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Five per cent barrier clause in local elections in Schleswig-Holstein violates equality of electoral rights and equal opportunities
Press Release No. 16/2008 of 13 February 2008
Judgment of 13 February 2008
2 BvK 1/07
The motion of the Schleswig-Holstein Land association of the party ALLIANCE 90/THE GREENS against the retention of the five per cent barrier clause in the Schleswig-Holstein Local Elections Act was successful. The Schleswig-Holstein Land association of the party DIE LINKE had intervened in the motion. The Second Senate of the Federal Constitutional Court found in its judgment of 13 February 2008 that the Schleswig-Holstein Landtag (state parliament) encroached on the right of the applicant to equality of electoral rights and equal opportunities by rejecting a draft Bill of the ALLIANCE 90/THE GREENS parliamentary group regarding the five per cent barrier clause. This encroachment is not justified. No sufficient reasons are evident making the retention of the five per cent barrier clause necessary to ensure the functionality of the local representations in Schleswig-Holstein according to their legal and factual circumstances.
The ALLIANCE 90/THE GREENS parliamentary group submitted a draft Bill in May 2006 to the Schleswig-Holstein Landtag, which provided amongst other things for the abolition of the five per cent barrier clause. It was stated as grounds that it had been found in several rulings of (Land) Constitutional Courts that the five per cent barrier clause signified a restriction of the parties’ equality of opportunity, as well as of the principle of equality of elections. Such a restriction was said to be justified only in case of grievous reasons, for instance to ensure the viability of the democratically legitimised local representative bodies. There was said to be a five per cent barrier clause only in three out of thirteen large-area Länder (states) and in the city states; Rhineland-Palatinate was said to have a de facto barrier clause of roughly three per cent in its local election law. The abolition of the barrier clause was said not to have led to any grievous consequences in most large-area Länder affecting the viability of the local authorities. By introducing direct elections of the mayors and chief administrative officers of districts in Schleswig-Holstein, the viability of the municipalities was said to be also ensured if there were no clear majorities in the local or municipal representative bodies and district councils.
The draft Bill was transferred for further deliberation and hearings in the Landtag Committee on Internal Affairs and on Legal Affairs. The committee afforded various institutions the opportunity to make a statement on the draft Bill.
The draft Bill was rejected in December 2006 with a majority of votes of the CDU and the SPD against the votes of the FDP, ALLIANCE 90/THE GREENS and SSW (Southern Schleswig Voters’ Association).
The party ALLIANCE 90/THE GREENS, Schleswig-Holstein Land association, claimed by means of Organstreit proceedings [proceedings between supreme constitutional bodies] that by rejecting the draft Bill the Schleswig-Holstein Landtag had allegedly violated the right of the party ALLIANCE 90/THE GREENS to equality of elections and to equal opportunities in political competition by not rescinding or alleviating the barrier clause and that it had retained it instead without providing sufficient reasoning. The five per cent barrier clause was said to constitute unequal treatment of those votes cast for a party which was unable to overcome the five per cent barrier clause. These votes were said to remain unconsidered in the allocation of seats according to the proportional equalisation so that as a result the voters of these parties did not have the same influence on the electoral outcome as the voters of larger parties. The Landtag had allegedly been obliged to collect and assess the experience of other Länder with a similar local constitution but without a barrier clause. It was claimed that the legislature should make a comprehensible prognosis of the possibility of a disruption to the viability of the local representations, evaluating all conceivable circumstances; it may not satisfy itself with simply transferring the principles developed for Bundestag and Landtag elections to local elections.
In essence, the ruling is based on the following considerations:
I. The Second Senate affirmed the admissibility of the Organstreit proceedings with 7:1 votes. The rejection of the statutory motion of the ALLIANCE 90/THE GREENS parliamentary group on the abolition of the five per cent barrier clause forms admissible subject-matter in Organstreit proceedings. The respondent dealt in detail with the retention of the five per cent barrier clause in Schleswig-Holstein local election law and rejected a draft Bill explicitly aiming to abolish the barrier clause in parliamentary procedure. Hence, in the case at hand the rejection of the draft Bill is equivalent to the issuance of a statute to be valued as a measure. In both cases, the legislature deals in parliamentary procedure with the content of the question of the barrier clause in local election law and reaches a decision encroaching on the status rights of the applicant.
II. The five per cent barrier clause in the Schleswig-Holstein Local Elections Act weights voters’ votes unequally. They are treated unequally as to their contribution towards success, depending on whether the vote was submitted for a party which was able to win more than five per cent of the votes, or for a party which failed because of the five per cent barrier clause. The latter voters’ votes were unsuccessful. At the same time, the five per cent barrier clause impairs the right of the applicant to equal opportunities. This encroachment on the right of the applicant to equality of electoral rights and equal opportunities is not justified.
1. The five per cent barrier clause cannot be justified by arguing that it serves the purpose of preventing anti-constitutional or (right-wing) extremist parties from participation in local representative bodies. The five per cent barrier clause not only affects (undesirable) extremist parties, but affects all parties equally, as well as local voters’ associations and individual applicants. The party prohibition procedure is available to combat anti-constitutional parties.
2. Safeguarding the orientation of political forces towards the common good is also not currently an imperative reason for retaining the five per cent barrier clause. It follows from the guarantee of local authority self-administration that it must certainly be possible to select candidates for the local representative bodies in accordance with specific particular goals, and such selection may not be exclusively reserved for the political parties, whose essence and structure is primarily orientated to the state as a whole. It is therefore necessary to guarantee for local groups of voters merely pursuing local interests the right to nominate candidates for election, and their candidates equal opportunities for participation in local elections.
3. One may not easily derive from the necessity of the five per cent barrier clause for Bundestag or Landtag elections the need to also have a barrier clause for local elections. Clear majorities are indispensable in legislative corporations to ensure a government which is politically viable. In contradistinction to state parliaments, local councils and district parliaments do not exercise any legislative activities. Rather, they are primarily entrusted with administrative activities.
4. It is in principle a matter for the legislature to balance the goal of safeguarding the viability of the people’s representatives with the principle of the electoral equality and equal opportunities of political parties. In its prognostic decision, the legislature may however not restrict itself to ascertaining the purely theoretical possibility of an impairment of viability; what is required is rather an impairment which is somewhat likely to occur.
There are no sufficient reasons evident to make the retention of the five per cent barrier clause necessary to safeguard the viability of local representations in Schleswig-Holstein in accordance with the legal and factual circumstances. Considerable weight attaches in the prognosis of the legislature to the structure of the law on local authority constitution in Schleswig-Holstein.
a) The introduction of the direct election of mayors in districts administrated by full-time officials, as well as of the chief administrative officers of districts, has abolished the central element which previously supported the justification of the five per cent barrier clause in Schleswig-Holstein local election law. After the amendment of the local authority constitution in Schleswig-Holstein in 1995, stable majorities which could be placed at risk by the rise of splinter parties in local representations and district parliaments are no longer necessary for the election of full-time mayors and chief administrative officers of districts. The direct election of a mayor or chief administrative officer of a district also largely guarantees a well-functioning local administration regardless of the majorities on the local council. The mayor bears in his or her own responsibility the sole comprehensive responsibility for managing the local authority administration.
The fact that the local representative body remains responsible for electing the mayor in parishes which are managed on a voluntary basis may not justify the retention of the five per cent barrier clause. In all parishes which are managed on a voluntary basis a candidate must in any case obtain five per cent of the voters’ votes in order to be able to safely acquire a seat in the local council. This is based on the fact that all parishes which are managed on a voluntary basis in Schleswig-Holstein have fewer than 10,000 inhabitants, the result of which is that a maximum of 19 local representatives are to be elected. With a body to be elected with 19 seats, the de facto barrier clause is five per cent. The abolition of the statutory five per cent barrier clause would have no practical effect in parishes which are managed on a voluntary basis – and hence in almost 95 per cent of all parishes in Schleswig-Holstein.
b) Even if there were to be a larger number of groups or individual representatives in the local council or district parliament, there are no sustained risks for the viability of the local representative body. A relative voting majority is already sufficient for factual decisions. The “first past the post” procedure is in principle applicable with elections. Accordingly, the candidate who accounts for at least one vote more than another proposed individual is elected.
c) Over and above this, being wholly unable to function and make decisions is alien in view of the provisions of the parish and district system, which in particular ensures that local representations remain quorate if the usual quorum cannot be reached. In practice, this applies above all to cases in which a lack of quorum is caused by the departure from a meeting of several members of the local representation or of the district parliament.
d) Nor is there a serious fear that the work in the committees may be endangered. The parish can freely determine the number of members of the standing committees. It is not relevant here whether it is guaranteed by the size of the committee that all groups can be represented on it. A certain number of seats in the local representative body does not entitle groups to demand an increase in the number of seats on committees in order to be taken into account there.
e) Finally, it is not possible to leave entirely unconsidered in the prognostic decision the experience of the other Länder which do not have a five per cent barrier clause. Since the reform of the local constitutions, there has been considerable concurrence in the local constitutions in virtually all large-area Länder. Hence, it is also relevant for the prognostic decision that serious disturbances in the viability of the local representative bodies have not come to light from other Länder which do not have a five per cent barrier clause.