In Brandenburg, the electoral lists should be gender quoted in future. Now the Constitutional Court has overturned the law.
POTSDAM taz | The parity law of the state of Brandenburg is unconstitutional. The law required an equal number of men and women to stand on election lists. The Brandenburg Constitutional Court now saw this as a violation of party rights and electoral principles. Such a law would only be possible after a constitutional amendment.
The Brandenburg state parliament passed the first German parity law in February 2019. After that, men and women had to be placed alternately on the election lists for the state elections using the zip method. People of the third gender were free to decide whether they wanted to run for a male or a female stand.
The Brandenburg state associations of NPD, AfD and pirates as well as four AfD members sued the law. The organ complaint of the NPD and the constitutional complaints of the AfD members were successful. In contrast, the AfD organ charge was inadmissible because it was too late. A decision will be made later on the pirates’ organ charge.
In the opinion of the Brandenburg constitutional judges, the parity law violates the Brandenburg state constitution several times and is therefore void. The judges saw rights of the parties, but also of the voters, violated.
NPD and AfD members sue successfully
“It is the essence of the principle of democracy that the formation of will in the state runs from bottom to top,” said Markus Möller, President of the Constitutional Court, when the judgment was pronounced in Potsdam. It contradicts this if the state gives the parties binding guidelines for filling the electoral lists.
It is also a question of political orientation whether a party has equal numbers of men and women on its lists, according to Möller. If all parties have to run with quota lists, that blurs the differences between the parties.
According to the judges, the parity law also discriminates against parties with a low proportion of women. Only 12.3 percent of the NPD members in Brandenburg are female. The NPD might have to propose candidates they are not at all convinced of. Or she might not put men she thinks fit on the voting list because too few women want to run.
According to the judges, the parity law is also an encroachment on the rights of citizens who want to run for candidates on state lists of the parties. Because of the zipper principle, candidacies are only possible in every second place on the list. This also restricts the opportunities for women, said Richter Möller. Men and women are also disadvantaged compared to people of the third sex, because they can run for any place.
The law interferes with the rights of citizens
It is undisputed that there could be such consequences for parties and citizens. The decisive question for the constitutional judges, however, was whether these interventions can be constitutionally justified. And here the answer of the judges was very clear: No.
The Brandenburg state constitution states that the state is obliged to ensure “equality between women and men” – including “in public life”. However, this determination of the state objective is not sufficient to justify fundamental changes in the electoral law. Such “modifications” of the principle of democracy would have to be made by changing the state constitution, according to the judges.
The verdict of the nine constitutional judges was unanimous. That means that the writer Juli Zeh and the director Andreas Dresen, who are members of the court, also voted for the unconstitutionality of the law.
Thus, the Brandenburg judgment is an even bigger setback for proponents of parity laws than the judgment of the State Constitutional Court in Thuringia in July, which declared the parity law there unconstitutional for similar reasons. There, however, three of the nine judges voted against it and thus gave a minority vote.
Only 32 percent women in the Brandenburg state parliament
The Brandenburg Parity Law now expires without any application. A constitutional amendment that would allow a new parity law to be passed is currently hopeless. The SPD, the Left and the Greens together have only 45 out of 88 seats in the state parliament, so they are far from the required two-thirds majority.
The proportion of women in the Potsdam state parliament is currently 32 percent. However, the parity law would not have raised him to 50 percent in the next election, because only half of the mandates are awarded via electoral lists. The parity law would have had no effect on the direct mandates awarded in the constituencies.
The Bundestag is not bound by the rulings of the state constitutional courts. He could therefore make a new attempt with suitable majorities and hope that the Federal Constitutional Court would reject any lawsuits. But nobody should invest too much hope on this either. In the last time the former left constitutional judge Gertrude Lübbe-Wolff spoke out vehemently against parity laws.
A constitutional complaint from 15 women and 5 men from Thuringia is already pending at the Federal Constitutional Court. The lawsuit, coordinated by the Thuringian State Women’s Council, is against the judgment of the Thuringian Constitutional Court. Here the Karlsruhe judges could already make it clear how they feel about parity laws.