Schröder, Jerome: Proportionalität im Wahlrecht

Jerome Schröder explores the proportionality claim for parliamentary elections at the federal and state level enshrined in the Constitution and uses this standard to assess the use of various technical electoral elements that have a disproportional effect. Case law and large parts of the legal literature interpret the principle of electoral equality as dependent on the electoral system. Accordingly, the requirement of equal success value of votes applies only in a proportional representation system. The author rejects the view that the principle of electoral equality governing elections to the Bundestag under Article 38 paragraph 1 of the Constitution implies - regardless of the particular electoral system - a proportionality requirement in the form of equal success value. Via Article 28 paragraph 1 sentence 2 of the Constitution, this requirement ultimately also applies in an equivalent manner to elections to the state parliaments. The technical electoral element that gradually distorts proportionality most strongly is the electoral threshold, whose disproportional effect can be justified by the constitutional principle of the functioning of the parliament. Overhang and compensatory systems that do not provide for full compensation distort proportionality less strongly than the electoral threshold. By contrast, proportionality distortions that arise - in the case of allocating overhang seats - from the partial or non-allocation of compensatory seats cannot be justified by the constitutional principle of the functioning of the parliament. The same applies to proportionality distortions resulting from the use of seat allocation methods. Since the Sainte-Laguë/Schepers method has been shown to be optimal with respect to success value, the d‘Hondt method proves insufficient in light of the requirement of equal success value regardless of the electoral system and is therefore unconstitutional.