Article 63: It’s the New Article 50

So what’s going to happen next in Germany? It’s worth taking a look at the mechanics of how Germany elects a Chancellor. These are set out quite specifically in Article 63 of the Grundgesetz. The text is here and an official explanatory note by the parliamentary administration is here. Article 63 foresees a step-by-step process:

1) The Federal President, currently Frank-Walter Steinmeier, proposes a candidate. This candidate can be any German citizen who possesses the right to vote and to stand for election, and doesn’t have to be a member of the Bundestag. The choice is left entirely to the President, who is not required to take heed of any recommendation from the parties or anyone else. The Bundestag note says that such a candidate should be capable of a majority in parliament, but the letter of the law doesn’t prescribe any test for this. The law leaves open how long the President can take to make a decision. During this period of time, the President can require the current Chancellor to stay in office, and in practice always does. While this is the case, the Bundestag can’t vote no-confidence in them.

2) Once the choice is made, the Bundestag divides on a straight up-or-down vote. There is no debate and no other candidate at this point, it’s purely yes or no on a secret ballot. If the candidate gets an absolute majority, the President is legally bound to appoint him or her as Chancellor without further delay. Every Chancellor so far has been elected at this step.

3) If the absolute majority is not forthcoming, the Bundestag now gets 14 consecutive days from the time of the vote to elect a Chancellor, again by absolute majority. If a candidate is elected, the President must appoint them within seven days. The law leaves this phase entirely up to the Bundestag and therefore to its President, a certain Wolfgang Schäuble.

4) If there is still no solution after 14 days, a further round of voting takes place immediately. If a candidate does, in fact, get a majority at this point the usual rules apply and the President must appoint them with seven days. Failing that, though, the President has the right to either appoint the candidate with the most votes, or call a general election, which must occur within 60 days. If there is a tie, voting continues. If the President wants new elections, they must be called within the seven days or else that option is lost.

Some comments about this. First, the President’s role is quite powerful. Rather than ratifying the majority leader’s claim, the President at least theoretically makes an active choice and can in fact choose someone completely different.

Second, it’s going to be difficult to go through this process without Angela Merkel being chosen. The law leaves the President free to choose, but as the Parliamentary note points out, the President is given plenty of time precisely in order to choose someone who commands a majority. It is hard to think of anyone with a better claim. And the first Bundestag vote does not provide for an alternative candidate. It would be very difficult to keep half the Bundestag from electing her given the chance, or bringing her back in the second phase if Steinmeier was to astonish everyone by picking someone else.

Third, it’s going to be very difficult to get to new elections without cross-party agreement that they are necessary. The process defined in Article 63 sets up steadily rising pressure on the parties to agree on a chancellor. For almost any party, it would be better to come to an agreement under 3) rather than have someone imposed under 4). It would likely be necessary for one or more parties to deliberately throw several votes in order to get to new elections.

Fourth, the Bundestag is free to organise Step 3 as it wishes, so it’s probably worth having a look at that.

In the 2013-2017 Bundestag, the parliament’s own rules of procedure required a candidate to get either the signatures of 25% of its members, or else the support of a parliamentary party including 25% of the members. The absolute minimum of support required to appear on the ballot was therefore 12.5% plus one vote – a majority of a party big enough to account for 25% of the members. This rule, Section 4 of the Rules, is still in force. Now, the only parliamentary party big enough by itself to put forward a candidate is the joint CDU-CSU, with 246 out of 709 seats, 34.7%. Section 4 therefore provides that the magic number required to put forward a candidate is 17.35% or 124 exclusively CDU-CSU votes – if we get to Step 3 at all. For a cross-party candidate, it’s 177.

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