(Feb. 14, 2019) On January 31, 2019, the German state of Brandenburg became the first state in Germany to pass an act on gender parity in politics (Parity Act). The goal of the Parity Act is to counter the current underrepresentation of women in the Parliament of Brandenburg, where they make up 38.6% of parliamentarians, even though they represent 51.02% of the population eligible to vote. (Second Act to Amend the State Voting Act of Brandenburg – Parity Act, Feb. 12, 2019, STATE GAZETTE OF LAWS AND ORDINANCES I 2019, No. 1, Landesrecht Brandenburg website (in German); Press Release No. 020, President of the Parliament Britta Stark: “Parity Act Is a Major Victory for Democracy” (Jan. 31, 2019), Parliament of Brandenburg website (in German).)
Contents of the Parity Act
Germany uses a personalized proportional voting system that combines a personal direct vote for a particular candidate in a district (first vote) with a party vote (second vote). The Parity Act provides that all parties must present an equal number of female and male candidates on the electoral party lists (second vote). The party lists must alternate between a man and a woman, but the parties remain free to decide whether to start the list with or man or a woman. Once there are no more women or no more men left from among the party members intending to run, only one more person from the other gender can be put on the list. People who legally identify as a third gender may freely decide whether they would like to be counted as a woman or a man. These rules do not apply to parties whose bylaws restrict membership to one gender. (Parity Act art. 1, para. 1.)
The original draft Parity Act proposed that parties must also have an equal number of female and male candidates for direct votes (first vote). The draft provided that parties must nominate duos consisting of a man and a woman. The draft Parity Act therefore raised the number of direct votes that voters have from one to two. (State Parliament Brandenburg: Parliamentary Document [LT-Drs.] 6/8210, at 4, § 1, para. 2 (in German).) The number of electoral districts was halved and restricted to 22 to avoid doubling the total number of directly elected parliamentarians. (Id. at 8, § 15.) Voters would have been able to select a duo from one party or split their vote between one female and one male candidate from different parties in the same electoral district. (Id. at 5, § 2 & 10, § 21, para. 6.) However, the governing coalition of the Social Democratic Party of Germany (SPD) and the Left Party submitted an amendment to the original draft of the Parity Act to eliminate the parity requirement for the first vote in order to avoid passing an unconstitutional law. (LT-Drs. 6/10466, at 3.) The Parity Act was passed in the amended version.
Introducing acts on gender parity in politics to achieve equality between men and women has also been discussed in Germany at the federal level as well as in other states besides Brandenburg. However, it remains unclear whether such acts are constitutional. Opponents of such rules allege that they would violate the German Basic Law, the country’s Constitution, in particular articles 28 and 38, which codify the principles of general, free, and equal elections. Proponents on the other hand argue that the state objective to “promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist” requires that the state take positive actions to eliminate the underrepresentation of women. (For more information, see Jenny Gesley, 100 Years of Women’s Suffrage in Germany (Nov. 30, 2018), IN CUSTODIA LEGIS; Grundgesetz [GG] [Basic Law], May 23, 1949, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1, as amended, German Laws Online website.)