Developments
Germany’s Mixed-Member Electoral System: A Victim of its
Sophistication?
By Christian Tomuschat*
To shape a legitimate electoral system is a tremendous challenge for any parliamentary
body. It cannot evade the responsibility of enacting the requisite statutory rules since no
other State organ has the authority to make determinations which are substantially of a
constitutional character. How, and under what conditions, citizens choose their
representatives pertains to the key issues in a democratic system. But it is a truism to
state that a parliament is not a homogeneous body; it is normally composed of different
groups with highly divergent interests. Groups representing large political parties tend to
favor a majoritarian electoral system, following with greater or slighter variations the
British model of first past the post where the highest number of ballots in a given
constituency determines the winner of the seat in issue, even though the candidate may
have obtained only a relative plurality.
1
Smaller parties, on the other hand, put their
preferences on proportional representation, which ensures them a share of the seats
corresponding to their share of the vote. To their regret, parties supported only by a low
fraction of the electorate cannot, which is self-evident, impose their preferred option,
having to wait for pressure to build up in the general public to promote their concerns.
Thus, parliaments are neither neutral nor objective when they make determinations in
electoral matters.
In countries where political traditions have been firmly established for decades or more,
suggestions to change the electoral system are regarded with a high degree of suspicion.
In some countries, constitutional rules exist that fix explicitly, in greater or lesser detail, the
system to be adopted by the legislature.
2
Other countries, like Germany, have refrained
from prescribing the system but lay down at least the basic principles that shall govern the
balloting process. Thus, Article 38(1), first clause, of the Grundgesetz (hereinafter: Basic
*
Professor emeritus of Constitutional and International Law, Humboldt University Berlin, Faculty of Law.
1
Details given, also about historical background, by Paul Mitchell, The United Kingdom: Plurality Rule Under
Siege, in THE POLITICS OF ELECTORAL SYSTEMS 157, 158–61 (Michael Gallagher & Paul Mitchell eds., 2005).
2
See, e.g., Arts. 56, 57 Costituzione [Cost.] (It.); C.E., B.O.E., Dec. 29, 1978 (Spain), Arts. 68, 69. Political scientists
show little interest in these provisions. See Mario Caciagli, Italy, in ELECTIONS IN EUROPE: A DATA HANDBOOK 1027,
1034–42 (Dieter Nohlen & Philip Stöver eds., 2010); Joseph M. Vallès & Dieter Nohlen, Spain, in ELECTIONS IN
EUROPE: A DATA HANDBOOK 1027, 1803, 1812–14 (Dieter Nohlen & Philip Stöver eds., 2010).
[Vol. 13 No. 05214 German Law Journal
Law or BL) provides: “Members of the German Bundestag shall be elected by general,
direct, free, equal and secret suffrage.”
3
Most of these criteria have not given rise to any major difficulties. There is common
ground in construing general, direct, free and secret according to the plain meaning of
these terms.
4
However, the concept of “equal” elections has been the cause of
considerable differences of opinion. Two aspects of equality are generally distinguished.
On the one hand, as far as the right of suffrage is concerned, every German citizen above
the age of 18 has an equal right to vote.
5
No individual may be granted additional voting
power. Modern Germany is still very much reminiscent of the Prussian three-class system,
which remained in force until 1918.
6
Under that system, the population was divided into
three classes according to the tax revenue produced by each class. Each of the three
classes was allocated the same number of seats in the State parliament.
7
Ballot equality
(Zählwertgleichheit) is thus uncontested.
8
By contrast, the question of whether there
should also be outcome equality (Erfolgswertgleichheit) is highly controversial. In its early
jurisprudence, the Bundesverfassungsgericht (hereinafter Federal Constitutional Court or
FCC) ruled that under a system of majoritarian suffrage, outcome equality had to be
implemented through the (more or less) equal size of the different electoral districts.
9
On
the other hand, when proportional representation was chosen as the basis, outcome
equality had to be realized by remaining faithful to that idea, and any departure required
3
GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC LAW], May 23, 1949, BGBl. I (Ger.).
4
It is significant that WOLFGANG SCHREIBER, BWAHLG. KOMMENTAR ZUM BUNDESWAHLGESETZ 113–54 (8th ed. 2009),
needs 41 pages to provide an interpretation of equality while confining himself to 21 pages (92–113) when
commenting on the criteria general, direct and free. See Id.
5
Bundewahlgesetz [BGW] [Federal Electoral Act], May 7, 1956, BGBL. I at 2313, art. 12 [hereinafter Federal
Electoral Act], as amended by 19th Amendment Act of 25 November 2011 (Ger.). Only in cases of conviction for
grave crimes may a person be deprived of the right to vote. Id. at art. 13(1).
6
See THOMAS KÜHNE, DREIKLASSENWAHLRECHT UND WAHLKULTUR IN PREUßEN 1867–1914, at 21–26 (1994).
7
See ERNST RUDOLF HUBER, III DEUTSCHE VERFASSUNGSGESCHICHTE SEIT 1789, at 86 (2d. ed. 1982).
8
The relevant textbooks confine themselves to mentioning this proposition without any additional comment, see,
for instance, Martin Morlok, Commentary on Article 38 BL, in II GRUNDGESETZ KOMMENTAR 989, margin n.97 (Horst
Dreier ed., 2006); SCHREIBER, supra note 4, at 117, margin nn.45, 125, margin n.55; KLAUS STERN, I DAS STAATSRECHT
DER BUNDESREPUBLIK DEUTSCHLAND 305 (2d. ed. 1984).
9
Bundesverfassungsgericht (BVerfG - Federal Constitutional Court), Case No. 2 BvR 322/61, Aug. 26, 1961, 13
BVERFGE 127, 128 (Ger.); Bundesverfassungsgericht (BVerfG - Federal Constitutional Court), Case No. 2 BvC 3/62,
May 22, 1963, 16 BVERFGE 130, 140 (Ger.). This jurisprudence has been consistently confirmed. See
Bundesverfassungsgericht (BVerfG - Federal Constitutional Court), Case No. 2 BvC 4/88, Nov. 24, 1988, 79
BVERFGE 169, 171 (Ger.); Bundesverfassungsgericht (BVerfG - Federal Constitutional Court), Case No. 2 BvF 1/95,
Apr. 10, 1997, 95 BVERFGE 335, 353 (Ger.); Bundesverfassungsgericht (BVerfG - Federal Constitutional Court), Case
No. 2 BvC 1, 7/07, July 3, 2008, 121 BVERFGE 266, 295 (Ger.); Bundesverfassungsgericht (BVerfG - Federal
Constitutional Court), Case No. 2 BvC 2/06, Apr. 21, 2009, 124 BVERFGE 1, 18 (Ger.).
2012] 215Germany’s Mixed-Member Electoral System
specific justification.
10
This approach has been maintained through today.
11
By pushing
the principle of outcome equality to its extreme, both the federal legislature and the FCC
have led Germany into disputes that culminated on 25 July 2012 when the FCC struck
down the core provisions of the current Electoral Act regulating the allocation of seats
(Article 6(1), first clause, and (5)). In other words, at the present time, although Germany
still has an electoral law, this law has been crippled. It has been fragmented to such an
extent that it could not serve its main purpose—to distribute seats after a national
election. If, by any chance, the Bundestag were to be dissolved today, no replacement
could be found. Fortunately, no impending threat of such an occurrence can be perceived.
Since the next elections for the Bundestag are to take place in September or October of
2013, parliamentary consultations on how the system could be adjusted to the findings of
the FCC are under way.
12
B. The Judgment of the Federal Constitutional Court of 25 July 2012
The judgment of the FCC of 25 July 2012
13
had to rule essentially on two main objections
raised against the current version of the Electoral Act as modified by the 19
th
Amendment
Act of 25 November 2011,
14
a piece of poor legislative draftsmanship that set out the
relevant provisions in such a convoluted manner that no ordinary citizen could understand
them.
15
It is a text that nearly resists any attempt at translation.
16
Not even the judgment
of the FCC was able to state its meaning in clear and straightforward terms.
17
10
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvH 1/52, Apr. 5, 1952, 1 BVERFGE
208, 248–56 (Ger.). This requirement has also been emphasized many times, see judgments of
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court)], Case No. 2 BvE 2/56, Jan. 23, 1957, 6 BVERFGE
84, 93 (Ger.); Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvR 193, 197/79, May
22, 1979, 51 BVERFGE 222, 236 (Ger.); Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No.
2 BvC 3/96, Apr. 10, 1997, 95 BVERFGE 408, 418 (Ger.); Bundesverfassungsgericht [BVerfG - Federal Constitutional
Court], Case No. 2 BvC 1, 7/07, July 3, 2008, 121 BVERFGE 266, 297 (Ger.); Bundesverfassungsgericht [BVerfG Federal
Constitutional Court], Case No. 2 BvC 2/06, Apr. 21, 2009, 124 BVERFGE 1, 19 (Ger.).
11
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvF 3/11, July 25, 2012, 2012
NEUE JURISTISCHE WOCHENSCHRIFT (NJW) 2869 margin n.62 (Ger.).
12
In mid-October 2012, it was reported that the political parties represented in the Bundestag had agreed on a
reform. See Bundestag könnte 2013 noch größer werden, SPIEGEL ONLINE, Oct. 17, 2012,
http://www.spiegel.de/politik/deutschland/neues-wahlrecht-parteien-wollen-ueberhangmandate-ausgleichen-a-
861829.html.
13
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvF 3/11, July 25, 2012, 2012
NEUE JURISTISCHE WOCHENSCHRIFT NJW) 2869 margin n.62 (Ger.).
14
Federal Electoral Act, supra note 5, at 2313.
15
The FCC itself called it ‘hardly intelligible’, judgments of Bundesverfassungsgericht [BVerfG - Federal
Constitutional Court], Case No. 2 BvC 1, 7/07, July 3, 2008, 121 BVERFGE 266, 316 (Ger.);
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], 2 BvC 4/04, Jan. 15, 2009, 122 BVERFGE 304,
311 (Ger.).
[Vol. 13 No. 05216 German Law Journal
Since its inception in 1949, the German Electoral Act had combined elements of
proportional representation and majoritarian suffrage.
18
To this date, it has remained
controversial which one of the two components dominates.
19
While the Electoral Act
itself, in accordance with the jurisprudence of the FCC, characterizes the system as a
regime of proportional representation (Article 1(1), second clause), where the choice of
deputies is complemented by an element of personalization, other voices view the system
as made up of two components with fairly equal weight.
20
No matter how this dispute is
assessed, the fact is that the combination of the two windows has led to many difficulties.
In its judgment on 25 July 2012, the FCC had to adjudicate mainly two controversial issues,
the issue of the so-called “negative vote” and the issue of the constitutionality of overhang
or surplus seats (“Überhangmandate”).
On the one hand, the amended Electoral Act had not been able to put an end to the
phenomenon of the “negative vote” which had become visible particularly in by-elections
but which was also a frequent feature of any regular balloting process. As a consequence
in particular of the recognition of Überhangmandate,
21
it could turn out that additional
votes for a party list led to the loss of a seat.
22
Under normal conditions, on election day,
this could neither be anticipated nor measured but could be calculated afterwards in
situations where the margins had been tight. By contrast, in the case of bye-elections,
exact forecasts could be made beforehand, resulting in recommendations to the electorate
not to cast their vote for the preferred political party. In fact, in one case in 2005 relating
16
But see the official translation published by the Federal Director of Elections (Bundeswahlleiter),
http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/bundeswahlgesetz_engl.p
df. It was recently withdrawn, presumably as a response to the judgment of the FCC of 25 July 2012.
17
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvF 3/11, July 25, 2012, 2012
NEUE JURISTISCHE WOCHENSCHRIFT (NJW) 2869 margin nn. 23–26 (Ger.).
18
André Blais, Introduction, in TO KEEP OR TO CHANGE FIRST PAST THE POST? THE POLITICS OF ELECTORAL REFORM 1, 3
(André Blais ed., 2008) (observing that this was an attempt to have “the best of both worlds”).
19
While, for instance, Franz Urban Pappi & Michael Herrmann, Überhangmandate ohne negatives Stimmgewicht:
Machbarkeit, Wirkungen, Beurteilung, 41 ZEITSCHRIFT FÜR PARLAMENTSFRAGEN, 260, 270 (2010), see both elements as
equivalent, HANS MEYER, DIE ZUKUNFT DES BUNDESWAHLRECHTS. ZWISCHEN UNVERSTAND, OBITER DICTA, INTERESSENKALKÜL
UND VERFASSUNGSVERSTOß passim (2010), characterizes the German electoral system as essentially proportional.
20
This was controversial among the members of the Second Chamber of the FCC when their split vote prevented
the Federal Electoral Act from being struck down. Bundesverfassungsgericht [BVerfG - Federal Constitutional
Court], Case No. 2 BvF 1/95, Apr. 10, 1997, 95 BVERFGE 335, 356–81 (Ger.). But see id. at 379–80.
21
Because of its negative connotation, the term “excess seats” should be avoided. For an explanation of the
regime of surplus seats see immediately below. Bundesverfassungsgericht [BVerfG - Federal Constitutional
Court], Case No. 2 BvC 1, 7/07, July 3, 2008, 121 BVERFGE 266 (Ger.).
22
For an extensive discussion of the phenomenon of the negative vote see Bundesverfassungsgericht [BVerfG Federal
Constitutional Court], Case No. 2 BvC 1, 7/07, July 3, 2008, 121 BVERFGE 266 (Ger.).
2012] 217Germany’s Mixed-Member Electoral System
to an electoral district in Dresden, it was found out that casting a ballot for the Christian
Democratic Union (CDU) would produce negative consequences for the party. Accordingly,
the electorate was informed and, following the advice given to them, they cast significantly
fewer votes for the party than for its candidate in the district.
23
In an ensuing dispute, the
FCC did not hesitate to call this paradox a violation of basic principles of Article 38 of the
Basic Law, inter alia because of the disorientation it was bound to cause among voters. A
system under which a vote cast for a political party harms that party instead of benefiting
it, as desired by the voter, does not meet the requirements of clarity and equity and was
also deemed by the FCC to breach the principle of “direct” elections.
24
Although the
Amendment Act of 25 November 2011 had attempted to remedy that defect, the FCC
found out that this attempt had failed. Accordingly, it declared the relevant provisions of
the Electoral Act to be incompatible with the Basic Law.
The second issue of contention concerned the surplus seats directly. It touched upon one
of the core elements of the German electoral system. Under this system, as practiced
since 1953, every elector has two votes with which to choose the 598 members of the
German Bundestag.
25
The elector will be confronted with two lists. The first list contains
the names of all the candidates nominated in one of the 299 districts Germany is divided
into for electoral purposes. While half of the members of the Bundestag are chosen
nominally by the electorate, the other 299 members are chosen based on lists established
by the political parties in each one of the Laender of Germany. The number of seats to be
allocated through the party lists is calculated according to the share of votes the party
concerned has obtained at the federal level, all the Laender lists being deemed to be joined
for that purpose.
26
The two systems do not operate independently of one another.
Essentially, the number of seats won by the nominal vote is subtracted from the share
resulting from the proportional computation. Where a party has strong regional roots, it
may be able to win all of the district seats so that, after the subtraction operation, it holds
a number of seats exceeding its share of the vote obtained at the Land level. The party
shall keep these surplus seats.
27
Logically, the surplus seats will increase the number of
598 seats determined by the Electoral Act. The FCC voiced considerable distrust with
regard to the surplus regime. However, it refrained from striking the relevant provisions
down, confining itself to observing that the new Electoral Act, to be introduced for the
federal elections in 2013, must limit the number of surplus seats to 15.
28
23
Id. at 276–77.
24
Id. at 294–308.
25
Federal Electoral Act, supra note 5, at arts. 1–7(establishing the current regulation).
26
In English terminology, this may properly be called a “mixed-member electoral system.”
27
Federal Electoral Act, supra note 5, at art. 6(5).
28
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvF 3/11, July 25, 2012, 2012
NEUE JURISTISCHE WOCHENSCHRIFT (NJW) 2869 margin n.143 (Ger.).
[Vol. 13 No. 05218 German Law Journal
The FCC additionally had to pronounce on the distribution of seats according to the
remainder vote, counted comprehensively at the federal level. The relevant provision of
the Electoral Act was also struck down because only the losses suffered by a political party
by rounding down the votes, but not its potential gains by rounding them up, had been
taken into account.
29
This part of the judgment, which focuses on the regulation’s lack of
consistency, does not touch upon any of the guiding principles of the electoral regime. It
raises essentially a technical problem.
C. The Regime of Surplus Seats—Law and Practice
I. Law
The challengeable features of surplus seats are intimately linked to the general system of
distribution of seats. As previously hinted, the shares of the competing political parties are
calculated at the federal level. For a party to be taken into account for the allocation of
seats, it must have obtained at least 5% of the ballots cast.
30
This clause of the Electoral
Act was introduced to combat the pernicious impact of fragmentation of political parties,
one of the causes of the debacle that led to the fall of the Weimar Republic.
31
In one of its
early decisions, the FCC accepted that clause notwithstanding its insistence on outcome
equality. It held that the aim of ensuring political stability was a legitimate reason to keep
small parties not able to overcome the 5% hurdle away from the national parliament, in
particular in view of the historical experiences Germany had gone through during the time
of its first democratic republic.
32
29
Id. at margin nn. 98–108.
30
Federal Electoral Act, supra note 5, at art. 6(5).
31
Ernst Friesenhahn, Zur Legitimation und zum Scheitern der Weimarer Reichsverfassung, in WEIMAR
SELBSTPREISGABE EINER DEMOKRATIE, 81 (Karl Dietrich Erdmann & Hagen Schulze eds., 1981). For a statistical
breakdown concerning the elections held during the time of the Weimar Republic from 1919 to 1933, see Jürgen
W. Falter, Wahlen und Wählerverhalten unter besonderer Berücksichtigung des Aufstiegs der NSDP nach 1928, in
DIE WEIMARER REPUBLIK 1918–1933, at 484, 486 (Karl-Dietrich Bracher, Manfred Funke & Hans-Adolf Jacobsen eds.,
1987).
32
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvE 2/56, Jan. 23, 1957, 6
BVERFGE 84, 92–94. The FCC had already approved of similar clauses in the electoral laws of individual Laender.
See Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvH 1/52, Apr. 5, 1952, 1
BVERFGE 208 (Ger.). Without sufficient consideration, the 5% clause in the Law governing elections to the
European Parliament was also approved, judgment of Bundesverfassungsgericht [BVerfG - Federal Constitutional
Court], Case No. 2 BvR 193, 197/79, May 22, 1979, 51 BVERFGE 222, 236 (Ger.). However, overturning its former
ruling, the Court set aside the 5% clause for European elections in a highly controversial judgment. See
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvC 4, 6, 8/10, Nov. 9, 2011, 129
BVERFGE 300 (Ger.).
2012] 219Germany’s Mixed-Member Electoral System
After eliminating the ballots cast for parties remaining under the 5% threshold, the next
step is to establish the general breakdown of votes according to the relative strengths of
the parties. This process involves a distribution of the available seats among the sixteen
German Laender pursuant to their electoral weight, which can be measured either by the
number of persons entitled to vote or by the number of voters having actively participated
in the election, which was the curious method chosen by the 2011 Amendment Act
(Electoral Law, Article 6(1)).
Finally, at the Land level, the actual distribution of seats will take place (Electoral Law,
Article 6(2)). It is at that level that the surplus regime produces its effect. If the
subtraction of seats won by the nominal vote took place at the federal level, hardly any
additional seats could emerge. No political party enjoys such general support among the
electorate that it might fare better, across the entire German territory, through the
nominal lists than through the second lists, the party lists.
33
In order to win surplus seats, a
party has to rely on its regional strongholds, like the CDU in Baden-Württemberg, the
Christlich-Soziale Union (CSU) in Bavaria or the Sozialdemokratische Partei (SPD) in NorthRhine
Westphalia.
34
Thus, it is the electoral system’s reliance on Germany’s federal
structure that lies at the heart of the surplus regime. All of this will have to be reviewed in
view of the new Electoral Act required for the forthcoming 2013 elections.
II. Practice
The regime of surplus seats operates without any consequences detrimental to
proportional representation where one of the large political parties, more or less the only
ones able to reap a nominal seat, obtains close to 50% of the vote. In that case, when at
the same time it wins all or almost all district seats, its share of the seats allocated in the
Land concerned – comprehensively twice the number of nominal seats – will correspond to
its share of the general vote, few if any additional seats being available for distribution in
accordance with the percentage points recorded on the second list after the prescribed
deduction. Accordingly, larger parties may derive a large part of their seats in the
Bundestag from the first lists. Of course, if a political party succeeds in crossing the
imaginary 50% line, which results from the logic of the system, half of the seats being
provided on each one of the two lists, it will then obtain additional list of seats in harmony
with its share of the vote, beyond the number of district seats it won.
33
At the 2009 federal elections, the CDU/CSU together obtained 33.8 % of the vote while the SPD remained
confined to 23.0%. Through an exceptionally strong showing, the FDP (Free Democratic Party) took 14.6% of the
vote. See Alan Crawford, Merkel’s CDU/CSU Won 33.8% of Vote, Final Election Results Show, BLOOMBERG.COM (Oct.
14, 2009), http://www.bloomberg.com/apps/news?pid=newsarchive&sid=a1NtBSHNfNZk.
34
On the same occasion, in Baden-Württemberg, the CDU obtained 34.4% of the second vote, in Bavaria the CSU
reached 42.5%, and in North Rhine Westphalia the SPD stood at 28.5%. See Christian Social Union of Bavaria,
PRINCETON.EDU,
http://www.princeton.edu/~achaney/tmve/wiki100k/docs/Christian_Social_Union_of_Bavaria.html
[Vol. 13 No. 05220 German Law Journal
In the debates on the electoral system, it has generally been observed that the political
situation in Germany has changed dramatically in recent years. Instead of three parties
competing for votes, currently five to six parties can be found permanently on the political
stage. The “grand old parties,” the SPD and the CDU with its Bavarian affiliate CSU, are still
the main political forces, and the “eternal third,” the Free Democratic Party (FDP),
continues as a group with heavy ups and downs.
35
But the race for positions three through
six is very open. The Green Party has by now established itself as a political factor that can
reliably count on a share between ten and twenty percent of the votes in national
elections.
36
After German reunification, the new party “Die Linke” (The Left) came into
existence as the fruit of a merger between the former Party of Democratic Socialism (PDS),
which had its roots in the Party of Socialist Unity (SED) of the extinct German Democratic
Republic, and some left wing splinter movements in West Germany. Lastly, the Pirate
party has made its appearance in the most recent past, a group of young people with a
sparsely defined political program.
Given this intensification of the political battle with the ensuing increased diversification of
the vote, it may well be that, in a Land of the Federal Republic, a political party which has
obtained no more than thirty-five percent of the total vote at that level wins nonetheless
all of the nominal seats in the relevant districts. It will then be provided with half of the
seats available for that Land, largely exceeding, through its nominal seats, its proportional
share. For advocates of proportional representation in its pure form, this state of affairs
creates uneasiness.
37
From the inception of the two-list system, however, the principle has
persisted that surplus seats should be kept in existence. In fact, how could a political
system oppose the will of the voters in a constituency who has expressed their preference
for a specific candidate? Any repeal of such seats through subsequent computational
exercises would be considered as highly illegitimate.
38
As of August 2012, the Bundestag
35
While, as indicated, the FDP collected a record 14.5% of the vote in 2009. See Germany: Political Volatility Sees
Greens Rise, SOCIALISM TODAY, http://www.socialismtoday.org/148/germany.html.
36
The Green Party rose to 10.7% at the federal elections in 2009. See Mixed results in German Federal Election,
GREEN PAGES (Oct. 15, 2009), http://gp.org/greenpages-blog/?p=1648. However, at the last Land election in
Baden-Württemberg in 2011, it came in surprisingly as second with 24.2%. See Landtagswahl 2011 in BadenWürttemberg,
LANDESZENTRALE FÜR POLITISCHE BILDUNG BADEN WÜRTTEMBERG, http://www.landtagswahl-bw.de/.
37
The most fervent adversary of surplus seats, raising many sinister speculations, is Hans Meyer in several
publications. See, e.g., DEMOKRATISCHE WAHL UND WAHLSYSTEM, III HANDBUCH DES STAATSRECHTS 521, 537 (Josef Isensee
& Paul Kirchhof eds., 3d. ed. 2005); WAHLRECHTSGRUNDSÄTZE, WAHLVERFAHREN, WAHLPRÜFUNG, III HANDBUCH DES
STAATSRECHTS 543, 570–77; DIE ZUKUNFT DES BUNDESWAHLRECHTS passim (2010).
38
See, e.g., MICHAEL WILD, DIE GLEICHHEIT DER WAHL, 244 (2003). However, the “minority” group of four judges in
the judgment of Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvF 1/95, Apr. 10,
1997, 95 BVerfGE 335, 374 (Ger.), saw no inconvenient in denying a seat to the district candidates with the lowest
scores.
2012] 221Germany’s Mixed-Member Electoral System
had 620 members, notwithstanding the determination in the Electoral Act that, in
principle, it consists of 598 members (Electoral Law, Article 1).
For a long time, the surplus seats did not give rise to major objections. Their number was
low, and the general political landscape was not seriously reshuffled by them. From 1949
to 1990, only 17 such seats came into existence. However, since the first elections at the
national level in the reunified Germany, the relevance of surplus seats has considerably
increased. In 2009, the CDU/CSU group reaped no less than 24 surplus seats, providing the
majority under Chancellor Merkel with a comfortable edge (332 seats) over the opposition,
which could not boast a single surplus seat.
39
Yet, even without such additional seats, a
solid majority would have been ensured (308 majority seats against 290 seats for the
opposition). In 1998, by contrast, the SPD had been able to collect all of the 13 surplus
seats allocated at that time.
40
Thus, it is by no means guaranteed that the CDU/CSU group
will exclusively benefit from the surplus regime. In any event, however, the smaller parties
have only theoretical chances to bring home such an additional yield. They must be
satisfied if now and then one of their candidates obtains a (relative) majority in one of the
electoral districts, their second-list score normally surpassing the low level of their first-list
wins.
It is a recently discovered and curious phenomenon that the chances of winning surplus
seats increase in the measure in which a party starts losing its dominant position in the
political environment of a given Land.
41
A party which, like the CSU, had in the past
continually achieved an absolute majority of the vote in Bavaria, cannot win any additional
seats since only half of the seats granted to a Land are allocated via the first list on the
basis of the nominal vote.
42
On the other hand, although a party may suffer a certain
decline, it may still be able to win more nominal seats than it could claim on the basis of
proportional computation where its proportional score amounts to a percentage between
30 and 50%. In Baden-Württemberg in 2009, the CDU obtained 34.4% of the vote, but
succeeded in getting approval for its direct candidates in all but one of the 38 electoral
39
Press Release, Roderich Egeler, President of Statistischen Bundesamtes, Gültiges amtliches Ergebnis der
Bundestagswahl 2009 (Oct. 14, 2009), available at
http://www.bundeswahlleiter.de/de/bundestagswahlen/BTW_BUND_09/presse/75_EndgueltigesErgebnis.html.
40
See Geschichte der Überhangmandate im Deutschen Bundestag, WAHLRECHT.DE (Nov. 1, 2009),
http://www.wahlrecht.de/ueberhang/ueberhist.html.
41
See MEYER, supra note 19, at 23, 101.
42
The share of the vote won by the CSU in Bavaria has been impressive for decades but seems to deteriorate in
the recent past: 1957: 57.2%; 1961: 54.9%; 1965: 55.6%; 1969: 54.4%; 1972: 55.1%; 1976: 60.0%; 1980: 57.6%;
1983: 59.5%; 1987: 55.1%; 1990: 51-9%; 1994: 51.2%; 1998: 47.7%; 2002: 58.6%; 2005: 49.2%; 2009: 42.5%.
Breakdowns of the votes from 1949 to present can be found at
http://www.bundeswahlleiter.de/de/bundestagswahlen/fruehere_bundestagswahlen.
[Vol. 13 No. 05222 German Law Journal
districts of the Land.
43
Its share of distributed seats was thus increased to 45.2%, which
was an augmentation of 10.8 percentage points over the percentage to which it would
have been entitled to according to the proportional method. This is certainly an intriguing
feature of surplus seats. It seems to fly in the face of justice if justice is seen exclusively in
terms of proportional distribution of parliamentary seats.
44
On the other hand, it remains
that such seats accrue only to political parties whose candidates are strongly rooted in
their local constituencies. It would be wrong, therefore, to disqualify the surplus seats as a
bonus for ailing parties:
45
They will invariably go to political parties that enjoy large,
though not necessarily overwhelming, support among the population. Thus, they can be
seen as a mechanism of assistance to parties that can legitimately vie for assuming
governmental responsibility although not being able to enlist a majority of the voters.
D. The Legal Position Under the Basic Law
One can only conclude that the system, notwithstanding the intellectual simplicity of its
premises, has acquired unnecessary features of complexity through implementing
legislation that tried to realize outcome equality to its very extreme by even establishing a
system providing for the distribution of the remainder vote with repercussions in all 16
Laender.
46
Outside observers are hardly able to understand the refined conclusions drawn
by the FCC from the principle of equality of the vote. One is faced here with one of the
frequent situations where the Basic Law itself, the plain meaning of its texts, is pushed to
the sidelines. It is only the jurisprudence of the FCC which prevails in the doctrinal debates
on the electoral system.
The FCC proceeds from the assumption that the electoral system of Germany is a system of
proportional representation, only slightly modified by some elements intended to
personalize the balloting process.
47
In fact, the Electoral Act provides in Article 1(1),
43
Die Bundestagswahl 2009 in Baden-Württemberg, LANDESZENTRALE FÜR POLITISCHE BILDUNG BADEN WÜRTTEMBERG,
http://www.bundestagswahl-bw.de/bundestagswahlen.pdf.
44
Heiko Holste, Die Reform des Bundeswahlrechts: Wiedervorlage in Karlsruhe, 31 NEUE ZEITSCHRIFT FÜR
VERWALTUNGSRECHT 8, 10 (2012) (calling it sarcastically an “irrational loser bonus”).
45
MEYER, supra note 19, at 109.
46
No attempt will be made here to explain in detail the legal rules governing this additional aspect of the electoral
regime.
47
See Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvE 2/56, Jan. 23, 1957, 6
BVERFGE 84, 90 (Ger.); Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvC 3/62,
May 22, 1963, 16 BVERFGE 130, 139 (Ger.); Bundesverfassungsgericht [BVerfG - Federal Constitutional Court],
Case No. 2 BvF 1/95, Apr. 10, 1997, 95 BVERFGE 335, 358 (Ger.); Bundesverfassungsgericht (BVerfG - Federal
Constitutional Court), Case No. 2 BvC 1, 7/07, July 3, 2008, 121 BVERFGE 266, 297 (Ger.);
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvF 3/11, July 25, 2012, 2012 NEUE
JURISTISCHE WOCHENSCHRIFT (NJW) 2869 margin n.115 (Ger.).
2012] 223Germany’s Mixed-Member Electoral System
second clause, that the members of the Bundestag shall be elected “in accordance with
the principle of proportional representation combined with the personal election of
candidates.” It stands to reason that this determination must be respected. But it does
not necessarily reflect the essence of the requirements to be derived from Article 38(1) BL.
Undeniably, at the level of ordinary legislation, the principle of proportional representation
has been emphasized through the clause providing for the subtraction of the seats directly
obtained in the different constituencies from the share obtained in consonance with the
list results (Electoral Act, Article 6(4)). But the contention that the Basic Law must be
interpreted in line with its construction by the legislative bodies is not persuasive.
48
The
FCC has entangled itself with its own jurisprudence, proceeding step by step on a path
leading to the total elimination of legislative discretion.
The nature of the electoral system to be adopted for the members of the Bundestag came
up quite naturally in the period between 1948 and 1949 during the deliberations on the
constitution of the new democratic Germany before the Parlamentarischer Rat
(Parliamentary Council), the body entrusted with drawing up the draft of the Basic Law.
49
It was clear to every one of the members of that body that the design of an electoral
system was an issue of the highest importance; many members had served in the
Reichstag when it was closed down by the Nazi government in 1933, and the failures of the
Weimar Republic electoral system that gave rise to the Nazis were still vivid in their
memories. Eventually, the opinion prevailed that as little as possible on the electoral
process should be enshrined in the Basic Law itself, the better option being to leave the
determination of the procedure to implementing legislation.
50
On a couple of occasions,
the FCC has confirmed this finding.
51
The most plausible inference to be drawn therefrom
would be to affirm the discretion of the competent legislative bodies to choose the system
best suited to the needs of society. In fact, some of the relevant decisions explicitly state
that the legislature would be free either to introduce a majoritarian system following the
48
See criticism by Christofer Lenz, Die Wahlrechtsgleichheit und das Bundesverfassungsgericht, 121 ARCHIV DES
ÖFFENTLICHEN RECHTS 337, 352 (1996); MEYER, supra note 19, at 15.
49
The 65 members of the Parliamentary Council were elected by the Länder parliaments; the Länder had come
into existence prior to the establishment of overarching governmental system of the Federal Republic of
Germany.
50
See Summary of the Deliberations of the Parliamentary Council, 1 JAHRBUCH DES ÖFFENTLICHEN RECHTS DER
GEGENWART, NEUE FOLGE 349 (1951); see also HARALD ROSENBACH, DER PARLAMENTARISCHE RAT 1948–1949 AKTEN UND
PROTOKOLLE AUSSCHUSS FÜR WAHLRECHTSFRAGEN VII (6th ed. 1994).
51
See Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvF 1/95, Apr. 10, 1997, 95
BVERFGE 335, 349 (Ger.); Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvC 1,
7/07, July 3, 2008, 121 BVERFGE 266, 296 (Ger.); Bundesverfassungsgericht [BVerfG - Federal Constitutional
Court], Case No. 2 BvC 4/04, Jan. 15, 2009, 122 BVERFGE 304, 314 (Ger.); Bundesverfassungsgericht [BVerfG Federal
Constitutional Court], Case No. 2 BvC 2/06, Apr. 21, 2009, 124 BVERFGE 1, 19 (Ger.);
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvF 3/11, July 25, 2012, 2012 NEUE
JURISTISCHE WOCHENSCHRIFT (NJW) 2869 at margin n.54, 56 (Ger.).
[Vol. 13 No. 05224 German Law Journal
British model or to opt for proportional representation. Such holdings can be found not
only in decisions from the early years of the Federal Republic,
52
but also in the most recent
pronouncements.
53
The FCC has even acknowledged that it would be permissible to
introduce a Grabensystem, a gap or ditch system that would consist of electing half of the
members of the Bundestag by nominal vote and the other half on the basis of party lists,
but without any kind of offsetting.
54
Both systems would operate independently of one
another, meaning that the smaller parties would suffer a tremendous disadvantage, their
share of the seats of the Bundestag being more or less reduced by half.
55
In spite of the
obvious advantages of such a system for the two larger parties, it has never materialized.
More than half a century ago, in 1956, its introduction was seriously contemplated.
Eventually, however, the potential beneficiaries shied away from initiating a legislative
procedure, not only because of the resistance of the FDP, but also on account of the
reaction of the public at large.
56
Generally, observers opined that to adopt the gap system
amounted to a quasi-revolutionary coup d’état. The existence of smaller political parties
had become an element of constitutional practice cherished by the electorate.
57
At that
time, the existence of the FDP was viewed as a moderating element capable of putting a
mitigating brake on any of the policies of the larger parties that would invariably need a
coalition partner for the formation of a government. Accordingly, the FDP appeared as an
element of compromise and moderation.
In spite of its point of departure, the discretionary freedom of the legislature to choose an
electoral system according to political expediency, the FCC has constantly maintained that
the choice of the system of proportional representation entailed strict systemic
consequences.
58
Once the fundamental option had been made, the law was bound to
52
See Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvH 1/52, Apr. 5, 1952, 1
BVERFGE 208, 248 (Ger.); Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvE 2/56,
Jan. 23, 1957, 6 BVERFGE 84, 90 (Ger.).
53
See cases cited supra, note 51.
54
See Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvF 1/95, Apr. 10, 1997, 95
BVerfGE 335, 354 (Ger.); Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvC 1,
7/07, July 3, 2008, 121 BVerfGE 266, 296 (Ger.); Bundesverfassungsgericht [BVerfG - Federal Constitutional
Court], Case No. 2 BvC 4/04, Jan. 15, 2009, 122 BVerfGE 304, 311 (Ger.).
55
Obviously, the relevant percentages could also be changed, the election of nominal candidates being confined,
e.g., to one third of the seats. See Josef Isensee, Funktionsstörung im Wahlsystem: das negative Stimmgewicht—
Denkbare Lösungen eines Dilemmas, in DEUTSCHES VERWALTUNGSBLATT 269, 276 (2010).
56
See WILD, supra note 38, at 88.
57
Id.
58
See Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvE 2/56, Jan. 23, 1957, 6
BVERFGE 84, 90 (Ger.); Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvC 3/62,
May 22, 1963, 16 BVERFGE 130, 140 (Ger.); Bundesverfassungsgericht [BVerfG - Federal Constitutional Court],
Case No. 2 BvR 912/71, Oct. 11, 1972, 34 BVERFGE 81, 100 (Ger.); Bundesverfassungsgericht [BVerfG - Federal
2012] 225Germany’s Mixed-Member Electoral System
remain on that course. Any departure required specific justification.
59
Although the FCC
has never reneged on its holding that even first past the post was constitutionally
permissible, it has constantly examined the two-vote system with its implication of surplus
seats with a high degree of distrust.
60
A dramatic culmination point was reached in 1997
with a judgment
61
where the judges of one of the chambers of the FCC split into two
groups of four, the first group holding that surplus seats were constitutionally permissible
though having to be kept within certain limits,
62
while the second group pronounced itself
unreservedly against the lawfulness of such seats.
63
Given the equal weight of the two
groups, no finding as to the unconstitutionality could be made, as provided by Article
15(4), third clause, of the Act on the FCC.
It is submitted that the line of reasoning generally pursued by the FCC with regard to
surplus seats should be abandoned. Two major reasons militate for such a radical shift.
In the first place, the conclusion that the choice of the system by the responsible
parliamentary bodies requires consistency has no valid foundations. In many of its
decisions, the FCC speculates about the possible consequences of the adoption of one or
Constitutional Court Case No. 2 BvF 1/95, Apr. 10, 1997, 95 BVERFGE 335, 390, 392 (dissenting).
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvF 3/11, July 25, 2012, 2012 NEUE
JURISTISCHE WOCHENSCHRIFT (NJW) 2869 margin nn.116–22 (Ger.), employs more cautious formulations. The key
sentence of the judgment of Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvR
912/71, Oct. 11, 1972, 34 BVERFGE 81, 100 (Ger.), reads: “When the legislature opts for the proportional system,
it submits thereby in principle to the requirement of outcome equality of every electoral vote as the specific
elaboration of the principle of equality of suffrage under the proportional system . . . .”
59
See, e.g., Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvC 1, 7/07, July 3,
2008, 121 BVERFGE 266, 297 (Ger.) (“Any differentiations require for their justification invariably a special, well
founded, ‘compelling’ reason.”) This was reiterated in the decision of Bundesverfassungsgericht [BVerfG - Federal
Constitutional Court], Case No. 2 BvC 2/06, Apr. 21, 2009, 124 BVerfGE 1, 19 (Ger.).
60
Ample proof of this distrust is provided by the large number of decisions in which the FCC discussed the
lawfulness of surplus seats. See Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvR
9/56, July 3, 1957, 7 BVERFGE 63, 74 (Ger.); Bundesverfassungsgericht [BVerfG - Federal Constitutional Court],
Case No. 2 BvC 3/62, May 22, 1963, 16 BVERFGE 130, 139–40 (Ger.); Bundesverfassungsgericht [BVerfG - Federal
Constitutional Court], Nov. 24, 1988, 79 BVERFGE 169, 171–72 (Ger.); Bundesverfassungsgericht [BVerfG - Federal
Constitutional Court], Case No. 2 BvF 1/95, Apr. 10, 1997, 95 BVERFGE 335, 358–63 (Ger.);
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvC 1, 7/07, July 3, 2008, 121
BVERFGE 266, 294 (Ger.)
61
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvF 1/95, Apr. 10, 1997, 95
BVERFGE 335 (Ger.).
62
Id. at 349–67.
63
Id. at 367–407
[Vol. 13 No. 05226 German Law Journal
the other system.
64
Matters of legislative discretion are transformed into constitutional
arguments without any convincing reason. In that sense, the Court loses sight of the
constitutional background.
65
The decision of the framers to leave the electoral system open, thereby entrusting ordinary
legislation with making the requisite determinations, must be taken seriously. Their silence
cannot be interpreted as an implicit prohibition of first past the post as has been suggested
by some voices in the legal literature.
66
An examination of the travaux préparatoires
reveals that the issue was highly controversial, the CDU suggesting with regard to the first
federal elections in 1949 the introduction of a plurality (majority) system while the SPD
favoured proportional representation.
67
The United Kingdom and the United States, which
still held their powers and responsibilities resulting from Germany’s surrender in 1945,
strongly favoured a plurality system modeled on the British first-past-the-post regime of
single-member constituencies. They even intervened in the drafting process, rejecting the
first draft drawn up by the Parliamentary Council.
68
Under these circumstances, no
agreement on specifying the main elements of the electoral system at the constitutional
level was possible. No matter how one may appraise such external constraints, the fact is
that the Parliamentary Council did not exclude any legitimate option within the framework
determined by the principles of Article 38(1) of the Basic Law.
By holding that the choice of proportional representation is a systemic determination that
requires consistency, the FCC follows a curious logic that has no legitimacy from the
viewpoint of constitutionality. Systemic consistency may be required as an inference of
equality and non-discrimination, which is not the issue with regard to the choice of the
electoral system.
69
Almost half a century ago, a short study appeared bearing the title, Von
der Verfassungsmäßigkeit der Gesetze zur Gesetzmäßigkeit der Verfassung.
70
The FCC
construes indeed the Basic Law in accordance with an ordinary law of implementation,
64
See Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvF 1/95, Apr. 10, 1997, 95
BVERFGE 335, 362–63 (Ger.); see also Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No.
2 BvF 3/11, July 25, 2012, 2012 NEUE JURISTISCHE WOCHENSCHRIFT (NJW) 2869 margin nn.92–97 (Ger.).
65
Criticism from the viewpoint of political science by Herbert Kleinert, Anmerkungen zum Wahlrechtsstreit—Ein
Problem gelöst, ein anderes bleibt. Oder: Ein Blick über die Grenzen lehrt Gelassenheit, 43 ZEITSCHRIFT FÜR
PARLAMENTSFRAGEN 185, 187 (2012).
66
MEYER, supra note 19, at 98; see also Meyer, supra note 37, at 537.
67
ROSENBACH, supra note 50, at XXXV.
68
See id.
69
On the issue of “Folgerichtigkeit,” see, for example, Paul Kirchhof, Allgemeiner Gleichheitssatz, in VIII HANDBUCH
DES STAATSRECHTS 697, 818–30 (Josef Isensee & Paul Kirchhof eds., 3d. ed. 2010).
70
WALTER LEISNER, VON DER VERFASSUNGSMÄßIGKEIT DER GESETZE ZUR GESETZMÄßIGKEIT DER VERFASSUNG passim (1964).
2012] 227Germany’s Mixed-Member Electoral System
thus resorting to a method which reverses the normative hierarchy. It opines that the
determinations made through the Electoral Act, explicitly in Article 1(1) of that Act, must
be respected: Proportional representation requires consequential implementation. From
a logical viewpoint, this rigidity appears to be erroneous. Proportional representation in its
pure form would require establishing the German territory as a single territorial district so
that any differentiations resulting from the federal structure as the basis for the allocation
of seats are completely done away with. Yet many intermediate systems between first
past the post, the system of relative plurality, and proportional representation in such rigid
form are conceivable and may be advisable on legitimate grounds. The two systems are
not opposed to one another as irreconcilable antipodes. Rather, the transition from one to
the other must be seen as a continuum.
71
No explanation has been given by the FCC for
why, in principle, no variations of proportional representation should be permissible under
the terms of the Basic Law, apart from the 5% threshold. In fact, notwithstanding the
rigidity of the principled position taken by the FCC, until very recently the system of surplus
seats had always been confirmed, notwithstanding the objections raised against it.
72
The departure from the orthodoxy of proportional representation began with the clause
contained in the Electoral Act of 1953
73
(Article 9(4)) denying any seats to political parties
that have not reached at least 5% of the vote at the federal level. To prevent
parliamentary representation to freely constituted political groups competing for political
power parties raises serious questions in a free pluralistic society. The relevant clause was
indeed challenged already in the early years of the Federal Republic of Germany, as being
designed to deny a political voice to minorities outside the mainstream.
74
However, the
primary function of elections is not to faithfully reflect all of the political currents and
tendencies in society. Rather, elections must prepare the ground for the formation of a
stable government capable of effectively discharging the manifold tasks confronting the
nation.
75
As previously hinted, at the initial stage of the Federal Republic of Germany,
politicians were still haunted by the fragmentation of the Reichstag under the Weimar
Constitution, believing that the continual internal fights in that body, facilitated by the
multitude of small and even tiny parties, was a determinative factor in the erosion of
71
Persuasively demonstrated by Lenz, supra note 48, at 346. This is also acknowledged by Meyer, supra note 37,
at 535.
72
See supra note 58.
73
Federal Electoral Act, supra note 5, at 470.
74
See Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvE 2/56, Jan. 23, 1957, 6
BVERFGE 84 (Ger.).
75
All of these arguments were already considered with thorough attention in the judgment of
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvH 1/52, Apr. 5, 1952, 1 BVERFGE
208, 248 (Ger.).
[Vol. 13 No. 05228 German Law Journal
governmental authority.
76
Under this historical premise, the FCC declared the 5%
threshold to be unobjectionable, in spite of its departure point that the choice of
proportional representation required outcome equality with regard to the balloting
process.
77
Concerning the surplus seats, the FCC originally proceeded from the assumption that they
were just a marginal phenomenon, not susceptible of putting a decisive hallmark on the
election process and therefore not constituting a disturbing element affecting the
requirement of outcome equality. At the same time the Court cautioned as early as 1957
that surplus seats could be deemed to be admissible only within certain limits,
78
which
were not specified in detail. Eventually, the 25 July 2012 judgment abandoned the
vagueness of the earlier holdings, stating that the new regulation needed to fill the vacuum
left by the invalidation of the key provision of the Electoral Act in its 2011 version must
provide for a limit of 15 surplus seats.
79
The FCC itself acknowledges that this limit, which
corresponds roughly to half of the seats a political party must obtain in order to overcome
the 5% hurdle, may seem to have been chosen with some degree of arbitrariness.
80
It does
not even attempt to give a rational explanation for that number. The observer has the
impression that the FCC has confined itself to articulating its uneasiness about, and distrust
of, surplus seats without being able to identify the true grounds for its dictum. Thus, it has
failed to comply with its judicial duty to provide appropriate reasons for its determination.
It is hardly persuasive to leave surplus seats in a grey zone between constitutional
acceptability and illegitimacy. If surplus seats are objectionable, then they must be
abolished once and for all without any restriction. On the other hand, if they constitute a
legitimate complement to the system of proportional representation, institutional
mechanisms should be sought which are suited to keep them as a complement. To decree
that a ceiling of fifteen seats must be introduced smacks of arbitrariness, as the FCC itself
has acknowledged. Hardly any mechanism is conceivable that would, without leading to
new complexities, ensure compliance with the borderline drawn by the FCC.
76
KARL-DIETRICH BRACHER, DIE AUFLÖSUNG DER WEIMARER REPUBLIK: EINE STUDIE ZUM PROBLEM DES MACHTVERFALLS IN DER
DEMOKRATIE, 84–86 (5th ed. 1971).
77
See text accompanying supra note 32.
78
See Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvR 9/56, July 3, 1957, 7
BVERFGE 63, 75 (Ger.); see also Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvC
3/62, May 22, 1963, 16 BVERFGE 130, 140 (Ger.).
79
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvF 3/11, July 25, 2012, 2012
NEUE JURISTISCHE WOCHENSCHRIFT (NJW) 2869, at margin nn.143–44 (Ger.).
80
Id. (“The Chamber realizes that the number of 15 surplus seats, an act of judicial particularization of the law,
cannot completely be supported by reasons.”).
2012] 229Germany’s Mixed-Member Electoral System
In the first place, the rigid idea of outcome equality (Erfolgswertgleichheit) should be
abandoned. This concept stands in stark contrast to the many findings of the FCC itself to
the effect that the German legislature is free to choose any appropriate electoral system.
81
If first past the post is compatible with Article 38(1) of the Basic Law and if the
intermediate regime of a ditch system, according to which the two lists would operate as
independent systems, does not meet with any objections either, the slight modifications of
proportional representation resulting from the acceptance of surplus seats can hardly be
deemed to infringe the electoral principle of equality of the vote. The jurisprudence of the
FCC lacks consistency. The basic propositions it proclaims as deriving from Article 38(1) of
the Basic Law, in no way lead to the rejection of surplus seats. If total rejection of
proportional representation is permissible under first past the post, and if the ditch system
with its incisive consequences for smaller parties is also a viable option, slight variations of
proportional representation cannot be rejected. In the legal literature, various writers
have advocated such a conclusion a maiore ad minus.
82
The constant jurisprudence of the
FCC stands like a rocher de bronze, which prevents embarking on any paths that would
circumvent the holy dogma of outcome equality. To date, the FCC has rarely ever
withdrawn from positions taken in earlier decisions. Such new orientations, even by
explicit acknowledgment, have occurred, but only in very rare instances.
83
It is true, on the other hand, that the electoral system of a nation having embraced
pluralist political freedom must be fair and equitable. Any attempt to misuse the electoral
regime for manipulative purposes must therefore be deemed to infringe core principles of
the Basic Law. For that reason, the FCC made a painstaking effort in 1957 to justify the 5%
clause.
84
The reasons it adduced were legitimate; they have stood the test of time and find
confirmation in the legislation of other countries resting on the same political paradigms.
85
81
See text accompanying supra note 54.
82
See references in the opinion of the four dissenting judges concerning the judgment of
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvF 1/95, Apr. 10, 1997, 95 BVerfGE
335, 373 (Ger.); Dirk Ehlers & Marc Lechleitner, Die Verfassungsmäßigkeit von Überhangmandaten,
JURISTENZEITUNG 761, 762 (1997); Lenz, supra note 48, at 345.
83
The most outstanding example is the distancing of the FCC from the “Halbteilungsgrundsatz,” the principle
according to which income taxes must not exceed 50% of the taxable revenue. The principle was proclaimed in a
decision of Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvL 37/91, June 22,
1995, 93 BVERFGE 121, 138 (Ger.), but abandoned by a decision of Bundesverfassungsgericht [BVerfG - Federal
Constitutional Court], Case No. 2 BvR 2194/99, Jan. 18, 2006, 115 BVERFGE 97, 114 (Ger.). The second relevant
example is the departure of the FCC from the 5% clause concerning elections to the European Parliament.
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvF 3/11, July 25, 2012, 2012 NEUE
JURISTISCHE WOCHENSCHRIFT (NJW) 2869 margin n.143 (Ger.).
84
See text accompanying supra note 32.
85
Detailed references are given by Dieter Nohlen & Philip Stöver, Elections in Europe, in ELECTIONS IN EUROPE 69, 92
(2010).
[Vol. 13 No. 05230 German Law Journal
In terminology, the FCC seems to have moved away from the earlier formulations where
systemic consistency was explicitly presented as a constitutional requirement. All of the
more recent decisions emphasize the necessity of justifying any departure from the ground
rule of proportional representation, trying to soften the standard of “compelling”
(“zwingend”) reasons to “appropriate” (“sachlich legitimiert”).
86
Yet, the yardstick applied
still remains Erfolgswertgleichheit (“outcome equality”), which, it is submitted, has led the
FCC onto the wrong path.
It is much easier to apply outcome equality as the appropriate yardstick than to inquire
into the fairness and equity of an electoral regime. Outcome equality provides a rather
rigid yardstick. On the other hand, fairness constitutes a flexible standard, the application
of which is essentially left to the decision-making power of the legislature. In this regard,
the jurisprudence of the FCC would appear amply to transgress the boundary line between
legislative discretion and constitutional requirements. The judgment of 25 July 2012, in
particular, is filled up with speculations about any possible consequences entailed by the
acceptance of surplus seats under contemporary conditions.
87
It may well be that today
surplus seats come into being under circumstances that had not been foreseen by anyone.
But the system as such could never be challenged as embodying manipulative tendencies.
On the contrary, the considerations that have led to the instauration of the German mixedmember
system are basically sound and remain unobjectionable.
The original idea was to foster a close relationship between members of the Bundestag
and the electorate, at least with regard to candidates running in the different electoral
districts. It was assumed that persons nominated by the political parties for the first list
would have to be firmly rooted in the societal environment of their districts. Democracy
would therefore not remain an abstract, somewhat hollow concept, but rather a living
reality.
88
In order to win the seat in issue, candidates would have to devote special care to
86
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvC 3/96, Apr. 10, 1997, 95
BVERFGE 408, 418 (Ger.); Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvC 1,
7/07, July 3, 2008, 121 BVERFGE 266, 297 (Ger.); see also Bundesverfassungsgericht [BVerfG - Federal
Constitutional Court], Case No. 2 BvF 3/11, July 25, 2012, 2012 NEUE JURISTISCHE WOCHENSCHRIFT (NJW) 2869 margin
n.58, 127 (Ger.).
87
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvF 3/11, July 25, 2012, 2012
NEUE JURISTISCHE WOCHENSCHRIFT (NJW) 2869 margin n.62 (Ger.).
88
The argument has been generally accepted in the jurisprudence of the FCC. See Bundesverfassungsgericht
[BVerfG - Federal Constitutional Court], Case No. 2 BvR 9/56, July 3, 1957, 7 BVERFGE 63, 74 (Ger.);
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvC 3/62, May 22, 1963, 16
BVERFGE 130, 140 (Ger.); Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvR 89/74,
Mar. 9, 1976, 41 BVERFGE 399, 423 (Ger.); Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case
No. 2 BvF 1/95, Apr. 10, 1997, 95 BVERFGE 335, 358 (Ger.); Bundesverfassungsgericht [BVerfG - Federal
Constitutional Court], Case No. 2 BvC 3/96, Apr. 10, 1997, 95 BVERFGE 408, 412 (Ger.); Bundesverfassungsgericht
[BVerfG - Federal Constitutional Court], Case No. 2 BvC 28/96, Feb. 26, 1998, 97 BVERFGE 317, 327 (Ger.);
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvF 3/11, July 25, 2012, 2012 NEUE
JURISTISCHE WOCHENSCHRIFT (NJW) 2869 margin n.133 (Ger.).
2012] 231Germany’s Mixed-Member Electoral System
the needs and wishes of the inhabitants of their constituency, thereby vitalizing the idea
that democracy springs up from the grassroots level, as indicated in Article 20(2) of the
Basic Law: “All state authority is derived from the people.”
Concerning the choice of district candidates, the political parties have far less influence
than with regard to establishing the Laender lists, where normally the party bureaucracies
wield decisive influence.
89
In this sense, the district nominations embody a piece of
bottom-up democracy, in full conformity with the objective of Article 38(1) that elections
must be direct, although the political parties are also structurally present in the selection
of the district candidates. Admittedly, list candidates are also elected directly, but in every
one of the electoral districts, the voters know the identity of the person to whom they
entrust their confidence, whereas no forecasts can be made as to which candidates on the
second list will ultimately make his/her way to the Bundestag.
This original concept has not lost its raison d’être by virtue of the profound
transformations modern society has witnessed.
90
One of the most fervent advocates of
strict proportional representation, Hans Meyer, has argued that local representation is a
thing of the past that has no basis in the sociological reality of our time.
91
He therefore
rejects the design of the two-vote system, holding that party allegiance is the primary
criterion relied upon by voters casting their ballot.
92
It may well be true that the political
parties have de facto won the upper hand in all political processes, not only in Germany
but also in most other European countries.
93
However, the conceptual premises of the
constitutional order of Germany diverge considerably from the factual position. Although
the Basic Law recognizes political parties as participants “in the formation of the political
will of the people” (Article 21(1)), they are essentially no more than instruments serving
the people in the actual exercise of their democratic rights. In particular, they do not enjoy
a monopoly. In the last analysis, the electorate selects individual candidates, not political
parties, and the Bundestag is composed of individual human beings, not political parties
(Article 38(1) of the Basic Law).
94
Consequently, to determine that half of the seats of the
89
See Nir Atmor, Reuven Y. Hazan & Gideon Rahat, Candidate Selection, in PERSONAL REPRESENTATION: THE
NEGLECTED DIMENSION OF ELECTORAL SYSTEMS 21, 28 (Joseph P. Colomer ed., 2011); Matthew Soberg Shugart,
“Extreme” Electoral Systems and the Appeal of the Mixed-Member Alternative, in MIXED-MEMBER ELECTORAL
SYSTEMS: THE BEST OF BOTH WORLDS? 25, 35–36 (Matthew Soberg Shugart & Martin P. Wattenberg eds., 2001).
90
See, e.g., Pappi & Herrmann, supra note 19, at 270.
91
MEYER, supra note 19, at 8, 11; see Meyer, Demokratische Wahl und Wahlsystem, supra note 37, at 534.
92
Similar arguments are advanced by Sophie-Charlotte Lenski, Paradoxien der personalisierten Verhältniswahl,
134 ARCHIV DES ÖFFENTLICHEN RECHTS 473, 479–500 (2009); Christoph Möllers, 1 Wahlrecht: Das missverstandene
Systemargument im Streit um die Überhangmandate, RECHT UND POLITIK 1, 7–8 (2012).
93
See, e.g., JAAP WOLDENDORP, HANS KEMAN & IAN BUDGE, PARTY GOVERNMENT IN 48 DEMOCRACIES (1945–1998):
COMPOSITION, DURATION, PERSONNEL, 1–10 (2000).
94
Text accompanying supra note 3.
[Vol. 13 No. 05232 German Law Journal
Bundestag shall be allocated in single-member districts is a decision fully in line with the
political philosophy of the Basic Law.
95
This same philosophy supports also the proviso of the Electoral Act that surplus seats shall
be maintained even when their number exceeds the share a party has won on the basis of
the relevant Land list. Any attempt to deprive persons having obtained the (relative)
majority in an electoral district would appear as an affront to the democratic principle. At
first sight, it may appear contradictory that surplus seats will primarily go to political
parties that have lost their dominating positions, collecting no more than between 30%
and 50% of the proportional vote according to the second list. However, this is an
unintended side effect of the regime of overhang seats. Furthermore, if indeed the
intention pursued is to provide the strongest parties, even those below an approval rate of
50%, with a bonus, this cannot be characterized as an illegitimate maneuver. It follows the
logic of first past the post or of the ditch system where structurally the largest parties are
provided with additional seats because of their strength. It is therefore hardly
understandable why the FCC has rejected such an objective as constitutionally
unacceptable. Again the FCC was blinded by its fixation with the principle of outcome
equality, which, it should be reiterated again, has no validity under the auspices of free
choice of the electoral system.
In recent years, some authors have formulated the reproach that the two-vote system
lends itself too easily to manipulative purposes, and that the voters are resorting to
strategic vote splitting.
96
Indeed, this has become a current feature for a couple of years.
Whereas during the foundational years of the Federal Republic, voters were, in their great
majority, unaware of the relative importance of their first and their second vote, they have
progressively become conscious of their decisional power. They know that to cast a ballot
for a district candidate nominated by one of the smaller parties who has no chance
whatsoever to get elected is a wasted ballot.
97
Therefore, they may cast their first vote for
a candidate of a friendly political party that might later form a coalition with their own
preferred political party, hoping that that candidate will win the district seat, perhaps even
in the form of a surplus seat. Mainly, the FDP has benefited from such strategic thinking
inasmuch as it was crystal clear on election day that their aim was to enter into a coalition
95
Federal Electoral Act, supra note 5, at art. 1(2).
96
Lenski, supra note 92, at 502; MEYER, supra note 19, at 36, 59, 72–74, 100. A first hint was given by the FCC
itself in its decision of Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvR 9/56, July
3, 1957, 7 BVERFGE 63, 75 (Ger.).
97
However, where a political party has no allies—like the party “Die Linke” (The Left) or the “National Democratic
Party” (NPD) on the extreme right hand side of the political spectrum—voters have no such choice.
2012] 233Germany’s Mixed-Member Electoral System
with the CDU/CSU. Well-advised supporters of the FDP therefore gave their first vote to
the CDU/CSU, putting their crosses for the FDP only on the second list.
98
As an observer, one may wonder why such strategic casting of the two ballots should be
stigmatized as “manipulation.” By such conduct, voters do nothing else than make use of
the opportunities that the electoral system offers them.
99
The contention that this
amounts to an infringement of the principle of outcome equality fails dramatically. Every
voter has the same opportunity to cast his/her ballot by splitting the two votes. No one is
obligated to cast the vote twice for the same political party, both on the first and on the
second list. Splitting is an integral element of the system and does not confer a double
vote on those making use of that opportunity, in violation of the principles of equality and
non-discrimination.
100
The bitterness with which this doctrinal battle has been fought is
largely explained by partisan political considerations. In 2005 and 2009, the strategy of
vote splitting was largely used, as already pointed out, for the benefit of the FDP: Its first
list nominations obtained generally far fewer votes than its Laender lists.
101
There can be
no doubt that adherents of the CDU, knowing that their candidates would win in the
district balloting, massively cast their second vote for the FDP, which had already been
identified as the partner in the governmental coalition to be formed after the elections.
No trace of manipulation can be detected in these strategies, which have their source in
enlightened individual decisions. The fact is, on the other hand, that no similar
configuration existed on the left hand side of the political spectrum. The SPD did not have
a potential coalition partner related to it by ties of confidence. The Green Party is much
too independent to need, or to request, such electoral assistance.
102
98
Thus, in 2009 the FDP obtained 9.4% of the first list votes but 14.7% for their second lists, Der
Bundeswahlleiter, Endgültiges Ergebnis der Bundestagswahl 2009,
http://www.bundeswahlleiter.de/de/bundestagswahlen/BTW_BUND_09/ergebnisse/bundesergebnisse/index.ht
ml, the gap was also considerable, but on a lower level, 4.75% against 9.8%. See Der Bundeswahlleiter, Wahl Zum
16 Deutschen Bundestag Am 18 September 2005, at 6, 10, available at
http://www.bundeswahlleiter.de/de/bundestagswahlen/BTW_BUND_05/downloads/ergebnisse_2005/heft3_mit
_grafiken.pdf.
99
Formally acknowleged by the FCC in Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No.
2 BvC 2/06, Apr. 21, 2009, 124 BVERFGE 1, 21 (Ger.). See Isensee, supra note 55, at 276; Hans-Dieter Klingemann
& Bernhard Wessels, The Political Consequences of Germany’s Mixed-Member System: Personalization at the
Grass Roots?, in MIXED-MEMBER ELECTORAL SYSTEMS THE BEST OF BOTH WORLDS? 279, 285–88 (Matthew Soberg Shugart
& Martin P. Wattenberg eds., 2001).
100
For the contrary view, see MEYER, supra note 19, at 100, 108.
101
See supra note 98.
102
However, it is striking that the Green Party, too, scored much better on its second than on its first lists. In
2005, the percentages were 5.4 and 8.1 respectively. See Der Bundeswahlleiter, Wahl Zum 16 Deutschen
Bundestag Am 18 September 2005, at 6, 10, available at
http://www.bundeswahlleiter.de/de/bundestagswahlen/BTW_BUND_05/downloads/ergebnisse_2005/heft3_mit
_grafiken.pdf. In 2009, the score was 9.2 to 10.7 respectively. See Der Bundeswahlleiter, Endgültiges Ergebnis
der Bundestagswahl 2009,
[Vol. 13 No. 05234 German Law Journal
Finally, it can hardly be maintained that the surplus regime produces irrational results and
must therefore be rejected as inherently arbitrary. It is true that surplus seats do not
necessarily accrue to political parties that will be called, on the basis of their overall
electoral success, to form the federal government. This de-linkage results from the
division of the federal territory into electoral zones constituted by the 16 Laender. It is
within the framework of the Laender that surplus seats are allocated while a parliamentary
majority for the election of the Federal Chancellor is required at the federal level.
103
Nonetheless, this does not detract from the legitimacy of the idea to provide a party
which, through winning a high number of nominal seats exceeding its proportional share,
has demonstrated its widespread acceptance by the electorate, with an extra bonus
intended to increase the stability of the political system. Surplus seats stand at the
opposite end of the rationale that justifies the 5% threshold. While this latter clause is
designed to solidify the governmental system by eliminating splinter parties from the
parliamentary stage, surplus seats are intended to attain a similar effect by increasing the
weight of the top runners.
Although it cannot be denied that the intentions pursued by the legislative bodies do not
always materialize,
104
the ensuing gap between expectations and actual outcomes does
not reach the quality of a constitutional defect.
105
What matters is that the Electoral Act
has never been used as an instrument of manipulation. In law, surplus seats have been an
integral component of the German electoral system since 1953.
106
The fact that their
actual importance has augmented since Germany's reunification does not cast a shadow
over them since they are not irreconcilable with the basic tenets of that system. Contrary
to the constant jurisprudence of the FCC, the principle of equal suffrage does not require
outcome equality on account of the choice of a system of proportional representation.
Surplus seats could only be deemed to infringe the Basic Law if they were intended to, or
http://www.bundeswahlleiter.de/de/bundestagswahlen/BTW_BUND_09/ergebnisse/bundesergebnisse/index.ht
ml.
103
Article 63(1) of the Basic Law provides: “The Federal Chancellor shall be elected by the Bundestag without
debate on the proposal of the Federal President.” GRUNDGESETZ FUR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDEGESETZ]
[GG] [BASIC LAW] (Ger.).
104
They materialized, for example, at the federal elections of 2009 when the CDU, for which Angela Merkel was
the top candidate, obtained 24 surplus seats which gave a comfortable majority to the coalition government of
CDU/CSU and FDP.
105
In a somewhat naive manner, Lenski, supra note 92, at 501, argues that the legislature had expected that
voters would regularly cast their vote in an uniform manner.
106
See Electoral Act of 8 July 1953, Bundesgesetzblatt 1953 I, 470, at Article 9(4). For the actual practice see
Geschichte der Überhangmandate im Deutschen Bundestag, WAHLRECHT.DE (Nov. 1, 2009),
http://www.wahlrecht.de/ueberhang/ueberhist.html.
2012] 235Germany’s Mixed-Member Electoral System
did in fact amount to, falsifying the will of the electorate. This has never been alleged, and
can indeed not be proven.
E. Reform of the Electoral Act
Different solutions are conceivable to prevent any undesirable side effects of surplus
seats.
107
If the number of seats available for distribution within the framework of the
individual Laender is determined beforehand on the basis of the number of the voters
entitled to take part in the elections, instead of a calculation resting on the number of
voters actively casting their ballots, any subsequent modifications of the allocation on the
basis of the attribution of surplus seats in other Laender are excluded. With a view to
maintaining the maximum of 598 seats of the Bundestag, it could also be thought of
subtracting the surplus seats already at the first stage of the computational process at the
federal level so that the contingent for distribution according to the scores obtained on the
second lists would accordingly be reduced from the very outset. It is obvious that the
political parties will consider the pros and cons of either solution with the greatest care.
To the extent that surplus seats are kept as a traditional and well-proven element of the
German electoral system, the issue of the size of the constituencies will rise to
considerable relevance.
108
The principle of electoral equality stands in the way of granting
advantages to people in thinly populated areas, thereby discriminating against the
population of larger agglomerations.
109
Currently, the Electoral Act allows departures from
the average size of a constituency of up to 15%, providing that if the departure amounts to
more than 25% the boundaries must be redrawn (Article 3(1), 3), which means that
discrepancies in the range between 15% and 25% are tolerated. This margin would appear
to be excessive, notwithstanding the fact that because of the increasing mobility of the
population some flexibility is necessary. Constituencies cannot be newly tailored at a quick
pace. A departure of 15% in either direction should be the allowable maximum.
107
For a comprehensive discussion see MEYER, supra note 19, at 68.
108
See Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvC 3/62, May 22, 1963, 16
BVERFGE 130, 136 (Ger.); Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Nov. 24, 1988, 79
BVERFGE 169, 171 (Ger.); Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvF 1/95,
Apr. 10, 1997, 95 BVERFGE 335, 353 (Ger.); Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case
No. 2 BvC 1, 7/07, July 3, 2008, 121 BVERFGE 266, 295 (Ger.); Bundesverfassungsgericht [BVerfG - Federal
Constitutional Court], Case No. 2 BvC 2/06, Apr. 21, 2009, 124 BVERFGE 1, 18 (Ger.); Bundesverfassungsgericht
[BVerfG - Federal Constitutional Court], Case No. 2 BvF 3/11, July 25, 2012, 2012 NEUE JURISTISCHE WOCHENSCHRIFT
(NJW) 2869 margin n.60 (Ger.).
109
As already indicated, the FCC emphasized already in early decisions of 1961 and 1963 that to the extent
possible the size of the population in the different constituencies should be “approximately” equal. See
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Aug. 26, 1961, 13 BVERFGE 127, 128 (Ger.);
Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvC 3/62, May 22, 1963, 16
BVERFGE 130, 140 (Ger.).
[Vol. 13 No. 05236 German Law Journal
F. Concluding Observations
It is not the objective of the above considerations to make a plea for the preservation of
surplus seats. The intention was to show that the FCC errs in establishing a rigid
framework of sophisticated rules under the auspices of outcome equality. Since the Basic
Law has left the choice of the electoral system open, the legislative bodies are free to
choose any appropriate and fair balloting mechanism. A system modeled on first past the
post and a system of proportional representation are the two extreme ends of a
continuum on which many intermediate mechanism, including the regime of surplus seats,
find their legitimate place.
G. Post Scriptum
In October 2012, the political parties represented in the Bundestag, with the exception of
“The Left,” agreed on a new formula for dealing with the issue of surplus seats. The gist of
this formula is simple. All the parties that on election day have not benefited from such
seats shall obtain compensatory seats intended to adjust the size of the different groups in
the Bundestag to their exact share of the vote.
110
The main problem now is constituted by
equitable regional distribution. It is generally expected that, at the next elections in
September 2013, the Bavarian party CSU will fall far below the 50% mark but will still be
able to win almost all of the relevant district seats, thereby being allocated a considerable
number of surplus seats.
111
If the envisaged compensation scheme should operate within
Bavaria and not at the federal level, the Bavarian deputies would reach a number largely
surpassing the weight of the Bavarian population in Germany as a whole. Details have not
yet been settled in this regard; no documents exist to be indicated as reference sources.
The consequences of this political agreement must be called outright worrying. In 2002,
the number of seats had been cut down from 656 to 598 precisely with the aim of
facilitating parliamentary work.
112
The new compensation scheme could increase the
number of deputies considerably, according to certain calculations, up to 700.
113
Thus, the
Bundestag might not be significantly smaller than the European Parliament, whose
110
A common proposal was introduced by all parties represented in the Bundestag, with the exception of “The
Left,” on 11 December 2012. See Bundestag document 17/11819 (2012).
111
In 2009, the CSU obtained 42.5% of the vote in Bavaria according to the Land list but won all seats available on
the first lists, which resulted in three surplus seats. Should its general approval rate shrink even further, it might
still be able to take all of the direct seats.
112
See Report of the Committee of Elders, DEUTSCHER BUNDESTAG: DRUCKSACHE [BT] 13/1803, at 7–8.
113
Severin Weiland, Bundestag nach der Wahlrechtsreform: Größer als Nordkorea, SPIEGEL ONLINE, Oct. 18, 2012,
http://www.spiegel.de/politik/deutschland/bundestagsfraktionen-einigen-sich-auf-neues-wahlrecht-a-
863199.html.
2012] 237Germany’s Mixed-Member Electoral System
maximum size has been set at 750 members.
114
Apart from the difficulties arising for
parliamentary processes, the financial costs entailed would by no means be negligible. No
service will be done to the vitality of the democratic principle by such a bloating of the
main legislative body. Unfortunately, the ill-conceived jurisprudence of the FCC will have
to be blamed as one of the main causes of this unwelcome development.
114
Treaty on European Union, Feb. 7, 1992, 1992 O.J. (C 191) 1, 31 I.L.M. 253, art. 14(2).
[Vol. 13 No. 05238 German Law Journal