Unsuccessful electoral complaint concerning the lack of statutory provisions requiring gender balance when nominating candidates for Bundestag elections

Press Release No. 11/2021 of 02 February 2021

Order of 15 December 2020
2 BvC 46/19

In an order published today, the Second Senate of the Federal Constitutional Court dismissed as inadmissible an electoral complaint challenging a decision of the German Bundestag. In that decision, the Bundestag had dismissed an objection concerning the elections to the 19th German Bundestag on 24 September 2017.

In light of the low proportion of female members of the Bundestag, the complainants challenge the lack of statutory provisions requiring gender balance with regard to the party lists of the Länder and with regard to constituency candidates. However, they do not sufficiently substantiate a requirement on the part of the federal legislator to ensure gender-balanced representation in the law governing the nomination of candidates by political parties.

There was thus no need for the Court to decide whether such statutory provisions requiring a gender balance with regard to the party lists of the Länder and with regard to constituency candidates would be compatible with the Basic Law.

Facts of the case:

In the 2017 elections to the Bundestag, approximately 51.5% of eligible voters were women. The proportion of women standing for election as constituency candidates was just 25%, while 34.7% of the five highest-ranking candidates on the electoral lists were women. 218 of the 709 members of the 19th German Bundestag elected on 24 September 2017 were women. Thus, the proportion of female members of the Bundestag decreased from 36.3% in the previous parliamentary term to 30.7%.

The complainants challenge the validity of the elections to the 19th German Bundestag. In their complaint, they state that candidates for the Bundestag elections were nominated by the political parties without regard to the parliamentary gender balance and that this constitutes a significant electoral irregularity affecting the allocation of seats and the validity of the election. They claim that this led to a violation of the fundamental right to equality under Art. 3(2) of the Basic Law (Grundgesetz – GG), the fundamental right to stand for election under Art. 38(1) first sentence GG and the principle of democracy under Art. 20(1) and (2) GG. They submit that the applicable electoral law has adverse effects on women. Given the resulting underrepresentation of women, they can neither equally participate in the democratic process nor effectively influence decision-making in the Bundestag.

The German Bundestag dismissed the objection in its decision of 9 May 2019, which is challenged in the present proceedings. It held that the objection was unfounded. The Federal Elections Act (Bundeswahlgesetz) and the Federal Electoral Regulations (Bundeswahlordnung) did not require nominations to ensure gender-balanced representation. Moreover, it held that there were no constitutional concerns in respect of the applicable law.

Pursuant to Art. 41(2) GG, the complainants lodged a complaint against the decision of the German Bundestag of 9 May 2019.

Key considerations of the Senate:

The electoral complaint is inadmissible.

1. Insofar as the Federation has legislative competence for a matter, it generally has the power to enact laws, but is not required to do so. Yet this does not rule out that, in exceptional cases, the Federation may have a duty to legislate following from individual provisions of the Basic Law (other than Arts. 70 to 82 GG) and from EU law. If failure to act on the part of the legislator is challenged before the Federal Constitutional Court, the existence of such a duty to act must be demonstrated and substantiated. Moreover, insofar as such a duty to act does indeed exist, the legislator generally has wide latitude, which is particularly true in respect of electoral law, in light of Art. 38(3) GG. A specific duty to act that compels the legislator to take specific action can only be derived from the Constitution in rare exceptional cases. Therefore, the assertion that the legislator’s latitude with regard to electoral law is constricted to taking only a specific measure or legislative act requires special substantiation.

2. a) Firstly, the complainants did not sufficiently demonstrate that the legislator, in view of the principle of equal opportunity to the right to stand for election, must take into account aspects of gender balance when shaping the law governing the nomination of candidates.

The principle of equal elections set out in Art. 38(1) first sentence GG mandates that all citizens be able to exercise the right to vote and to stand for election in as formally equal a manner as possible. This right affords each party and each candidate the opportunity to campaign and to participate in the electoral process in a way that is in principle equal, thus ensuring equal opportunities in the political competition. The lack of a gender balance requirement in the law governing elections to the Bundestag could serve precisely to give effect to the principle of equal opportunities for all candidates within the meaning of Art. 38(1) first sentence GG, whereas imposing gender balance requirements could run counter to this principle. The complainants fail to sufficiently examine that promoting gender-balanced representation in the law governing the nomination of candidates could amount to an interference with the right to stand for election. The complaint also lacks sufficient analysis of the Federal Constitutional Court’s case-law on a stringent and formal understanding of the principle of equal elections.

b) Furthermore, the complainants failed to sufficiently substantiate why the principle of democracy requires gender balance in the Bundestag and that the law governing the nomination of candidates be shaped in a way that reflects this objective.

According to Art. 20(2) GG, all state authority is derived from the people. In the representative democracy under the Basic Law, the necessary democratic legitimation is provided by the election of Parliament. In this regard, the elected representatives are not accountable to a Land, a constituency, a political party or a segment of the population; rather, according to Art. 38(1) second sentence GG, they are accountable to the whole people, not bound by orders or instructions and responsible only to their conscience. In light of the principle of full representation derived from this, the representation of the people specifically does not require that Parliament be a reflection in miniature of the electorate. The complainants did not sufficiently demonstrate that the principle of full representation does not satisfy constitutional requirements. Regardless of the question whether group- or gender-based models of democracy are compatible with the Basic Law, it is not ascertainable that Art. 20(1) and (2) GG gives rise to a constitutional obligation to “mirror” the population’s share of women and men in the Bundestag.

c) Nor do the complainants sufficiently demonstrate that, on account of the requirement of equal rights under Art. 3(2) first and second sentence GG, the legislator is obliged to enshrine gender balance requirements in the law governing the nomination of candidates. It does not matter in this respect whether the complainants sufficiently examined the applicability and substance of this provision. They in any case failed to substantiate how, in order to give effect to the mandate of gender equality under Art. 3(2) second sentence GG, the Constitution might require legislative latitude to be constricted to a duty to enacting provisions on the nomination of candidates that ensure gender balance in the Bundestag.

When exercising the mandate of gender equality in the context of the nomination of candidates, the legislator must take into account other constitutional interests of equal standing and must give adequate effect to them. Such constitutional interests include the principle of free and equal elections under Art. 38(1) first sentence GG and the principle of free political parties under Art. 21(1) GG. The complainants already fail to sufficiently examine to what extent the statutory requirements of parliamentary gender balance they seek would interfere with the scope of protection of these constitutional interests. Moreover, they do not sufficiently demonstrate that the legislator has a duty to ensure gender-balanced representation in the law governing the nomination of candidates despite the potential interference with the aforementioned constitutional interests. They disregard that state organs can in principle decide themselves how to give effect to the mandate of gender equality following from Art. 3(2) second sentence GG and they do not answer the question why, in the law governing elections to the Bundestag, only the imposition of a gender balance requirement can give effect to this mandate. The complainants fail to show that legislative latitude must be limited to a constitutional duty to ensure gender-balanced representation in the law governing the nomination of candidates or that the legislator must accord more weight to the requirement of gender equality than to the constitutional interests of free political parties and free and equal elections.