Paradoxien der personalisierten Verhältniswahl

In July 2008 the Federal Constitutional Court declared parts of the Federal Electoral Act (Bundeswahlgesetz) incompatible with the Basic Law as far as they can cause the so-called »effect of negative voting weight« (»negatives Stimmgewicht«). This effect is based on the particularity of the German two-ballots-system of personalised proportional representation. It may lead to a situation in which more ballots cast for one party can cause a loss of mandates for the same. The time limit set by the Federal Constitutional Court to the legislator for passing a constitutional provision will expire in two years. Against the background of the upcoming reform the article sums up the hitherto existing controversial points in the Federal Electoral Act and consecutively reveals the fundamental inconsistency of the German two-ballots-system of personalised proportional representation.In the judicial development of the federal electoral law all doubts about the compatibility of the Federal Electoral Act with the constitutional principle of electoral equality can be traced back to the specific two-ballots-system in which with the first ballot the voter shall elect a person whilst with the second ballot the voter shall vote for a political party. On closer examination, however, already this legal construct turns out to be failing: As the first and the second ballots finally get set off, the idea to elect a person with the first vote is a fiction. In fact, by casting the first ballot the voter makes an electoral choice far more complex than electing a person. Sometimes his first ballot may even have absolutely no effect on the question which person gains a parliamentary seat. Behind the system of providing the voter with two ballots stands the idea, that, due to the election of one member of parliament for each electoral district, the deputies elected in an electoral district develop a closer personal link to the people living there. However, at a closer glance this idea turns out to be in accord neither with the legal nor with the political reality. In the end, all constitutional problems concerning the Federal Electoral Act's accordance with the principle of electoral equality result from one basic paradox: the electoral system apportions more parliament seats than the law actually provides.With a view to the upcoming reform, the article finally points out the conceptional constitutional requirements the electoral law has to fulfil. The current Federal Electoral Act provides the voter with certain options although the law structurally depends on the voters' choice not to exercise them. An electoral system in accordance with the constitution, however, has to be steadily resistant against random results: The electoral law's accordance or incompatibility with the constitution may not depend on the voters' choice.