The basics of the electoral system
As in Hungary, Germany has a general, equal, direct, free and secret electoral system. It governs the election of the federal parliament (Bundestag), which is defined by law as a parliament of 598 members. Half of the 598 members are elected in 299 individual constituencies - they are the individual candidates (Direktkandidat) - and the other 299 are elected from a list. Each Land has the same number of individual representatives in the Bundestag as the number of party list seats it is entitled to. This latter number is 299 only in theory, in practice there is no upper limit, and it is this provision that is generating increasing controversy.
In Germany as well, citizens over 18 years of age can vote, but in Germany this is only possible between 8 a.m. and 6 p.m. on the day of the elections, and those who are prevented from doing so for some reason or are abroad can opt for postal voting in advance. The popularity of this form of voting has soared, especially during the pandemic. Germans living abroad who do not have a registered domicile in Germany can vote after registration, provided that they have been resident in Germany for at least three consecutive months within in the last 25 years with a registered address. Electoral lists of ethnic minorities living in the country are not subject to the 5% entry threshold that otherwise applies to all party lists. After a long time, it is the SSW, the party of the Danish minority in Southern Schleswig, which is trying to enter the Bundestag this year, with a good chance.
First and second vote
As in Hungary, citizens have two votes in the German federal parliamentary elections. The first vote is for the single-member constituency (Bundeswahlkreis), which is a single-round system with a simple majority, and the second is for the party lists established on a regional basis. Unlike in Hungary, the German electoral system is not based on a 'parallel system', where votes for individual candidates and party lists are carefully separated (this system is modified somewhat in Hungary by the winner-loser compensation system, but is still basically a 'parallel system'), but the two sub-systems are intertwined and a special procedure determines the final result.
Although the principle of proportionality is fundamental, it is nuanced by the single-member constituency vote, which can be interpreted as a preference vote in a list system. It is the second vote that determines the composition of the parliamentary horseshoe, since it is this vote that determines the presence and strength of the parties, using the Sainte-Laguë/Schepers allocation method. This allocation method is also known in the Anglo-Saxon world as the Webster method, and is based on a divisor method quite similar to the d'Hondt method used in Hungary.
The list vote result, however, only determines the size of the political groups, their composition being determined by the first vote. In this sense, it is the winner and the non-winner in the single-member constituencies following a party list vote that will ultimately determine who will take a seat in the faction of the preferred party. This can be interpreted as preferential voting, but not in the way it is in the Czech Republic or Slovakia, where you can pick and choose from the candidates on the party list, ranking some candidates ahead of others by your vote, but by voting for individual candidates.
The importance of the results in the single-member constituencies is illustrated also by the so-called Grundmandatsklausel (basic mandate clause), which is hardly known even to election experts. This clause stipulates that parties that fail to meet the 5% threshold can enter the Bundestag on the basis of the party list if they win at least three constituencies.
In 1994, the post-communist PDS would have been excluded from parliament with a list result of 4.4%, but after winning three single-member constituencies in East Berlin, it gained proportional representation in the German federal parliament. In 2017, the AfD would have become a factor in the Bundestag with its three parliamentary seats won in single-member constituencies in Saxony, even if it had failed to meet the 5% threshold for entry (which is far from being the case given its result of 12.6%,). The legislation favors political formations with strong regional roots and introduces a slight majority element into the system.
Combination of votes
What is the real particularity of this system that is causing heated debates and big problems today? In the Bundestag, with its statutory 598 members, half of the seats are allocated to members from the constituencies and half of them are allocated to party list - at least in theory. In practice, this ratio has completely changed. The current parliament has 709 members, 299 of whom were elected in single-member constituencies, but in addition there are 410 list members in the Bundestag. How is this possible? The answer lies in the peculiarities of the electoral system which is even more complex than the Hungarian one, which is also considered quite complex.
As we have seen, the allocation of seats is based solely on the proportional result of the party list, and the representative who is elected in a single-member constituency does not fundamentally change this proportional system, but it does influence it. How? To understand the mystery we have to put aside the mindset of the parallel vote system. For the votes cast in the two sub-systems are not separate, but have a very specific interaction. The peculiarity is precisely that although there is a majority element (the candidate who wins in a single-member constituency), this is completely eliminated by the proportional element (party list voting). Indeed, the total number of seats in parliament is determined solely by the party list result, not only for the party list seats, but also for all seats, i.e. including the constituency seats. In practice, the party-list result is determined for each province, the seats already won in the constituency by the party in that Land are subtracted from it, and the remaining number represents the number of seats that can be allocated from the list. But if there is no remainder, a new problem arises. This phenomenon is known as Überhangmandat (overhang seats) and is perhaps the most complex element of the German electoral system.
Overhang seats
The example of Baden-Württemberg is a good illustration of this phenomenon. In this Land, there are 76 seats, and this is what voters vote on in the Bundestagswahl (federal elections). Of the 76, 38 are single-member seats, since this is the number of constituencies there, and of course there are 38 list seats. The last time the CDU achieved 34.4% on the list, with the second-placed SPD lagging far behind. There are stronger and weaker CDU constituencies across Baden-Württemberg, but on the whole, this support (and the relatively large gap to second place) was enough to win all the 38 single-member constituencies in the Land. In doing so, it also won half of the 76 seats in Baden-Württemberg, i.e. the total number of the 38 constituency seats). But with its list result of 34.4%, it would be entitled only to 34.4% of the total number of seats in Baden-Württemberg (78), meaning 27 seats. In this case, it would not get any list seat at all, because it has already, so to speak, “overwon” itself (of course, many CDU members in Baden-Württemberg would have probably refused the term "overwin" when they saw the 34% result).
Of course, this can also happen when a party does not win all the constituency seats, but simply wins more seats than it would be entitled to, based on its proportion of party list votes. If a party wins half of the individual constituencies, it will have overhang seats even if it does not win more than 25% of list votes. Winning half of the individual constituencies, it obtained a quarter of the total number of seats available, with a result of 25% it has already won exactly what it is "entitled to”. If it wins 80% of the individual constituencies, the list limit is 40%. If it wins all of them, the list limit is 50%. If the list result is higher than that, it will also get a list seat. If it is lower than that, the overhang seat system kicks in. As a rule of thumb, there is an overhang seat when the list percentage is less than half the percentage of seats won in the constituencies (as half of the total seats are won in the constituencies). Then the saying "the party has won more than it is entitled to" applies here.
For us, this is a completely surprising result, and it is predictable that many German voters have not yet become aware of this truly paradoxical situation. In Baden-Württemberg, however, this has been the case for years, and the CDU's committed and skillful supporters, who are not only well versed in politics but also in arithmetic, quite logically, always give their list vote to the potential coalition partner, the FDP. This strange situation has long been the case also in Saxony and Bavaria.
Now, what exactly happens to the CDU seats in this system? Under the proportional system, it is entitled to 27, but it has already gained 38. What can be done? Take away the difference between 38 and 27, in this case nine parliamentary seats? Vote again? The solution is so typically German that it is hardly surprising. It can simply keep the nine seats. This has been the procedure for many decades, and it has not made waves. The system was based on the fact that this does not happen very often to the two large parties, and their support is so close that the political field is levelled and it is unlikely that one of them will win all the constituency seats in a Land. The system is turned completely upside down when one political force wins all the single-member constituencies with 34% support. How is this possible? It is entirely due to the fact that the German party system is no longer bipolar, as it used to be, and the second-placed party is so far behind the first one that it can win the single-member constituencies one after the other with relatively poor results. In the 2017 election, the CDU and CSU, although down more than 8% at the national level, won almost as many single-member constituencies as four years earlier, taking 231 constituencies (236 in 2013).
The 2017 election illustrates this phenomenon: the CDU won 185 single-member constituencies and only 15 list MPs entered the parliament. The Bavarian CSU took everything with the 46 single-member constituencies it won and failed to send anyone to Berlin through party-list. So the list leader is out of the running! In any case, the idea behind this peculiarity is that a strong party - retaining the overhang seats, of course - gains proportionally greater representation, and leaving behind the German principle of proportionality, a much more pronounced majority element prevails, albeit in a very limited way.
And to make matters worse, the above pattern in Baden-Württemberg and Bavaria was followed by the CDU in nine other Länder in 2017.
In addition to Baden-Württemberg (Bavaria for the CSU), the CDU/CSU were able to send individual members to the Bundestag only in the following Länder: Brandenburg, Hesse, Mecklenburg-Western Pomerania, Rhineland-Palatinate, Saarland, Schleswig-Holstein, Saxony-Anhalt, Saxony and Thuringia. The narrow 15 list seats were achieved, in addition to the three city-states (Berlin, Hamburg, Bremen) in North Rhine-Westphalia and Lower Saxony. The picture is somewhat nuanced by the fact that in the event of losing a direct mandate (due to death or resignation), there is no by-election in the constituency, but someone else is elected from the list, but this does not really affect the peculiarities and contradictions that have developed around the system.
The question of overhang seats, whose number historically has always been between one and six, first came to the fore and into the public discourse in 1994. In that year, the re-election of Chancellor Helmut Kohl succeeded by a majority of only ten, with the CDU/CSU winning 12 overhang seats. Before we get the impression that the Chancellor of German unity was only helped by this peculiarity to remain in power until 1998, it should be said that the opposition SPD also won four such overhang seats, so that eight overhang seats did not make a chancellor's majority for the CDU/CSU. Without the system of overhang seats, Kohl would have had a two-seat majority - which, admittedly, would not have been very large. In any case, due to this peculiarity of the German electoral system, the number of such seats has grown to 24 in 2009 and 46 in 2017.
Compensation
Remedy an existing problem in such a way that it ends up creating an even bigger problem. Well, this is what would best describe the epoch-changing innovations launched in 2011, which ultimately resulted in the fact that the Bundestag elected in 2017 now has 709 members. Some analysts say that the possibility of a Bundestag of up to 800 members is not excluded in 2021, but more on that later. In 2011, the opposition SPD and the Green Party took the matter to the Constitutional Court. They complained that all 24 of the overhang seats from the 2009 elections had gone to the CDU/CSU, giving the party alliance a big advantage, in violation of Germany's proportional electoral system. The Constitutional Court then ruled in the summer of 2012 that the system of overhang seats violated the principle of proportionality and the general and equal nature of elections if the number of overhang seats reaches the size of half a party group in parliament. The legislator had to react quickly and it was decided that all overhang seats should be fully compensated. This is the reason for such an increase in the size of the Bundestag. Additional seats have to be filled until full proportionality is restored. Which means, to use the example of Baden-Württemberg, that in 2017 additional seats had to be added to the 38 list seats until the CDU, with is 38 constituency seats, had a share of 34.4% of the total seats (the list result). Finally, the 38 list seats were increased by 20 additional list seats, giving a total of 96 seats (38 constituency and 58 list seats). This was done in all the federal states with overhang seats. The 46 overhang seats across Germany were then balanced by 65 seats, bringing the Bundestag from 598 seats to 709 seats, with 111 additional seats.
Desperate attempts to reform
The grand coalition of CDU/CSU and SPD voted a law that would apply for the first time in the 2021 elections to the issue of overhang seats. It stipulates that there will be no compensation for three overhang seats in each province and that the number of single-member constituencies will be reduced from 299 to 280 after 2024. This is an attempt to downsize parliament. Whether it will succeed remains to be seen. The reform has been described by many as a "little reform" (Reförmchen), and some analysts have pointed to the need for a comprehensive overhaul. In any case, the opposition FDP, the Greens and the Left Party have challenged the law, and the case is currently before the Constitutional Court. There is a chance that, ahead of the federal parliamentary elections due on 26 September 2021 the Constitutional Court will rule that the reform is unconstitutional. This would restore the previous rules. Again, this would raise questions, but it would make clear that a legislative decision would be needed as soon as possible - but this would by all accounts fall to the new Bundestag in the 20th term starting in the autumn.
Not surprisingly, the three parties have submitted a bill proposing a Bundestag of 630 members, of which 250 would be constituency seats and 380 would be list seats. Of course, all smaller parties benefit from proportional elements- list seats. At the same time, it is beginning to be doubtful whether the Green Party is still a small party at all, and how it is positioning itself. The party with the smallest parliamentary group in the 19th term (2017-2021), can be the largest party in the next federal parliament, but even if it will be “only” the second, it will be playing in a different league in the future. And of course, it is not excluded that with its 20-25% support, especially in its stronghold of Baden-Württemberg, it could benefit from the system of overhang seats.
The AfD has also tabled a draft law that would allow a maximum of three preference votes in party list voting, and the relatively poorly placed winners in single-member constituencies would forego the mandate. Typically, some would have sought to remedy the whole electoral dilemma by introducing a parallel voting system, where 299 parliamentary seats would have been decided in single-member constituencies, and the 299 list seats would have been allocated independently of the constituency results. Here, all overhang and compensation would have been meaningless. In this system, the CDU/CSU would have had 335 seats in the 598-seat Bundestag, which would have been an absolute majority. It is not surprising that this proposal was the idea of 24 CDU/CSU MPs. But this rational and revolutionarily simple idea is unlikely to win a majority, now or in the future.
Summary and outlook
But Germany is not a country of large-scale innovations, so the policy of small steps and Band-Aids for the problems of the existing system is likely to continue. The German electoral law, which is to be passed by half majority, could be amended in the future by coalition parties that expect a very similar result from a reform. This is not impossible with two parties of almost equal strength, and such a constellation could be a realistic scenario in the case of a government majority of the CDU/CSU and the Green Party. But let's not get ahead of ourselves. The first grand coalition of CDU/CSU and SPD, which ruled until 1969, tried a majority system. It was a disastrous failure: the SPD unexpectedly dropped out of the project, leaving the CDU/CSU alone, and the SPD was able to lure the existentially fearful FDP to its side, thus forming a social-liberal government that lasted 13 years. However, a possible multi-party consensus in today's fragmented Bundestag, which is likely to be seven-party (or even eight-party) from the autumn, would be hardly possible, given the many different interests involved.
The German electoral system is an important study, helping to better understand the complexity of the political landscape of Germany. The fragmented nature of the German political parties (many would argue a rainbow coalition type of political cooperation) fundamentally undermines any determined reform vision, and as a consequence, it requires a very different kind of political action as in Hungary. By identifying similarities and differences between countries, their political systems and procedures, we can promote understanding and cooperation which is much needed in today´s world. By studying carefully the German electoral system we can realize that the Hungarian system can be regarded a well-considered and workable one.
Cover photo: shutterstock.
