Surplus mandates can occur in electoral systems that are based on proportional representation personalized through direct election in constituencies . If, in such an electoral system, a party wins more seats in the constituencies than it would be entitled to according to the proportional representation result, this party receives as many overhang seats as it has direct seats more than it is actually entitled to after the proportional representation.
In the federal election law in Germany this means: Surplus seats are awarded if a party wins more direct seats by first votes in a federal state than it would be entitled to according to the second vote result in that state. Since the sole practice of the overhang mandates was declared unconstitutional in 2008 and 2012, these have been corrected by compensatory mandates since 2013 .
As a rule, it is not possible to say which MPs hold overhang seats, but only that a certain number of overhang seats has occurred with one party. Overhang mandates can occur more often if the equalization between direct mandates and parties does not take place proportionally across the entire electoral area, but in smaller units, either through separate ratio equalization (such as in the Bavarian electoral system ) or offsetting only after sub-allocation of party seats (such as in the federal election law) . In many constellations, the larger parties in particular get overhang seats. But even with small parties, overhang mandates can occur if they have strong strongholds (especially with regional parties ) or particularly attractive personalities, or if the electoral system enables tactical voting through vote splitting .
In a certain sense, such seats are also overhang seats that are won by individual applicants or direct applicants whose party has failed due to a threshold clause because they do not have any creditable party votes. If such seats are possible, however, they are usually treated separately and not referred to as overhang seats.
The proportional representation, personalized through direct voting in constituencies, reserves a certain proportion of all seats (often half) for direct mandates and uses the rest to balance the ratios between the parties. If a party wins more direct mandates than it is entitled to based on the party votes, overhang mandates arise. In detail, the following circumstances promote their occurrence:
- Lots of small parties, which together can get quite a high share of the vote, but hardly ever win direct mandates. High threshold clauses can reduce the effective number of parties.
- More than two larger parties of similar strength, so that neither party can get a larger share of the vote.
- High proportion of direct mandates. If more than half of the seats are determined in the constituencies, overhang seats can easily arise even in a two-party system.
- Homogeneous voter behavior. The leading party can then win almost all direct mandates without needing a particularly large lead over the other parties. Since only the voter behavior between the constituencies is important, the homogeneity can be controlled by the constituency layout. Effectively homogeneous voter behavior can also exist in a regional party that only competes in its strongholds.
- Low total number of seats. This reduces the probability that opposing effects will offset each other in the electoral area. If the balance between direct mandates and party proportional representation does not take place across the entire electoral area, the seats allocated to the corresponding sub-areas are decisive. On the other hand, due to the greater inherent inaccuracy of the seat allocation process, a small number of seats allows a somewhat greater deviation before the first overhang mandate occurs.
- Low number of mandates per constituency . Multi-person constituencies are less prone to overhang than single constituencies because they already guarantee party proportional representation internally to a certain extent.
- Unevenly large constituencies, as in smaller constituencies fewer votes are needed to win a mandate than in larger ones. This is particularly problematic if the smaller constituencies show uniform voter behavior, for example because they are emigration areas or entire regions are systematically given smaller constituencies (which can easily happen, for example, through subdistribution of constituencies within existing subdivisions of the electoral area).
- Uneven voter turnout . Even in constituencies with a low turnout, relatively few votes are enough to win a seat. Often it goes hand in hand with preferences for certain parties and then strengthens their prospects for overhang mandates. If electoral districts are tailored to the number of people instead of eligible voters, a high proportion of non-eligible voters (especially children and foreigners) is synonymous.
- Pronounced strongholds of smaller parties, if they can narrowly beat the larger parties in some constituencies, for example due to particularly popular candidates, but are otherwise meaningless.
- Seat allocation procedures that disadvantage or do not favor parties susceptible to excess. The D'Hondt procedure, for example, reduces the prospect of larger parties for formal overhang mandates because it allocates them more seats than a non-distorted procedure.
In the case of a two-vote right to vote , in which the voter can choose a party other than that of the elected direct candidate, this type of vote splitting can favor overhang mandates if it is operated in the same way in the constituency or in the entire electoral area. In addition to statistical coincidences (with a small number of voters), there are the following reasons:
- Voters who do not give their personal vote (first vote) to direct candidates without a chance, but who give their party vote (second vote) to smaller parties. An electoral system can support this with runoff elections or alternative votes in the constituencies.
- Parties that have attractive personalities but are less popular as a party.
- Voters who split their votes by splitting votes between two parties. The balance in terms, by the nature of this canvassing the parties are supported, but already by the ideas of the voters about the value of both votes due to be.
- Voters who know that with their personal vote they can often only exchange the direct candidate for an applicant on the associated party list and accordingly award it regardless of their party preferences.
- Electoral systems that do not or only insufficiently compensate for overhang mandates and thereby give voters the opportunity to increase their voting weight by deliberately provoking overhang mandates through tactical voting.
- Parties that have no or few direct candidates and thus force their voters to split votes. Where it does not prevent the right to vote, they can instead run their direct candidates as “independents” or through a cover party.
Dealing with overhang mandates
Since overhang seats from the combination of people choice result by majority vote in the individual constituencies and party elections on the principle of proportional representation at a higher level, they could be completely avoided by waiver of these two components. Likewise, by significantly enlarging the constituencies and thereby reducing the number of direct mandates, the occurrence of overhang mandates could be made significantly less likely, if not completely excluded. However, the objection is sometimes raised against such a substantial enlargement that the bond between the citizen and the MP is lost. Due to the advantages of people choice and proportional representation therefore (eg Germany) overhang seats are taken in the preliminary distribution of votes in buying and then further treated with one of the following regulations in various countries:
- Only overhang mandates are additionally awarded
- In doing so, the parliament increases by the number of overhang seats; the proportional representation of the parties is disturbed accordingly. The advantage is the simplicity of the solution.
- Allocate overhang mandates and further enlarge parliament through compensatory mandates
- If you increase the number of seats to be allocated and then repeat the allocation process, the likelihood of overhang mandates decreases. In effect, this reduces the proportion of direct mandates. The additional seats awarded to the other parties are called compensation mandates . In general, the number of compensatory mandates required exceeds that of the overhang mandates, since an overhanging party has received significantly less than half of the party votes under normal conditions.
- The obvious disadvantage here is the bloating of the parliament. If there is an overhang among small parties, it may be necessary to multiply its size in order to completely avoid overhang mandates, which usually leads to the exhaustion of lists and thus to a distortion of party proportion; in extreme cases (constituency winners without a single party vote) the overhang cannot be resolved with this method alone. Many electoral laws therefore stipulate a maximum size and switch to another method for excess overhang.
- Due to the inherent inaccuracy of the seat allocation process , the proportions of seats between the parties tend to change slightly, which can lead to both an improvement and a deterioration in relation to the ideal values of equal voting. The rule that is common in practice, according to which the number of seats is gradually increased to the point at which no party is overhanging, leads to a slight systematic preference for the most overhanging party or its voters.
- In this case, it should also be noted that the Alabama paradox may lead to negative compensation mandates if the seat allocation procedure used is inconsistent (e.g. Hare / Niemeyer as opposed to Sainte-Laguë ). The overhang mandates can also be revived if the parliament is further enlarged, for example to achieve an odd number of seats.
- Do not assign overhang mandates
- The disadvantage here is that you have to touch the representation of each constituency concerned, be it through the complete loss of its representative or through the appointment of the runner-up (who in turn could cause an overhang mandate). In return, the proportion of the parties and the size of the parliament remain unchanged.
- In order to be able to carry out this variant, the constituency winners of the party concerned must first be put in a sequence in order to determine which of them do not receive a mandate. A wealth of criteria come into consideration for this, such as the absolute number of their votes, their relative share of votes, their lead over the competition, the voter turnout or the lot.
- Allocate overhang seats, but remove seats that do not overhang
- The parliamentary size remains the same as with the non-allocation, but the party proportion is distorted even more than with the additional allocation of overhang seats. On the other hand, the representation of the constituencies is not interfered with insofar as their relative weight to the remaining mandates remains the same.
- Many methods are again conceivable for deciding which parties have to give up how many seats compared to the proportionate distribution of seats. If one proceeds analogously to the enlargement of the parliament and reduces it in such a way that taking into account the (usually increased) overhang results in the given size, similar paradoxes arise with inconsistent procedures. In particular, it is then possible that the desired total number cannot be achieved in this way alone.
Internal overhang mandates
The situation is more complex if the electoral area is subdivided and the seats to which the parties are entitled are allocated to the individual sub-areas in a second step. Overhang mandates can then arise with each of these sub-distributions that did not yet exist in the upper-level distribution to the parties. One speaks here of internal as opposed to external overhang mandates .
In principle, the possibilities described above open up again, but now the sub-areas are what the parties were before. Where the parliament was previously enlarged, the party concerned now receives additional seats, which also distorts party proportionality. Where the party proportion was previously impaired, it is now the regional proportion (initially within the parties and subsequently also in the overall view, where the ideal relationship can already be clearly disturbed by the added inaccuracies of the sub-distributions). Where regional proportions are viewed as clearly subordinate to the representation of the constituencies and party proportions, but regional lists and thus sub-distributions should not be dispensed with, the solution "take seats from non-overhanging regions" is particularly suitable for the sub-distributions. This is called internal compensation .
A parliament has a desired number of seats of 100. Of these, 60 seats are allocated in constituencies (first vote), the remaining 40 are used to balance the ratios via party lists (second vote). The election result is as follows:
|Share of votes||50||30th||20th||100|
Party A is only entitled to 50 seats on the one hand, and on the other hand it is already entitled to 60 seats in the constituencies alone. So there is an overhang of 10 seats.
The four methods of dealing with this overhang described above are as follows:
|Overhang mandates also awarded||60||30th||20th||110||55%||27%||18%|
|Granting overhang and compensation mandates||60||36||24||120||50%||30%||20%|
|Do not assign overhang mandates||50||30th||20th||100||50%||30%||20%|
|Take seats from non-overhanging parties||60||24||16||100||60%||24%||16%|
The various options therefore lead to very high fluctuations in the shares of seats of the individual parties.
The German Bundestag is composed of those candidates who are elected with the first votes as direct candidates (according to the principle of majority voting), as well as those candidates who move into parliament as list candidates . Essentially, the number of mandates allocated to each party is determined by the second votes (proportional representation). First half of the total of 598 available seats will be occupied by the 299 constituency winners (the winners of the direct mandates ). Additional places, which each party is entitled to according to their share of the second vote, are normally filled with candidates from state lists drawn up by the state associations of the parties before the election. Thus, in general, each direct mandate won by a party reduces the number of list mandates remaining .
Proceedings until 2011
In federal elections up to 2009 , the total number of seats a party was entitled to in a federal state was initially determined solely by the second votes. If a party had more direct mandates within a country than would have been entitled to mandates from the state contingent after second votes, then overhang mandates were created. The party was allowed to keep the additional seats to which it was entitled through the overhang seats, although it sent more MPs than it was entitled to through the second votes. These overhang mandates increased the number of members of the Bundestag . A compensation in favor of the other parties, which would adjust the respective number of seats to the second-vote ratio, did not take place in Bundestag elections up to and including 2009, but it did in some state elections.
- Example: In the 1994 federal election , the CDU in Baden-Württemberg won all 37 constituencies and thus 37 direct seats. After calculating the distribution of seats using the second votes, the CDU in Baden-Württemberg was only entitled to 35 mandates: 2 overhang mandates were created. There were a total of 16 overhang seats in the election (12 for the CDU, 4 for the SPD ). The total number of seats in the Bundestag increased accordingly.
If a member of parliament with a direct mandate who had moved into the Bundestag from a federal state with overhang seats was resigned during the legislative period , no candidate would move up for him from the state list or from the constituency ( successor ruling ) .
- Example: Due to the death of MP Anke Hartnagel from Hamburg - where the SPD won six direct seats in the 2002 Bundestag election , although it would only have been allowed five places on the list - the size of the SPD parliamentary group (and thus that of the entire Bundestag) was reduced by one MPs because Hartnagel's place was not filled. This can also have an impact on the composition of the Federal Assembly that elects the Federal President .
Overhang mandates already appeared in the first federal election , up to and including 1990 they played only a minor role. In 1994 , overhang mandates appeared on a large scale for the first time: twelve for the CDU and four for the SPD. This enabled the Union to stabilize its narrow lead. This gave rise to a number of considerations about the constitutionality of the scheme. However, the Federal Constitutional Court declared (with a 4: 4 tie in the Second Senate) on April 10, 1997 in the context of a norm control procedure initiated by the SPD-ruled state of Lower Saxony, the proporz-distorting effect of the overhang mandates as compatible with the Basic Law.
In the federal elections from 1998 to 2005 , the SPD received more overhang seats than the CDU / CSU. In 2002, despite a lead of only 6,027 second votes (equivalent to 0.01%), it got three more seats than the Union through overhanging mandates, making it the strongest parliamentary group. In 2005, despite a lead of 436,384 votes (0.9%), the Union received only four more seats than the SPD.
For the coalition majority in the 17th German Bundestag , which was elected on September 27, 2009, the overhang mandates were insignificant, as even without these mandates the Union parties and the FDP would have had a majority with 308 out of 598 seats. The overhang mandates, however, led to the following curious situation: SPD, Greens and FDP together had 48.3% of the vote, CDU / CSU and Left together had 45.7% of the vote. Nevertheless, the CDU / CSU and the Left jointly had 315 seats, while the SPD, Greens and FDP only had 307 seats; 2.6% fewer votes, 8 more mandates.
Mechanisms to obtain many overhang mandates
The two mechanisms used to increase the number of overhang mandates were:
- Winning many direct mandates (via the first votes)
- Comparatively few party votes (second votes)
The regulation of the overhang mandates gave voters who wanted to support an alliance leeway for strategic voting. A voter who preferred a red-green coalition , for example , should rationally have given his first vote to the SPD in order to facilitate the entry of the direct candidate of the SPD into the Bundestag, but with the second vote to vote for the list of Greens and thus for overhang seats for the SPD should speculate. This ticket splitting could theoretically (if it had been used by many supporters of a coalition) have considerable effects on the composition of the Bundestag. In the discussion about the third electoral law of 1956, the SPD expressed fears that supporters of a black-yellow coalition could make massive use of this possibility, which the specific form of the German personified proportional representation offered .
In theory, the regulation of overhang mandates was therefore an undesirable feature of the German electoral system, so that the possibility of introducing compensatory mandates for compensation was repeatedly discussed. Historically, however, overhang mandates have hardly been of importance (see above), since such strategically motivated ticket splitting was never carried out to a significant extent, be it due to clear party preferences or simply due to ignorance.
Reform due to unconstitutionality
In particular, the fact that in the Bundestag election system, the interaction of overhang mandates with the distribution of seats on the state lists, a negative voting weight appeared to be constitutionally problematic . In these situations, the dependency of the distribution of seats on the vote was reversed: either additional votes for a party could cost this one seat or fewer votes could give this party an additional seat. Voting votes would then have worked against the will of the voters. In fact, there were several concrete examples in which negative voting weight changed the distribution of seats in the Bundestag . Normally it was not possible for the voter (with the exception of the by-election in the Dresden I constituency in 2005 ) to foresee whether his vote would have a favorable or unfavorable effect on the elected party, as this depended on an a priori coincidental constellation.
In order to clarify whether such random majority finding in a personalized proportional representation system is constitutional, several complaints about the election review of the Bundestag elections in 1998, 2002 and 2005 were brought before the Federal Constitutional Court. On July 3, 2008, the court announced in two proceedings to review the 2005 Bundestag elections that the practice of awarding overhang seats was unconstitutional because of the phenomenon of negative voting weight. The legislature was given a deadline until June 2011, so that the old regulation could remain valid again for the 2009 Bundestag election. In February 2009 - seven months before the 2009 Bundestag elections - the Bündnis 90 / Die Grünen parliamentary group introduced a bill to amend the federal electoral law in the Bundestag, which they believed complied with the requirements of the Federal Constitutional Court. On July 3, 2009, however, it was rejected with the votes of the Union , SPD and FDP.
A new version of the federal electoral law resolved by the Union and the FDP in 2011 against the votes of the opposition to remedy the deficiencies warned by the Federal Constitutional Court in 2007 was declared unconstitutional again on July 25, 2012. As a result, in October 2012 the government parliamentary groups as well as the SPD and the Greens agreed on the introduction of compensation mandates . The reform was passed on February 21, 2013 in the Bundestag and on March 1, 2013 in the Bundesrat and implemented by adapting , , and BWahlG.
The new regulation provides for full compensation through compensation mandates in cases in which the number of seats achieved by a party in a federal state through direct candidates exceeds the number of seats it is entitled to there solely on the basis of the second vote distribution. Deviations from the second vote distribution (a so-called distortion overhang) that arise for other reasons (e.g. due to rounding errors, different voter turnouts in the various federal states) are compensated for by compensation mandates. Members of a party who leave the parliament during the legislative period will now be replaced by the top candidate on the relevant state list.
However, the equalization mandates can lead to a considerable increase in the size of the Bundestag beyond the previous minimum of 598 members. For example, the election result of 2009 would result in 648 seats under the new electoral law, compared to 622 under the old one. A strong increase occurs in particular when a nationwide relatively small party (like the CSU) wins all direct mandates in a federal state, but remains there with its second vote share well below 50%. Experts consider a Bundestag size of up to 800 members to be not unrealistic for the future. Due to the expected enormous cost increases and bureaucratisation, the German Taxpayers' Association demanded that the overhang and equalization mandates be abolished in 2017 and that the number of MPs be capped from 630 for the 2017 federal election and then the number of MPs should be reduced to 500.
- Overhang mandates (Federal Agency for Civic Education)
- Election films - explanatory films by the Federal Agency for Civic Education on the federal election
- Overhang mandates (Wahlrecht.de)
- BVerfG, decision of November 24, 1988 - 2 BvC 4/88 -, BVerfGE 79, 169 - "Overhang mandates I"
- BVerfG, judgment of April 10, 1997 - 2 BvF 1/95 -, BVerfGE 95, 335 - "Überhangmandate II"
- BVerfG, decision of February 26, 1998 - 2 BvC 28/96 -, BVerfGE 97, 317 - " Moving up in overhang mandates"
- BVerfG, judgment of July 3, 2008 - 2 BvC 1/07, 2 BvC 7/07 -, BVerfGE 121, 266 - "Negative voting weight"
- Christoph Seils : The new right to vote and the crux with the overhang mandates. Federal Agency for Civic Education , June 18, 2013.
- Gudula Geuther : The Bundestag is getting bigger. Deutschlandfunk , February 20, 2013.
- BVerfG, decision of February 26, 1998, Az. 2 BvC 28/96, full text
- VerfGBbg , judgment of October 12, 2000, Az. 19/00, full text ( Memento of December 7, 2011 in the Internet Archive )
- History of overhang mandates - History of overhang mandates in the German Bundestag. Wahlrecht.de
- What is an overhang mandate? When a party gets more direct mandates than second votes. ( Page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. zdf.de
- Federal Agency for Civic Education: Elections for Beginners. P. 4, "How votes become Bundestag mandates" (2) (PDF; 534 kB)
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- BVerfGE 95, 335 - Overhang mandates II.
- Robert Roßmann: German suffrage unconstitutional - how the citizen gets his way. Süddeutsche Zeitung of July 27, 2012
- There were also 65 compensatory mandates : SPD 19, FDP 15, AfD 11, Linke 10, Greens 10 (see www.tagesspiegel.de: Miraculous Multiplication - Why does the Bundestag now have 709 members? )
- In addition, there were 29 compensatory mandates : CDU 13, SPD 10, Linke 4, Greens 2 (see www.bundestag.de: Why the new Bundestag has 631 members )
- When you last took part in the election, started as the All-German Party (GDP), a merger with the All-German Bloc / Federation of Expellees and Disenfranchised (GB / BHE)
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- BVerfG, judgment of July 3, 2008, Az. 2 BvC 1/07, 2 BvC 7/07, full text = BVerfGE 121, 266
- cf. also the BVerfG, press release No. 68/2008 of July 3, 2008.
- Wahlrecht.de: Green draft law to eliminate negative voting weight
- BT-Drs. 16/11885
- Wahlrecht.de: Bundestag rejects constitutional suffrage for the 2009 Bundestag election
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- New rules for overhang mandates ( Memento from September 21, 2013 in the Internet Archive ). Federal Council press release 44/2013, March 1, 2013.
- Twenty-second law amending the Federal Election Act (22nd BWahlGÄndG)
- The relevant regulations for the compensation of overhang mandates result from BWahlG, in particular from paragraphs 5 and 6.
- election system of the Bundestag election on wahlrecht.de
- Gudula Geuther: The Bundestag is getting bigger. Deutschlandfunk , February 20, 2013.
- Christoph Seils: The new right to vote and the crux with the overhang mandates. Federal Agency for Civic Education, June 18, 2013.
- Petition Bund der Steuerpayers Deutschland e. V .: No to an XXL Bundestag! change.org, accessed January 11, 2017