Federal election law

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The federal election law regulates the election of the members of the German Bundestag . According to the principles of electoral law laid down in Art. 38, Paragraph 1, Clause 1 of the Basic Law (GG) , the election is general, direct, free, equal and secret . The specific electoral system , on the other hand, is determined by a simple law , the federal electoral law. Many provisions of the Federal Election Act are for their part specified in the Federal Electoral Code.

The combination of constituency voting and list voting is typical of German federal election law. A voter has two votes, one for a direct candidate in the constituency and one for a party's state list. The second vote is decisive for a party's share of the Bundestag mandates. Won constituency mandates are offset against this.

Personalized proportional representation of the Federal Republic of Germany

Legal bases

Constitutional foundations

According to Article 38.1 of the Basic Law “the members of the German Bundestag […] are elected in general, direct, free, equal and secret elections” for an electoral period of four years, Article 39.1 of the Basic Law. The five principles of electoral law in Article 38 are rights equivalent to fundamental rights : Their violation can be criticized by a constitutional complaint before the Federal Constitutional Court . The details are to be regulated by federal law. The Basic Law makes no stipulations for the electoral system, while most constitutions of the federal states prescribe proportional representation and in some cases also contain other requirements.

An election is general if in principle every citizen can participate. However, Article 38, Paragraph 2 of the Basic Law determines age limits for the right to vote in the Bundestag. Afterwards German are from the age of 18 years active right and from the age at which the majority enters passive voting right . The age of majority stipulated in the BGB has also been 18 since 1975.

Election posters in Nuremberg, Federal Parliament election 1961

Only Germans are entitled to vote within the meaning of Article 116, Paragraph 1 of the Basic Law, including so-called status Germans in addition to German citizens . Because the people, from whom all state power emanates according to Article 20.2 of the Basic Law, which it exercises in elections and votes and through special legislative, executive and judicial bodies, is, according to the judgment of the Federal Constitutional Court of October 31, 1990 only the German people.

An election is immediate if the will of the electorate directly determines the election result. The interposition of electors, such as in the election of the US president, is therefore not permitted. The list voting procedure, on the other hand, is compatible with the principle of direct voting.

A choice is free if the state does not urge the citizen to make a specific voting decision; The right to make nominations (passive right to vote) also falls under the freedom of choice.

An election is secret if no one can understand how a voter made his decision. The federal election law even provides that no voter may announce his decision in the polling station . Postal voting is problematic , which is therefore constitutionally an exceptional case, as voting secrecy is not guaranteed here. However, since otherwise the generality of the election, which is considered to be of higher value, would be impaired, postal voting is compatible with the principles of electoral law.

An election is the same if every voter basically has the same voting weight. In the case of proportional representation and majority voting , both of which it considers permissible in established case law, the Federal Constitutional Court applies different standards of equality. In the case of majority voting, all that is required is equality of counting values, i.e. each vote must count at least approximately the same. The equality of counts is violated, for example, if a member is elected in each constituency and the size of the constituencies deviates too much. In the case of proportional representation, compliance with the equality of performance is required, i.e. each vote must have the same influence on the distribution of seats. However, the equality of performance does not apply without restriction. The Federal Constitutional Court has considered the restriction of the electoral equality through the current threshold clause in the federal election law of 5% of the second votes or three direct mandates to be permissible. A threshold clause of more than 5%, however, would be unconstitutional according to case law, unless it is justified by special and compelling reasons.

Laws and Regulations

The federal electoral law contains the essential provisions of the federal election law . Many detailed regulations are contained in the Federal Electoral Code , a statutory ordinance based on Section 52 of the Federal Electoral Act. The implementation of representative election statistics is regulated in the Election Statistics Act. The Federal Voting Machine Ordinance, a statutory ordinance based on Section 35 of the Federal Electoral Act, which regulates voting with voting machines, was declared unconstitutional in 2009. This means that there is no legal basis for electronic voting. The Election Examination Act regulates the examination of the legality of the election .

Suffrage

Right to vote

Active suffrage is the power to vote for someone. According to Section 12 of the Federal Election Act, Germans who are active on election day are eligible to vote

  • are at least 18 years old,
  • have had their place of residence or other habitual abode in Germany for at least three months and
  • are not excluded from the right to vote.

Germans living abroad who meet these conditions with the exception of the three-month period are also entitled to vote if they

  • had a permanent residence or other habitual abode in Germany for at least three months after reaching the age of 14 and this was less than 25 years ago or
  • "Have acquired personal and direct familiarity with the political situation in the Federal Republic of Germany for other reasons and are affected by them."

If Germans abroad who are actively eligible to vote move their place of residence to Germany, the three-month period does not apply.

Germans who have been deprived of their right to vote as a secondary consequence of a criminal conviction are excluded from the right to vote ; this is only possible in the case of certain criminal offenses (first, second, fourth and fifth section of the special section of the Criminal Code ).

Passive suffrage

Passive suffrage is the power to be elected. Anyone who is German and at least 18 years old on election day can be elected to the Bundestag.

However, it is not possible to elect anyone who is excluded from the right to vote or who, as a result of a judge's verdict, cannot be elected or is unable to hold public office. According to Section 45 of the Criminal Code, anyone who has been legally sentenced to imprisonment of at least one year for a crime loses their eligibility for five years. In the case of other criminal convictions, the court can deprive the convicted person of eligibility for two to five years, provided that the law expressly provides for this option for the respective offense.

Germans who live abroad can also be elected if they do not have the right to vote.

Electoral roll

Entry in the electoral roll is - apart from the rare exceptional cases specified in Section 25 (2) of the Federal Electoral Code - a prerequisite for voting. A separate electoral roll is kept for each constituency.

In the electoral roll, the municipal authority enters those eligible to vote who have their home in the municipality on the 42nd day before the election (until the 2013 federal election: on the 35th day). If there are several apartments in Germany, the entry is made in the location of the main residence. Eligible voters without a home in Germany (Germans abroad, homeless) can only be accepted upon application, which must be submitted up to the 21st day before the election.

Those entitled to vote on the electoral roll must receive the voting notification by the 21st day before the election. On the working days in the period from the 20th to the 16th day before the election, eligible voters can view the data in the electoral roll, but the data of other eligible voters only if they can substantiate possible errors in the electoral roll. Objections to the electoral roll can be lodged within the viewing period. In principle, after the inspection period has commenced, the electoral roll can only be corrected on the basis of timely objection. In the case of obvious inaccuracies, an ex officio correction is also possible later.

Voting

Votes are usually cast on election day between 8 a.m. and 6 p.m. in the polling station of the electoral district in which the person entitled to vote is on the electoral roll. Upon request, the person entitled to vote receives a voting slip, and postal voting documents are regularly sent or distributed with the voting slip. The application period ends on the second day before the election at 6 p.m., in exceptional cases at 3 p.m. on the day of the election. A blocking notice is entered in the electoral register for those entitled to vote who receive a voting slip. You can vote with the ballot paper by postal vote or in any constituency of your constituency. The voter may vote only once and only personally.

Election organization

For proper implementation, electoral bodies are formed, at the federal level the federal returning officer and the federal electoral committee , in every federal state the regional returning officer and the regional election committee, for the constituencies each district returning officer and district election committee, for each constituency electoral officer and electoral committee . The respective election supervisor is the chairman of the committee, the election officer the chairman of the electoral board.

The electoral organs are institutions of social self-organization and thus organs of their own kind. In the broader sense, they have the position of federal authorities. The Federal Ministry of the Interior is responsible for issuing the provisions of the federal electoral code that are necessary for the preparation and implementation of the Bundestag election , but is not authorized to issue instructions to the electoral bodies. The Federal Returning Officer , in practice regularly the President of the Federal Statistical Office , is appointed by the Federal Ministry of the Interior . The remaining electoral officers and electoral officers are appointed by the state government or a body designated by it. The committee members are appointed by the respective electoral officer. In principle, the electoral officer appoints the assessors of the electoral board, but this authority can be assigned to the municipal authorities, which in practice are largely responsible for filling the electoral boards. When appointing the assessors in the electoral bodies, the parties should be taken into account.

The public principle applies to the election committees and electoral boards. Everyone has access to both the meetings of the election committees and the polling stations (both during the election period and during the counting).

The municipal authorities, which are not electoral bodies, perform a number of organizational tasks, including keeping the electoral roll, dividing the municipality into electoral districts and providing the polling stations.

Determination of candidates

Right of proposal

District election proposals can be submitted by parties and by eligible voters, state lists only by parties. In order to be able to submit election proposals, parties that have not been represented in the Bundestag or a Landtag since the last election by at least five members of the parliament must have notified the Federal Returning Officer of their participation in the Bundestag election by the 97th day before the election day and have been recognized as a party by the Federal Electoral Committee. State lists must be submitted to the regional returning officer and district election proposals to the district returning officer no later than the 69th day before the election. If the Bundestag is dissolved, these deadlines will be shortened by an ordinance issued by the Federal Ministry of the Interior. A decision on the admission of district election proposals and state lists is made on the 58th day before the election.

Parties that have to report their participation in the election also need supporting signatures for their nominations: Each district nomination must be from at least 200 eligible voters in the constituency, each state list from at least one thousandth of the number of eligible voters in the state in the last federal election, but no more than 2000 eligible voters, be signed. The constituency nomination of an applicant who does not appear for a party also requires 200 supporting signatures. Parties that represent a national minority do not need supporting signatures. Each eligible voter may only sign one district nomination and one state list. If a person entitled to vote signs several district election proposals, his signature is invalid on all district election proposals in accordance with Section 34 (4) No. 4 of the Federal Electoral Code ; this applies accordingly to national lists. In addition, anyone who signs several district election proposals or several state lists is liable to prosecution.

District nominations

The candidates of a party are elected in a democratic and secret ballot by the assembly of the electoral members of the party in the constituency. It is also permissible to elect the applicant in a meeting of representatives, which consists of delegates appointed by the party members entitled to vote in a secret ballot. Every participant who is entitled to vote in the general assembly or representative assembly is entitled to make proposals; the nominee does not have to be a party member. Since the 2009 Bundestag elections, a party is no longer allowed to submit an applicant who (also) belongs to another party (amendment to § 21 BWahlG). Minutes must be drawn up for the assembly meeting, which must be submitted with the district nomination. The District Returning Officer checks the nomination, notifies the person of trust if any deficiencies are found and requests them to remedy deficiencies that can be remedied in good time. Deficiencies can be remedied at the latest until a decision has been made on the admission of the nomination. In the case of some deficiencies, Section 25 (2) of the Federal Election Act expressly excludes the elimination of deficiencies after the submission period has expired.

In the constituency nomination, a person of trust and their deputy should be named who are entitled to make statements to the constituency returning officer.

A constituency nomination can be withdrawn by a joint declaration by the two confidants or by a declaration by the majority of the signatories of the nomination. The proposed person can be replaced by a declaration by the two confidants, but only after the submission deadline has expired if the originally proposed person has died or has lost his eligibility. If the nomination has already been approved, it can neither be withdrawn nor changed.

If a direct candidate dies before the election date, the election in the constituency will be canceled. It will be rescheduled no later than six weeks after the general election date ( Section 43 BWahlG) so that the party of the deceased direct candidate can nominate a replacement candidate. If this is still organizationally possible, the by-election can take place at the same time as the main election. The by-election takes place according to the same rules as the main election; In particular, Germans who have reached the age of majority cannot vote between the main election and the by-election .

Country lists

According to the federal electoral law , the state lists are drawn up in the same way as the district election proposals. In addition, it is stipulated that the order of the applicants on the state list must be determined by secret ballot.

For the elimination of defects, the appointment of confidants and the change or withdrawal of the state list, the regulations for district election proposals apply accordingly.

Electoral system

Example: Ballot papers for constituency 126 for the election to the 17th Bundestag

It is a personalized proportional representation . The voter has two votes: a first vote and a second vote . These terms do not indicate a ranking. In surveys, 63% (2005) to 70% (2002) of those eligible to vote erroneously stated that the first vote was more important.

First vote

With the first vote, the voter chooses a direct candidate from his constituency . In each constituency, the candidate with the most votes is elected. In the event of a tie, the lot to be drawn by the district returning officer decides. The first vote is used to personalize the election. In addition, the direct mandates promote balanced representation of all regions in the Bundestag. Since 1953, the number of constituencies has been half the number of regular members of the Bundestag. There are currently 299 constituencies. The first vote does not determine the strength of the parties in the Bundestag. For each direct mandate in a federal state, the party there generally receives one less list mandate .

The delimitation of the constituencies is determined by an annex to the federal electoral law. The constituency boundaries may not cut through national borders, and the number of residents (excluding foreigners) may differ by a maximum of 25% from the average of all constituencies.

Second vote

The second vote is the decisive vote for the distribution of seats in the Bundestag. With it the voter chooses the national list of a party . The at least 598 mandates in the Bundestag are proportionally distributed according to the nationwide number of second votes to the parties that win at least 5% of the valid second votes nationwide or (via the first vote) at least three direct mandates (see threshold clause ).

The proportion of Bundestag seats of a party thus roughly corresponds to its proportion of the votes. The threshold clause creates distortions . Pursuant to Section 6 (1) sentence 2 BWahlG, the second votes of those voters who have voted with their first vote for a successful applicant who was either not nominated by a party that is also running a state list or (this only applies) are not taken into account for the distribution of seats since 2011) was set up by a party that failed because of the threshold clause. This regulation is intended to prevent these voters from exerting a double influence on the composition of the Bundestag.

The PDS won two direct mandates in Berlin in 2002, but failed with 3.99% of the five percent hurdle. The second votes of the voters of these direct candidates were nevertheless taken into account, since both elected candidates ran for a party for which a state list was permitted in the state. After the Federal Constitutional Court already pointed out this loophole in its decision of November 23, 1988, the 2011 Federal Election Act was amended so that since then the second vote does not count if the voter with the first vote chose the successful candidate from a party that failed due to the threshold clause .

Threshold clause

According to Section 6, Paragraph 3 of the Federal Electoral Election Act, Bundestag mandates are only awarded via the state list to parties that achieve at least 5% of the valid second votes nationwide . Alternatively, it is sufficient if one party wins at least three direct mandates ( basic mandate clause ). The second votes for the other parties are not taken into account. Among the small parties, the basic mandate clause favors those whose electorate is strongly regionally concentrated, such as the PDS in the 1994 federal election . She won only 4.39% of the second vote, but four direct seats in Berlin and received 30 seats in the Bundestag.

The threshold clause is intended to prevent parliament from being fragmented.

Parties to national minorities , such as the SSW , which last took part in a federal election in 1961, are exempt from the threshold clause. Only traditional minorities such as Danes and Sorbs are considered to be national minorities, but not immigrants.

Distribution of seats from 1956 to 2011

Election process with upper and lower distribution according to the Hare-Niemeyer process 1985 to 2008
Electoral procedure with upper and lower distribution according to the Sainte-Laguë / Schepers procedure (used in 2009)

In principle, all seats were distributed proportionally to the parties according to their nationwide number of second votes. The seats allotted to the party were then distributed proportionally to their national lists. The proportional distributions were carried out according to the D'Hondt method until 1985 , then according to the Hare-Niemeyer method and since 2008 according to the Sainte-Laguë / Schepers method . The number of successful direct candidates for the party in that country has been subtracted from the number of seats allocated to the state list. The remaining seats were filled according to the order in the state list; applicants who had already been elected in the constituency were not considered.

From the total of seats to be allocated (598 seats since the 2002 election), the number of direct mandates was deducted that were won by individual applicants or were accounted for by parties that failed because of the threshold clause or for which no state list was permitted in the country. Such a case only occurred in the 2002 Bundestag elections , when the PDS, which failed because of the threshold clause , won two direct mandates.

If a party won more direct mandates in a country than it was entitled to according to its second vote result, it kept these additional seats, known as overhang mandates ; the Bundestag increased by their total number. Compensation mandates were not awarded. The number of overhang seats was low until reunification (at most 5, several times there were none at all); in the elections from 1990 to 2009, it fluctuated between 5 (2002) and 24 in 2009.

Reform of the distribution of seats in 2011

In the seat allocation procedure in force since 1956, negative voting weight could occur due to the sub- allocation in connection with the overhang mandates. The judgment of the Federal Constitutional Court of July 3, 2008 declared this to be unconstitutional: Section 7 (3) sentence 2 in conjunction with V. m. Section 6 (4) and (5) BWahlG violated Article 38 (1) sentence 1 of the Basic Law, “to the extent that this allows an increase in second votes to a loss of seats on the state lists or a loss of second votes to increase the number of seats on the state lists can lead. ”The legislature was required to amend the Federal Election Act by June 30, 2011.

A new regulation only supported by the parliamentary groups of the Union and FDP did not come into force until December 3, 2011. After that, the seats in the Bundestag were distributed to the states in the first step and to the parties only in the second step within the states, i.e. exactly the other way around as before. The distribution of the seats to the individual countries should be based on the number of voters in the countries. Overhang mandates could arise as before. Parties were able to obtain additional seats in the so-called residual vote utilization according to the newly introduced § 6 Abs. 2a BWahlG. Their number should be calculated as follows: The second votes that did not lead to an (additional) seat in the state lists of a party were added nationwide, divided by the “number of second votes required in the electoral area for one of the seats to be allocated” and rounded down to a whole number . The additional seats should go to the state lists with the largest electoral remnants, but primarily to the state lists with overhang mandates. As the text of the law did not provide for the calculation of the “number of second votes required in the electoral area for one of the seats to be allocated” and the calculation of the remaining votes was not clearly regulated, there was considerable uncertainty here.

On July 25, 2012, the Federal Constitutional Court also declared the new procedure for the allocation of seats to the state lists to be null and void. The complaint was:

  • There could be “at least about the same magnitude” of negative voting weight as in the previous electoral law.
  • The number of overhang seats could "remove the basic character of the Bundestag election as proportional representation" and was limited to a "maximum permissible limit of around 15 overhang seats" (half the size of the parliamentary group).
  • The utilization of the remaining votes was declared unconstitutional because "not every voter can participate with the same chance of success."

In contrast to the ruling of 2008, the Federal Constitutional Court did not set a deadline for a new regulation, so that initially there was no longer any applicable federal election law.

In addition to these controversial changes, an inconsistency has been fixed. In future, the second votes of those voters who choose a candidate who is successful in the constituency with the first vote, who was nominated by a party with a state list in the state, but whose party fails because of the threshold clause, will also not be taken into account in the distribution of seats.

Distribution of seats from 2013

In October 2012, the Union, SPD, FDP and the Greens agreed on a new regulation of the distribution of seats, which was passed by the Bundestag on February 21, 2013 and came into force on May 9, 2013. A proportional distribution of seats at the federal level is to be guaranteed. The seats are distributed as follows:

  • Step 1 : In each constituency (unchanged) the applicant with the most first votes is directly elected.
  • Step 2 : When distributing the seats according to second votes, the parties that have neither 5% of the valid second votes nationwide nor three direct mandates are (unchanged) disregarded; the threshold clause does not apply to parties of national minorities. The distribution of the seats according to second votes is initially carried out separately by country. 598 seats are distributed among the Länder in proportion to their population (excluding foreigners) using the Sainte-Laguë method . The number of seats calculated in this way per country is proportionally distributed to the parties according to their second votes, also using the Sainte-Laguë procedure. If a party has won more constituencies than it is entitled to, the number of seats of the party is increased to the number of constituencies it won. The number of seats allocated in the country increases accordingly.
  • Step 3 : For each party, the number of seats allocated to it in the individual countries (step 2) is added up nationwide. The number calculated in this way forms the minimum number of seats for the party.
  • Step 4 : On the basis of the second votes allotted to them nationwide, the seats in the Bundestag will be distributed proportionally to the parties that have overcome the threshold clause using the Sainte-Laguë procedure. Here, the number of seats is increased far beyond 598 until each party has reached their minimum number of seats.
  • Step 5 : The nationwide seats to which the party is entitled are distributed to their state lists according to the Sainte-Laguë procedure, but each state list receives at least as many seats as the party has won in the state's constituencies. The number of seats for the country list can be smaller than the one previously calculated on the basis of the seat contingents of the countries (step 2). The allocation of seats from step 2 is only an intermediate mathematical step.
  • Step 6 : If the number of seats for the state list is greater than the number of direct mandates won by the party in the country, the remaining seats (unchanged) will be filled via the state list in the order specified there. Applicants already elected in the constituency will not be considered.

In two practically seldom or never occurring cases (essentially unchanged) the following deviations from the seat distribution described arise:

  • If applicants are directly elected in constituencies who were not nominated by a party, or by a party that either failed due to the threshold clause or for which no state list has been approved in the state (since 1949 this only happened in the 2002 Bundestag election ), it decreases the number of seats to be allocated to the parties skipping the threshold clause in the individual states and at federal level accordingly. The second votes of the voters who gave their first vote to such an applicant are not taken into account in the allocation of seats, but they are included in the calculation of the 5% hurdle.
  • If a party receives more than half of the second votes, which are allotted to all parties to be taken into account in the allocation of seats, but not an absolute majority of the seats in the Bundestag (this has never been the case), the party will be allocated further seats until it has the absolute Achieved majority.

The new allocation procedure can lead to a considerable increase in the size of the Bundestag. If this procedure had been used in the 2009 Bundestag election, the Bundestag would have had 671 instead of 622 members. Negative voting weight associated with possible overhang mandates can no longer occur, but comparable effects are possible. In the 2009 Bundestag election, if the new allocation procedure had been applied, 8,000 more second votes for Die Linke in Hamburg would have resulted in one seat less for this party.

A possible strong enlargement of the Bundestag repeatedly led to demands for a new reform, among others by Norbert Lammert . On August 25, 2020, the governing parties CDU / CSU and SPD agreed to reduce the constituencies from 299 to 280 after the next but one federal election. A possible strong increase in the number of MPs in the 2021 federal election should be limited by a "dampening measure".

Determination of the election result

Counting of votes, Bundestag election 1961

Counting votes in the constituency

The voting in the electoral district is counted by the electoral board immediately after the polling time has elapsed in the polling station. At the same time, the counting of the postal vote begins, the voting letters can be opened before 6 p.m. After the counting, the determined result is recorded in a form. The district electoral committee has the right to review the findings of the electoral boards.

Invalid votes, rejection of voting letters

Votes are invalid in the following cases:

  • No official ballot was used. In this case both votes are invalid.
  • Ballot is valid for another constituency. If the ballot is valid for another constituency of the same federal state, only the first vote is invalid, otherwise both votes are invalid.
  • The will of the voter is not clearly recognizable, for example by ticking several country lists. Other forms of labeling than ticking are also valid, provided that the will of the voters is clear. Only the vote that does not clearly indicate the will of the voters is invalid.
  • The voting slip contains an addition or a reservation. This invalidates both votes, unless it clearly refers to only one vote.
  • If the ballot does not contain a label, both votes are invalid. If only the first or second vote is not marked, this does not invalidate the other vote.

In the case of postal voting , both votes are invalid in accordance with Section 39 of the Federal Election Act if the ballot envelope is empty, contains several differently marked ballot papers or should have been rejected because it differs from the others in a way that endangers voting secrecy. In contrast, the votes cast by postal vote by voters who die before the ballot box or lose their right to vote remain expressly valid .

Invalid votes have just as little influence on the allocation of seats as votes not cast.

In the case of postal voting, a voting letter must be rejected if

  • it arrives late at the competent authority,
  • it does not contain a valid voting slip or the affirmation to be given on it is not signed in lieu of an oath,
  • neither the ballot nor the ballot envelope is closed,
  • no official ballot envelope is included,
  • it contains several ballot envelopes, but not valid ballot papers with mandatory affirmation on oath instead of the same number,
  • the ballot envelope "obviously differs from the others in a manner that jeopardizes voting secrecy or contains a clearly tangible object."

If the voting letter is rejected, the vote is not invalid, but is deemed not to have been cast. The sender does not count as a voter.

Preliminary result

The preliminary results published on the evening of the election are based on quick reports that the electoral boards - usually by telephone - send to the municipality immediately after the count. The municipal authority forwards the results in the municipality to the district returning officer, who in turn passes the regional returning officer to the federal returning officer.

Final result

The final results are based on the minutes drawn up by the electoral boards.

Result in the constituency

The district returning officer compiles the results in the constituency based on the minutes of the election boards. He checks the minutes of the electoral boards including attachments for completeness and correctness. The district returning officer is only obliged to carry out further checks if there are indications of irregularities. In rare cases, discrepancies are resolved by recounts. In the 2017 federal election, 195 out of 88,499 electoral districts were counted; in the 2013 federal election this was done in 372 electoral districts. The district electoral committee usually determines the result in the constituency in the week after the election after the reporting by the district election officer. He also determines which candidate is directly elected in the constituency.

Result at state and federal level

The state electoral committee determines the result in the federal state and the federal electoral committee determines the result at the federal level. The state electoral committee is bound by the findings of the district electoral committees and the federal electoral committee is bound by the findings of the state election committees. Only mathematical corrections are permitted. The Federal Electoral Committee also determines which applicants have been elected via the state lists.

Acquisition and loss of membership, moving up

After the election results have been determined by the federal electoral committee, each elected applicant automatically becomes a member of the Bundestag when the first session of the new Bundestag opens, unless he has previously declared his rejection of the mandate to the regional returning officer. A declaration with reservations is considered a rejection.

Apart from death, MPs can lose their seat during the electoral term by renouncing, re-establishing the election results as a result of the election review , declaring that membership in the election review process is invalid, losing the eligibility for election or banning the party for which the MP was elected or whose member he was at the time of Position of the prohibition application or later. In practice, MPs almost only leave prematurely through resignation or death. Fritz Dorls was the only MP to date to lose his seat due to a party ban. A member of parliament has never lost his seat by re-establishing the election result.

For a departing MP, the next candidate on the state list of the party for which the departing member has been elected will generally move up. Applicants who have left the party for which they were running will not be considered. The regional returning officer determines the successor, notifies him and requests him to declare in writing within one week whether he will accept the election. He becomes a member of the Bundestag upon receipt of the written declaration of acceptance by the regional returning officer. If he does not make a formal declaration by the deadline, he will automatically acquire membership after the deadline. Applicants from a party affected by a party ban or applicants who belonged to that party after the application for a ban was submitted cannot move up to the Bundestag. If there are no more applicants on the state list who can move up to the Bundestag, the seat remains vacant and the Bundestag is reduced accordingly. This only happened once after Katherina Reiche left in 2015. Anyone who rejects a seat or leaves the Bundestag during the electoral term cannot move up to the Bundestag later during this electoral term.

If an applicant elected in the constituency who is affected by a party ban or was not elected as an applicant for a party for which a state list was approved in the state, a replacement election takes place in the constituency. There has never been a replacement election.

Contestation, election test

According to Section 49 of the Federal Election Act, the election itself and decisions directly related to it can only be contested with the legal remedies provided for in this Act or in the federal election regulations and in the election review procedure. Legal recourse via administrative jurisdiction is thus excluded.

The election test only takes place in response to an objection, which must be submitted to the Bundestag within two months of the election. The Bundestag decides on this after examining the objection in the electoral examination committee. According to the established case law of the Federal Constitutional Court, the Bundestag must reject an objection if the distribution of mandates would not change even if the objection were accepted. The Bundestag only checks compliance with electoral provisions. He does not check these regulations for constitutional conformity.

If the objection is rejected by the Bundestag, an election review complaint can be lodged with the Federal Constitutional Court within a further two months . If the objection is successful and the decision becomes final, the membership of the MP concerned ends. The latter can in turn sue the decision.

So far, the election test has never led to a change in the distribution of seats. However, in the context of an election review complaint in 2008, the Federal Constitutional Court declared parts of the Federal Election Act to be unconstitutional.

Efforts to introduce a trench or majority vote

Attempts have been made to replace personalized proportional representation with a voting system in which a certain number of MPs are elected according to one system and the rest independently of this according to another system. At the end of 1955, the CDU / CSU, together with the German party, presented a draft of a trench voting system. According to this, 60% of the mandates should have been determined by majority voting and only 40% by proportional representation . This attempt failed like a similar one in 1953.

At the beginning of the first grand coalition (1966–1969) there were efforts within the Union and the SPD to abandon proportional representation and to introduce majority voting; a corresponding intention was laid down in the coalition agreement. The opposition FDP, whose existence would have been threatened with the introduction of this right to vote, protested. Ultimately, the majority vote failed due to resistance from the SPD, which feared structural disadvantage when it was introduced. Thereupon Interior Minister Paul Lücke ( CDU ) resigned from his office in 1968. Since then there have been no more attempts to introduce majority voting in Germany.

History of the federal election law

The most important electoral principles still in force in Germany date back to the Weimar Republic (1918 / 1919–1933). An ordinance of the Council of People's Representatives of November 1918 introduced both women's suffrage and proportional representation.

A special federal electoral law applied to the federal elections in 1949 and 1953, while the 1956 federal electoral law introduced permanent regulations.

Federal Election Act 1949

The federal electoral law for the first federal election in 1949 was enacted by the state ministers. The legal size of the Bundestag was 400 MPs plus any overhang seats. The federal territory was divided into 242 constituencies, in which, as under current law, one direct candidate was elected according to the principle of relative majority voting. Because of two overhang seats, the Bundestag consisted of 402 members.

Each federal state formed its own electoral area; the number of representatives of a federal state was therefore determined in advance (apart from overhang mandates ). The five percent hurdle and the basic mandate clause (even a direct mandate was enough to move into the Bundestag) only applied nationwide. The mandates were distributed proportionally in each country using the D'Hondt method . There were no compensatory mandates for overhang mandates.

The voters had one vote. With this vote, the voter simultaneously chose the constituency candidate and (if available) the party's state list. Unlike in today's two-vote system, the voter of a non-party direct candidate did not have the opportunity to vote for a party.

In the event of a candidate elected in the constituency leaving the Bundestag, the constituency had to be re-elected. There were 14 by-elections. For elected direct candidates who resigned from October 1, 1952, a candidate on the party's state list moved up; this rule still applies today.

The number of parties was limited, since until March 17, 1950 parties needed a license from the respective occupying power.

Federal Election Act 1953

For the first time in the Bundestag election in 1953 a law passed by the Bundestag itself ( Federal Election Act ) was elected. This law contained some significant innovations compared to the old electoral law:

The two-part system with the possibility of voice splitting was introduced. The threshold clause no longer applied separately to each country, but nationwide. That had a big impact on small parties. In the 1957 election, for example, the BHE did not reach the five percent hurdle nationwide with 4.6 percent of the second vote. But since he had more than five percent in Schleswig-Holstein, Lower Saxony, Bavaria and Hesse, he would have received seats in these states under the 1949 regulation. Conversely, the FDP received 7.7 percent of the second votes nationwide in 1957, but only 4.6 percent in Bavaria. According to the old regulation, she would not have received any seats in Bavaria. The threshold clause no longer applied to parties of national minorities; Nevertheless, the SSW was unable to move back in.

The regular number of seats increased from 400 to 484 - while maintaining the number of constituencies of 242, so that since then the Bundestag has been filled equally with direct and list mandates, disregarding additional list mandates due to overhang mandates. The number of Berlin MPs increased from 19 to 22.

Federal Election Act 1956

Significant changes compared to 1953 were the introduction of postal voting, the increase of the basic mandate clause to three direct mandates (instead of one direct mandate) and the introduction of an upper distribution of seats at the federal level. These seats won at the federal level were distributed to the state lists of the parties, which in combination with the previously possible overhang mandates could lead to a negative voting weight . The number of seats (excluding the Berlin MPs) initially remained at 484 and was increased by ten to 494 on January 1, 1957 when the Saarland was incorporated.

Changes since 1957

Since it came into force, the Federal Election Act has been changed many times, with most of the changes relating to subordinate technical issues such as changing deadlines or changes required by changing other laws. There were no significant changes apart from the reorganization of the allocation of seats due to the rulings of the Federal Constitutional Court of 2008 and 2012. The most important changes are shown below:

Voting age

Originally, the Basic Law set the age limit for active voting rights at 21 years and for passive voting rights at 25 years. Through an amendment to Art. 38 (2) of the Basic Law, the age limit for active voting rights was reduced to 18 in 1970, and that for passive voting rights to the age at which they came of age. At that time you came of age at the age of 21. When the amendment to Section 2 of the German Civil Code (BGB ) came into force on January 1, 1975, the age of majority was reduced from 21 to 18 years, so that active and passive voting rights have coincided with each other since the 1976 Bundestag election .

Exclusion of voting rights

The reasons for exclusion from the right to vote have been repeatedly restricted. According to the original regulation of 1956, people who were incapacitated , who did not have the right to vote as a result of a judge's verdict, were under temporary guardianship or were under guardianship due to intellectual disabilities were excluded from the right to vote . Furthermore, the right to vote was suspended for people who were placed in a sanatorium or nursing home because of mental illness or mental weakness, and for people in the enforcement of a court-ordered measure of reform and security associated with deprivation of liberty . The first new regulation took place in 1975. The distinction between exclusion and suspension of the right to vote has been abandoned. The exclusion of the right to vote in the case of provisional guardianship was no longer applicable; of the reform and security measures, only placement in a psychiatric hospital led to the exclusion of the right to vote because of a criminal offense in the case of reduced culpability or incapacity; since 1985 only offenses in a state of incapacity have been included in the exclusion criteria.

With the entry into force of the Care Act on January 1, 1992, care took the place of the exclusion reasons incapacitation and guardianship in all matters. The following reasons for exclusion existed from 1992 to 2019:

  • Loss of voting rights as a result of a judge's decision
  • Support in all matters (not just by way of temporary injunction ),
  • Placement in a psychiatric hospital after the commission of an illegal act in a culpable state due to a criminal court order according to § 63 , § 20 StGB.

By judgment of the Federal Constitutional Court on January 29, 2019, the last two reasons for exclusion were declared unconstitutional and void. These grounds for exclusion were deleted from the Federal Electoral Act with an amendment that came into force on July 1, 2019, so that the loss of the right to vote as a result of a judge's verdict is the only remaining reason for exclusion.

Germans abroad

The provisions on the right to vote for Germans who do not live in Germany have been changed several times, while they have always had the right to stand for election since 1956. Originally only Germans abroad who were employed in the public service and who were abroad on behalf of their employer, as well as the members of their household, had the right to vote. In 1985, those Germans living abroad were also given the right to vote who had had their place of residence or habitual abode in the Federal Republic of Germany for at least three consecutive months since May 23, 1949 (entry into force of the Basic Law) and who either lived in a member state of the Council of Europe or who had lived since their departure of the Federal Republic of Germany less than 10 years had passed. In 1998 the period was extended from 10 to 25 years. In 2008, this 25-year period was no longer applicable (amendment to § 12 BWahlG). This regulation was declared null and void by the Federal Constitutional Court in a decision announced on July 4, 2012, so that Germans abroad no longer had the right to vote. The parties represented in the Bundestag agreed on a new regulation (amendment to § 12 BWahlG), which came into force on May 3, 2013. It is based on the judgment of the Federal Constitutional Court. According to this, Germans living abroad who have had their place of residence or habitual abode in Germany for at least three months since the age of 14 and this residence was less than 25 years ago or who "for other reasons are personally and directly familiar with the political situation in the Federal Republic of Germany and are affected by them " .

Size of the Bundestag

The regular number of MPs was set at 506 in 1956. With the accession of the Saarland on January 1, 1957, it was increased to 516, in 1964 by two more seats to 518. Due to reservations by the western occupying powers in Berlin (West) , the federal electoral law could not be applied in Berlin. Therefore, 22 Berlin members of parliament were elected by the Berlin House of Representatives, until June 7, 1990 they only had the right to vote on motions for rules of procedure and resolutions. The regular number of MPs actually to be elected by the people was correspondingly 22 lower, 494 in the Bundestag elections in 1957 and 1961, and 496 in the elections from 1965 to 1987.

After reunification in 1990 the regular number of MPs was 656. In 1996 the Bundestag was reduced to 598 seats, but this change did not come into force until the end of 1998, so that the reduction did not take place until the 2002 Bundestag election . The number of constituencies was always exactly half of the members to be elected.

Distribution of seats

The rules on the allocation of seats were hardly changed between 1956 and 2011. The exception was the replacement of the D'Hondt seat allocation procedure by the Hare-Niemeyer procedure in 1985. This was in turn replaced in 2008 by the Sainte-Laguë procedure .

For the main changes in the distribution of seats from 2011, see the chapters Reform of the distribution of seats in 2011 and distribution of seats from 2013 .

Threshold clause

A different blocking clause only applied to the 1990 Bundestag election due to a ruling by the Federal Constitutional Court of September 28, 1990, according to which the situation of the newly reunified Germany was a special circumstance that made a blocking clause for the entire electoral area unconstitutional. In order to move into the Bundestag, it was enough to get 5% of the second votes either in the old federal territory including West Berlin or in the accession area.

Replacement of outgoing MPs

In principle, an applicant on the state list of the party for which the departing member was elected moved up to the Bundestag for a departing MP. According to a ruling by the Federal Constitutional Court in 1997, however, there was an exception when a directly elected member of parliament resigned and his party had won overhang seats in the state . In this case it was no longer possible to move up as long as the party still had overhang seats in the country. This enabled the Bundestag to become somewhat smaller in the course of the electoral term. During the 16th electoral term (2005–2009) the number of MPs fell from 614 to 611. Since compensatory seats have been allocated for overhang seats since the 2013 federal election , this exception no longer applies after the end of the 17th electoral period (2009–2013).

Right to nominate candidates

Since 1964, parties that need support signatures for their election proposals can only participate in the election if they have notified the Federal Returning Officer of their participation and the Federal Electoral Committee has determined that they are party members. There was no legal remedy against this finding up to and including the 2009 Bundestag election except in the post-election review process. After an amendment to the Basic Law and the Federal Election Act that came into force in 2012, parties who have not been granted the right to propose candidates by the Federal Electoral Committee can file a complaint against this before the election at the Federal Constitutional Court.

Applicants from other parties

Since an amendment to the Federal Election Act that came into force on March 21, 2008, political parties are no longer allowed to nominate candidates who belong to another party; As a result, people who are members of several parties can no longer run for one party. The reason for this change was the candidacy of many WASG members on the lists of the Left Party.PDS in the 2005 federal election .

Postal vote

Until 2008, when applying for a ballot paper required to use postal voting, one of the obstacles listed in the federal election regulations had to be made credible in order to visit the polling station, such as job-related absence or physical disabilities. This condition was abolished on the grounds that it was not possible to examine the stated reason given the large number of applications.

See also

literature

  • Erhard HM Lange: Suffrage and domestic politics. History and analysis of electoral legislation and electoral law discussion in western post-war Germany 1945–1956. Hain, Meisenheim am Glan 1975, ISBN 3-445-01152-4
  • Helmut Nicolaus: Basic mandate clause, overhang mandates & federalism, five studies. Manutius-Verlag, Heidelberg 1996, ISBN 3-925678-66-2
  • Dieter Nohlen : Suffrage and the party system. 4th ed., Leske and Budrich, Opladen 2004, ISBN 3-8100-3867-9
  • Wolfgang Schreiber (editor), Johann Hahlen, Karl-Ludwig Strelen: BWahlG, Commentary on the Federal Election Act, including the Election Examination Act, the Election Statistics Act, the Federal Electoral Code and other ancillary provisions under electoral law , Heymann, Cologne 2017 (10th edition), ISBN 978-3-452 -28738-0
  • Karl-Heinz Seifert: Federal suffrage. Suffrage articles of the Basic Law, Federal Election Law, Federal Electoral Regulations and ancillary elective laws. Vahlen, Munich 1976 (3rd edition), ISBN 3-8006-0596-1

Web links

Wiktionary: Bundestag election law  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ BVerfGE 83, 37 - Right to vote for foreigners I. Accessed on July 25, 2012 .
  2. ↑ BVerfGE 6, 84
  3. ↑ BVerfGE 1, 208
  4. ^ Federal Constitutional Court: Judgment of the Second Senate of March 3, 2009 - 2 BvC 3/07, 2 BvC 4/07
  5. ↑ Section 17 of the Federal Election Act, Section 16, Section 18 (1), Section 19 of the Federal Election Code
  6. ↑ Section 14 of the Federal Election Act, Sections 25, 27, 30 of the Federal Election Code
  7. ↑ § 8 of the Federal Election Act
  8. ↑ Schreiber, Federal Election Act (9th edition, 2013), no. 1 and 2 to § 8
  9. ↑ § 9 Federal Election Act
  10. ↑ since amendment of § 18 BWahlG 2012
  11. ↑ since amendment of § 19 BWahlG 2012
  12. ↑ This is what happened before the election to the 16th German Bundestag through the ordinance on the shortening of deadlines in the Federal Electoral Act for the election to the 16th German Bundestag
  13. ↑ Appendix 21 to the federal election regulations
  14. ↑ BVerfGE 79, 161 - Voting splitting of individual applicants
  15. ↑ Paradoxes of the Bundestag electoral system
  16. ↑ a b BVerfGE, 2 BvC 1/07 of July 3, 2008. In: Federal Constitutional Court. July 3, 2008, accessed July 26, 2012 .
  17. ↑ Nineteenth Act to Amend the Federal Electoral Act
  18. ^ Draft of a nineteenth law amending the federal electoral law (PDF; 309 kB)
  19. ↑ BVerfG, judgment on the constitutional complaint against the 19th BWahlGÄndG , 2 BvF 3/11 of July 25, 2012, paragraph no. 95, accessed July 26, 2012.
  20. ↑ Twenty-second law amending the federal electoral law
  21. ^ DIP: Twenty-second law amending the federal electoral law
  22. ^ University of Augsburg, Institute for Mathematics: Calculation of numbers with allocation methods on the Internet (BAZI)
  23. ↑ Interior Committee of the Bundestag, Committee printed matter 17 (4) 624 C ( Memento from October 5, 2013 in the Internet Archive ) (PDF; 314 kB)
  24. ^ German Bundestag: "Lammert presents proposals for electoral law reform"
  25. ↑ Die Welt: Agreement to reduce the size of the Bundestag and extend the corona measures
  26. ↑ Sections 37 and 40 of the Federal Election Act, Sections 67 and 72 of the Federal Election Code
  27. ↑ Voting instructions for the 2017 Bundestag election Electoral Board, pp. 14-15 , Bavarian State Ministry of the Interior, for Building and Transport (PDF; 542 kB)
  28. ↑ Wahlrechtslexikon on www.wahlrecht.de
  29. ↑ Section 39 (4) of the Federal Election Act
  30. ↑ § 71 Federal Electoral Code
  31. ↑ Schreiber, Federal Election Act (9th edition, 2013), no. 4 to § 40
  32. ↑ Minutes of the 3rd meeting of the Federal Electoral Committee for the election of the 19th German Bundestag on October 12, 2017 (PDF; 153 kB)
  33. ^ Wolfgang Schreiber, Federal Election Act Commentary, 9th edition (2013), pp. 659–660
  34. ↑ Section 42 of the Federal Election Act
  35. ^ Wolfgang Schreiber, Federal Election Act Commentary, 9th edition (2013), pp. 667, 669
  36. ↑ Section 45 (1) of the Federal Election Act
  37. ↑ Section 46 Paragraphs 1 and 4, Section 47 Paragraph 1 of the Federal Election Act
  38. ↑ Section 45 (3), Section 46 (4), and Section 48 (1) of the Federal Election Act
  39. ↑ Tagesspiegel: Katherina Reiche justifies her change of page
  40. ↑ Section 48 (2) of the Federal Election Act
  41. ^ Gerhard A. Ritter / Merith Niehuss: Elections in Germany 1946–1991, pp. 83/84
  42. ↑ Draft law of the federal government of December 2, 1974 (Bundestag printed paper 7/2873), law of June 24, 1975 (Federal Law Gazette I p. 1593)
  43. ↑ Seventh law amending the Federal Election Act of March 8, 1985 (Federal Law Gazette I p. 521)
  44. ↑ Article 7 § 1 of the Care Act of September 12, 1990 (Federal Law Gazette I, p. 2002)
  45. ↑ Judgment of Bunderverfassungsgerichts of 29 January 2019 to 2 BvC 62/14 -
  46. ↑ Act amending the Federal Electoral Act and other laws of June 18, 2019 (Federal Law Gazette I p. 834)
  47. ^ Judgment of the Federal Constitutional Court of July 4, 2012 (2 BvC 1/11)
  48. ↑ Draft law, Bundestag printed paper 17/11820 (PDF; 126 kB)
  49. ↑ Ritter / Niehuss, Elections in Germany 1946–1991, p. 96
  50. ↑ BVerfGE 82, 322
  51. ↑ Law amending the Basic Law (Article 93)
  52. ↑ Law to improve legal protection in electoral matters
  53. ↑ Law of March 17, 2008 (Federal Law Gazette p. 394), draft law, printed matter 14/7461 (PDF; 536 KB)
This article was added to the list of excellent articles on April 2, 2005 in this version .