With the next scheduled federal election about 14 months away, Germany has a problem. On July 25, 2012 the Federal Constitutional Court ruled that most, if not all, of the electoral law passed in late 2011 is unconstitutional.  In fact it is so unconstitutional that the Court refused to allow any “temporary,” stop-gap version of the old law for 2013. What happens if the Merkel government falls before then (unlikely, but always a possibility in a parliamentary system)?  No one knows.

How did all this happen?  It starts in 2005 with the untimely death of a candidate (NPD) for a safe CDU district in Dresden. His death during the campaign meant that a new election in that district had to be held about two weeks after the regular national vote.  In the interim, party strategists and electoral system junkies quickly figured out that on the basis of the votes already cast, the CDU, which was going to win the seat, could actually lose a seat in another Land if they won by too great a margin in Dresden.  And, they even had the number. If the CDU in Dresden won with over 42,000 votes, they would lose a seat in North-Rhine Westphalia. This type of calculation could only be made in this unique case of a separate election after the national vote. In other words, voting for a party could actually hurt the party. This was subsequently termed: the negative vote or negatives Stimmgewicht.

The Dresden case was a gift from heaven for long-time opponents of the law who had argued that such a bizarre event could take place. Until Dresden came along, these opponents were unable to prove any such possibility could occur. Now, they had concrete evidence and off to Karlsruhe (seat of Germany’s Federal Constitutional Court) they went.  In 2008 the court ruled that the law was indeed unconstitutional. It was specifically the Dresden case that sealed the law’s fate. The Court ordered parliament to come up with a new law by June 30, 2011.  They also ruled that the current law, though flawed, could be used for the 2009 election.

Like college students facing a paper deadline, the parliament waited until the last minute to write a new law.  It was not until 2011 that hearings were held, and as the deadline approached it was clear that there would be no all-party consensus.  The CDU-FDP proposed a minimalist solution to the problem. A negative vote could be avoided if the distribution of list seats took place at the state rather than the national level, i.e. each state would be an independent unit distributing the seats it was entitled to based on its proportion of the total vote. This, they argued, would eliminate any “win one in Dresden, lose won in North-Rhine Westphalia” repeat. Problem solved. The opposition of course disagreed. The SPD wanted to equalize excess mandates, i.e. the extra seats awarded to a party if it wins more direct mandates than it would be entitled to under proportional representation, through “compensatory mandates.”  This procedure, common at state elections, provides an additional seat, which then goes into a pool and is awarded on a proportional basis to the parties who did not get an excess mandate, i.e. they get compensated.  In 2009 this would have enlarged the Bundestag by an additional 24 seats for a total of 646 (598 “regular seats”, 24 excess mandates and 24 compensatory mandates). The Greens said the whole problem could be solved if  excess mandates were offset by subtracting a list seat in another state for every excess mandate won.  Thus, in 2009 the CDU’s 24 excess mandates would have resulted in a loss of 24 list seats in states where the party did not win any excess mandates.  Neither the SPD nor the CDU liked this idea. According to some reports, the CDU would have been willing to accept some parts of the SPD proposal, i.e. some compensatory seats, but the FDP vetoed the idea.