In honor of Women’s History Month and International Women’s Day, I thought I would write something about political parity laws in Germany. Parity laws aim to counter female underrepresentation in parliament and have recently been enacted or are being discussed in a number of German states. Even though German women gained the right to vote and stand for election in 1918, female representation in parliament remained under 10% until 1983. It rose after that and reached its peak in 2013 with 36.3%. However, in 2021, the number of female parliamentarians in the German Bundestag (parliament) has declined to 31.4%. State parliaments have seen a similar decline in the number of female parliamentarians. Various groups have therefore called for political parity acts to be enacted on a federal or state level. The states of Thuringia and Brandenburg were the first two states to do so in 2019. However, in both cases, the state constitutional courts held that the amendments to the respective voting acts were unconstitutional. This post will discuss the laws enacted in the two states, the arguments for and against such laws as presented in the state constitutional courts decisions, and a recent electoral complaint at the German Federal Constitutional Court concerning the lack of statutory provisions requiring gender balance when nominating candidates for federal elections.
State Parity Laws
Germany uses a personalized proportional voting system that combines a personal direct vote for a particular candidate in a district (first vote) with a party vote (second vote). The seats in parliament are allocated according to the order established on the electoral party lists proportionate to the second votes each party receives. The Parity Acts in both Thuringia and Brandenburg provided that all parties must present an equal number of female and male candidates on the electoral party lists (second vote). The party lists must alternate between a man and a woman, but the parties remain free to decide whether to start the list with a man or a woman. Once there are no more women or no more men left from among the party members intending to run, only one more person from the other gender can be put on the list. People who are registered as a third gender (“diverse”) in the civil registry could stand independent of these requirements. Electoral party lists that did not comply with these requirements had to be either completely rejected or partially rejected.
State Constitutional Court Decisions
On July 15, 2020, the German State Constitutional Court of Thuringia (Thüringer Verfassungsgerichtshof, VerfGH) held in a 6–3 ruling that the Seventh Act to Amend the State Election Act of Thuringia (Parity Act) was unconstitutional. Likewise, on October 23, 2020, the State Constitutional Court of Brandenburg (Verfassungsgericht des Landes Brandenburg) ruled that the respective Parity Act in Brandenburg was unconstitutional. Opponents of parity rules such as the applicants in the court cases allege that they violate the German Basic Law (Germany’s Constitution) or the equivalent state constitutions, in particular the principles of general, free, and equal elections. Proponents on the other hand argue that the state objective to “promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist” requires that the state take positive actions to eliminate the underrepresentation of women. (Basic Law, art. 3, para. 2; Constitution of Thuringia, art. 2, para. 2; Constitution of Brandenburg, art. 12, para. 3.)
However, both courts agreed with the opponents of parity rules. They held, among other things, that parity acts restricted the freedom of the voters to influence the gender distribution in parliament by voting for a party that listed more men or women. Furthermore, parity acts forced political parties to institute equal representation of men and women on their party list, thereby eliminating the freedom to organize their own affairs according to their bylaws. The courts also pointed out that parties are generally free to choose the candidates whom they feel will help them win voters and that parity acts limited this freedom by requiring that the candidates be chosen according to their gender, thereby eliminating the choice to select more men or women. In addition, the courts highlighted that all chosen candidates are accountable to and represent all people and not just their gender, a particular interest group, or parts of the population.
Federal Constitutional Court Decision
In an order published on February 2, 2021, the German Federal Constitutional Court dismissed an electoral complaint challenging the lack of statutory provisions requiring gender balance when nominating candidates for the elections of the German Bundestag (parliament). The court held that the constitutional complaint was inadmissible. The legislature has the power to enact laws in its areas of competence but is generally not obligated to do so. In the opinion of the court, the complainants did not substantiate an exceptional duty with regard to federal electoral law. It did not rule on whether a parity act would be constitutional. However, the statements of the court indicated that parity acts are generally possible and that the legislature has lots of leeway with respect to how to implement the state objective to “promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist.” Furthermore, it stated that the mandate of the legislature to ensure gender equality and the principle of free and equal elections and the principle of free political parties are of equal constitutional standing. Proponents of parity acts therefore saw this decision as a positive sign, even though the complaint got dismissed. Some even see it as a guideline on how to draft a constitutional parity act.
For the time being, this is not the end of the story. The city-state of Bremen, for example, is in the process of drafting a parity act, using the decision of the Federal Constitutional Court as a guideline. In the German Bundestag, the Green Party and the Left Party, as well as the Free Democratic Party have called for the establishment of a commission to present plans on how to increase female participation in parliament. Furthermore, constitutional complaints against the decisions of the state constitutional courts as well as against a decision of the Bavarian Constitutional Court dismissing an action requesting the court to determine whether the Bavarian electoral laws violate the Bavarian Constitution by not ensuring gender parity are still pending at the Federal Constitutional Court. If you are interested in updates to this story, you can sign up to receive blog and Global Legal Monitor alerts by clicking the “subscribe” button on the Law Library’s website.