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Proportionality Means Proportionality

Czech Constitutional Court, 2 February 2021, Pl. ÚS 44/17

Published online by Cambridge University Press:  02 December 2021

Marek Antoš Open the ORCID record for Marek Antoš [Opens in a new window]  and
Filip Horák Open the ORCID record for Filip Horák [Opens in a new window]
Marek Antoš
Affiliation:
Marek Antoš is a member of the Department of Constitutional Law, Faculty of Law, Charles University; e-mail: [email protected]
Filip Horák
Affiliation:
Filip Horák is a member of the Department of Constitutional Law, Faculty of Law, Charles University; e-mail: [email protected]
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Abstract

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Type
Case Notes
Information
European Constitutional Law Review , Volume 17 , Issue 3 , September 2021 , pp. 538 - 552
Copyright
© The Author(s), 2021. Published by Cambridge University Press on behalf of European Constitutional Law Review

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Footnotes

This paper was supported by the Progres Q04 project. The calculations underlying the analysis in this case note are available as supplementary material online.

References

1 Art. 15 Constitution.

2 Art. 18 Constitution.

3 See Czech Constitutional Court, 2 April 1997, Pl. ÚS 25/96, concerning the 5% threshold, where the Court explained why proportionality cannot (and should not) ever be absolute, since the purpose of the electoral process is to generate the effectively operational legislative body rather than perfectly mirror the will of voters into the body’s political composition.

4 Czech Constitutional Court, 2 February 2021, Pl. ÚS 44/17.

5 Arts. 26, 44, 49 and 50 Act of Law 247/1995 Coll., on elections to the Parliament of the Czech Republic. The Court quashed the rule, stating that the seats in the Chamber ought to be allocated within separated constituencies, the Hare quota for allocating the seats between 14 constituencies, the D’Hondt divisors allocation formula and the additive electoral threshold for running coalitions. However, it did not quash the division of the Czech Republic into the 14 constituencies itself nor the electoral threshold for individual parties, which is set at 5% of votes cast.

6 During this period the Court held that the electoral threshold of 5% was constitutional and since then has not changed its legal opinion (Czech Constitutional Court, 2 April 1997, Pl. ÚS 25/96).

7 For details of the electoral system see P. Kopecký, Parliaments in the Czech and Slovak Republics (Ashgate 2001).

8 Art. 18 Constitution.

9 K. Crawford, ‘A system of disproportional representation: The proposed electoral law for the Czech Republic’, 38 Representation (2001) p. 46-58.

10 K. Benoit, ‘Models of electoral system change’, 23 Electoral Studies (2004) p. 382.

11 Czech Constitutional Court, 24 January 2001, Pl. ÚS 42/2000.

12 Art. 16 Constitution.

13 T. Lebeda, ‘Electoral systems and voting behaviour: The case of the House of Deputies’ elections in the Czech Republic’, 02 Contemporary European Studies (2007) p. 28-32.

14 M. Antoš, Principy voleb v České republice [Electoral Principles in the Czech Republic] (Linde 2008) p. 90-96.

15 See Czech Constitutional Court, 12 February 2007, Pl. ÚS 76/06, Czech Constitutional Court, 7 August 2007, I. ÚS 537/06, Czech Constitutional Court, 14 May 2008, II. ÚS 582/06, Czech Constitutional Court, 13 September 2007, III. ÚS 663/06.

16 Czech Constitutional Court, 17 April 2009, Pl. ÚS 57/06, paras. 17-20.

17 See Czech Statistical Office, ‘Results of Elections and Referendums’ 〈https://www.volby.cz/index_en.htm〉, visited 27 September 2021.

18 Supreme Administrative Court, 16 November 2017, Vol 47/2017 – 86.

19 Art. 74 Act of Law 182/1993 Coll., on the Constitutional Court, provides that ‘a complainant may submit, together with his constitutional complaint, a petition proposing the annulment of a statute (…), or individual provisions thereof, the application of which resulted in the situation which is the subject of the constitutional complaint, if the complainant alleges it to be in conflict with a constitutional act’.

20 Czech Constitutional Court, 17 April 2018, Pl. ÚS 42/17.

21 M. Antoš and F. Horák, ‘Better Late than Never: The Czech Constitutional Court Found the Electoral System Disproportionate 9 Months before Election’, Verfassungsblog, 20 February 2021, 〈https://verfassungsblog.de/better-late-than-never/〉, visited 27 September 2021.

22 Even though the decision may be surprising, it causes no issues from a procedural perspective, since in its former decisions the Court refused to review the cases on merits, and consequently, the matter cannot be considered rei judicatae (Art. 35 Act of Law 182/1993 Coll., on the Constitutional Court, a contrario).

23 Art. 18 Constitution; Art. 21 Czech Charter of Fundamental Rights and Freedoms.

24 Art. 6 Constitution.

25 Czech Constitutional Court, supra n. 4, paras. 60, 100.

26 Czech Constitutional Court, supra n. 4, paras. 75-76.

27 Ibid., paras. 77-78. This idea, however, is not valid, since the majority principle (i.e. the greater the number of votes, the greater the chance to succeed) is the essence of every electoral system (proportional representation included).

28 Ibid., para. 80.

29 Czech Constitutional Court, supra n. 16, para. 17.

30 Czech Constitutional Court, supra n. 4, paras. 58, 62.

31 Ibid., para. 91.

32 Art. 18 Constitution, Art. 21 Charter.

33 Czech Constitutional Court, supra n. 4, para. 115.

34 H. Smekal and L. Vyhnánek, ‘Select Equal voting power under scrutiny: Czech Constitutional Court on the 5% threshold in the 2014 European Parliament Elections: Czech Constitutional Court 19 May 2015, Pl. ÚS 14/14 Equal voting power under scrutiny: Czech Constitutional Court on the 5% threshold in the 2014 European Parliament Elections: Czech Constitutional Court 19 May 2015, Pl. ÚS 14/14’, 1 EuConst (2016) p. 153. See also the concept of Erfolgswertgleicheit in the German Constitutional Court’s case law.

35 Indeed, the ability to generate a majority was mentioned only briefly within the preliminary considerations (Czech Constitutional Court, supra n. 4, paras. 104, 115). However, the Court afterwards endorsed this principle (ibid., para. 151).

36 This is why Przeworski defined democracy (in a brilliant way) as ‘a system in which parties lose elections’: A. Przeworski, Democracy and the Market. Political and Economic Reforms in Eastern Europe and Latin America (Cambridge University Press 1991) p. 10.

37 We must admit, however, that we differ from settled judicial mainstream in this respect (cf ECtHR 8 July 2008, No. 10226/03, Yumak and Sadak v Turkey [GC]; BVerfG 5 April 1952, 2 BvH 1/52, 7,5%-Sperrklausel; see also B. Michel, ‘Thresholds for the European Parliament Elections in Germany Declared Unconstitutional Twice: Bundesverfassungsgericht Judgment of 9 November 2011, 2 BvC 4/10, 5% threshold Judgment of 26 February 2014, 2 BvE 2/13, 2 BvR 2220/13, 3% threshold’, 1 EuConst (2016) p. 136).

38 A. Lijphart and B. Grofman, Choosing an Electoral System. Issues and Alternatives (Praeger 1984) p. 5-7.

39 Ibid., p. 7-8.

40 Cf R.G. Moser et al., ‘Social Diversity, Electoral Systems, and the Party System’, in E.S. Herron et al. (eds.), The Oxford Handbook of Electoral Systems (Oxford University Press 2018) p. 137-139.

41 Nevertheless, this argument naturally cannot be applied to situations where less significant groups of voters are not geographically concentrated: see D. Nohlen, ‘Elections and Electoral Systems’, in D. Nohlen and P. Stöver (eds.), Elections in Europe: A Data Handbook (Nomos 2010) p. 39.

42 See S.M. Lipset and S. Rokkan, ‘Cleavage structures, party systems, and voter alignments: an introduction’, in S.M. Lipset and S. Rokkan (eds.), Party Systems and Voter Alignments: Cross-National Perspectives (The Free Press 1967) p. 1.

43 Cf Czech Constitutional Court, supra n. 11.

44 Czech Constitutional Court, supra n. 4, paras. 111, 115.

45 R. Taagepera and M.S. Shugart. Seats and Votes: The Effects and Determinants of Electoral Systems (Yale University Press 1989) p. 112.

46 Cf M.S. Shugart. ‘Comparative Electoral Systems Research: The Maturation of a Field and New Challenges Ahead’, in M. Gallagher and P. Mitchell (eds.), The Politics of Electoral Systems (Oxford University Press 2005) p. 32-33, or M. Gallagher and P. Mitchell, ‘Dimensions of Variation in Electoral Systems’, in Herron et al., supra n. 43, p. 33-37.

47 Czech Constitutional Court, supra n. 4, paras. 117-118.

48 Ibid., paras. 137-146, 185-192.

49 Ibid., para. 186.

50 Ibid., para. 191.

51 Ibid., para. 185.

52 Ibid., para. 189.

53 Ibid., paras. 189-192.

54 Ibid., paras. 134, 185-186.

55 Especially already after the election had been officially announced by the President of the Republic and the nomination process within political parties based on the 14 constituencies had already begun.

56 Czech Constitutional Court, supra n. 4, para. 118,

57 L.L. Červinka, ‘The Czech Constitutional Court, the Unconstitutionality of the Electoral Legislation, and the Possible Constitutional Deadlock’, 47(2) DPCE Online (2021).

58 Czech Constitutional Court, supra n. 4, paras. 139, 143, 146.

59 Czech Constitutional Court, supra n. 11.

60 Art. 35, 43 Act of Law 182/1993 Coll., The Constitutional Court Act, see also the dissenting opinion in Czech Constitutional Court, supra n. 4.

61 Czech Constitutional Court, supra n. 4, paras. 13, 40.

62 See the dissenting opinion in the Czech Constitutional Court, supra n. 4.

63 Czech Constitutional Court, supra n. 11.

64 Czech Constitutional Court, supra n. 4, para. 176.

65 Ibid., para. 174. This may serve as a possible explanation of why the Court changed its opinion, because the financial cap on campaign expenses was enacted in 2016 (i.e. after the previous judgment).

66 Ibid., para. 180.

67 Ibid., paras. 49, 72.

68 Ibid., paras. 22, 52, 175, 204.

69 Ibid., para. 201.

70 Art. 48-51 Act.

71 See Czech Statistical Office, supra n. 17.

72 Calculated as the number of votes gained at the national level by each party which achieved the 5% electoral threshold multiplied by number of seats distributed (200) and divided by the sum of votes cast for all parties which achieved the threshold. The results were then rounded down and seats which remained to be distributed were allocated by using the largest remainder method. Since no running coalition was able to achieve even a 5% threshold in all three elections, there was no need to take the changes of additive electoral threshold into consideration.

73 M. Gallagher, ‘Proportionality, disproportionality and electoral systems’, 10 Electoral Studies (1991) p. 33.

74 The relative change for each party is calculated as a difference between the seats gained in a given electoral system and seats gained in a hypothetical proportional breakdown divided by seats gained in the proportional breakdown. The results are then multiplied by 100 to be expressed as a percentage. The arithmetic mean of absolute value of relative changes for each party is then calculated to get the average relative change for the entire electoral system.