The recently passed Federal Election Act in Germany, which fixes the number of lawmakers in the Low Chamber of Parliament (Bundestag) to 630 (down from a variable number, now 736) may lack cross-party support, but it conforms to international standards, according to an opinion published by the Venice Commission, the Council of Europe’s constitutional law experts.
Proposed by Chancellor Olaf Scholz’s governing coalition, the reform sets the size of the Bundestag at a constant 630 seats. Under the new system, parties must win 5% of the vote to share in the division of seats and the three-winner option is eliminated. No extra seats are added to allow all direct constituency winners to take their seats, meaning that worst-performing candidates with a plurality of votes in a constituency are excluded.
The reform could lead to the exclusion from the Bundestag of the conservative Christian Social Union, which runs in Bavaria and holds nearly all that state’s 46 directly elected seats with 5.2 % of the national vote; as well as of the Left Party, which fell short of 5% support in the 2021 election – with 4.9 % – but has a full parliamentary group because it emerged with three directly elected lawmakers. These parties should bring the law to the Constitutional Court.
The opinion, requested by Mr Tiny Kox, President of the Council of Europe’s Parliamentary Assembly, acknowledges that building broad consensus on the choice and fundamental aspects of an electoral system contributes to the acceptance, the legitimacy and the stability of the governing system, but stresses that international standards cannot be understood as preventing any reform of the electoral system which may be opposed by some political parties. The reform does not go against the principle of stability of electoral law since it has been adopted much in advance of the next elections.
Concerning the substance, the Venice Commission and ODIHR reiterate that any electoral system may be chosen as long as it does not go against electoral international standards. They consider that the amendments under consideration are largely in conformity with these standards. This opinion was prepared jointly by the Venice Commission and OSCE Office for Democratic Institutions and Human Rights (ODIHR).
