## Facts

- German reunification led to the first election of an all-German federal parliament, scheduled for December 2, 1990.
- Statutory amendments extended the existing federal election law, including a nationwide 5% vote threshold for proportional representation seats, to the newly added eastern states.
- Several newly formed or regionally concentrated political parties and groupings from the former East Germany challenged the nationwide application of the 5% threshold.
- The challengers argued they lacked a realistic opportunity to build nationwide party structures or recognition in the short period before the election and would be excluded from representation despite meaningful support in the eastern states.
- Proceedings were brought through constitutional litigation mechanisms challenging the election law’s transitional provisions as violating constitutional guarantees of equal voting rights and equal opportunity for political parties.

## Issues

1. Whether applying a single nationwide 5% electoral threshold to the first all-German parliamentary election violated constitutional requirements of electoral equality and equal opportunity of political parties under the special circumstances of reunification.
2. Whether the legislature was constitutionally required to adjust the threshold for that election (for example, by regionalizing it or permitting list alliances) to avoid disproportionate exclusion of parties based in the new eastern states.

## Decision

- The Court held that a 5% threshold is generally permissible to protect the effective functioning of parliament.
- The Court ruled that applying the 5% threshold as a single nationwide barrier for the first all-German election was unconstitutional.
- The Court required a modified rule for that exceptional election, effectively mandating a regionalized application of the threshold (separate electoral areas for the western and eastern parts of the country).
- The Court did not strike down the threshold in general; the defect was its unchanged nationwide application in the specific transitional context.

## Legal Principles

- Electoral equality and equal opportunity of political parties impose strict limits on legislative departures from formal equality in election law; differential treatment requires strong justification and must be proportionate.
- Electoral thresholds may be constitutionally justified to prevent excessive parliamentary fragmentation and to maintain legislative functionality.
- In historically exceptional conditions that create temporary, structurally unequal competitive starting positions, otherwise valid threshold rules may become unconstitutional if they predictably exclude identifiable political currents from representation.
- Where strict equality concerns are triggered by transitional conditions, the legislature may be constitutionally obliged to adopt mitigating design choices (such as regionalized thresholds and temporary mechanisms facilitating participation) rather than leaving ordinary rules unchanged.

## Conclusion

The Court sustained the general permissibility of electoral thresholds but held that, for the first all-German parliamentary election after reunification, a single nationwide 5% barrier violated constitutional guarantees of equal voting rights and party equality; it therefore required a transitional, regionally tailored threshold that preserved parliamentary functionality while preventing structural exclusion of eastern-based parties.


All Germany Election Case (Gesamtdeutsche Wahl), 82 BVerfGE 322 (Fed. Const. Ct. 1990)