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Provisions of the Federal Electoral Act from which the effect of negative voting weight emerges unconstitutional

Press Release No. 68/2008 of 03 July 2008

Judgment of 03 July 2008
2 BvC 1/07

The effect of negative voting weight brought about by § 7.3 sentence 2 in conjunction with § 6.4 and 6.5 of the Federal Electoral Act (Bundeswahlgesetz - BWahlG) may lead to a situation in which in certain constellations second votes cast for parties which obtain what are known as "overhang mandates" in one Land (state) have a negative impact inasmuch as these parties lose mandates in the same or in another Land. Conversely, it is also possible that not casting a voter's vote is beneficial to the party to be supported.

This effect of negative voting weight violates the principles of the equality and directness of elections. The provision is therefore unconstitutional insofar as the effect of negative voting weight is facilitated thereby. This was decided by the Second Senate of the Federal Constitutional Court by judgment of 3 July 2008. The electoral error impacts the composition of the 16th Deutscher Bundestag, but does not lead to its dissolution since it is outweighed by the interest in maintenance of the status quo of the representation of the people composed in confidence in the constitutionality of the Federal Electoral Act. The legislature was obliged to hand down a constitutional provision by 30 June 2011 at the latest.

In connection with the complaint requesting review of an election that was lodged, the Second Senate also had to rule on the question of whether the non-public re-count of votes in some constitutions by the district returning officer violated the principle of the public nature of elections. The Senate stated that it did not.

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

I. Insofar as the applicant re 2. complains of the non-public re-count of the votes in some constituencies, the requested review of an election is unfounded. It does not follow from the principle of the public nature of elections that all acts related to ascertaining the result of the election must be carried out in public. The proper functioning and comprehensibility of the ascertainment of the result of the election is not questioned if for individual re-counts by the district returning officer in the context of his or her preparatory tasks the necessary openness is only indirectly brought about by the result of such re-counts being subject to review by the district electoral committee, which in turn decides in an open meeting. An electoral error can only be ascertained in this context if there are indications that the preparatory re-count entailed irregularities and the competent electoral committee did not carry out its tasks. No such electoral error has been asserted.

II. The effect of the negative voting weight violates the principle of the equality of elections.

1. The equal contribution towards success requires the contribution of each vote towards success to be equal, whatever party it was cast for. This also means that it must be able to have a positive effect for the party for which it was cast. An electoral system which is designed or at least in typical constellations permits an increase in the number of votes to lead to a loss of mandates or the electoral proposal of a party to achieve more total mandates if it itself attracts fewer votes, or if a competing proposal attracts more votes, leads to arbitrary results and to a situation in which democratic competition for the approval of the electorate appears to be paradoxical. The effect of the negative voting weight however also impairs the equality of chances for success of the votes. Such equality permits - as for instance in the majority voting system - votes not to be measured, but not for a vote having inherent in itself both the chance to contribute to the intended success, and to impair the own goal in voting.

2. The impairment of the equality of elections by the negative voting weight effect cannot be justified by "imperative reasons".

The regulations from which the negative voting weight effect emerges serve interests of the federal proportional representation election system. Federative interests can in principle be taken into account when drafting electoral law. These aspects do not however constitute an imperative reason by means of which the negative voting weight effect can be justified. The effect of negative voting weight constitutes a major encroachment on the equality of elections. It leads not only to a different weighting of the electorate's votes in allotting the mandates, but its effect is also that the will of the electorate is turned full-circle. By contrast, the federative element does not assume sufficient weight here, especially since the legislature has in many ways accommodated the federative state structure, and the structure of the parties which follows from it, in electoral law and the corresponding regulations are independent of those regulations from which the negative voting weight effect emerges. When weighting the matter of a federative allocation of the votes, it must also be taken into account that the Bundestag election is the election of the unitary representation body of the federal people. The federal legislature is not obliged to account for federative aspects in such an election.

The negative voting weight effect is also not a necessary consequence of a system of proportional representation combined with the personal election of candidates. The effect depends on various factors, but above all on the model of setting off the first-vote mandates with the second-vote mandates, which do not determine the electoral system as such. The legislature is not constitutionally prevented from ordering a system of proportional representation election combined with the personal election of candidates without the negative voting weight effect.

III. The regulation also violates the constitutionally guaranteed directness of elections. Voters are unable to recognise whether their vote always has a positive impact on the party to be elected and its candidates, or whether they are bringing about the failure of a candidate of their own party by their vote.

IV. § 7.3 in conjunction with § 6.4 and 6.5 BWahlG is hence unconstitutional insofar as it brings about the effect of the negative voting weight.

The electoral error is also relevant in terms of mandates. This effect is not a very rare exception, but as a rule has an impact on the result of elections if "overhang mandates" are created in an election to the Deutscher Bundestag. This also applies to the election to the 16th Deutscher Bundestag, where there were a total of 16 "overhang mandates". In Hamburg for instance, if roughly 19,500 fewer second votes had been cast for the SPD, this party could as a result have claimed one more seat in the Deutscher Bundestag.

Nonetheless, the electoral error does not lead to the election being declared invalid, and hence to the dissolution of the 16th Deutscher Bundestag. The error results from a paradox of the valid Federal Electoral Act which cannot be quite easily understood, and on the whole relates to only a few mandates of the Deutscher Bundestag. The dissolution of the Deutscher Bundestag without previously affording Parliament the opportunity to amend the Federal Electoral Act would also create a situation in which the Bundestag then to be elected would have to be elected on an unconstitutional legal basis. In contradistinction to this, the consequences of a decision which approves of the present legal situation for a suitable transitional period is constitutionally acceptable.

V. The legislature is to be granted a suitable deadline to remedy the unconstitutionality of the valid electoral system. The remedy of the unconstitutionality of these provisions relates not only to the sub-distribution of seats among list combinations of a party, but also to the entire calculation system of the seat allocation in the Deutscher Bundestag. The legislature has several possibilities for a new regulation which each have a substantial impact on the valid regulations for the allocation of seats in the Deutscher Bundestag. With regard to the fact that the negative voting weight effect is indivisibly linked to the "overhang mandates" and to the possibility of list combinations, a new regulation can tackle the emergence of the "overhang mandates" or the setting off of direct mandates with the second-vote mandates, or indeed the possibility of list combinations. Depending on the alternative selected, there is an impact on the entire electoral system. Taking into account the considerable complexity of the regulatory mandate and of the statutory deadlines to prepare Bundestag elections, it hence appears to be inappropriate to instruct the legislature to amend the electoral law in good time prior to expiry of the present electoral period. Such a short period poses a danger that the alternatives cannot be considered and discussed in the necessary manner. The legislature would hence also be deprived of the possibility to place the intertwining of regulations for the calculation of the allocation of seats in the Deutscher Bundestag - virtually indecipherable for voters - on a new basis of clear and comprehensible provisions.