The hotly debated German electoral law reform from 2023, pursued by the former “traffic light coalition” and which in an amended form overcame the test by the German Constitutional Court, passed its baptism of fire at the general election end of February. In particular, the probably more important innovation, namely the institute of “second vote coverage” for the winners of constituencies, met with a public echo. As a result of this amendment, which prioritises proportional representation and the goal of a fix number of seats, not all constituency winners are now automatically elected to the Bundestag anymore, but only as many as each party’s strength reflects. Every voter has in Germany two votes, and only the “second vote”, which is not based on constituencies, but is for a party as a whole, determines the party’s strength in the Bundestag, the German federal Parliament, and therefor how many of its constituency winers are actually elected. What was actually astonishing, however, was only the astonishment at this echo. The procedure of the “second vote coverage” may have remained abstract to some and only became visible with the election, but it was debated, predictable and, even more, explicitly approved by the Constitutional Court. No less predictable, however, was also the protest of those who criticised this innovation: After all, the old mechanism with members of Parliament directly elected by a plurality in a constituency had been in place for decades, had a counterpart in the election laws for the Parliaments of almost all German federal states and had therefore been internalised by both the electorate and political actors.

The political criticism of new electoral law

Both the fact that the 2023 electoral law reform, including the “second vote coverage”, is (with some amendments) compatible with the German Constitution, as well as the repeated assurances that the electoral law reform is logical and coherent in itself – what I wouldn’t doubt – cannot hide the fact that also another question is on the table: namely whether the reform has taken the right path in terms of electoral policy. Now that the new electoral law has been judged and tested, that it has overcame the scrutiny of the courts and the real application by 60.5 million eligible voters, the even more important test awaits, that of the Kairós, the rightness in view of the historical point in time. The challenge – admittedly a Herculean Labour – is to find an electoral system that, at a time when populism is on the rise, can reduce the growing scepticism towards Parliamentarianism and credibly convey that MPs are indeed “representatives of all the people”, as the German Constitution postulates. If the theory that “constitutional law is what makes a state power accessible to human reason” (Gian Luca Rossi) is correct, then electoral law is what should ensure that all voters are not only included in the calculations, but also perceive their own representation. Even (and especially) for the angry mob with pitchforks and torches.

The tenor of the general criticism to the “second vote coverage” is that it is unfair if candidates who won a plurality in a constituency come away empty-handed in the end, while their competitors who have been punished in the same constituency may end up entering the Parliament via the state lists, the composition and ranking thereof cannot be influenced by the voters in any way. This criticism hits a nerve. After all, the state lists decided inside party meetings can guarantee all kinds of internal proportional representation: by geographics, gender, wing-fighting. But, at the end of the day, such lists remain further away from the single voter than candidacies in a constituency, they are less customisable than the election of single persons on the ground, which can be penalised or rewarded by voters individually and independently from their vote to party. The increasingly big difference between first and second vote, i.e. between constituency and party vote, results up to 2025 clearly shows that not only the “nerds” of electoral laws, but also the broad electorate has understood the importance and potential of electoral law instruments and has happily internalised them. Which is likewise confirmed by the much more pluralised and complex communal or regional electoral laws, which are used almost everywhere in Germany.

The greatest weakness of the new law is therefore not the selective non-inclusion of some first-placed candidates at constituency level, as this can be reasonably conveyed with the idea of proportional representation, despite all the irritation about “empty-headed winners”. Much more severe is the fact that the “first vote”, which allows every voter to express their explicit preferences for and against candidates, has now only at most an auxiliary role in the electoral system and is subordinated to rankings of candidates, which are decided exclusively by party delegates at party conferences. This objectively restricts the voters’ options. That’s true, not just because in reality (and also in the linguistically more honest original version of the reform) voters do not have two fully fledged votes anymore, but only one “main vote”, namely the second one. But rather, the restriction of voters’ option exists because this “main vote” only refers to the state lists, whose configuration is blocked for voters without party membership and delegate status, while the decision on personal and territorial composition of the Parliament directly by the voters becomes a “subordinate vote” and thus a minor matter.   

Of course, candidates in a constituency are neither ontologically better than candidates on lists nor are “first class” representatives, as some partisan polemicists stylise. However, by offering the possibility of two different crosses with the first and second vote, these candidates provide an objectively measurable guarantee on their capability to rally and convince the electorate in favour, but also despite or against their own party. Listing these candidates on their first vote result thus expresses objectively measurable differences in the capability of single candidates to convince the electorate.

A more personalised and territorialised proportional representation as an alternative?

In comparative parliamentary and electoral law there are many ways to harmonise the advantages of a personal representation through constituencies with the systemic decision in favour of proportional representation. In Germany’s Debate, the former Constitutional Justice and Saarland’s ex-First Minister Peter Müller proposes a fundamental dismissal of the proportional representation in order to preserve the election of individuals, which would mean a substation swift toward a first-past-the-post system, while Antje von Ungern-Sternberg discusses a rebalanced proportion between constituencies and list places, which would, however, even more restrict the personal representation in favour of party lists.

In order to maintain both the proportional representation and reduce the size of Parliament, the two main goals of 2023 reform, but at the same time to address the problems mentioned, another alternative could be to strengthen the importance the ranking of candidates according to the first vote result in constituencies and extend it to all parties and lists. The electorate would then have two different instruments in their hands: the “second vote” would determine the proportions between the parties, the “first vote” would decide on the persons to be elected within the parties. The seats assigned to a party in a federal state, according to the number of second votes, would always be given to those candidates who had achieved the better results in the respective constituencies in a party-internal comparison – i.e. not only in the case of constituency winners, but in all parties according to a ranking of all candidates based on their proportion of first votes.

Let’s take a concrete example: Bavaria is entitled to 101 seats in the Bundestag based on its population and based on the second vote result (as of 2025), 44 seats go to the CSU and 14 each to the Greens and the SPD. De lege ferenda, not only the CSU would send – as today – its best 44 constituency candidates to the Bundestag, but also the Greens and SPD would send their best 14 candidates from the Bavarian constituencies to Parliament, based on their personal first vote shares. This would make it clear and immediately understandable to everyone which criterion would allocate not just some, but all seats among the candidates – namely according to the candidates’ personal relative success in their constituency. This would also prevent the critics of the current system, according to which some “winners” do not enter the Parliament, since winning constituencies would not matter at all. Only “the bests” of all parties would gain a Bundestag’s membership, and the only decisive factor would be their success among voters in a constituency, measured by the same value for all, namely the best “first vote” share in the party comparison. In such a system, state lists would lastly only play a secondary role if the ranking of constituency candidates were exhausted – which in the example case of Bavaria’s 47 constituencies is possible at the beginning of the Parliament’s term or later in case of succession of seats due to resignations or deaths. The significance of the state lists would therefore be marginal in terms of the number of candidates elected, but it would safeguard the electoral system as a whole.

The results from federal states that have a less monotonous constituency winners map than Bavaria – let’s take Berlin – show already now, under the current electoral law, to which extent what such a reformed system would produce: a Parliament consisting of the locally most successful candidates from all parties. Racing in challenged territories would make it worthwhile for candidates, and party’s and campaigning work on the ground would be significantly enhanced.

Tackling populism at its roots.

Such a reform would confer much greater importance to the result in a constituency – as an expression of the single candidates’ persuasiveness on the ground – than centralised party decisions at state or federal level.

The increased importance of the first vote would have an impact both between and within parties. From an inter-party perspective, the local, voters-close, and territorially tangible organisation of political competition would be strongly promoted, since the entire composition of Parliament would ultimately be decided on success of individual persons in single territories. On the other hand, internal party dynamics would not be lost with such a reform; instead, they would shift more strongly from the state to the constituency level, both in the nomination and in the actual campaign phase. This would increase the relevance of the lower levels of party structures for all parties and not – like now – only for those parties, which traditionally produce many constituency winners. This could result in a significant revaluation of grassroots democratic engagement throughout the country, also and especially far away from the capital cities.

Moreover, such a reform would place us precisely at one of the breaking points where populism and scepticism against parliaments are currently particularly visible: the narrative that the one’s single vote does not change anything and that elections here and now do not influence the broad results of a policy that is far too capital-centred. Healing these cracks in the acceptance of parliamentary democracy should be our priority. This reform would give the electorate a greater capability to shape the composition of Parliament, and so it could effectively counter the narrative of distant and elitist politics. While it is true that politics at the constituency level is not actually as prominent for all voters as some rhetorician idealises, this is no reason to reject a tool for a greater capability to shape parliaments’ composition by all voters. Those voters who decide uniformly, and trust a party’s candidates, might still not differentiate between their first and second votes – like they may do in the current system. In summary, this reform would therefore give the whole electorate more power to decide on candidates, which would be closer to their voters: a deliberate contrast to populism and stoked scepticism on parliaments.

Finally, the increased importance of the first vote would also close a gap of the current system, that its critics believe the latest electoral law just opened, namely the so-called “orphaning of constituencies”. This is the case, if neither the constituency winner enters the Parliament, because of the lacking “second vote coverage”, nor other candidates from the same constituency, because they are not in leading positions in some state list or in any list at all. It is certainly true, as the Federal Constitutional Court pointed out in its 2024 decision, that, even if this “may initially be irritating, the accusation of ‘capping a constituency mandate’ or ‘orphaning a constituency’ does not in itself constitute an aspect that could make the new regulation inadmissible under constitutional law” (para. 178). Nevertheless, this irritation, which even the constitutional judges addressed, exists. In the alternative system outlined here – unlike in the current electoral law – “orphaned constituencies” would hardly be possible, because even where the candidates with the highest number of first votes in a constituency were defeated by other colleagues in an internal party comparison, the second and, in some places, third or fourth-placed candidate in the same constituency would enter Parliament thanks to their proportionally higher share of first votes. And in principle, it would be clear that not the “winners”, but all “the best” candidates would enter Parliament. The fact that all candidates would be assessed according to their share of first votes and not just the first-placed candidates in each constituency would rule out the possibility of a complete “orphaned” constituency, except for extreme numerical constellations.

Conclusion

No child should be thrown out with the bathwater. The 2023 electoral law reform was successful in its aim to keep the Bundestag smaller and give it a stable number of seats. In light of the now pluralised party landscape, sticking to proportional representation is the right decision for Germany – anything else would only brush an electorate off, which clearly wants to vote with a broader variety than a few years ago, and would thus represent it less well in Parliament.

However, the archetype of political representation that the reformers wanted to pursue is clear: national parties, that determine the whole parliamentary personnel at their top levels (federal and state level). Constituency candidates are at the most tolerated in such a system as long as they fit in with the overall arithmetic. One may like this model, it has its pros. But the times of rising populism and growing scepticism against parliaments call for an electoral system that makes it easier to grasp how important and decisive every single vote is and that, in case of doubt, leave the distribution of seats at the ballot box instead at party meetings. If we want to stick to a fixed number of seats and to proportional representation, then it would be advisable to personalise and territorialise the composition of the Bundestag, by radically upgrading the first vote and making it the yardstick for the election of all candidates. A reform of the reform, as mentioned in the very last line of the paper from the exploratory talks for a new coalition government, could also start from here.

Edoardo D’Alfonso Masarié is Senior Research Fellow at the Max Planck Institute for Social Law and Social Policy in Munich, as well as Lector for Social Law at the Munich University ofApplied Sciences. He studied Law in Bologna and achieved a PhD in Law in Regensburg. He has been Deputy Chair of the Experts Commission of the Thuringian State Parliament for Review of Constituencies Borders, previously he was Parliamentary Consultant to a Group of the Thuringian State Parliament and to a Member of the European Parliament.