Federal Election Act
|Title:||Federal Election Act|
|Abbreviation:||BWahlG (not official) ,
BWG (not official)
|Scope:||Federal Republic of Germany|
|Legal matter:||Constitutional law|
|Original version from:||May 7, 1956
( Federal Law Gazette I p. 383 )
|Entry into force on:||May 23, 1956|
|New announcement from:||July 23, 1993
( Federal Law Gazette I p. 1288 , ber.p. 1594 )
|Last change by:||
Art. 1 G of 25 June 2020
( Federal Law Gazette I p. 1409 )
|Effective date of the
|June 30, 2020
(Art. 3 G of June 25, 2020)
|Please note the note on the applicable legal version.|
The Federal Electoral Law ( BWahlG or BWG ) regulates in Germany according to Basic Law (GG) the federal election law . According to this, the German Bundestag consists of 598 members without overhanging and compensatory mandates . As electoral system , the Federal electoral law defines for the federal elections , connected to people choosing proportional representation determined ( personalized proportional representation ).3 para.
There were federal electoral laws in Germany as early as the 19th century. The Bundestag of the German published late March / early May 1848 two decisions together as a federal election law became known. This laid down the principles for the election of the Frankfurt National Assembly . In the North German Confederation , the North German Reichstag passed a federal electoral law in 1869 , which was first applied in 1871 for the first Reichstag election in the German Empire. It remained in force until 1918. The election law for the Weimar Reichstag was called the Reich Election Act .
There were separate electoral laws for the first two federal elections. The Parliamentary Council decided, based on the requirements of the military government and changed after the Prime Minister's Conference , the electoral law for the first Bundestag and the first Federal Assembly of the Federal Republic of Germany of June 15, 1949 ( Federal Law Gazette p. 21 , with amendment of August 5, 1949, Federal Law Gazette. P. 25 ). It was just a framework law that left many questions of detail to the countries that also formed separate electoral areas . This was followed by the electoral law for the second Bundestag and the Federal Assembly of July 8, 1953 ( Federal Law Gazette I, p. 470 ), which, in addition to the threshold clause, reversed the changes made by the prime ministers and introduced the right to two votes .
With its decision of July 25, 2012, the Federal Constitutional Court declared parts of the BWahlG ( seat allocation procedure after the election to the German Bundestag , which was then passed with the votes of the Union, SPD, FDP and Greens, came into force on May 9, 2013.) to be unconstitutional. A reform of the
In, and GG there are only a few but strict requirements for an election. These are:
- Minimum age
According to established state practice and the case law of the Constitutional Court, this regulation is compatible with the principle of general election.
- Five principles of electoral law :
- General election : All Germans (with a few exceptions) are entitled to vote and be elected from the minimum age.
- Direct election: No interposition of electoral women and men , however, the list election according to and BWahlG, which specifies Paragraph 1, Sentence 1 of the Basic Law ( Paragraph 2 of the Political Parties Act ) is permitted .
- Free choice: An election is free if the voter is not committed to a specific voting decision, but can choose between alternatives. A statutory obligation to vote (as in Belgium, for example) would be permissible under (2) of the Basic Law, but not election advertising at state expense. The general (and permissible) public relations work of the government must be distinguished from this.
- Equal choice: Each vote should have the same count and the same chance of success. Therefore, the constituencies must have roughly the same number of votes (risk of gerrymandering ). The principle of equal voting also includes the choice of the seat allocation procedure . The D'Hondt process , which favors large parties, was used until the 1983 general election . After that, the Hare-Niemeyer method was used until the 2005 Bundestag election , which shows the result proportionally, but leads to paradoxes in certain cases. The Sainte-Laguë method has been used since then.
- Secret election : The voter is entitled to keep his own decision secret. This is only problematic with postal votes ( BWahlG). However, this is seen as justified, as otherwise the higher-quality generality of the election would be impaired.
In addition, the following is stipulated at the simple legal level, namely in the Federal Electoral Act itself, which is by far the most important provisions:
- Proportional election: Although half of the MPs are elected in majority voting in the constituencies with the first vote, the composition of the Bundestag determines the second vote, with which the mandate shares of the lists available for election in the Bundestag are determined para. 2.3 BWahlG. According to Paragraph 4, the winners in the electoral districts are distributed among the state lists, so that apart from overhang mandates and the consideration of direct mandates in the threshold clause, a proportional representation results.
- Eligibility clause : Only parties who have achieved a minimum share of 5% of the votes ( (3) sentence 1 BWahlG) or who have won a direct mandate in at least three constituencies will be considered when allocating the list places. Parties of national minorities have also been exempt from the 5 percent clause since 1953 (Section 6 (3) sentence 2 BWahlG).
Further details of the BWahlG
The federal electoral law specifies the number of MPs to be elected (currently 598). With the annex it divides the area of the Federal Republic of Germany into electoral districts ( BWahlG). The electoral district division must be adapted to the course of the state borders, the fluctuation range of 25% above and below the mean must not be exceeded or fallen below in the population, the area should be contiguous ( BWahlG).
The electorate can cast two votes, the first vote for the direct candidate and the second vote for the party on the state list (so-called personalized proportional representation , to BWahlG). (For explanation see: Bundestag election )
The federal, state and district returning officers, each with an election committee, are formed as electoral bodies . An electoral board is appointed for the electoral district ( , BWahlG). Appointment to such a body is an honorary position that can only be refused with good reason.
The election day itself is ordered by the Federal President . It must fall on a Sunday or a public holiday . Basically, the four-year cycle is decisive. The Federal President must therefore set the election day at the earliest 46 months and at the latest 48 months after the previous German Bundestag has been called.
The ballot papers ( BWahlG) are to be officially produced. In addition to the personal suggestions, the parties on the state list are listed with their first five applicants. The order is based on the votes in the last federal election, if the state list has not previously participated, these parties are listed alphabetically.
The voting process (to BWahlG) is public, while the voting is secret. Influencing the voters through words, sounds, writing or images is not permitted. Voting booths must be provided for voting, which allow secret voting. Those who are prevented from voting because they cannot read or because they cannot choose due to physical circumstances can seek the help of another person.
The voter marks his choice with a cross for the candidates with the first vote and a cross for the parties with the second vote. The cross is to be made in the circle provided. The voting slip must then be folded (if necessary put in an envelope) in such a way that its election cannot be recognized. The ballot is then to be thrown into the ballot box.
The possibility of voting with voting machines was created by the law amending the Federal Election Act of June 24, 1975 ( Federal Law Gazette I, p. 1593 ), which inserted a corresponding Section 35a into the Federal Election Act. In the notice of revision of the Federal Elections Act from September 1, 1975 ( Federal Law Gazette I, p. 2325 ) was this to § 35. The corresponding Federal Voting Machine Ordinance of 3 September, 1975 ( Federal Law Gazette I, p. 2459 has) the Federal Constitutional Court, however, by judgment of 3 March 2009 as incompatible with Article 38 in conjunction with Article 20 Paragraph 1 and Paragraph 2 of the Basic Law insofar as it does not ensure the constitutional principle of public voting.
After all votes of the constituency have been counted, the result is forwarded to the district returning officer. From there to the state and from there to the federal returning officer . The official result is to be determined.
Post-election, replacement election and repeat election
Special regulations apply to post-election, replacement or repeat elections. A by-election must be held if the election did not or could not take place in the constituency or district, or if an applicant dies after admission and before the election. A substitute election takes place when a directly elected member of parliament who has run for a party or group of voters for which no state list was approved is eliminated. If, on the other hand, a state list was approved and this is exhausted, that is, there are no more replacements on the list, the seat remains vacant. This election, referred to as a substitute election in German law, is otherwise also called a by-election. The re- election must be carried out if it becomes necessary due to an election examination complaint . The re-election takes place no later than 60 days after the decision.
Successful (valid) choice
By obtaining a direct mandate or by obtaining a mandate by voting from a list, the applicant becomes a member of the German Bundestag .
In addition to the federal electoral law, the federal electoral regulations have been issued to specify the electoral requirements, in particular postal votes . This ordinance does not require the approval of the Federal Council . The constituency division is attached to the law as an annex.
- Wolfgang Schreiber: Federal Election Act (BWahlG). Comment. 8th edition, Carl Heymanns Verlag, Cologne 2009, ISBN 978-3-452-26948-5 .
- Annette Guckelberger : The electoral system and principles of electoral law Part I - generality, immediacy, freedom and secrecy of the election. In: Juristische Arbeitsblätter (JA) , Issue 8/2012, Vol. 44, pp. 561–566 (PDF file; 150 kB) .
- Federal Election Act as amended
- Original text of the Federal Election Act of 1949 (on documentArchiv.de)
- Press release no. 68/2008 of July 3, 2008 by the Federal Constitutional Court
- Press release: New regulation of the seat allocation procedure for the elections to the German Bundestag unconstitutional. Federal Constitutional Court, July 25, 2012, accessed on July 26, 2012 .
- DIP: Twenty-second law amending the federal electoral law
- Originally, Article 38, Paragraph 2 of the Basic Law had read: "Those who are twenty-first are entitled to vote, those who have reached the age of twenty-fifth." The 27th law amending the Basic Law of July 31, 1970 ( Federal Law Gazette I, p. 1161 ) reduced the eligibility to vote to the completion of the eighteenth year of life and the eligibility to the age at which the majority comes. By law of July 31, 1974 ( Federal Law Gazette I, p. 1713 ), the age of majority in then reduced from twenty-one to eighteen years.
- 2 BvC 3/07, 2 BvC 4/07 , BVerfGE 123, 39