The German electoral system
The 22 September elections to the German Bundestag will be the first under the new electoral system, adopted in May 2013. The electoral law has twice been reformed since 2011, following judgments of the Constitutional Court (Bundesverfassungsgericht) which declared certain provisions unconstitutional. Many fear, however, that the new electoral law could lead to a significant increase in the number of seats in the Bundestag over the initial 598, mainly due to so-called ‘overhang seats’ (Überhangmandate).
Overhang seats derive from the interaction between first and second votes, with the German electoral system combining proportional representation with majority voting (mixed-member proportional system). Some 299, or half, of the Members of the Bundestag are elected directly in one of the electoral districts (Wahlkreis). The other half are elected through party lists, ensuring that each party has seats in proportion to its vote.
The first vote (Erststimme) is cast for a person in one of the 299 electoral districts. Political parties nominate a single candidate for each district, and the candidate with the most votes gains a seat in the Bundestag. The second vote (Zweitstimme) is cast for a party list at Land level.
If the number of ‘directly’ elected seats for a party (based on the first votes) exceeds the number of seats allocated to that party following the second votes (party lists), then the party in question is said to have overhang seats. These result from a party’s surplus of directly elected seats over seats proportionate to its share of second votes. So that overhang seats do not lead to other parties losing seats, the total number of members of the Bundestag is increased by the equivalent number beyond the 598 seats initially foreseen.
For example, in 2009, the CDU obtained 34.4% of second votes in Baden-Württemberg, entitling it to 27 Bundestag seats. Of the Land’s 74 seats, 38 were for directly elected members. The CDU candidate won in 37 of these 38 electoral districts. This meant a surplus of 10 seats over the party’s proportion of the vote, with the CDU thus having 10 overhang mandates.
Judgment of the Bundesverfassungsgericht of 25 July 2012
Under the previous electoral law, it was possible for a party with more second votes than another party to gain fewer seats than the other, and vice versa. This was because the number of Bundestag seats for each Land was only determined after the votes were counted. The Court held that this “negative vote weight effect” was unconstitutional.
It also declared unconstitutional the possible unlimited number of overhang seats. According to the Court, more than 15 overhang seats infringes the equality of votes as well as the principle of equal opportunity for political parties. As a general rule, it said, only second votes should determine the number of seats each party gains in the Bundestag, while first votes decide who is elected. However, the overhang mandates – while justified to ensure a close bond between Members and their electoral district – mean that votes for that party have greater weight than those for others. The Court stated that the proportional character of the elections must not be affected. This would be the case when more than 15 overhang seats emerge (more than half the minimum necessary to form a Fraktion in the Bundestag).
New electoral law of 3 May 2013
The new Act ensures the party lists in each Land are treated separately. In the past, overhang seats could be balanced to some extent through a party’s differing results in different Länder, as proportions for each party were established first at federal level. Hence the number of seats for each Land was not determined in advance of the election. Now, however, a fixed number of seats will be allocated to each Land in advance of an election, proportionate to its population (of German citizens).
After the election, seats will be allocated in two phases:
1. In each Land, seats are allocated to party lists proportionate to their share of second votes, together with any overhang seats resulting from the first votes. This prevents a party suffering any negative effect from gaining a lower share of second votes than its share of directly elected seats.
2. In a second step, to ensure the parties’ shares of seats in the Bundestag are proportionate to their vote at federal level, parties will receive additional seats to balance overhang mandates held by other parties.
Therefore, the total number of seats in the Bundestag would be increased, with Members elected through party lists. This means that every party’s seat quota (according to its share of second votes) is increased by the number of any overhang seats. This new adjustment procedure seeks to strengthen the proportional representation of all parties.
The outgoing Bundestag had 620 Members (598 + 22 overhang seats). With the new system for seat allocation, some estimate that there will be around 640 seats in the Bundestag after the 2013 elections. Others suggest the number would be closer to 670, and theoretically could even reach 800. Many criticise the shortcomings and complexity of the new law and call for overhang mandates to be abolished and a reduction in the number of electoral districts. It should be noted however that the new electoral law was agreed by the great majority of political parties represented in the Bundestag and is therefore a compromise solution.
For a forecast of the election results and the distribution of Bundestag seats, see the “calculator” produced by the Green Party.