In late June, with the deadline just days away, the CDU-FDP said it would need more time. The problem was that the FDP had figured out that it would be hurt by what the government was proposing. They came up with yet another new wrinkle: the Reststimmenverwertung, or “remainder vote”. All votes at the state level that were not used in the initial distribution of seats would be swept up, deposited in a new pool at the national level, and then awarded to the parties as even more additional mandates. This, they argued, would benefit above the smaller parties and would be especially attractive to the Court, which in the past has expressed particular concern for them. An example for the patient, but confused reader: assume it took 60,000 votes to be awarded a list seat in a given state. Your party received 70,000; you get, of course, one seat, but the remaining 10,000 are “wasted”. Not with Reststimmenverwertung. The remainders from all the 16 states get pooled and a few supplemental seats get awarded.
On September 29, 2011, on a pure party-line vote, this new law passed parliament and went into effect on November 30, 2011. The ink was hardly dry on the President’s signature before the opposition parties, interest groups, and over 3,000 concerned citizen petitioned Karlsruhe challenging the constitutionality of this by now highly complicated revision of a highly complicated law. Most experts predicted that this law did not have a chance. They were right.
Karlsruhe, June 5, 2012: A Bad Day for the Government
The hearing before the Second Senate took place on June 5. At the outset it was clear that the CDU-FDP law was in trouble. The Court was also not amused. First, the Chairman of the Court’s Second Senate, Andreas Voβkuhle, gave the authors of the bill a tongue lashing. They were late − about five months late. It is never a good idea to be late with anything or for anything in Germany. The law was also a pure government bill. We wanted, Voβkuhle stated, a consensus bill. The electoral system is too fundamental to be enacted on a pure, party line vote.
Then the Court, relying on a bevy of experts, went after the substance of the law. First, the law did not eliminate the negative vote. Second, they had serious doubts about the new wrinkle − the Reststimmenverwertung. The Court questioned the fairness of this procedure and suggested that smaller parties would still be handicapped, thus violating the “equal weight” mandate of the Basic Law stating that all votes must count equally. Thirdly, it questioned whether all those excess mandates − twenty-four in 2009 − were undermining the fundamental proportional character of the law. The hearing clearly went very badly for the government.
Karlsruhe, July 25, 2012, Decision Day
In a unanimous decision, the Court ruled that the 2011 law was unconstitutional. They did not favor the state by state distribution, the remainder vote provisions, or all those excess mandates. They did not declare excess mandates per se unconstitutional, but they ruled that they should be limited to “around fifteen”. The court also did not like the law’s treatment of the negative vote problem and in fact argued the government had made it worse. In short, it was back to the drawing board to devise a law that has some semblance of all-party support and that passes constitutional muster.
The SPD, Greens, and even the Left party hailed the decision. “A good day for our democracy”, declared Thomas Oppermann, the SPD’s point man for the challenge. “They now have to negotiate; no more Alleingang.” The Greens joined in and spoke of a legal-political disaster for the government. The Left charged that the government had deliberately tried to undermine the Basic Law.