## Facts

- A voter challenged the validity of the 1961 federal parliamentary election, alleging that statutory constituency boundaries produced materially unequal constituency populations, especially in Schleswig-Holstein.
- The election used a mixed system of personalized proportional representation: a constituency vote for a single-member district candidate and a party-list vote determining proportional seat distribution.
- The challenged constituency map allegedly gave some states more constituencies than justified by their share of the federal population, increasing the effective weight of votes in smaller constituencies.
- The voter argued that the imbalance could yield extra direct mandates and related overhang seats for certain parties beyond what proportional allocation by party-list votes would justify.
- The legislature had set a statutory tolerance limit for deviations from the average constituency population, but the voter asserted the deviations were excessive and persistent.
- The parliamentary body responsible for election objections rejected the voter’s challenge; the voter then filed an election-review complaint in the constitutional court.

## Issues

1. In election-review proceedings, must the constitutional court assess the substantive constitutionality of the election statute itself, or only the prior parliamentary decision?
2. Does electing constituency representatives by relative majority convert the system into a majoritarian election inconsistent with proportional representation?
3. Are overhang seats compatible with the constitutional requirement of equal suffrage?
4. When do disparities in constituency populations and state-to-constituency allocations violate equal suffrage and the statutory tolerance limit?

## Decision

- The court held that, in election-review proceedings, it must review the election statute for substantive conformity with the constitution.
- The court ruled that using relative-majority elections in single-member constituencies does not eliminate the proportional character of the overall system.
- The court held that overhang seats are constitutionally acceptable only to the extent they are a necessary consequence of the specific design of personalized proportional representation; additional distortions of voting equality are impermissible.
- The court held that constituencies must be drawn, as far as technically possible, to have approximately equal populations and, in principle, no state should have more constituencies than justified by its share of the federal population.
- The court found the constituency division constitutionally defective where the statutory tolerance limit was obviously exceeded and demographic correction could no longer be expected.
- The court declined to invalidate the 1961 election and rejected the complaint, while stating that the federal legislature was obligated to correct the constituency division during the ongoing legislative term.

## Legal Principles

- Election-review jurisdiction includes substantive constitutional review of the election law, not merely review of the initial election-objection decision.
- Equal suffrage requires each vote to have equal counting weight and equal effective influence; departures require strong justification.
- A mixed-member system remains a proportional-representation system when proportional allocation by party-list votes is decisive, even if constituency seats are filled by relative majority.
- Overhang seats may be constitutionally tolerated only insofar as they are an unavoidable consequence of the mixed-member proportional design; avoidable additional vote-weight differentials violate electoral equality.
- Constituency boundaries must, within technical feasibility, produce roughly equal populations; a map becomes unconstitutional when statutory deviation limits are clearly exceeded and persistent.
- When unconstitutional malapportionment is identified, the legislature has an affirmative duty to remedy the constituency plan promptly, including within the current legislative period.

## Conclusion

The court rejected the challenge to the 1961 election but established strict equality standards for constituency sizing and limited acceptance of overhang seats to those unavoidable under mixed-member proportional representation, imposing a legislative duty to correct persistent malapportionment without annulling the completed election.


Electoral District II (Wahlkreise) Case, 16 BVerfGE 130 (Ger. Fed. Const. Ct. 1963)