The whole thing was illegal top to bottom, full of lies and falsehoods. Only made to look like a series of legal procedures that followed a simulacrum of open debate. Plain to see for everyone involved, the majority not simply accepted its fate but endorsed it actively and enthusiastically.
The trick in this case is that 'dismissing the KPD mandates' was one 'legal' step before the enabling act votes were counted. How that legal step was carried out, and that it was itself not legal is explained below.
Q How could they just dismiss the mandates of the KPD? What was the enabling law behind this?
The answer to this question is to be found in the dealings about the rules of procedure:
- Verhandlungen des Reichstags, stenographischer Bericht, 23. März 1933, p. 25 C – 45, here p. 38.
- § 98 Geschäftsordnung für den Reichstag. In: Büro des Reichstags (Hrsg.): Reichstags-Handbuch VIII. Wahlperiode. Druck und Verlag der Reichsdruckerei, Berlin 1933, p. 32 link
The newly inserted phrase now read:
Frick had wanted the rules of procedure of the Reichstag to be amended before the resolution on the Enabling Act was passed, so that the Reichstag, once it had met with a quorum, could not be rendered quorate by the departure of numerous members of parliament. According to § 2a GORt, it should be possible in future to exclude members of the Reichstag from attending Reichstag sessions for up to 60 days without excuse. A new section 32 GORt was to be inserted:
"Members who can be excluded under section 2a are also deemed to be present".
The combination of these two paragraphs meant that parliamentarians who left during the session and were then absent without excuse would be counted as present. The Reichstag then retained its quorum.
In short: the KPD did not have many friends among the mostly right-wing remaining members of parliament and some evidently did not want to see the legal ramifications of excluding them and their now just theoretical weight for opposition and more importantly obstruction. The trick in changing rules of procedure was counted less reliably regarding votes in favor, but apparently with great approval, however illegal it was.
The two votes that day were thus as followed: 1. "Do you want to discard the constitutional framing for quorum votes?" and then 2. "Do you want to discard the constitution?"
The question asks for the first to be explained, not the voting on the enabling act itself, as others here seem to guess.
The term majority needs a definition here: the simple majority of Reichstag's members were right-wing and voted yes. But that was not the only majority that is relevant here. As this was a constitution-changing law, it would have required a quorum of two-thirds of all members of parliament being present of which then at least another majority of two-thirds would have to have voted yes to change the constitution.
There was no open violence within the Reichstag meeting place. That a lot of uniforms from SA were present is not direct physical violence in itself, and they also didn't promise to beat up every dissenter.
However, the legal and procedural problems that characterise this farce start with a parliament that was voted into office early in March in the general election That itself still looked fairly democratic despite all the terror starting to unfold. Whether it was a 'free election' and 'truly democratic election' is less relevant. It was democratic enough still to allow a vote under nazi rule for 18.55% of seats to be taken up by SPD and the communist KPD 12.52% of all seats. The NSDAP 'only' had 45% of seats.
But things moved quickly and the parliament that the electorate voted for never convened in such proportions on the day this law was passed. The NSDAP made sure that all KPD members eligible weren't invited to join parliament, which was done via a customary letter, nor did they receive any railway tickets, financial compensation etc. All things they were normally entitled to.
Instead, the communists and some SPD members were beaten up beforehand, thrown in jail, or made to flee the country or go into hiding.
This now presents a serious problem for those nazis who wanted to keep up appearances of a 'democratic' transition. With all of SPD and KPD voting against the proposal only 15 more members would have been needed to stop this. And conversely with so many members not showing up for that vote, parliament would per default be unable to enact such a law. A third option would also present itself to members of parliament being somewhat right-wing but seeing the proposal as going to far and avoid any feared reprisals from wild SA thugs for voting 'no': just walking out and thereby obstructing any two third quorum votes.
The solution the NSDAP came up with was to first change the rules of parliamentary procedure: insert a clause that allows to count absent members as present, if they were absent without excuse. Naturally, being in Schutzhaft with the SA was no excuse for being present at the Reichstag and the logic of absentees count as present should be really clear for any upright citizen?
The Schutzhaft method in itself was of course a legal abuse based on a wartime law from 1916. Not a single jailing up to that point was conforming to the wordings of those laws. These tactics were used even before the Notverordnungen resulting from the Reichstag Fire Decree made them somewhat more conforming with 'legality'. The arbitrary measures of violence against opponents that took place before were in some places frequently invalidated by courts of law. That no longer happened after that decree.
But the way Reichstag head Göring does maths is really rather swift:
647 seats would be a full Reichstag. When changing the rules of procedure the debate minutes just show that he marked that an accepted with simple majority vote via 'standing up'. Then the debate on the real empowerment act follows. One SPD member called Wels shows some defiance, with known outcome. Then a personally named vote by roll call takes place. Those cards are counted quickly and the result Göring proclaims is:
"As this is a constitutional amendment, the following statement must be made: The statutory number of members of the House is 566, of which two thirds are 378, of which two thirds are 252".
It was completely nonsensical even in this fictional construction, as the relevant rules clearly still said after modifying them earlier that day:
"However, decisions of the Reichstag to amend the Constitution shall only be adopted if two thirds of the statutory number of members are present and if two thirds of those present agree.
Reason and meaning: only a constitutional amendment itself could have allowed for these rules to be changed. As a result of the unconstitutionally amended rules of procedure, the decision on the Enabling Act was based on an invalid counting procedure. This makes the count itself invalid. It is irrelevant that no member of parliament left the meeting and that the unconstitutional amendment to the pules of procedure remained de facto meaningless for the counting of votes. And in reality the changes to parliamentary procedure did not apply to amendments, nor could it affect those in the first place. In case a change to the rules of procedure would affect the constitution, he also conveniently forgot to say the magic formula: "As this is a constitutional amendment, the following statement must be made:" with accurate numbers of course.
As noted earlier, the sole resisting SPD member Wels might seem overly heroic. The SPD itself voted no the decision but remained isolated from the other non-NSDAP patries. But even Wels would later go to the all important and decisive Zentrum members and thank them for passing that bill, as he indeed feared for his life and expected to be not leaving the house alive if that bill would have tanked.
The Catholic Zentrum was actively groomed by the nazis with a bit of stick and lots of carrots: many promises and even written guarantees ('to be typed out at any moment, I assure you') swayed the remaining doubters. As long as it was against the 'godless communists' the Zentrum was right-wing enough to agree, just as before the change to quorum rules earlier, despite the SPD clearly seeing the and naming the abuse potential.
Not only the presence of shouting and singing SA troops heightened the pressure, but also the absence of the KPD deputies in the first place increased the pressure on the bourgeois parliamentarians.
But it was still only voted on, but was only made into law by president Hindenburg signing off on it. In light of all these blatant procedural defects, a very visible menace of violence undermining anything in this that would deserve the word "free", internal and external validity of scope and reach — all that should have prompted Hindenburg to deny his signature, making even his cooperation on this law illegal.
The perhaps funniest thing in this farce is that the empowering act itself was limited. The text itself mentions an unconditional limit as April 1, 1937. No joking, please. But it was no longer valid as of 29 June 1933!
The automatic invalidity was to be triggered with "any change in the current government", as the phrasing was meant and commonly understood. And on that day Hugenberg resigned. This interpretation was of course lawyered away by German jurists at the time, but for example the Vatican saw this other flaw and made an official inquiry. Zentrum and Hindenburg previously insisted upon the insertion of that phrase to ensure that only the exact cabinet as it was on March 24 would be able to use this law at all.
Article 5 This Act shall enter into force on the day of its promulgation. It shall cease to have effect on 1 April 1937; it shall also cease to have effect when the present Government of the Reich is replaced by another.
However, we know that the nazis just ignored that and prolonged the law twice via parliament and finally once per Führer decree.
This analysis is based on the expert opinion that those 9000 nazi laws that followed the enabling act were based on it – what does that mean for the continued evaluation as "justice" when those laws applied after the war were nazi laws. A debate that isn't finished and had a small bump into proper law from proper procedure for the Federal Republic in 2006.
Legal count Göring count
Full 647 566
Quorum 431 378
Needed 2 Pass 288 255
Vote w KPD Vote w/o KPD
in favour 441 441
against 175 94
Summary: The legalistic paravent is less important than the acts of arbitrary power before that had nothing to do with proper parliamentary procedure. The both acts were passed to give a veneer of legality that was really pure fiction, then made real with the normative power of the factual with willing jurists as executioners of that law. Given the pressure the NSDAP was able to assert over those playing with the thought of voting against it they would have been able to force that vote even under otherwise unchanged intact rules of procedure. That they chose this way indicates that the fiction of legality was preferable even when those laws had to be bent in this way. And the final result even when counting to a full Reichstag of 647 seats to 100% was 444 (69%) votes in favour 94 (15%). Neither the KPD votes themselves nor the two-third quorum obstruction did play a role here. Göring counted needlessly 566 as full parliament and 432 members present would have made the quorum.
Irene Strenge: "Machtübernahme 1933 - Alles auf legalem Weg?", Zeitgeschichtliche Forschungen (ZGF), Band 15, 2002. (A shorter version easier to access is and focussed on the question here expertise in "Das Ermächtigungsgesetz vom 24. März 1933", Journal der Juristischen Zeitgeschichte
Zeitschrift für die Rechtsgeschichte des 19. bis 21. Jahrhunderts, Vol 7 No 1, March 2013.