Parity law

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A parity law (or parité law) is an electoral law that only allows parties with quoted lists to participate in elections. Typically, this is about the equal allocation of parliamentary mandates according to the gender of the candidates. Such laws oblige parties, for example, to alternate between women and men on their electoral lists.

In Europe , Belgium , France , Portugal , Spain and Slovenia have legal gender quotas for candidate lists, each between 40 percent and 50 percent. In addition, many parties have decided on voluntary candidate quotas for internal party candidates.

Germany

The background to the demand for parity laws is that regularly far less than half of the members of German parliaments are women, even though they make up over 50% of the population. For the corresponding proportions, see the list of proportions of women in the professional world # parliamentary groups in the Bundestag . Proponents of a parité law see this as the result of women being discriminated against in the allocation of political offices. Critics of parity laws counter that women only make up an average of 25-30% of the base members of all parties. The proportion of female MPs would therefore be z. In some cases, very significantly above the proportion of women in the parties. Nevertheless, the proportion of women among members of the German parliament is currently between 21 and 40% ( 19th German Bundestag : around 31%). The Brandenburg state parliament is the only parliament to date to change its voting rights for the next but one state parliament election. In Brandenburg , half of the list places must be allocated to women and the other half to men. Pirate Party, NPD, AfD and a private person have initiated constitutional proceedings against the law.

On July 5, 2019, the Thuringian state parliament also passed a parity law to fill the electoral lists, which, however, was declared null and void by the Thuringian Constitutional Court in July 2020 .

Constitutional evaluation

This change in electoral law, as well as corresponding considerations for other parliaments, have been heavily criticized. The reasons for this are diverse, sometimes serious, constitutional concerns. The parliamentary advisory service of the state parliament of Brandenburg and the scientific service in the Thuringian state parliament had previously determined in expert opinions that a Parité law was not compatible with the Basic Law.

Freedom of choice and freedom of parties

The main arguments against a Parité law are freedom of choice and freedom of parties. A corresponding law can, depending on the specific electoral structure, considerably restrict the right of voters to vote. For example, the voters would be deprived of the opportunity to choose what they consider to be the best candidate if the latter is of an “unsuitable” gender. The decision to consciously occupy a parliament with 70% men or women, for example, would also be impossible. This could in particular be a violation of Article 38.1 of the Basic Law.

At the same time, the freedom of the parties is encroached upon according to Article 21.1 of the Basic Law. These could no longer freely fill the electoral lists through a corresponding law. For example, a “women's party” would be forced to fill 50% of its seats with men, even though (almost) all members of the party would be women.

Rigid reference to gender

It is also criticized that a corresponding law makes gender unnecessarily important. This is particularly evident in borderline cases of intersex people. According to the regulations of the Brandenburg state parliament, they can assign themselves to a list. This of course also gives them the option of deliberately shifting the distribution of seats to the disadvantage of one gender by assigning themselves to this list. In cases of doubt, courts would have to decide on the gender of a candidate and assign them. The drawing up of the electoral lists and the subsequent election threatens to lose a lot of immediacy and freedom through all this.

Direct mandates

Another problem could be the disadvantage of smaller parties. If the electoral lists were filled with equal numbers, this would not have any impact on the allocation of direct mandates . The direct candidates of the constituencies are directly elected by the respective party structure. Men are chosen as candidates much more often here. Especially with the parties that win a large number of direct mandates. In the 2017 federal election, for example, the CDU and CSU won 231 of the 299 direct mandates. This means that an absolute majority of the CDU / CSU's 246 mandates are direct candidates. Without an additional parity intervention in the composition of the constituency candidates, large parties, which disproportionately often win direct mandates, would not be affected by a quota. Interfering with the list and election of direct candidates in the constituencies is particularly intense and problematic due to the great direct personal democratic legitimation in the respective party structure and the constituency (see above, freedom of choice).

More odds

It is also criticized that the introduction of a gender quota would lead to demands for further quotas, for example the introduction of a quota for people from the new federal states . The parliament would then become a lobby group. However, every member of parliament is a representative of the entire people (Article 38, Paragraph 1 of the Basic Law), not just a specific group. This is seen as a return from the principle of the unity and equality of the people as sovereign back to the class system of the 19th century.

justification

The proponents of a Parité law see in Art. 3 Para. 2 GG a possible justification for the above-mentioned interventions in Art. 21 and 38 GG. Article 3 (2) of the Basic Law calls for the state to actively counteract existing disadvantages between women and men. The proportion of women in parliaments, which is small in relation to the proportion of the population, is a corresponding disadvantage and must be eliminated by the state using the means of voting rights.

Regardless of the question of how a weighing up between the conflicting constitutional goods would turn out, it is, however, already questionable whether there is any disadvantage within the meaning of Article 3 (2) of the Basic Law. Because the delegates are not sent by the German people, but by the parties. Around 1.1 million people in Germany are members of one of the parties represented in the Bundestag; but only 326,000 women. This corresponds to a share of around 29.5%. With around 31% women are slightly over-represented in the current Bundestag. Party membership is open to men and women alike, regardless of assets, contacts and other resources. The opinion of the parliamentary advisory service of the Brandenburg state parliament for the change in electoral law there also came to a corresponding conclusion.

Result

Ultimately, the constitutional courts have to decide on the constitutionality of relevant regulations. The parliamentary groups of the FDP , AFD and Pirate Party of the Brandenburg State Parliament have already announced constitutional complaint procedures. In any case, such projects are largely unconstitutional among lawyers . Some voices consider a regulation like that of the Brandenburg state parliament to be possible in the event of a corresponding amendment to the Basic Law . Other constitutional statements see this as violating the core area of ​​the principle of democracy and also consider corresponding amendments to the Basic Law to be inadmissible due to the eternity guarantee from Article 79.3 of the Basic Law .

Jurisprudence

Bavaria

In a popular action , 153 applicants, including clubs and associations, demanded the introduction of a parity law in Bavaria for state and local elections. The Bavarian Constitutional Court rejected the applications on March 26, 2018. The reasoning stated: "A claim to gender-proportional occupation of the state parliament or municipal representative bodies and accordingly from lists of candidates cannot be inferred from the principle of democracy (Art. 2, 4 and 5 BV)". Parliament does not have to represent the population as precisely as possible.

The principle of "establishing actual equality between women and men", standardized in Art. 118 (2) sentence 2 BV, also gives the legislature a wide range of creative leeway with regard to the funding mandate to establish actual equality between women and men. The principle of equal voting and the general prohibition of gender-specific differentiation, in particular the freedom of the parties to program, organize and make nominations, would speak against mandatory parity requirements.

Unconstitutionality in Thuringia

In Thuringia, the question of the constitutionality of a parity law was clarified for the first time in a constitutional court. The Thuringian Constitutional Court ruled on July 15, 2020 (VerfGH 2/20) that the parity law there violates the basic democratic principles of equality and free choice . This also includes the right of the voter to want to send more women or more men to parliament.

France

At the beginning of the 1980s, a first parity law was introduced in France that provided for a quota of women of 25% for local elections. In 1982 the Conseil constitutionnel decided that this regulation was unconstitutional. A parity or “parité” law has existed in France since 2000. To pave the way for the “parité” law, the French constitution first had to be amended. To this end, in July 1999 two amendments were made to the constitution of the Fifth Republic of October 4, 1958 through a constitution-amending law. Article 3 of the constitution now provides: “The law promotes equal access of women and men to electoral mandates and electoral offices.” The constitution thus empowers ordinary legislators to either provide quotas or to stipulate absolute parity between the sexes.

The second addition concerns Article 4 of the Constitution and stipulates that “the parties and political groups contribute to the application of this principle”. Parties and political groupings that essentially enjoy state funding are therefore constitutionally obliged to implement the parity principle. The strict alternation between women and men is mandatory. The lists that do not respect the prescribed parity are not registered and are therefore not permitted. This follows from the electoral law ("Code électoral") in the version of the parity law. At the same time, parties receive less money if they do not comply with the legal requirements for a women's quota within their parliamentary groups. In some cases, parties forego cash payments in order to be able to set up men who regularly do more successfully in elections.

See also

  • Minority suffrage - The list there contains parliaments in which a certain number of mandates are reserved for women

Individual evidence

  1. ↑ See New Models: The Idea of ​​a Parity Law in Germany , s. Web links below
  2. ↑ Federal Agency for Civic Education: Population by age group and gender | bpb. Retrieved May 16, 2019 .
  3. ^ Mariam Lau: Equality: A hundred years of waiting are enough . In: The time . January 31, 2019, ISSN  0044-2070 ( zeit.de [accessed on May 16, 2019]).
  4. ↑ https://www.bpb.de/politik/grundfragen/pektiven-in-deutschland/zahlen-und-ffekten/140358/soziale-verbindungen
  5. ^ Maria Stöhr, Milena Hassenkamp: Women in state parliaments: The mandate . In: Spiegel Online . February 5, 2019 ( spiegel.de [accessed on May 16, 2019]).
  6. ↑ Markus Wehner, Berlin: A role model for the federal government ?: Political parties in Brandenburg have to put up an equal number of women and men . ISSN  0174-4909 ( faz.net [accessed May 16, 2019]).
  7. ^ Parité law in Brandenburg - No victory for democracy. In: Verfassungsblog. Retrieved May 16, 2019 .
  8. ^ The constitutional court negotiates the Brandenburg parity law in August. Retrieved July 29, 2020 .
  9. ^ Right to vote: Thuringian state parliament passes parity law . In: Spiegel Online . July 5, 2019 ( spiegel.de [accessed July 12, 2019]).
  10. ↑ Minutes of the Thuringian State Parliament : Working version of the minutes of the Thuringian State Parliament meeting on July 5, 2019. July 5, 2019, accessed July 12, 2019 .
  11. ^ "Constitutional judges overturn parity regulation in Thuringia" Die Welt from July 15, 2020
  12. ^ Parity law: Contra - Good conscience in the guided democracy. Retrieved May 23, 2019 .
  13. ^ Parité law in Brandenburg - No victory for democracy. In: Verfassungsblog. Retrieved May 16, 2019 .
  14. ↑ Dr. Steffen Johann Iwers, Dr. Julia Platter: Expert opinion on gender parity in state elections. In: Expert opinion on gender parity in state elections. Brandenburg State Parliament. Parliamentary Advisory Service., October 18, 2018, accessed on May 16, 2019 .
  15. ↑ Thuringian State Parliament: Expert opinion of the Scientific Service (WF 4/19) on the question of whether in the draft law of the parliamentary groups DIEN LINKE, the SPD and BÜNDNIS / 90 DIE GRÜNEN on the "Seventh law amending the Thuringian state election law - introduction of the parity quotation" from March 20, 2018 (Drucksache 6/6964) the obligation to alternate the electoral lists with men and women violates constitutional principles. Briefing in printed matter 6/7525 . Ed .: Thuringian Parliament. 29th July 2019.
  16. ^ Parité law in Brandenburg - No victory for democracy. In: Verfassungsblog. Retrieved May 16, 2019 .
  17. ^ Parité law in Brandenburg - No victory for democracy. In: Verfassungsblog. Retrieved May 16, 2019 .
  18. ↑ Suffrage: Constitutional lawyer considers law for more women in parliament to be unconstitutional . In: Spiegel Online . December 28, 2018 ( spiegel.de [accessed May 16, 2019]).
  19. ^ Parity Law: Pro - On the way to equal democratic participation. Retrieved May 23, 2019 .
  20. ↑ This is how politicians react to Brandenburg's quota by law. Retrieved May 16, 2019 .
  21. ↑ Dr. Steffen Johann Iwers, Dr. Julia Platter: Expert opinion on gender parity in state elections. In: Expert opinion on gender parity in state elections. Brandenburg State Parliament. Parliamentary Advisory Service., October 18, 2018, accessed on May 16, 2019 .
  22. ↑ Pirates want to sue against Brandenburg's Parité law. Retrieved May 16, 2019 .
  23. ↑ Dr. Steffen Johann Iwers, Dr. Julia Platter: Expert opinion on parity in state elections. In: Expert opinion on parity in state elections. Brandenburg State Parliament. Parliamentary Advisory Service., October 18, 2018, accessed on May 16, 2019 .
  24. ↑ No Parité law without a change in the Basic Law. In: On the agenda. February 8, 2019, accessed May 16, 2019 .
  25. ^ Parité law in Brandenburg - No victory for democracy. In: Verfassungsblog. Retrieved May 16, 2019 .
  26. ↑ Press release on the decision of the Bavarian Constitutional Court of March 26, 2018, online
  27. ↑ Parity regulation for electoral lists is unconstitutional; in: SPON from July 15, 2020, online
  28. ^ Constitutional amendment for France's parity law; in: FAZ of July 16, 2020, p. 2.
  29. ↑ According to Ingrid Alice Mayer: “Equality between women and men at the candidate level in France's electoral law. Explanations of the parity law and sketch of its effect “ , Europäische Grundrechte Zeitschrift (EuGRZ); Edited by Heinrich Böll Foundation, February 21, 2005, Issue 1–3 (p. 18)
  30. ↑ Karin Finkenzeller: Parity: There are creative ways to prevent the rise of women . In: The time . February 4, 2019, ISSN  0044-2070 ( zeit.de [accessed on May 16, 2019]).

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