By EUDO CITIZENSHIP expert Luicy Pedroza
Recent electoral reforms in Germany have facilitated voting from abroad for expatriates and spark renewed discussions on voting for third-country nationals at local level and on dual nationality.
In the last three weeks the Bundestag discussed and voted reforms to the federal electoral law (Bundeswahlgesetz) that will change the rules regarding the surplus or “overhang seats” (Überhangsmandate) and the rights of Germans abroad (Auslandsdeutsche) to vote for federal election. Politicians in the opposition (mainly the Greens, Social-democrats and The Left) have taken these reforms (prompted by the Federal Constitutional Court) as an opportunity for reopening debates on the decades-old proposals to allow dual citizenship and extend voting rights to long-term resident foreign (third-country) nationals at the local level. Surprisingly, some politicians from one of the governing coalition parties (the FDP) have jumped into this debate sharpening their profile for the upcoming federal elections by declaring their support for a reform that would allow dual nationality.
A new rule to turn votes into seats: After three months of discussions, on 20 February 2013 a majority in the Bundestag passed the 22nd reform to the Federal Electoral Law in order to ensure a fairer distribution of seats, giving priority to the principle of proportional representation over the direct, personal mandate. This reform was obligatory after the Constitutional Court decided in July 2012 that the previous reform to the Federal Electoral Law had not addressed the problem of surplus seats appropriately.
In the complex German electoral system voters have two votes: one vote for the party and another vote is a direct vote for candidates in open lists. It often happens that through the second personalised vote parties receive more seats than they would get in a distribution according to the party lists’ shares in the first vote (based on proportional representation). In those cases surplus or “overhang” seats (Überhangsmandate) are added to the parliament. This addition of seats tended to favor big parties and worsen the outcome for smaller parties in the federal parliament. On 25 July 2012 the Federal Constitutional Court ruled that the solution to the problem of overhang seats adopted by the previous electoral reform in 2011 was unconstitutional: it had the paradoxical effect that under certain circumstances more votes could lead to fewer direct mandates. The new electoral reform gives again priority to the principle of proportional representation by compensating the surplus or “overhang” seats that a party gets because of direct votes through assigning more seats to other parties too, until the relative party strength (measured by the proportions of the party votes) is mirrored. The consequence is that the number of seats in the Bundestag could grow considerably.
The legislative process that led to this reform can be consulted (in German).
A broader understanding of the voting rights of German citizens living abroad: The Bundestag party fractions decided unanimously on 31 January 2013 to change the Federal Electoral Law of Germany in order to further relax the requirementes that German citizens living abroad must comply with in order to vote in federal elections. This was already the 21st reform to the Federal Electoral Law.
In Germany the residence requirements for voting from abroad have been progressively relaxed over time through several electoral reforms. Until now, there had been a general condition of at least three months of prior residence in Germany. For Germans living outside of Europe a reform in 1998 extended the period within which the three months of residence would qualify for the franchise from 10 years to 25 years previous to the election. Another reform in 2008 eliminated not only the differentiations between German residing outside or inside of the European Union, but also all traces of a specific time period within which three months of residence were required. Then, applied for the first time in the Bundestag lections of 2009, a new phrasing of the law had allowed all Germans living abroad who had resided at any point of their lives after May 23, 1949 in the territory of today’s Germany (including thus also the former GDR) to vote. Also, for returnees of any kind the three-months residence requirement would not apply. Finally, the most recent reform from January 2013 became unavoidable after a ruling of the Federal Constitutional Court from 4 July 2012 which declared unconstitutional the article of the Federal Electoral Law that required from German citizens living outside the European Union to have resided for three uninterrupted months in Germany at any point in the past.
As soon as this law is published, Germans abroad will be eligible to vote either if they have resided uninterruptedly for at least three months in Germany after age 14 and if that residence occurred within the last 25 years or if they are otherwise acquainted personally and directly with the political situation in the Federal Republic and affected by it. This acquaintance with and affectedness by the political situation in Germany has to be personally proved and the voting right will have to be conferred upon personal application (i.e. not automatically).
The legislative process that led to this reform can be consulted (in German).
Opposition parties seize the opportunity to reopen debates on the enfranchisement of non-citizen residents and dual nationality. The two reforms described above have filled the loopholes opened in the Federal Electoral Law by two rulings of the Constitutional Court in July 2012. Parties in the opposition, particularly the Social-democrats, the Greens, and The Left took the opportunity of forcing a broader debate on voting rights in the parliamentary plenum of the Bundestag. These parties had introduced to the present legislature proposals to reform article 28 (1) of the German Constitution – also known as Basic Law – in order to give the federal provinces (Länder) the power to allow resident third-country nationals to vote and be elected in local elections. On 20 February 2013 the Committee for Internal Affairs of the Bundestag recommended the rejection of these proposals. On 21 February the factions of the Christian-democrats (CDU/CSU) and Free Democrats (FDP) rejected in plenum the last of these three proposals made in this 17th legislature to reform the Constitution in order to allow the enfranchisement of foreign residents at the local level.
Shortly before the two reforms described above, on 29 January 2013 the party faction of The Left in the Bundestag introduced a law proposal to facilitate naturalisation, including the acceptance of multiple nationality, the abolishment of income and language proficiency requirements, as well as the reduction of the residence periods required for initiating the naturalisation process in different cases. In this context, in an interview with the news portal Spiegel Online on 19 February, the Federal Minister of Justice, Sabine Leutheusser-Schnarrenberger (a member of the Free Democrats) expressed her public support for the toleration of dual nationality and the abolishment of the so called “option duty”, which requires persons who have acquired citizenship by birth in German territory to renounce any other nationality before their 23rd birthday in order to retain their German citizenship. The declaration was interpreted by parties on both sides of the political spectrum as politically motivated: in their upcoming campaign for federal elections the FDP might be preparing the ground for a coalition with the Social-democrats and Greens (who have generally endorsed dual nationality and backed proposals to facilitate naturalisation over the past years), while distancing itself from its present Federal government coalition partners, the Christian-democrats (CDU/CSU), who are staunch opponents of dual nationality proposals at all levels. Unsurprisingly, Chancellor Angela Merkel has reacted to the Minister of Justice’s proposal with a sharp rebuke.
Read an article on the Greens’ position in this debate on thelocal.de.