Summary:

I. The applicant challenged the validity of the 2013 Bundestag election in proceedings for the scrutiny of elections pursuant to Article 41.2 of the Basic Law in conjunction with § 13 no. 3, § 48 of the Federal Constitutional Court Act. His electoral complaint was directed against the statutory five-percent clause establishing an election threshold (first sentence of § 6.3 of the Federal Elections Act – Bundeswahlgesetz); the legislative decision to refrain from introducing a so-called contingent vote (Eventualstimme); and the “concealed financing of electoral campaigns by way of channelling state funding to political parties represented in the Bundestag via their parliamentary groups, the staff working for members of the Bundestag and the political foundations affiliated with the respective parties”. The applicant claimed a violation of the principles of equal suffrage and of equal opportunities for political parties, submitting that this has had a significant impact on the 2013 election and violated his “fundamental right to electoral equality”.

II. The Federal Constitutional Court found the electoral complaint to be inadmissible to the extent that it was directed against state funding available to political foundations and parliamentary groups. For the rest, the electoral complaint was held to be unfounded.
The Court based its decision of inadmissibility on the following considerations:
As regards activities of political foundations in relation to the 2013 election, the applicant failed to substantiate specific circumstances establishing any potential influence on the electoral process or results. The applicant’s arguments are rooted in the generalised assumption that political parties and the foundations affiliated with them ought to be viewed as a “unit by virtue of cooperation”. This view, however, disregards the Court’s established case-law according to which political foundations, in principle, carry out their statutory tasks with sufficient independence from political parties in terms of organisational structure and personnel. Consequently, general grants benefitting political foundations do not amount to “concealed party financing”.
To the extent that the applicant challenged state funding available to parliamentary groups of the Bundestag, especially for the purposes of public relations works, he similarly failed to substantiate any specific circumstances with a potential bearing on the 2013 election. In this respect, the mere allegation that such funding constituted concealed party financing does not suffice; the applicant’s arguments do not sufficiently take into account that parliamentary groups are subject to strict requirements that their financial means be used exclusively for the exercise of the functions assigned to parliamentary groups “as building blocks of organised statehood”.
The Court’s decision that the electoral complaint is, for the rest, unfounded was based on the following considerations:
Neither the principle of equal suffrage (first sentence of Article 38.1 of the Basic Law) nor the guarantee of equal opportunities for political parties (Article 21.1 of the Basic Law) were violated in a manner that had any significant bearing on the distribution of seats in the 2013 election.
The principles of equal suffrage and equal opportunities for political parties do not mandate an absolute prohibition to differentiate. Nevertheless, the legislator has but limited latitude to differentiate due to the potential impact on political competition and the fact that decisions of the parliamentary majority in this area are inherently linked to its own interests. Given the risk that electoral legislation, in particular, is susceptible to being influenced by the majority’s interest of keeping the ruling parties in power, rather than by considerations pertaining to the common good, electoral laws are subject to a strict review incumbent upon the Federal Constitutional Court.
Based on these standards, the Court concluded that no significant violation of electoral principles enshrined in the Basic Law resulted from the statutory election threshold, the lack of a contingent vote, or the activities carried out by staff working for members of the Bundestag in connection with the 2013 election. According to established case-law, the statutory election threshold, which limits the distribution of seats in the Bundestag to political parties that win at least 5% of votes, is compatible with the Basic Law under the current factual and legal conditions. In particular, the election threshold serves the legitimate aim to safeguard Parliament’s ability to function. The resulting interference with electoral equality is proportionate, at least where the statutory threshold does not exceed a quorum of five percent.
The fact that the application of the election threshold in the 2013 election resulted in 15.7% of votes being disregarded in the distribution of parliamentary seats does not qualify as a relevant change in factual circumstances that would call into question the justification of the statutory threshold under constitutional law. The Court’s case-law on the unconstitutionality of a five-percent or, respectively, three-percent threshold in elections to the European Parliament does also not merit a different assessment. In the relevant decisions, the Court expressly emphasised that its findings and considerations do not apply accordingly to federal elections due to inherent differences in the status, mandate and functions of the European Parliament.
Moreover, the requirement that precedence be given to less-restrictive means does not necessitate an abolishment or lowering of the election threshold. It is incumbent upon the legislator to decide on the design of the electoral system within the limits set by the Constitution. Contrastingly, it is not the task of the Federal Constitutional Court to substitute decisions of the legislator with the Court’s own considerations of expediency. As regards the introduction of contingent votes into the electoral system – as suggested by the applicant – such mechanism cannot necessarily be considered less restrictive in light of the principles of equal suffrage and equal opportunities for political parties. Allowing for a contingent vote, which would be counted only in the event that the primary vote was cast for a party that failed to pass the election threshold, would add to the complexity of the electoral system and furthermore increase the risk of irregularities. Moreover, contingent voting itself interferes with the principles of equal suffrage and direct elections. It is thus not ascertainable that allowing a contingent vote were indeed a less restrictive albeit equally effective means to ensure the functioning of Parliament. It is for the legislator to weigh potential advantages and disadvantages in order to decide whether to alter the design of the electoral system in this regard.
As regards state allowances provided to members of the Bundestag for the reimbursement of staff costs (§ 12.3 of the Members of the Bundestag Act – Abgeordnetengesetz), there is no evidence that the relevant staff resources have actually been misappropriated on a large scale, at least not to an extent significant enough to have influenced the outcome of the 2013 election. Yet, even though the electoral complaint was held to be unfounded in this respect, the Court acknowledged that the use of staff resources by members of the Bundestag lacks transparency and public accountability. The guarantee of equal opportunities for political parties would be violated if staff employed by members of the Bundestag were assigned tasks that fall within the area of political campaigning rather than the exercise of the respective parliamentary mandate. In this context, the inevitable overlap between constituency work of members of the Bundestag and their involvement in electoral campaigns creates ample opportunities for misappropriation. The current legal framework governing the allowances and resources allocated to members of the Bundestag does not sufficiently address this risk. In view of this, the Federal Constitutional Court emphasised the responsibility of the Bundestag to introduce, by means of additional regulations, more effective safeguards against the misuse of staff resources on the part of members of the Bundestag during electoral campaigns and to subject members of the Bundestag to stricter oversight with regard to the use of state-funded resources.