Candidates who were elected in a constituency are not considered for the seats allocated to the Land list. If more seats are allocated to a Land list than there are candidates, then these seats remain vacant.

10

(5) A party shall also keep the seats won in the constituencies if they exceed the number determined in accordance with subsections (2) to (3). In such a case, the overall number of seats (§ 1(1)) shall be increased by the amount of the difference; a new calculation according to subsections (2) and (3) shall not take place.

11

(6) Only parties who have received at least 5% of the valid second votes cast in an electoral area or who have won at least three constituencies are eligible for the allocation of seats to their Land lists. The preceding sentence shall not apply to parties of national minorities.

12

2. In the Federal Republic of Germany, elections for the Bundestag are held on the basis of an electoral system that combines proportional representation with a candidate-centred element. All electoral laws have provided for a reconciliation process by which the seats won through obtaining a relative majority of the first votes in the constituencies are offset against the seats proportionally allocated to a party’s Land list through the second vote; if that number is less than the number of seats won by the party in the constituencies, then the difference accrues as an overhang mandate (on this and the deliberations of the Parliamentary Council cf. BVerfGE 95, 335 <337 f.>).

13

a) While the respective laws governing the first Bundestag (Act of 15 June 1949 <BGBl. I p. 21>) and the second Bundestag (Act of 8 June 1953 <BGBl. I p. 470>) provided for a system only based on Land lists, the Federal Elections Act of 7 May 1956 (BGBl. I p. 383) provided, for the first time, for a system that used the remaining Land votes to make party-internal list combinations (cf. § 7(1) and (3) Federal Elections Act 1956). This was done through the procedure for the specific allocation of seats to combined Land lists set out in § 7(3) of the Federal Elections Act 1956. The existing rules on overhang mandates were retained and expanded to include combined lists (cf. § 7(3) in conjunction with § 6(3) Federal Elections Act 1956).

14

b) In the period that followed, all parties that stood for election in more than one Land made use of combined lists. This development was taken into account by the legislator in the Act to Amend the Federal Elections Act of 24 June 1975 (BGBl. I p. 1593). Under the amended version of § 7(1) of the Federal Elections Act, a combined list was to be assumed unless a party made an express statement to the contrary. The rules on the specific allocation of seats to Land lists and overhang mandates remained unchanged.

15

c) These rules were implemented through §§ 6 and 7 of the Federal Elections Act, most recently in the version published on 23 July 1993 (BGBl. I p. 1594), in the Bundestag elections that followed. In this process, the seats for the Land lists of the same party, combined by virtue of the fiction of § 7(1) of the Federal Elections Act, were determined in two stages. First, the number of seats to be allocated to the respective combined lists and the non-combined lists were calculated (overall allocation); at this stage, each combined list pursuant to § 7(2) of the Federal Elections Act was treated as one list. Next, a determination was made as to how many of the seats allocated to the combined list were to be allocated to the individual Land lists (specific allocation); in this respect, § 7(3) first sentence of the Federal Elections Act provided that § 6(2) of the Federal Elections Act, which governed the allocation process of the regular Bundestag seats in accordance with the amount of second votes received by the parties in the overall allocation, applied accordingly. The allocation of seats in the Bundestag to the Land lists followed the calculation of the number of seats won by a party in the constituencies pursuant to § 6(4) and (5) of the Federal Elections Act; for combined lists, § 7(3) second sentence of the Federal Elections Act provided that this provision applied accordingly (on the details BVerfGE 121, 266 <270 ff.>).

16

3. The allocation according to § 7(3) second sentence in conjunction with § 6(4) and (5) of the Federal Elections Act had the effect that an increase in second votes for a party could lead to a loss of seats, while a loss of second votes could lead to an increase in seats (so-called negative voting weight; cf. BVerfGE 121, 266 <274 ff.>). If a loss of second votes for a party did not lead to a loss of seats in the nationwide overall allocation among the various parties, it could nonetheless influence the specific allocation of seats among the individual Land lists of the party to that party's benefit. This is because a lower number of second votes could result in other Land lists gaining precedence in the specific allocation of seats, which allowed the party – precisely because of the lower number of overall second votes – to obtain an additional list mandate. Conversely, with an increase in second votes, a party could lose an overhang mandate and thereby receive fewer seats overall (cf. BVerfGE 121, 266 <274 f.>).

17

a) In its judgment of 3 July 2008 (BVerfGE 121, 266), the Federal Constitutional Court found that § 7(3) second sentence in conjunction with § 6(4) and (5) of the Federal Elections Act, insofar as it resulted in a negative voting weight, was incompatible with the principle of equal suffrage and of direct elections and to this extent was unconstitutional. At the same time, the Court granted the legislator until 30 June 2011 to change the rules which could lead to negative voting weight. In view of the fact that this effect was inseparable from the occurrence of overhang mandates and the possibility of combined lists, the Federal Constitutional Court noted that the new rules could address this issue either in regard to the creation of overhang mandates, by offsetting of constituency seats against list seats or the possibility of combined lists (BVerfGE 121, 266 <315>).

18

b) To fulfil this directive, the parliamentary groups of the CDU / CSU, jointly with that of the FDP (Bundestag document, Bundestagsdrucksache– BTDrucks 17/6290), as well as the parliamentary groups of the SPD (BTDrucks 17/5895), BÜNDNIS 90 / DIE GRÜNEN (BTDrucks 17/4694) and DIE LINKE (BTDrucks 17/5896) each submitted draft laws, which were the subject of a public expert hearing conducted by the Bundestag Committee on Internal Affairs on 5 September 2011 (cf. German Bundestag, Committee on Internal Affairs, Minutes No. 17/48). On 21 September 2011, the Committee on Internal Affairs recommended that the Plenary adopt the draft law of the parliamentary groups of the CDU / CSU, with the proviso that the proposed new § 6(2a) of the Federal Elections Act should be drafted in a way that, in allocating additional mandates, those Land lists for which the number of constituency seats won exceeds the number of seats to be allocated under § 6(2) and (3) of the Federal Elections Act would have priority. The German Bundestag acted on the recommendation of the Committee on Internal Affairs and on 29 September 2011 adopted the new law, which went into effect on 3 December 2011 as the Nineteenth Act to Amend the Federal Elections Act of 25 November 2011 (BGBl. I p. 2313) (hereinafter: Nineteenth Amending Act), which entered into force on 3 December 2011.

19

c) The legislator chose to eliminate negative voting weight by means of abolishing the possibility of combined lists and calculating the seats to be allocated to the Land lists separately in each Land (cf. BTDrucks 17/6290, p. 6). According to the legislative materials, the number of regular seats in the Bundestag are to be allocated amongst the Länder according to the number of voters in each Land (§ 6(1) first sentence Federal Elections Act), so that only the Land lists of the respective parties in a specific Land will be competing for the seats allocated to that Land (cf. BTDrucks 17/6290, p. 7). According to the legislator, this will completely eliminate the effects of negative voting weight, when viewed from the perspective of the political reality (BTDrucks 17/6290, p. 9). The Nineteenth Amending Act implemented these legislative aims by repealing the previous § 7 of the Federal Elections Act without replacement and through corresponding modifications to § 6(1) of the Federal Elections Act.

20

In addition, § 6(4) first sentence of the Federal Elections Act, which in certain cases where both the constituency candidates and the Land list of a party are successful provided for the offset of constituency seats from the number of regular Bundestag seats before the remaining seats to be allocated on the basis of second votes were distributed to the Land lists (cf. BVerfGE 79, 161 <167 f.>), was supplemented with a rule pertaining to the so-called ‘Berlin second votes’. This is the case when voters cast their first votes for a constituency candidate of a party which does not overcome the five-percent threshold and therefore is not considered in the distribution of seats to the Land lists pursuant to § 6(6) first sentence of the Federal Elections Act, thereby providing that party with a mandate, and cast their second votes for the Land list of another party that is entitled to the distribution of seats to the Land lists (cf. BVerfGE 79, 161 <168 f.>; 122, 304 <312>).

21

Finally, an additional step was introduced to the so-called process of the valuation of residual votes in § 6(2a) of the Federal Elections Act which, according to the explanatory memorandum to the draft act, was aimed at compensating differences in the measure of success among the Land lists of parties arising due to rounding losses in the distribution of seats among the 16 seat contingents by awarding additional seats (BTDrucks 17/6290, p. 15).

22

4. The new procedure provided for the distribution of seats in the Bundestag is as follows:

23

a) In the first step, the number of seats to which each Land list is entitled is determined. First, the number of regular Bundestag seats for each Land are calculated according to the divisor procedure based on the Sainte-Laguë/Schepers method (on this cf. BVerfGE 121, 266 <272>). The number of seats is based on the number of voters in each respective Land (§ 6(1) first sentence Federal Elections Act). Pursuant to § 6(1) second sentence of the Federal Elections Act, the total number of seats allocated to each respective Land is then reduced by the number of successful constituency candidates who stood for election as independents under § 20(3) of the Federal Elections Act, or who were proposed by a party that failed to overcome the electoral threshold (§ 6(6) first sentence Federal Elections Act) or a party whose Land list was not approved in that particular Land. The remaining seats are then allocated pursuant to § 6(2) of the Federal Elections Act to the eligible Land lists according to the divisor procedure based on the Sainte-Laguë/Schepers method. Only parties who have received at least 5% of the valid second votes cast in the electoral area – meaning the Federal Republic of Germany (§ 2(1) Federal Elections Act) – or who have won at least three constituencies (§ 6(6) first sentence Federal Elections Act) are eligible.

24

b) In the second step, additional seats are awarded pursuant to § 6(2a) of the Federal Elections Act. For this step, the average number of second votes required for a seat in each Land is determined. The amount of second votes for Land lists that exceed the product of this average number and the number of seats to be allocated to a party are referred to as residual votes. The residual votes of all Land lists for a party are added together and divided by the average number of second votes required for a seat nationwide. To the extent that any whole seats result from this calculation, additional seats in that amount are awarded (§ 6(2a) first sentence Federal Elections Act). These seats are then allocated to the Land lists first in the order of the highest number of overhang mandates, and then in the order of the highest residual votes (§ 6(2a) first and second sentence Federal Elections Act).

25

If the Land list of a party receives more than half of the total second votes among all the eligible Land lists nationwide, but this is not reflected in the party’s (provisional) seat distribution pursuant to § 6(2) and (2a) of the Federal Elections Act, then additional seats shall be allocated to this party in the order of the highest residual votes until one seat more than half the seats to be allocated nationwide is allocated to the Land list of the party (guarantee of the majority clause).

26

c) The number of Bundestag seats allocated to each Land list is then reduced by the number of seats won by a party in the constituencies of a particular Land (§ 6(4) first sentence Federal Elections Act). Only those Land list seats that remain after the constituency seats are offset will be filled (§ 6(4) second sentence Federal Elections Act); candidates that are directly elected are not considered pursuant to § 6(4) third sentence of the Federal Elections Act. A party retains the seats it wins in the constituencies of a Land, even if the number of the seats so won exceeds the number of seats allocated to the Land list (§ 6(5) first sentence Federal Elections Act); in this case, the total number of seats in the Bundestag is increased by the difference (§ 6(5) second sentence Federal Elections Act – the so-called overhang mandate).

II. 

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1. The applicants in the judicial review proceedings and the complainants in the constitutional complaint proceedings contend that the seat distribution procedure in § 6 of the Federal Elections Act is incompatible with the principles of equal suffrage and of direct elections (Art. 38(1) first sentence of the Basic Law) and the principle of equal opportunities of political parties under Art. 21(1) of the Basic Law. […]

28-33

[…]

III. 

34

The German Bundestag, the Bundesrat, the Federal Government, the governments of all the Länder, the federal associations of the political parties represented in the Bundestag and the Federal Returning Officer (Bundeswahlleiter) were given the opportunity to provide a statement in this case.

35-41

[…]

42

The Nationaldemokratische Partei Deutschlands (NPD) joined the Organstreit proceedings on the side of the applicant (§ 65(1) Federal Constitutional Court Act, Bundesverfassungsgerichtsgesetz – BVerfGG) and concurred in the applicant’s application.

IV. 

43

At the oral hearing, the parties reaffirmed and elaborated on their statements. In addition, the Senate called Prof. Dr. Friedrich Pukelscheim, chair of the department for stochastic analysis and application at the Institute for Mathematics at the University of Augsburg and Prof. Dr. Christian Hess, chair of the department for stochastic analysis and application at the University of Stuttgart, as experts. In particular, they discussed § 6(2a) of the Federal Elections Act, on how a Länder-based distribution of seats produces a de facto bar, and on the prerequisites for the existence of negative voting weight and its significance for the composition of the German Bundestag.

B. 

44

The applications for judicial review and Organstreit proceedings are admissible, as are the constitutional complaints.

I. 

45-49

[…]

II. 

50

There are no objections with regard to the admissibility of the application for Organstreit proceedings (§§ 63 ff. Federal Constitutional Court Act; cf. BVerfGE 82, 322 <335 f.>). For the reasons stated above, the claimed violation of the applicant’s right to equal opportunities in elections by the Nineteenth Amending Act also concerns § 6 of the Federal Elections Act insofar as its wording has not been amended (cf. also BVerfGE 111, 382 <411>).

C. 

51

The application for judicial review and the constitutional complaint are, for the most part, well-founded. The newly designed procedure for the distribution of seats in the Nineteenth Amending Act violates the principles of equal suffrage (Art. 38(1) first sentence of the Basic Law) and the right of political parties to equal opportunities (Art. 21(1) of the Basic Law) in several respects and is, insofar as it allows for negative voting weight to take effect to a non-negligible extent, incompatible with the principle of direct elections (Art. 38(1) first sentence of the Basic Law). In this respect, the complainants’ rights under Art. 38(1) first sentence of the Basic Law have been violated.

I. 

52

1. In the constitutional democracy of the Basic Law, elections are the primary means by which the people themselves exercise state authority (Art. 20(2) of the Basic Law) and confer legitimation for the further exercise of state authority in their name by elected bodies. The right of citizens to elect representatives and determine the substantive policy of public authority on free and equal terms through elections is an essential element of the principle of democracy. The principle of equal suffrage reflects the equality of citizens, which is a prerequisite of the principle of democracy (cf. BVerfGE 123, 267 <342>).

53

2. The legislator must determine the way in which the political will of the citizens expressed through elections is implemented through the distribution of seats in a representative body to mandate holders and how it should be given shape. A number of different electoral systems are available for this purpose, and each of these is amenable to modifications.

54

The federal legislator is in principle free to choose the electoral system (cf. BVerfGE 1, 208 <246>; 6, 84 <90>; 34, 81 <100>). Art. 38(1) and (2) of the Basic Law merely provide the basic outlines. The details are to be set out in federal law pursuant to Art. 38(3) of the Basic Law. The combination of these provisions, and above all the legislative history, make it clear that the constitutional legislator intentionally left the establishment and specific design of the electoral system open (BVerfGE 95, 335 <349>; 121, 266 <296>).

55

3. In establishing and designing the electoral system, the legislator must take into account several constitutional requirements relating to the purposes for elections. Elections must confer democratic legitimation upon the members of the Bundestag. With this aim in mind, the legislator must take into account how the design of the electoral system affects the connection between voters and their representative and how it influences (cf. BVerfGE 41, 399 <416 f.>) the process of the formation of the political will from the people to state organs through elections (on this BVerfGE 123, 39 <68 f.>). The elected Parliament must be functional, particularly with regard to the tasks of legislating and forming a government (cf. BVerfGE 6, 84 <92>; 51, 222 <236>; 82, 322 <338>; 95, 408 <418>; 120, 82 <107>). The legislator must also ensure the function of elections as a means of integrating the political forces and seek to prevent important concerns of the people from being excluded from Parliament (cf. BVerfGE 6, 84 <92>; 51, 222 <236>; 95, 408 <419>). In addition, the principle of federalism (Art. 20(1) of the Basic Law) permits the legislator to align the design of electoral law with the structure of the Federal Republic of Germany, which is divided into Länder (cf. BVerfGE 95, 335 <350>; 121, 266 <303>).

56

The legislator can only fulfil its constitutional directive to establish an electoral system that to a certain extent pursues contradictory goals when it is afforded broad leeway to design. Accordingly, in carrying out the directive under Art. 38(3) of the Basic Law, it is in principle left to the legislator’s discretion whether to organise the procedure for electing the German Bundestag according to a majority vote or a proportional representation system; from the perspective of representative democracy (Art. 20(2) second sentence and Art. 38(1) second sentence of the Basic Law), neither system takes precedence (cf. BVerfGE 95, 335 <352 f.>). The legislator can also combine these two systems (cf. BVerfGE 6, 84 <90>; 6, 104 <111>; 95, 335 <349 f.>; 120, 82 <103>; 121, 266 <296>) by having part of the German Bundestag elected according to a majority vote system and the other part according to proportional representation (parallel voting), by extending the principle of proportional representation to the entire distribution of seats subject to a reasonable weighting of direct mandates or by some other combination.

57

4. However, the power to design granted to the legislator finds its limits where the right of every citizen to free and equal participation in democratic self-determination (cf. BVerfGE 123, 267 <341>) is impaired. The guarantee of general, direct, free, and equal elections in Art. 38(1) of the Basic Law gives rise to a constitutional obligation of the legislator to design the electoral process in a manner that allows voters to determine, before they cast their vote, the candidates for election to Parliament and the impact the voters’ decision could have on the prospects of the candidates standing for election (BVerfGE 47, 253 <279 f.>; 95, 335 <350>; 121, 266 <307>). Therefore, the procedure for the distribution of seats must in principle be free from arbitrary or paradoxical effects (cf. BVerfGE 121, 266 <300>). In addition, the principle of free elections prohibits a design that restricts the voters’ freedom to decide in a way that can otherwise be avoided within the chosen electoral system (cf. BVerfGE 47, 253 <283>; 95, 335 <350>).

58

5. Further requirements applicable to all types of electoral system follow from the principle of equal suffrage. According to this principle, all voters must be treated equally in the manner in which seats are distributed, regardless of the design of the electoral procedure (cf. BVerfGE 11, 351 <360>; 95, 335 <369>). The vote of each eligible voter must generally have the same weight and the same prospects of success as any other (cf. BVerfGE 95, 335 <353, 369 f.>; 121, 266 <295>; 124, 1 <18>). All voters should be able to have the same amount of influence on the outcome of the election with their vote (BVerfGE 121, 266 <295>).

59

a) This standard, which applies to all electoral systems, requires the legislator to ensure that the prospects of success for each vote throughout the entire electoral area are equal ([...]) and that, in every step of the procedure for distributing seats, each vote is treated the same, such that each voter has the same amount of potential influence on the outcome of the election (cf. BVerfGE 95, 335 <353, 371>).

60

If the electoral area is divided into a number of separate electoral districts, then the circumstances that affect the possible influence of an individual vote must be approximately the same in each district. Accordingly, the Federal Constitutional Court has held that in an election for members of the Bundestag in single-member constituencies in a majority vote system – that is, according to a distribution whereby only the votes cast for the candidate who has received an absolute or relative majority lead to the awarding of a mandate, while all other votes are disregarded (cf. BVerfGE 1, 208 <244>) – the principle of equal prospects of success requires that the constituencies must be of an equal size as far as it is  possible, so that all eligible voters are able to participate in the electoral process with approximately equal voting weight (cf. BVerfGE 95, 335 <353>; 124, 1 <18>; 130, 212 <225 ff.>).

61

In addition, the principle of equal prospects of success has varying effects depending upon whether the seat distribution procedure – such as according to the majority vote system – ends with the tallying, crediting and summation of the votes, or whether – as with proportional representation – it includes a calculation procedure in which the proportions of votes for party lists to the overall number of votes are determined and the distribution of seats is governed accordingly (cf. BVerfGE 1, 208 <244>; 95, 335 <370 f.>). In the first case, each voter has the same influence on the outcome simply by casting a vote, so that equal prospects of success can be achieved by ensuring approximately equally sized constituencies and consistency in the weighting and valuation of each eligible vote. In the second case, each voter has the additional opportunity to influence the allocation of seats with their vote, according to the proportion of the votes cast for ‘their’ party. The principle of equal prospects of success, which guarantees that every vote has the same amount of potential influence on the outcome of an election at all stages of the electoral process, requires that every eligible vote cast has the same weight in the calculation procedure ([...]), so that it has the same prospects of success (equality of success value; cf. BVerfGE 1, 208 <245 f.>; 95, 335 <353, 372>).

62

b) Further, the formal nature of the principle of equal suffrage means that the legislator, when deciding on the design of the electoral framework, only has limited leeway for differentiation (cf. BVerfGE 120, 82 <106>; 121, 266 <297>; 129, 300 <320>). Differentiation must always be justified by a specific reason that is objectively legitimate. Such reasons must be constitutionally legitimate and have at least the same weight as the principle of equal suffrage (cf. BVerfGE 95, 408 <418>; 120, 82 <107>; 129, 300 <320>; 130, 212 <227 f.>).

63

It is generally incumbent upon the legislator to balance the principle of equal suffrage against other constitutional interests (cf. BVerfGE 95, 408 <420>; 121, 266 <303>). In this respect, the Federal Constitutional Court only assesses whether the constitutional limits have been overstepped; it does not assess whether the legislator’s solutions are expedient or legally and politically desirable (cf. BVerfGE 6, 84 <94>; 51, 222 <237 and 238>; 95, 408 <420>; 121, 266 <303 and 304>; 132, 39 <48 para. 27>). To the extent that a provision with differentiations pursues a particular goal that the legislator seeks to achieve in designing electoral law, the Federal Constitutional Court can only find a violation of the principle of equal suffrage when the provision is not suitable for achieving this goal or exceeds what is necessary to achieve the goal (cf. BVerfGE 6, 84 <94>; 51, 222 <238>; 95, 408 <420>; 120, 82 <107>; 121, 266 <304>; 129, 300 <321>).

64

c) The legislator is obligated to review and, if necessary, amend an electoral law provision that affects equal suffrage if new developments call into question its constitutional justification, for instance, if the factual or normative basis on which it is premised has changed or if the prognosis made at the time the provision was enacted regarding its effect has proved to be erroneous (cf. BVerfGE 73, 40 <94>; 82, 322 <338 f.>; 107, 286 <294 f.>; 120, 82 <108>; 129, 300 <321 f.>).

65

6. Like the principle of equal suffrage, the principle of equal opportunities of political parties imposes the same requirements for differentiations in electoral law that affect the competition for votes (cf. in this regard BVerfGE 82, 322 <337 f.>; 95, 408 <417>; 124, 1 <20>; 129, 300 <320 ff.>).

II. 

66

Based on these standards, the challenged seat distribution procedure violates the principles of equal suffrage and of direct elections as well as the principle of equal opportunities of political parties, insofar as the formation of contingents of parliamentary seats for the respective Länder according to the total amount of voters (§ 6(1) first sentence Federal Elections Act) gives rise to ‘negative voting weight’ (see 1. below). The principles of equal suffrage and the equal opportunities of political parties are violated to the extent that additional seats are awarded pursuant to § 6(2a) of the Federal Elections Act (see 2. below) and § 6(5) of the Federal Elections Act permits uncompensated overhang mandates to such an extent that negates the fundamental character of the Bundestag election as a proportional representation election (see 3. below).

67

1. § 6(1) first sentence of the Federal Elections Act provides that each Land is allocated a seat contingent based on the number of voters, for which only the Land lists for those parties standing for election in that particular Land compete (see a) below). The division of the electoral area into separate electoral districts – hereinafter referred to as list constituencies – as this provision directs is not objectionable under constitutional law either under the aspects of democratic representation (see b) below) and legal specificity (see c) below), nor insofar as it results in a de facto bar in smaller Länder that exceeds the five-percent threshold in § 6(6) first sentence of the Federal Elections Act (see d) below). Nevertheless, § 6(1) first sentence of the Federal Elections Act violates the principles of equal suffrage, equal opportunities of political parties and direct elections, insofar as the formation of contingents of parliamentary seats for the respective Länder gives rise to the phenomenon of ‘negative voting weight’ (see e) below).

68

a) The Federal Elections Act now provides that list mandates will be awarded through the Länder. Out of the total number of parliamentary seats, each Land is allocated a seat contingent based on the number of voters, for which the Land lists of those parties standing for election in that particular Land compete (§ 6(1) first sentence, § 6(2) first sentence Federal Elections Act). The number of seats each Land list receives is calculated– as a starting point, in the same manner as the calculation of the seat contingents for the Länder (§ 6(6) first sentence Federal Elections Act) – according to the divisor procedure based on the Sainte-Laguë/Schepers method (§ 6(2) Federal Elections Act).

69

The delimitation of the electoral area into list constituencies inevitably leads to a loss in proportionality in comparison with the prior rules (cf. in this regard BVerfGE 121, 266 <267 ff.>). First, it results in significant de facto hurdles to obtaining parliamentary seats in Länder with small seat contingents in comparison with the allocation of parliamentary seats on a nationwide basis ([…]). This is because the number of votes that will be unsuccessful from the outset necessarily increases as the number of seats to be allocated is reduced. Second, differences in voter turnout among the Länder can result in votes in different Länder having different comparative success values (cf. BTDrucks 17/6290, p. 7). Finally, the loss in proportionality inherent in any mathematical distribution process (cf. BVerfGE 79, 169 <171 f.>, 95, 335 <372>, 121, 266 <300>) increases when the rounding losses and gains of a party’s Land list that arise from the use of the divisor procedure are not – as had been the practice through the combination of Land lists for offsetting purposes – compensated for in the overall electoral area ([...]).

70

The legislator has not resigned itself to the loss of proportionality, but has instead designed the allocation of seat contingents for each Land dynamically based on the number of voters (§ 6(1) first sentence Federal Elections Act) and supplemented the distribution process within each Land pursuant to § 6(2) of the Federal Elections Act with a ‘valuation of residual votes’ on a nationwide basis (§ 6(2a) Federal Elections Act) in order to reduce the effects (see C II. 2. below). Both provisions are aimed at eliminating the differences in success values from one Land to another or one party to another (cf. BTDrucks 17/6290, p. 7) and therefore can be viewed as an expression of the legislator’s intent to guarantee the proportionate distribution of seats not only in each of the Länder, but also as far as possible on a nationwide basis.

71

b) The division of the electoral area into list constituencies and the allocation of seat contingents to these constituencies based on the number of voters are compatible with the principle of democratic representation.

72

aa) This principle, which finds its footing in Art. 20(2) and Art. 38(1) second sentence of the Basic Law, is the organisational model chosen by the Basic Law and is intended to give the people the decisive power over state authority (cf. BVerfGE 44, 308 <315 f.>; 56, 396 <405>; 80, 188 <217>). It reflects the fact that each elected member of Parliament represents the people and is accountable to them ([...]). Members of the Bundestag are accountable not to a Land, a constituency, a party or a particular group, but to the people (cf. BVerfGE 121, 266 <305>); in principle, they represent the people as a whole and not as individuals (cf. BVerfGE 44, 308 <316>; 102, 224 <237>; 130, 318 <342>). With the election of the members of the Bundestag, the people of Germany create a unitary representative organ (cf. BVerfGE 6, 84 <99>; 95, 335 <402>; 121, 266 <305>).

73

bb) The unitary character of the German Bundestag is not called into question by the division of the electoral area into list constituencies. As under the previous electoral law, the electoral area is the Federal Republic of Germany (cf. § 2(1), § 6(2a) and (3) Federal Elections Act) and the people of Germany, as holders and subjects of state authority (cf. BVerfGE 83, 37 <50 f.>) are called to elect (cf. §§ 12 and 13 Federal Elections Act) the members of the German Bundestag as representatives of all the people, and not as representatives of the populations of the Länder. The electoral area is only divided into separate districts for the purposes of casting and evaluating votes, with a permissible link to the federal structure and without the Länder becoming independent electoral areas as a result ([…]).

74

cc) That the seat contingents of the Länder are determined not based on a fixed number like population size or the number of eligible voters, but on the number of actual voters, is not objectionable from the perspective of democratic representation. As each elected member of Parliament represents the people as a whole, this does not raise any concerns with regard to the principle of representation. In any case, in the present context, the standards for representational equality can only be derived from the principles of equal suffrage and equal opportunities of political parties (cf. BVerfGE 16, 130 <143>). Furthermore, local and regional concerns can be conveyed at the federal level through the constituency representatives, whose number is set, and therefore there is no need to worry that important concerns will be excluded from Parliament and that the integrative function of the election (cf. para. 55 f. above) could be undermined.

75

c) § 6(1) of the Federal Elections Act sufficiently sets forth how the seat contingents are to be allocated among the Länder.

76

aa) Pursuant to the principle of the rule of law (Art. 20(3) of the Basic Law), the legislator is required to make provisions sufficiently specific (cf. BVerfGE 49, 168 <181>; 59, 104 <114>; 78, 205 <212>; 103, 332 <384>). The level of specificity required cannot be determined beforehand in abstract and general terms but depends on the particular nature of the subject matter addressed in a law and the legislative objective pursued (cf. BVerfGE 89, 69 <84>; 103, 111 <135>; 123, 39 <78 f.). The fact that the meaning of a legal provision is open to interpretation does not raise doubts as to the degree of legal specificity required by the rule of law (cf. BVerfGE 78, 205 <79>; 78, 205 <212>; 83, 130 <145>; 119, 394 <416>).

77

bb) Based on these standards, § 6(1) first sentence of the Federal Elections Act is sufficiently specific insofar as it makes the overall total of seats in each Land dependent upon the ‘number of voters in each Land’. This results in an interpretation that the number of eligible voters who have cast a ballot is decisive. Such an understanding is implicit in the normal meaning of the words. While the term ‘eligible voter’ (Wahlberechtigter) refers to a person who is legally entitled to participate in an election, the term ‘voter’ (Wähler) denotes a person who exercises their right to vote, that is, who participates in the election by casting their ballot paper on election day or by post. This interpretation, based on the normal meaning of the words, is borne out by systematic reasons and by the legislative history. First, the Federal Elections Act – for example, in §§ 4, 12 through 14 and 34 – and the Federal Electoral Regulations (Bundeswahlordnung) – particularly in § 67 no. 1 and 2 and § 68 – have always used the terms ‘vote’ and ‘eligible to vote’ in the abovementioned manner. Second, the legislator assumed that the decisive factor in determining the seat contingents for the Länder was ‘the number of voters in each Land, that is, all eligible voters who cast their first or second votes’ (BTDrucks 17/6290, p. 7)

78

d) There are also no constitutional objections insofar as the division of the electoral area into list constituencies that are identical with the Länder results in a de facto bar for parties in smaller Länder, the effects of which extend beyond the effect of the five-percent threshold (§ 6(6) first sentence Federal Elections Act).

79

aa) The Federal Constitutional Court has found in its established case-law that the quorum of 5% of the eligible second votes cast nationwide provided for in § 6(6) first sentence of the Federal Elections Act, which a political party must attain in order to be considered for the allocation of Bundestag seats to their Land list, is constitutional (cf. BVerfGE 122, 304 <314 f.> with further references). The five-percent threshold is justified through the constitutionally legitimate aim of ensuring the ability of Parliament to act and make decisions (cf. BVerfGE 82, 322 <338>; 95, 335 <366>; 95, 408 <419>; 120, 82 <111>; 129, 300 <323>). The legislator has discretion to determine whether the quorum applies to the electoral area as a whole or to the list constituencies. This means, in particular that an electoral law does not provide for offsetting of votes for a list in the entire electoral area, not that a quorum may only be applied to a list constituency (cf. BVerfGE 4, 375 <380>; 6, 84 <95>; 34, 81 <100>).

80

bb) The division of the electoral area into list constituencies that are identical to the Länder can lead to a de facto bar in smaller Länder that exceeds the statutory quorum laid down in § 6(6) first sentence of the Federal Elections Act. This would have been the case – regardless of whether one measures the de facto bar based on the threshold below which the distribution of seats is ruled out or the threshold above which the distribution of at least one seat is assured ([...]) – had § 6(1) first sentence of the Federal Elections Act been applied to the results in Bremen for the elections for the 17th German Bundestag ([...]). This differentiation affecting the success value of votes for certain Land lists over and above the threshold set by statute requires justification under the principles of equal suffrage and equal opportunities of political parties (cf. BVerfGE 13, 243 <247 f.>; 34, 81 <101>).

81

The additional adverse effect on the equality of success value among votes is justified under the principle of federalism. The division of the electoral area into list constituencies that are identical to the Länder is based on the division of Germany into federal states and the corresponding structures of the political parties. The interest in federalism hereby pursued is also sufficiently weighty to legitimate the unequal treatment associated with the de facto bar.

82

The legislator now accords more weight to the federal classification of votes than it has done previously and has reinforced the already existing electoral system according to Land lists ([...]). Unlike before, the organisation of political parties by Land list not only serves a purpose in preparing for and carrying out elections (cf. BVerfGE 121, 266 <305 f.>), it now also determines the system under the Federal Elections Act. In each Land, the list mandates are allocated among the respective parties that stood for election after the seat contingencies are determined (see para. 68 above).

83

In the interests of federalism, the legislator was allowed to adopt this additional differentiation in the success value of the votes cast for individual Land lists in smaller Länder compared to the statutory threshold. This is an inevitable effect of using the Länder as list constituencies, due to their varying sizes. As for electoral law options that could reduce such effect ([...]; additionally Constitutional Court of Bavaria, Bayerischer Verfassungsgerichtshof – BayVerfGH, Decision of 18 December 1975 - Vf. 1975 - VII/75 -, Neue Juristische Wochenschrift 1976, p. 615 <618>) the legislator was not constitutionally obligated to adopt them.  For two such options – changing the territory of the list constituencies or forming associations of constituencies – this follows merely from the fact that both run counter to the fundamental decision of the legislator to align the division of the electoral area with the federal structure. Conversely, allocating a guaranteed minimum number of seats to smaller Länder would cause greater differences in the success values of votes among the list constituencies, which would run counter to the goal of guaranteeing proportional representation not just in the Länder, but also to the greatest possible extent nationwide. Finally, abandoning the practice of combined lists – and therefore the option of adding up second votes that are insufficient for allocating a seat within an individual Land and transferring them to the federal level – is aimed at eliminating the negative voting weight that occurred under the prior electoral law and is thus intended to take into account the principles of equal suffrage and direct elections (cf. BVerfGE 121, 266 <307, 315>).

84

e) § 6(1) first sentence of the Federal Elections Act violates the principles of equal suffrage and direct elections and the equal opportunities of political parties, insofar as the formation of seat contingents among the Länder on the basis of the number of voters gives rise to negative voting weight. A procedure for the distribution of parliamentary seats on the basis of proportional representation may only give rise to this effect in rare exceptional cases (see aa) below). This is not true for the seat distribution procedure pursuant to § 6(1) first sentence in conjunction with § 6(2) of the Federal Elections Act (see bb) below).

85

aa) The distribution of seats to parties on the basis of the number of votes cast must not in principle lead to a situation where the seat total for a party has correlation to the number of votes cast for that party or for a competing party in a manner that runs counter to expectations (negative voting weight). It is true that a mathematically inevitable consequence of any distribution procedure (cf. also BVerfGE 95, 335 <372>) is that individual votes may not have a beneficial effect for a party. However, a seat distribution procedure that allows for an increase in votes to lead to a loss in seats, or that allows a party to obtain more seats when it either receives fewer votes or a competing party receives more votes, runs counter to the spirit and purpose of democratic elections (cf. BVerfGE 121, 266, <299 f.>). Such paradoxical interrelationships between votes cast and their success value not only impair equal suffrage and the equal opportunities of parties, they also violate the principle of direct elections, as it is no longer discernible to voters how their votes will affect the success or failure of the candidates (BVerfGE 121, 266 <307>). Statutory provisions that cause such effects outside of rare and unavoidable cases are not compatible with the Constitution (cf. BVerfGE 121, 266 <301, 308>).

86

bb) Due to the formation of seat contingents for the Länder on the basis of votes cast, the seat distribution procedure pursuant to § 6(1) first sentence in conjunction with § 6(2) of the Federal Elections Act can lead to situations in which second votes cast for the Land list of a party can have a negative effect, insofar as the party loses seats in another Land or another party wins seats. Conversely, it is also possible that not casting a vote helps a voter’s preferred party. This effect of negative voting weight is not justifiable under constitutional law.

87

(1) The interrelation between casting a vote and the success of that vote can be illustrated through scenarios in which the seat distribution procedure is applied to the results of previous Bundestag elections and alternative election results are generated through minimal changes to the total amount of second votes for individual Land lists ([...]).

88

For example, the party DIE LINKE would have received one additional seat overall in the elections for the 17^th German Bundestag, if a certain number of voters in Bavaria had not cast their second votes for the DIE LINKE Land list, as these voters would not have cast any vote at all ([...]). In this case, the Bavarian Land list for the party would have received six list mandates, unchanged from actual results, but the seat contingent of Bavaria would have been reduced by one seat (and would have reduced the list mandates of the CSU, but which, given its 45 constituency seats, would not have affected its overall number of seats) and the seat contingent of North-Rhine Westphalia would have increased by one seat. In North-Rhine Westphalia, this additional seat would have been distributed to the Land list of DIE LINKE.

89

The same effect could have occurred in the special election in Dresden constituency 160 in the elections for the 16^th German Bundestag (cf. BVerfGE 121, 266 <276 f.>). If 5,000 CDU voters had not just withheld their second vote, but abstained from the election altogether, then this would have resulted in the Land list of the party losing a list mandate (ten instead of eleven seats); however, this would have had no effect overall, because the regional association of the CDU in Saxony would have still won 14 constituency seats. Instead, the seat contingency for Saxony would have been reduced by one, with this additional seat going to Berlin. In Berlin, this additional seat would have been distributed to the CDU (giving them six instead of five seats), so that overall, the CDU would have received an additional mandate.

90

These examples demonstrate that the effect of negative voting weight depends on the fact that the seat contingents for the Länder are determined by the number of votes cast and not by a number determined before the election, such as population of the number of eligible voters. It is only when the loss of second votes is correlated with a reduction in the number of voters in that Land to such an extent that the seat contingent in that Land is reduced in favour of the seat contingent in another Land that the abovementioned interrelationship between casting a vote and the success of a vote occurs; otherwise, the loss of second votes would only have an effect in the specific Land where the loss of second votes occurred. This applies accordingly in the converse situation of an increase in second votes.

91

(2) The legislator cannot ignore the existence of negative voting weight.

92

(a) In determining whether the procedure for the distribution of parliamentary seats according to proportional representation can have such an effect, every factor whose influence on the result of the distribution is built into the electoral system must be considered. This applies to the number of voters in each respective Land (§ 6(1) first sentence Federal Elections Act) as a gauge for the formation of seat contingents for the Länder. The procedure for allocating the list mandates is designed in such a way that a gain or loss of second votes for a Land list can affect the allocation result of another Land, because the number of seats allocated to the respective Land ([…]) is linked to its respective voter turnout. The assumption underlying negative voting weight – namely, that if voters did not cast their second vote for a particular party, they would not have voted at all – is no less plausible than the assumption that these voters would have cast invalid votes or cast votes for a party that is not entitled to consideration pursuant to § 6(6) of the Federal Elections Act. A scenario in which voters take advantage of the negative component of the freedom to vote and do not cast a vote at all is just as possible and probable as a scenario in which voters cast their second votes for another party. This is demonstrated in particular through regular studies on changes in voter preferences conducted in the run-up to Bundestag elections, which have identified significant movements not only between parties, but also between voting and not voting ([...]). The legislator therefore cannot ignore the fact that a loss in second votes can be accompanied by a simultaneous reduction in the number of voters (and vice versa).

93

(b) Negative voting weight cannot be considered constitutional because it cannot be specifically foreseen or planned for and is unlikely to be influenced by the actions of an individual voter. The extent to which any of these premises apply need not be decided. This is because the objectively arbitrary election results make the democratic competition for votes among the electorate appear absurd (cf. BVerfGE 121, 266 <299>).

94

(c) The formation of seat contingents for the Länder according to the number of votes cast results in negative voting weight beyond rare and negligible cases. It can occur whenever an increase in second votes for a party’s Land list does not have an effect on the number of seats it receives – because the additional votes are not sufficient for the distribution of an additional seat or the Land list obtained more constituency mandates than list mandates –, but the increase in the number of voters resulting from the gain in second votes increases the seat contingent in the Land by one seat, which is then lost in this Land to a competing Land list or in another Land from the Land list of the same party. The same applies accordingly whenever a decrease in second votes for a party’s Land list does not have an effect on the number of seats it receives, but the associated decrease in the number of voters shrinks the seat contingent in the Land by one seat, which is then not awarded to a competing Land list in this Land or is awarded to the Land list of the same party in another Land.

95

The convergence of the various factors that cause negative voting weight can be expected with a considerable degree of probability. This effect comes into play when a change in the number of second votes correlates with a change in the number of voters. Mathematical analyses of the results of several Bundestag elections which vary the number of voters and the number of second votes cast for a particular Land list – that is, which compare the results that would have occurred under a premise that a certain number of voters for a particular party withdrew their second vote by not voting at all – allow for the conclusion that the negative voting weight caused by § 6(1) first sentence of the Federal Elections Act would have been approximately the same magnitude as the negative voting weight caused by the creation of overhang mandates under the previous electoral law ([...]). The applicants and complainants have plausibly demonstrated this effect through a number of examples, which have not been called into question by the authorised representatives of the German Bundestag and the Federal Government.

96

(d) Finally, negative voting weight is not an inevitable consequence of having proportional representation in combination with a candidate-centred element in the list constituencies. Such an electoral system does not necessitate a design whereby votes cast for one party may have the effect of disadvantaging that party or providing an advantage to another party, or whereby the failure to cast a vote might benefit the party supported. As described above, negative voting weight depends upon a change in the number of second votes in a Land being accompanied by a change in the number of voters, thereby causing parliamentary seats from shifting from one Land to another (cf. para. 87 ff. above). The legislator is not constitutionally prohibited from preventing this causal link in the electoral system by using population figures or the number of eligible voters, rather than the number of actual voters, to determine the number of parliamentary seats to be allocated to each Land. This is because the use of any factor to determine the seat contingents for the Länder that is not affected by the voting behaviour of the electorate would avoid the effect of negative voting weight in the allocation of the seats ([...]).

97

It is true that if the formation of the seat contingents is not based on the number of voters, differences in voter turnout among the Länder can result in votes having different success values when compared from Land to Land, which would impair the accuracy of proportional representation. However, this disadvantage is not so significant that it outweighs the massive impairment of equal suffrage and the equal opportunities for political parties that results from negative voting weight (cf. BVerfGE 121, 266 <307>). The legislator has relativised the goal of proportional representation – i.e. reflecting the political will of the electorate in Parliament as accurately as possible – in a constitutional manner in several different ways. Namely, it has made qualification for the seat distribution procedure dependent upon overcoming the five-percent threshold (§ 6(6) first sentence Federal Elections Act), accepted a de facto bar in excess of the statutory threshold for smaller Länder (cf. para. 80 ff. above) and has permitted overhang mandates in the case of an unsuccessful proportional reconciliation under § 6(4) of the Federal Elections Act (cf. para. 113 f. below). Furthermore, the actual weight of each vote depends upon the various circumstances in each respective election. Among these factors is voter turnout, which therefore does not have to be taken into account when establishing the equality of the success value of each vote in the statutory provision (cf. also BVerfGE 95, 335 <367>; 130, 212 <226 f.>).

98

2. The awarding of additional seats pursuant to § 6(2a) of the Federal Elections Act also violate the principles of equal suffrage and of equal opportunities of political parties. The provision does meet the requirement of sufficient specificity (see a) below). Nevertheless, it causes votes to be treated unequally in a manner that cannot be legitimated by a sufficiently valid reason (see b) below).

99

a) The legislator supplemented the seat distribution within the Länder pursuant to § 6(1) in conjunction with § 6(2) of the Federal Elections Act with the nationwide ‘residual vote valuation’ in § 6(2a) of the Federal Elections Act. This step is aimed at compensating differences in the measure of success among the Land lists of parties arising due to rounding losses in the allocation of seats among the 16 seat contingents by awarding additional seats (§ 6(2a) third sentence Federal Elections Act; BTDrucks 17/6290, p. 7 f., 15). In order to determine how many additional mandates a party will receive, those votes that were not successful in the distribution of seats within a particular Land because they were not sufficient to make up the number necessary to achieve the allocation of a seat (‘residual votes’) are identified for each Land list and then aggregated nationwide and divided by a nationwide average amount of votes necessary to achieve a seat; additional mandates are then awarded in the amount of the round number that thereby results (§ 6(2a) first sentence Federal Elections Act). The additional mandates are distributed with priority to the Land lists of those parties who have overhang mandates, and then in the order of the highest ‘residual votes’ (§ 6(2a) first and second sentence Federal Elections Act).

100

In this way, § 6(2a) of the Federal Elections Act satisfies the requirements of sufficient specificity (cf. para. 76 above). Through interpretation, it is possible to determine that in order to calculate the votes that were not successful, the product of the number of seats obtained by a party and the Hare quotient for each Land (the total number of second votes cast for a party entitled to obtain a list mandate divided by the number of seats allocated to the Land) must be subtracted from the total of second votes cast for the party’s Land list, while the divisor to determine the exactly proportional ‘remaining seats’ is the federal Hare quotient. This is expressed in each case by the phrase ‘required amount of second votes’ which, depending on the context, describes the ‘price’ to be paid for a seat in the respective Land, either from a Land list or as a national average (cf. also BTDrucks 17/6290, p. 15 f.). Based on the wording, the systematic placement in the seat distribution procedure as a whole and the aim of the provision, § 6(2a) of the Federal Elections Act is only intended to provide for the awarding of additional mandates – despite the rote possibility of repeating this step – once in the process.

101

b) The awarding of additional seats pursuant to § 6(2a) of the Federal Elections Act treats votes unequally in the seat distribution procedure and impairs the equal opportunities of political parties, without the justification of a specific reason that is objectively legitimate.

102

aa) The awarding of additional Bundestag seats outside of the proportional system means that each voter’s vote does not have the same prospects of success. The distribution of seats within the Länder pursuant to § 6(1) first sentence in conjunction with § 6(2) of the Federal Elections Act takes into consideration all second votes that have been validly cast for a Land list entitled to parliamentary seats and treats them, even those ‘residual votes’ that are not successful, legally the same (cf. BVerfGE 121, 266 <299 f.>). § 6(2a) of the Federal Elections Act then provides an unequal limited portion of votes a further chance to lead to a mandate and shapes the seat distribution procedure in such a way that every voter – ex ante – does not have the same legal possibility to influence the distribution of parliamentary seats – and therefore the political balance of power in Parliament – as every other voter (cf. BVerfGE 95, 335 <353, 371>). This differentiation in considering votes also impairs the equal opportunities of political parties (cf. para. 65 above).

103

bb) This unequal treatment of votes is not justified.

104

(1) This is first evident in the aim pursued by the legislator to balance the differences in success values arising through the seat distribution within the Länder pursuant to § 6(1) in conjunction with § 6(2) of the Federal Elections Act. The decision to counteract the losses in proportionality resulting from the delimitation of the electoral area into list constituencies by means of a nationwide proportional reconciliation is not in and of itself objectionable under constitutional law (cf. BVerfGE 13, 127 <128>). The allocation of additional seats pursuant to § 6(2a) of the Federal Elections Act is nevertheless unsuitable for achieving this aim.

105

A nationwide reconciliation of the cumulative rounding differences from the exact proportional number of seats of the Land lists, which result from the multi-step seat distribution procedure in the list constituencies according to the divisor procedure based on the Sainte-Laguë/Schepers method, requires that in every list constituency, both the losses and the gains due to rounding of the Land lists of a particular political party be identified, aggregated on a nationwide basis and then offset against one another. Such an offset of the losses and gains due to rounding would achieve a reconciliation of the success values of votes on a nationwide basis. Votes that have not yet been successful can lead to a mandate, while the comparatively greater success of previously overweighted votes is uno actu reduced to the extent possible.

106

§ 6(2a) of the Federal Elections Act does not fulfil these requirements for a nationwide proportional reconciliation and is therefore not suitable for achieving the aim of reconciling differences in success values arising from seat allocation within the respective Länder. In a one-sided manner, the provision only identifies losses incurred by a party’s Land lists due to rounding down in the 16 Länder, aggregates these on a nationwide basis, and then awards additional seats to the extent that the result yields a round number. Wins by a party’s Land lists due to rounding up are not taken into account by the rule. This has the consequence that votes that have so far been unsuccessful may, under certain circumstances, lead to a mandate, but the comparatively greater success of the previously over-weighted votes remains unchanged. A reconciliation of the differences in success value among the Länder that result from the seat allocation in 16 calculations according to the divisor procedure based on the Sainte-Laguë/Schepers method is not thereby realised; additional seats are not generated in order to attain equality of success value, but in deviation from it.

107

(2) § 6(2a) of the Federal Elections Act is not justified by the aim of compensating for the de facto bar that arises due to the division of the electoral area into list constituencies for smaller Länder that exceed the statutory quorum laid down in § 6(6) first sentence of the Federal Elections Act (cf. para. 78 ff. above). This follows from the mere fact that the provision is not aligned with achieving this aim. Additional seats are not given in a targeted manner to parties whose Land lists are affected by the de facto bar in excess of the statutory quorum, but instead in principle to any party depending on their fortune or misfortune in the rounding process in the Länder. The additional seats are not prioritised for those Land lists that experienced a higher de facto bar, rather, they are first given to the Land lists with overhang mandates and then in the order of the highest ‘residual votes’.

108

cc) Finally, § 6(2a) of the Federal Elections Act is not suitable for reconciling inequalities in the success value of votes that are associated with the allocation of overhang mandates. The provision’s attempt to use a valuation of residual second votes to fill overhang mandates, thereby making them seem proportional, falls short, as the fact that only those votes that are unsuccessful due to rounding losses are considered without any reciprocal offset of rounding gains means that additional mandates are created disproportionately.

109

3. § 6(5) of the Federal Elections Act violates the principles of equal suffrage and the equal opportunities of political parties to the extent it permits the uncompensated accrual of overhang mandates to such an extent that the fundamental character of the Bundestag election as a proportional representation election is negated. This is the case if the number of overhang mandates make up more than roughly half the number of seats needed to form a parliamentary group.

110

a) The constitutional assessment of § 6(5) of the Federal Elections Act must be based on the assumption that, as a result of the offset of seats won by a party in the Land constituencies from the seats allocated to the Land list pursuant to § 6(4) of the Federal Elections Act, the electoral system created by the legislator has the fundamental character of proportional representation.

111

aa) In accordance with § 1(1) first sentence of the Federal Elections Act, members of the German Bundestag are elected according to the principles of proportional representation with a candidate-centred element. The combination of a candidate-centred and proportional representation election in federal elections results in each voter having two votes pursuant to § 4 of the Federal Elections Act. The candidate-centred element is expressed through the election of 299 members, or half of all members, with the first vote in constituencies according to the principle of majority vote (§ 1(2), § 4 first half-sentence, § 5 Federal Elections Act). With the second vote, the other 299 members are elected from the candidates proposed by the political parties (the Land lists) in electoral districts that are identical to the boundaries of the respective Länder according to the principles of proportional representation (§ 1(2), § 4 second half-sentence, § 27(1) first sentence Federal Elections Act).

112

The relationship between the first and second votes are governed by §§ 5 and 6 of the Federal Elections Act, which determine how seats in the German Bundestag are distributed. Pursuant to § 6(1) first sentence in conjunction with § 6(2) of the Federal Elections Act, the total number of seats in the Bundestag to be distributed among the Land lists of the parties according to the number of second votes received according to the divisor procedure based on the Sainte-Laguë/Schepers method – minus those seats awarded pursuant to § 6(1) second sentence of the Federal Elections Act – allocated among the Land lists of the parties – is 598. Parties who receive less than 5 percent of the second votes cast in the electoral area or do not win at least three constituency seats are not considered in this allocation. The number of list mandates is reduced by offsetting the number of constituency seats won by a party’s candidates against the seats allocated to the party in the respective Land; the party’s remaining seats are filled from the Land lists in the order set forth therein (§ 6(4) Federal Elections Act). By offsetting the number of constituency seats against the seats distributed to the Land lists, the total number of seats is in principle – irrespective of the initial candidate-centred election – allocated among the party lists according to the proportion of the total amount of second votes received (cf. BVerfGE 95, 355 <355 f.>), while the first vote in principle only decides which persons will be elected to the Bundestag as constituency members (cf. BVerfGE 121, 266 <273>). In this way, it is ensured that each voter can in principle only have one opportunity to influence the numerical composition of Parliament with their vote (cf. BVerGE 79, 161 <167>; 95, 335 <375>).

113

bb) However, the chosen form of combining proportional representation with the candidate-centred element means that offsetting the constituency seats against the list seats cannot and is not intended to always result in full proportionality in the distribution of seats within the meaning of the principle of proportional representation. The legislator made it clear in § 6(5) first sentence of the Federal Elections Act that the seats won by a party in the constituencies of the respective Land remain with that party. If the goal of achieving proportional reconciliation through the calculations pursuant to § 6(4) first sentence Federal Elections Act is not met because the number of seats that should be allocated to a Land list according to the proportion of the total amount of second votes is insufficient to allow for all constituency seats won to be offset, then the total number of seats in the Bundestag is increased by the difference (§ 6(5) second sentence Federal Elections Act); these are overhang mandates beyond the proportional distribution of seats.

114

The electoral system created by the legislator is designed to retain the results of the initial candidate-centred election without avoiding or neutralising the associated distortions to the proportional shares (cf. BVerfGE 95, 335 <356 f.>). The legislator has prioritised the goal of allowing voters to elect specific candidates in a proportional representation system without restrictions over ensuring that the distribution of seats corresponds as closely as possible to the proportion of second votes cast.

115

cc) In its established case-law, the Federal Constitutional Court has assumed that, notwithstanding the direct election of constituency candidates according to the principle of majority rules, the fundamental character of federal elections is that of proportional representation, due to the proportional reconciliation (§ 6(4) Federal Elections Act) in the second step of the seat allocation process (cf. BVerfGE 6, 84 <90>; 13, 127 <129>; 16, 130 <139>; 66, 291 <304>; 95, 335 <357 f.>; 121, 266 <297>).

116

b) In accordance with its finding that federal elections are based on proportional representation, the Federal Constitutional Court has consistently ruled that the distribution of overhang mandates outside of the proportional distribution of regular seats must be reviewed according to the requirement of the equality of the success value among votes (see aa) below). The Senate affirms this case-law (see bb) below).

117

aa) Regardless of the question of whether the allocation of a larger number of uncompensated overhang mandates is constitutionally permissible (see para. 127 ff. below), all of the decisions of the Federal Constitutional Court regarding overhang mandates have assumed from the outset that the notion of equal elections ‘is not fully realised’ when the Federal Elections Act permits uncompensated overhang mandates (cf. BVerfGE 7, 63 <74>); it results in a differentiation in voting weight between voters whose parties have not attained overhang mandates, and voters whose parties have attained them. This inequality can only be accepted insofar as it is necessary in order to give effect to the candidate-centred element of the elections; this element serves to ensure that at least half of the members of the Bundestag have a close personal connection to their constituency (cf. BVerfGE 7, 63 <74>; 16, 130 <139 f.>; 79, 169 <171>; 95, 335 <358>).

118

None of the prior decisions have ruled on the constitutionality of the rule in § 6(5) of the Federal Elections Act in general and abstract terms, that is, for every conceivable future case of the distribution of overhang mandates. Instead, the assessment was limited to whether the amount of differentiation in the success value of votes in the respective specific situations was justified; in doing so, the limits imposed by the principle of equal suffrage were applied in all of these cases (cf. BVerfGE 7, 63 <74 f.>; 16, 130 <139 f.>; 79, 169 <172>; 95, 335 <360 f.>). As for the question of where exactly the constitutional limit for overhang mandates lies, no uniform answer can be derived from the past decisions of the Federal Constitutional Court. While the decisions of 3 July 1957 (BVerfGE 7, 63 <75>) and 24 November 1988 (BVerfGE 79, 169 <172>) did not see any reason to establish a more precise limit because the number of overhang mandates involved would remain within permissible limits in any case (cf. BVerfGE 95, 335 <383>), the order of 22 May 1963 assumed that overhang mandates were subject to ‘a constitutionally permissible minimum’ (BVerfGE 16, 130 <140>). By contrast, the judgment of 10 April 1997 posited that the number of overhang mandates must be kept to a minimum amount that does not negate the fundamental character of federal elections as a proportional representation election based on the votes cast for the parties (BVerfGE 95, 335 <361>), without, however, calling into question the underlying assumption that there is a differentiation in the success value of the votes cast (cf. BVerfGE 95, 335 <358, 360 f.>).

119

bb) The Senate affirms this case-law. Overhang mandates result from subtracting the constituency mandates from the list mandates pursuant to § 6(4) first sentence in conjunction with § 6(5) of the Federal Elections Act (see (1) below). The associated deviation from the principle of equality of success value requires justification (see (2) below).

120

(1) Pursuant to § 6(4) first sentence of the Federal Elections Act, the number of constituency seats won by a party on the basis of majority vote (§ 5 first and second sentence Federal Elections Act) are subtracted from the number of seats allocated to the respective Land It is only to the extent that this subtraction is not possible, because the number of constituency mandates won is greater than the number of list mandates, that the party retains the difference as overhang mandates (§ 6(5) Federal Elections Act). Consequently, overhang mandates are the result of an offsetting procedure that is conceptually designed to allocate the total number of seats to party lists based on the proportion of second votes cast but which cannot be fully completed (cf. para. 111 f. above).

121

(2) The proportional reconciliation pursuant to § 6(4) first sentence of the Federal Elections Act is subject, without limitation, to the general requirements of the equality of success value (cf. BVerfGE 1, 208 <246 f.>; 6, 84 <90>; 95, 335 <386>). It is only through the assumption that the electoral system as a whole is characterised by the principle of proportional representation and is subject to the applicable requirements of equality of success value that the standards used in the established case-law in assessing differences in constituency size (cf. BVerfGE 16, 130 <139 f.>; 95, 335 <363>; see also Federal Constitutional Court, Order of the Second Senate of 31 January 2012 loc. cit. p. 622 <623>), which would have to be considerably stricter if the electoral system were fundamentally a majority vote system, can be explained.

122

Nor does the judgment of the Federal Constitutional Court of 10 April 1997 (BVerfGE 95, 335 <358>) allow for a different conclusion. The Justices who formed the majority on this decision did not exclude the proportional reconciliation, insofar as it is not possible to be fully completed, from the requirement of equality of success value. Rather, they found that the fact that the electoral system created by the legislator is designed to retain the results of the initial candidate-centred election without restoring the proportional shares (cf. para. 113 f. above has a justificatory effect on the differentiation in success values.

123

c) The awarding of overhang mandates without compensation or offsetting treats votes unequally in the seat distribution procedure (see aa) below) and impairs the equal opportunities of political parties (see bb) below). This differentiation is reflected in the composition of Parliament (see cc) below).

124

aa) The occurrence of overhang mandates results in a differentiation in the success values of the votes cast. Due to the proportional reconciliation that is carried out by offsetting constituency seats against the list seats to be allocated to a party, each voter can in principle only have one opportunity – through their second vote – to influence the proportional composition of Parliament. In contrast, the first vote has no effect on the distribution of mandates to political parties (cf. BVerfGE 79, 161 <167>). However, when a party gains an overhang mandate, this means that voters who have cast their first vote for that party’s constituency candidate allowed the party to gain more direct seats than can be deducted from the seats won for the respective party lists. As a result, the proportional representation of parties, as calculated on the basis of second votes, is distorted. In this way, not just second votes, but also first votes can influence the political composition of the Bundestag. Since this effect only applies to voters who cast their first vote for a constituency candidate whose party gained overhang mandates in the relevant Land, the equality of success value of the votes is impaired. It is true that each voter has an equal chance to belong to those groups of voters whose votes have a stronger influence on the political composition of Parliament than other voters. However, even when viewed ex ante, there is no guarantee that all voters will be able to exert equal influence on the distribution of seats through their votes.

125

bb) The right of political parties to equal opportunities is also impaired by the existence of overhang mandates. This right is only secured if each political party requires approximately the same number of votes – within the scope of the rounding deviations inevitably associated with a seat distribution procedure based on proportional representation – to win a seat. A party that gains uncompensated overhang mandates is essentially allocated more seats in relation to its share in second votes than would be the case for parties without such an uncompensated overhang in constituency mandates (cf. BVerfGE 79, 169 <172>; 95, 335 <359, 389 f.>).

126

cc) The differentiation in the consideration of votes is reflected in the composition of Parliament, as a compensation or offsetting of the overhang mandates is not provided for in the law. Pursuant to § 6(5) first sentence of the Federal Elections Act, a party keeps all its direct constituency seats even where they exceed the number of seats allocated to that party according to the result of the second vote. In this case, the statute expressly provides that the total number of seats in Parliament shall increase by the amount of the difference, without restoring the proportional shares (§ 6(5) second sentence Federal Elections Act).

127

d) The unequal weighting of votes that results from the allocation of uncompensated overhang mandates is justified in principle by the constitutionally legitimate aim of having a system of proportional representation combined with a candidate-centred element, which is designed to allow voters to cast their vote for a specific person even though the electoral system as such operates on the basis of proportional representation (see aa) below). However, the leeway to design accorded to the legislator in this regard is restricted by the fundamental character of federal elections as proportional representation elections (see bb) below). The constitutional limit on the allocation of uncompensated overhang mandates is exceeded when overhang mandates in excess of roughly half the number of mandates needed to form a parliamentary group are to be expected (see cc) below).

128

aa) The differentiation of the success value of votes associated with the allocation of uncompensated overhang mandates is not justified by reasons that are constitutionally legitimate and as least as weighty as the principle of equal suffrage. It is not sufficient that the risk of the existence of overhang mandates is inherent in the system chosen by the legislator (see (1) below). The aspect of federal proportionate shares (see (2) below) or the potential for overhang mandates to result in securing a majority in Parliament also cannot provide justification (see (3) below). The existence of uncompensated overhang mandates can nevertheless be justified to a limited extent by the special consideration of having an electoral system that combines proportional representation with a candidate-centred element (see (4) below).

129

(1) The fact that the existence of these additional seats is inherent in the electoral system of proportional representation with a candidate-centred element chosen by the legislator (cf. para. 113 f. above), is not, in and of itself, sufficient to justify the differentiations caused by overhang mandates. The fact that the legislator considers that treating the votes of one group of voters differently from those of other voters in certain constellations of the seat distribution it has designed is unavoidable does not render justification of this differentiation in terms of electoral equality dispensable. If the unequal treatment cannot be justified by special, constitutionally legitimate reasons, then the decision to adopt such a system is flawed.

130

(2) The requirement of federal proportional shares among the Land lists of a party does not justify the allocation of uncompensated overhang mandates. In designing the electoral process, the legislator is permitted to take the federal organisation into consideration (cf. para. 55 f. above) and has done so to a certain extent (cf. as to § 6(1) Federal Elections Act para. 78 ff. above). However, overhang mandates are not suitable to maintain the relative weight of the Land lists of a party; on the contrary, they can disrupt the federal proportional shares. This is because overhang mandates that are not compensated result in the overrepresentation of Land lists that receive such mandates in comparison to other Land lists (cf. BVerfGE 95, 335 <401>).

131

(3) The allocation of uncompensated overhang mandates cannot be justified by their potential to secure a majority in Parliament. It is true that the goal of elections in bringing about a functional Parliament is a constitutionally legitimate reason for differentiations in the success values of votes, insofar as this is absolutely necessary to create or ensure a stable majority (cf. BVerGE 120, 82 <111>; 129 <320 f.>). Nevertheless, the allocation of overhang mandates is not suitable to achieve this goal. In individual cases, overhang mandates could secure a parliamentary majority if the majority parliamentary group or groups attain an overhang that results in a – possibly small – increase in their majority of seats in Parliament. However, the reverse could also occur, whereby one or more parties achieve their – possibly small – majority of seats solely due to the allocation of overhang mandates. Thus, there is not a sufficient causal link between the existence of overhang mandates and ensuring a stable parliamentary majority.

132

(4) The discrepancy in the success value of votes which results from the possibility of uncompensated overhang mandates can nevertheless be justified to a limited extent by the particular aim of having an electoral system of proportional representation in combination with a candidate-centred element.

133

(a) The electoral system that combines proportional representation with a candidate-centred element aims to allow voters to cast their vote for individual persons even though the system as such is based on the proportional allocation of seats to party lists. This aim is recognised as a legitimate interest under constitutional law. By adopting this electoral design, the legislator intended to strengthen the connection between voters and members of the Bundestag as the elected representatives of the people and at the same time to provide for a corrective element, reflected in the independent status of members of the Bundestag (Art. 38(1) second sentence of the Basic Law), to moderate the dominant role assigned to political parties in the formation of the political will of the people (Art. 21(1) first sentence of the Basic Law) to some extent. The candidate-centred element in the form of constituency mandates serves to ensure that at least half the members of the Bundestag have a closer personal connection to their constituency (cf. BVerfGE 7, 63 <74>; 16, 130 <140>; 41, 399 <423>; 95, 335 <358>). This goal can only be achieved when the successful candidate in the constituency receives a seat even if the seat contingent allocated to the Land list of their party is not sufficient to compensate for the constituency mandate (cf. BVerfGE 95, 335 <394>).

134

(b) The aim pursued with this electoral design is sufficiently weighty to justify the allocation of uncompensated overhang mandates, at least to a limited extent (cf. BVerfGE 7, 63 <74 f.>; 16, 130 <140>; 95, 335 <360 f.>).

135

The legislator has chosen an electoral system that takes into account both the interest in a candidate-centred element as well as the goal of a proportional representation election in which all parties are represented in Parliament in proportions that are as close as possible to the votes cast. Neither of these two constitutionally legitimate goals can be fully achieved within this system. It is true that the differentiation in the success value of votes cast caused by the overhang mandates is not necessarily a consequence of having a proportional representation system with a candidate-centred element, because the discrepancy in proportional representation resulting from incomplete reconciliation of the proportional shares could be restored, for example, by allocating compensatory seats (cf. BVerfGE 95, 335 <394 f.>). However, fully implementing the goal of proportional representation would entail an increase in the number of seats in the Bundestag that cannot be predicted in detail, which – apart from the associated practical problems – would mean that its composition would not achieve the goal of having half of the members being personally elected, and impair the federal proportional shares.

136

The interest in a candidate-centred element and the goal of having near-complete proportionality in proportional representation elections exist in a state of tension, which can only be resolved by the legislator balancing both principles. Within the scope of its leeway to design, the legislator may in principle subordinate the interest in a proportional distribution of the total number of seats and permit overhang mandates without restoring proportional shares.

137

bb) However, the extent to which the allocation of uncompensated overhang mandates results in different success values being attributed to votes must be in keeping with the underlying legislative concept (cf. BVerfGE 95, 408 <421>). The allocation of Bundestag seats to a party beyond its proportional share in second votes must not negate the fundamental character of the electoral system, which is that the distribution of seats in Parliament is ultimately determined, in terms of proportional representation, by the results of the votes cast for party lists in the elections (cf. BVerfGE 95, 335 <361, 365 f.>). It is primarily left to the legislator to determine the acceptable number of overhang mandates and the rules on how to proceed with regard to the overhang mandates that exceed the legal limits and, if no such rules can be found, to consider alternatives to the current electoral system.

138

(1) Uncompensated overhang mandates generally must not call into question the legal requirement pursuant to § 6(4) first sentence of the Federal Elections Act that proportional reconciliation is the norm. Otherwise, there is a risk that the function of elections as an integrative process for the formation of the political will of the people will be impaired, because of the danger that voters will lose trust in the value of the second vote, which is decisive for the composition of Parliament, and thus also in the democratic integrity of the electoral system. Additionally, the standard of § 3(1) first sentence no. 3 of the Federal Elections Act, according to which the size of constituencies can deviate no more than 25% from the average population size, is only justified when uncompensated mandates are allocated to a limited extent only (cf. BVerfGE 16, 130 <139 f.>; 95, 335 <363>; 130, 212 <226>). Otherwise, those members of Parliament elected by majority vote, despite the conditions for equality (see para. 59 ff. above) not being met due to the considerable differences in the size of the constituencies, could gain decisive influence in the German Bundestag.

139

(2) Because overhang mandates affect the principle of equal suffrage and the equal opportunities of political parties, the legislator is obliged to review whether the constitutional justification of this rule is being called into question through changes to the factual or normative basis on which it is premised and change the electoral law if necessary (cf. BVerfGE 95, 335 <365 f.>).

140

cc) With regard to when the legislator is obliged to change the rule on overhang mandates due to changes to the factual or normative circumstances, the Senate did not set a numerical value in its judgment of 10 April 1997, but merely identified the five-percent-quorum as a possible basis (cf. BVerfGE 95, 335 <365 f.>). In view of the need to provide a reliable legal basis for the upcoming Bundestag elections and not to expose them to the risk of being dissolved in electoral scrutiny proceedings due to the lack of necessary regulations, the Senate finds it necessary to consolidate the existing legal assessments into a workable standard that can be used as a basis by the legislator. Equal suffrage and the equal opportunities of political parties are violated when uncompensated overhang mandates make up more than roughly half the number of mandates needed to form a parliamentary group.

141

(1) Overhang mandates are only compatible to a limited extent with the character of elections as proportional representation elections. If they regularly occur in larger numbers, this conflicts with the fundamental decision of the legislator (cf. BVerfGE 95, 335 <365 f.>). If this is the case, then – contrary to the view of the Senate majority expressed in the decision of 10 April 1997 (cf. BVerfGE 95, 335 <366>) – [the allocation of overhang mandates] cannot be determined solely on the basis of the five per cent quorum (§ 6(6) first sentence Federal Elections Act). This is justified by the assumption that the entry of so-called splinter parties into Parliament would impair its ability to function (cf. most recently BVerfGE 129, 300 <323>). This aspect is not related to the question to be answered here: guaranteeing equal suffrage and equal opportunities of political parties. However, the German Bundestag applies an equivalent quorum in regard to the formation of parliamentary groups, and only grants parliamentary group status to associations comprising at least five per cent of the members of the Bundestag (cf. § 10(1) Bundestag Rules of Procedure, Geschäftsordnung des Deutschen Bundestages). Parliamentary groups are critical to the formation of the political will and perform a number of tasks in Parliament (cf. BVerfGE 80, 188 <219 f.>; 112, 118 <135 f.>). If the number of overhang mandates is sufficient to form a parliamentary group, then they would essentially be accorded the weight of an independent political force in Parliament.

142

(2) With the Nineteenth Amending Act, the legislator affirmed its intention to reduce the influence that the first vote has on the distribution of list mandates, in that it introduced rules to address the case of the ‘Berlin second votes’, such that second votes cast by voters who gave their first vote to a candidate who was successful in a constituency, but who was nominated by a party that failed to clear the five percent electoral threshold, are not taken into account in the distribution of list seats (§ 6(1) fourth sentence Federal Election Act). At the same time, with the distribution rule pursuant to § 6(2a) of the Federal Election Act, the legislator emphasised that the number of disproportionate overhang mandates must be minimised, with that provision stipulating that overhang mandates are to be allocated primarily to those Land lists where the overhang has arisen.

143

(3) Against this backdrop, the Senate finds that there is no longer an appropriate balance between ensuring that the allocation of seats in Parliament is as close as possible to a proportional representation of second votes on the one hand and the interest in keeping all direct mandates gained by constituency candidates on the other if the number of overhang mandates is more than roughly half the number of seats needed to form a parliamentary group. This figure corresponds to the quota permitted by the Senate in its judgment of 10 April 1997 of 16 overhang mandates from a total number of regular members of 656, and as to which the Senate assumed at the time that a further significant increase in overhang mandates was not foreseeable (cf. BVerfGE 95, 335 <366 f.>).

144

The Senate is aware that complete reasons cannot be given for the figure of 15 overhang mandates as an act of judicial rulemaking. The Federal Elections Act does not establish an electoral system in its pure form, whose gaps can be filled in pursuit of the fundamental principles that characterise the system, but rather incorporates various interests. Although balancing these interests is primarily the responsibility of the process of the formation of the political will in the legislative procedure, in special cases, it is the task of the Federal Constitutional Court to specify the requirements of equality law for the seat distribution system in such a way that the legislator can design the right to vote on a reliable constitutional basis and, as a result, minimise the risk of the Bundestag being dissolved in electoral scrutiny proceedings due to insufficient legal specification.

145

e) Since the Senate’s decision of 10 April 1997, circumstances have arisen in which it can be assumed with substantial probability that overhang mandates will regularly occur in large numbers, such that, in order to ensure equal suffrage, the electoral law must be supplemented with provisions prohibiting an excess number of overhang mandates that would distort the fundamental character of elections as proportional representation elections. The number of overhang mandates expected for the upcoming elections to the German Bundestag is considerably over the permissible maximum limit of roughly 15 seats (see aa) below). The legislator is therefore obliged to act (see bb) below).

146

aa) Even though the specific effects of the causal factors for the occurrence of overhang mandates are difficult to predict, in considering the current developments with regard to overhang mandates (see (1) below) as well as the factors that can lead to such mandates, it can be expected that the number of overhang mandates will significantly exceed the acceptable level for the foreseeable future (see (2) below).

147

(1) In total, only 17 overhang mandates were allocated for the first through the eleventh legislative periods. Since reunification, the number of overhang mandates had significantly increased and most recently has reached a considerable level. In the first election in reunified Germany in 1990 there were six overhang mandates allocated; that number increased to 16 in the elections for the Bundestag in 1994. While this level was not exceeded in the elections in 1998 and 2002, which had 13 and 5 overhang mandates, respectively, the elections of 2005 saw a return to this level. In the Bundestag elections of 2009, the highest number of overhang mandates, 24, was recorded.

148

(2) A reversal of this general upward trajectory is not expected in the foreseeable future. The sustained increase in the number of overhang mandates corresponds with the changes in the factors that lead to their occurrence.

149

The causes for the occurrence of overhang mandates are complex and multi-layered. An increase in overhang mandates results when there are a large number of sparsely populated constituencies in a Land, as well as when there is an above-average proportion of residents who are not eligible to vote in the constituencies, a below-average voter turnout or an above-average number of invalid second votes in a Land (cf. BVerfGE 95, 335 <367>; [...]). Additionally, overhang mandates often occur when the number of direct mandates won by a party does not correspond to the number of second votes received. This is the case, for example, when a party with a relatively poor result in the second vote wins its direct mandates with narrow majorities in the constituencies. Such results are favourably influenced by, among other things, having a larger number of parties overcome the electoral threshold, because the share of second votes allocated to the individual parties then decreases statistically. Further, when voters engage in vote splitting, then the results of the first and second votes can often lead to favourable conditions for overhang mandates (cf. BVerfGE 95, 335 <367>).

150

In light of these factors, it must be assumed that the number of overhang mandates will exceed the permissible maximum limit for the foreseeable future. In particular, since the elections in 1990, five rather than four parties have been represented in the German Bundestag. This has had the effect of reducing the second vote totals of each party. At the same time, the political parties CDU, CSU and SPD, each of which have received numerous overhang mandates since 1990, have continued to win the vast majority of constituency mandates. There are no indications that this trend will reverse and that the Bundestag will return to a smaller number of parties. On the contrary, recent surveys suggest a development in the other direction. It is also assumed in the scholarly literature that, in the future, the number of overhang mandates will continue to increase in an amount comparable to the most recent elections ([...]).

151

bb) In view of the circumstances described above, the legislator is obliged by the Constitution to enact provisions to safeguard equal suffrage and equal opportunities of the political parties with regard to the allocation of overhang mandates. It is true that the legislator is not required to take the current circumstances into account if these are insignificant, or temporary in nature or scope and may instead base its decision on whether an observable trend is establishing itself (cf. BVerfGE 16, 130 <141 f.>; 130, 212 <228>). Unlike the exceptional situation after the first election in reunified Germany, for which it was permissible for the legislator to wait and observe how circumstances would further develop (cf. BVerfGE 95, 335 <406>), in the meantime, it has become quite clear that the political circumstances have permanently changed and, as a result, the occurrence of overhang mandates in large numbers on a regular basis is to be expected. It is true that the legislator did not need to view itself as compelled to take action in response to the five percent threshold identified by the Senate as point of orientation [for overhang mandates] (cf. BVerfGE 95, 335 <366>), even in light of the results of the 2009 Bundestag Nor did the Senate’s decisions on negative voting weight (BVerfGE 121, 266 <315>; 122, 304 <310 f.>) require the legislator to enact new legislation. This, however, does not change anything with regard to its duty to act after the constitutional requirements of equality laid down in this decision have been specified.

III. 

152

The other provisions concerning the seat distribution procedure that are challenged by the applicants and complainants in judicial review proceedings are not objectionable under constitutional law. In particular, neither § 6(3) (see 1. below) nor § 6(4) fourth sentence (see 2. below) of the Federal Elections Act lead to negative voting weight.

153

1. The guarantee of the majority clause in § 6(3) of the Federal Elections Act easily allows for an interpretation that avoids a relationship between the casting of votes and the success of a vote in which the number of seats a party wins in comparison with the amount of second votes it receives does not match expectations.

154

a) The complainants are of the view that § 6(3) first sentence of the Federal Elections Act references inconsistent terminology with regard to the factual elements and the legal consequences. They contend that while the factual elements (‘not more than half of the seats to be allocated’) permit fractional numbers, the prerequisite for a seat (‘one seat more than half of the seats to be allocated’) is calculated in whole numbers. This discrepancy, they argue, can lead to a situation in which a party initially receives 301 of 601 seats and therefore cannot benefit from § 6(3) first sentence of the Federal Elections Act, which is a worse result than when a party – as a result of a lower total of second votes – initially receives only 300 of 600 seats, but then, by an interpretation of the guarantee of the majority clause according to its exact wording, nonetheless receives 302 of 602 seats. This, they contend, constitutes negative voting weight.

155

b) The complainants’ objection is not meritorious. The wording of the guarantee of the majority clause easily allows for an interpretation that avoids such a relationship between the casting of votes and the success of a vote.

156

For both the factual elements and the legal consequences, § 6(3) first sentence of the Federal Elections Act uses the phrase ‘half of the seats to be allocated in the electoral area’. In order for the legal consequences to take effect, a party must receive no more than half of the seats to be allocated nationwide, despite receiving more than 50% of the second vote cast nationwide. As seats can only exist in whole numbers, and not in fractions (cf. § 6(2) and (4) Federal Elections Act), this requirement can only refer to whole seats. If this constituent element is satisfied, then the provision requires as a legal consequence that additional seats be allocated to the political party until it receives more than half of the seats to be allocated nationwide. Also in this respect, it can only refer to whole seats.

157

In light of this, § 6(3) first sentence of the Federal Elections Act can readily be interpreted such that the term ‘half’ with regard to both the constituent elements and the legal consequences refer to the total amount of seats before any increase pursuant to § 6(3) second sentence of the Federal Elections Act. Once the additional seat has been allocated, the condition for the legal consequences is fulfilled, meaning that the negative voting weight claimed by the complainants cannot occur. This understanding of the provision corresponds to the legislative concept otherwise present in § 6 of the Federal Elections Act, pursuant to which mathematical corrections should only be done once.

158

2. Nor does § 6(4) fourth sentence of the Federal Elections Act as such – despite the incompatibility of § 6(1) first sentence of the Federal Elections Act with the Basic Law (see para. 84 ff. above) – lead to negative voting weight.

159

This provision provides that, in a case where Land lists receive more seats as a result of their second vote result than the number of candidates nominated, these seats will remain vacant. Pursuant to § 1(1) first sentence of the Federal Elections Act, in such a case the total number of seats is reduced by the number of seats remaining vacant ([...]); there are no other legal consequences. With regard to the negative voting weight claimed by the complainants, this means: If a Land list does not have sufficient candidates to fill all the seats it has been allocated, then an increase in votes for this Land list will not lead to more mandates who could additionally join the German Bundestag through the Land list, because there are no candidates. However, this effect is not linked with a loss of seats for another Land list. The seat contingents for the Länder do not change simply because seats allocated to a Land list remain vacant. A relationship between the casting of votes and the success of a vote in which the number of seats a party wins in comparison with the amount of second votes it receives does not match expectations therefore cannot occur.

D. 

160

The application in Organstreit proceedings is well-founded. By adopting the Nineteenth Amending Act, the German Bundestag violated the rights to equal opportunities (Art. 21(1), Art. 38(1) of the Basic Law) of both the applicants and the other parties in the Organstreit proceedings.

E. 

161

The application for judicial review and the constitutional complaints result in a determination of the unconstitutionality of the seat distribution procedure in § 6 of the Federal Elections Act as set forth in No. II of the operative part of the judgment. Pursuant to § 78 first sentence and § 95(3) first sentence of the Federal Constitutional Court Act, the incompatibility of the rule in § 6(1) first sentence and (2a) of the Federal Elections Act results in a determination of voidness. With regard to § 6(5) of the Federal Elections Act, the provision is merely determined to be incompatible with the Basic Law, as there is a possibility for the legislator to render the provision constitutional through additional provisions: until this is done, the provision is not applicable.

162

As a result of these determinations, effective rules for the seat distribution procedure for the elections to the German Bundestag are lacking. The provisions applicable prior to the Nineteenth Amending Act entered into force and thereby replaced or modified shall not be revived. Such a revival of legal provisions due to the voidness of an amending act (cf. BVerfGE 102, 197 <208>; 104, 126 <149 f.>) is ruled out here precisely because the Federal Constitutional Court has previously determined the previous seat distribution procedure to also be unconstitutional in large part and declared that they were only to be applicable for a limited time period, which has since expired (cf. BVerfGE 121, 266 <314 ff.>). In addition, the rules concerning overhang mandates in § 6(5) of the Federal Elections Act are of central importance for the seat distribution procedure, the result being that, due to its inapplicability, the application of the previous electoral law provisions would govern electoral law in a manner not intended by the legislator.

F. 

163

[…]

164

The decision was unanimous.