Five percent hurdle in Germany

The five percent hurdle , also known as the five percent clause , is the best known and most widespread threshold clause for elections in Germany . There are similar regulations in other countries with proportional representation . In Austria there is a four percent hurdle for the Federal Council and some federal states .

history

For the first Bundestag in 1949 , the five percent hurdle applied separately to each federal state . On June 25, 1953, the German Bundestag then passed a new federal electoral law, according to which it refers to the nationwide valid votes cast. In the 1990 Bundestag election , the five percent hurdle was exceptionally applied separately to West and East Germany due to the special situation immediately after German reunification .

National minorities

The parties of national minorities are partially exempt from the five percent hurdle . The South Schleswig Voters' Association (SSW) in Schleswig-Holstein , for example, which represents the Danish national minority resident there, is excluded from this. In contrast to the Schleswig-Holstein electoral law, which expressly exempts only parties belonging to the Danish minority from the threshold clause under Section 3 (1) sentence 2 (based on the Bonn-Copenhagen Declaration ), the exemption now extends under Section 6 (3) sentence 2 of the Federal Electoral Law from the five percent hurdle to all parties of national minorities in Germany. In addition to the SSW, there are currently the Lusatian Alliance, founded in 2005 as the Sorbian party in Brandenburg and Saxony, and the Die Friesen party, founded in Lower Saxony in 2007 , which describes itself in its statutes as a party of a national minority.

Legal basis

Bundestag elections

In elections to the German Bundestag, the following has been in force since 1953 in accordance with Section 6 (3) BWahlG : In order for a party to be allocated seats according to the distribution of votes, it must have at least five percent of the valid second votes (“five percent clause”) or at least win three direct mandates ( basic mandate clause ). Otherwise the second votes cast for this party expire. Any direct mandates won remain with a party even if it fails because of the threshold clause.

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 , Frisians , Sinti and Sorbs are considered a national minority, but not immigrants such as B. Italians , Turks .

European elections

Since the 2014 European elections there has been no more threshold clause.

Up until the 2009 elections, there was a pure five percent hurdle in European elections in accordance with Section 2 (7) of the European Election Act ( electoral system , distribution of seats ) in the version dated March 17, 2008.

However, according to the decision of the Federal Constitutional Court of November 9, 2011, the provision is not compatible with the Basic Law and is therefore void. In the view of the court, it violates the equality of suffrage and equal opportunities for the parties.

The CDU federal party congress and some SPD state associations then demanded the introduction of a three percent hurdle in European elections at the end of 2012; the CSU preferred the establishment of constituencies and the conversion to d'Hondt , which would also lead to a significant increase in the factual threshold clause. The European Parliament also passed a resolution in November 2012 calling on the member states to introduce “suitable and reasonable minimum thresholds” for the allocation of seats.

On June 13, 2013, the German Bundestag passed a three percent threshold for European Parliament elections. On the other hand, several smaller parties sued the Federal Constitutional Court, and the non-partisan association Mehr Demokratie organized a lawsuit against the law.

On December 18, 2013, the Federal Constitutional Court held an oral hearing on the complaints. It was discussed whether the political situation in the European Parliament had changed since 2011 in such a way that a threshold clause could now be justified.

On February 26, 2014, the Federal Constitutional Court ruled that the three percent hurdle is unconstitutional and null and void, as this hurdle violates equal opportunities for the parties. In the 2014 European elections, seven MPs from small parties moved into the European Parliament, most of whom joined one of the large political groups.

At the initiative of the CDU, CSU and SPD, the EU states agreed in the Council of the European Union on June 6, 2018, as part of a whole package of electoral law changes, to introduce a threshold clause of at least 2% in large countries / EP constituencies that were up to should be implemented at the latest by the next but one European elections after the decision has come into force. The new regulation was designed in such a way that it actually only affects small parties in Germany and, to a limited extent, in Spain (all other EU countries already have a higher explicit or factual threshold clause in the European elections). Before it comes into force, the change in electoral law must be ratified by all EU member states and then converted into national electoral law. After opposition from the Greens in November 2018 , the grand coalition abandoned plans to ratify and reintroduce a threshold clause for the 2019 European elections .

State elections

For the state elections, the five percent hurdle is anchored in the respective state election laws. In most federal states, the five percent hurdle relates to the valid votes. In most federal states, direct candidates elected through the first vote also enter the state parliament if their party was unable to overcome the threshold clause; in some cases there is also a basic mandate clause similar to that in the federal election.

Bavaria

On July 1, 1973, the five percent hurdle for state elections was introduced in Bavaria by referendum . Previously, a ten percent threshold was applied at the district level , i.e. In other words, a party had to achieve ten percent of the valid votes in at least one of the districts in order to enter the state parliament.

Only in Bavaria still applies the rule that only direct candidates of the parties who receive at least five percent of the valid votes can move into the state parliament , whereby first and second votes are added together.

Berlin

In Berlin , the hurdle relates to the votes cast, so that it is effectively a little higher.

Bremen

In the state of Bremen , the five percent hurdle is applied separately in the two elective areas Bremen and Bremerhaven . As a result, the DVU and FDP and 2007 DVU and the citizens in anger in Bremerhaven were able to move into the citizenship in the mayor elections in 2003 , even though less than five percent of the votes were achieved nationwide.

Schleswig-Holstein

In Schleswig-Holstein , the South Schleswig Voters' Association (SSW) is exempt from the five percent hurdle.

Local elections

In almost all federal states, the five percent hurdle is no longer used in local elections; All parties and groups that - depending on the seat allocation procedure - receive enough votes to overcome the factual threshold clause can move into the district, city and municipal councils . With the usual sizes of district, city and municipal councils of around 20 to 70 people, this lower limit is then between 2.5 and 0.7 percent.

Berlin

In Berlin there is a three percent hurdle in the elections for the district council meetings.

Bremen

In the city of Bremen , the five percent hurdle only applies to elections for Bremen city citizenship.

Hamburg

In Hamburg there is a three percent hurdle in the elections for the district assemblies .

North Rhine-Westphalia

In North Rhine-Westphalia , the five percent threshold clause was abolished in a judgment of the Constitutional Court of North Rhine-Westphalia on July 6, 1999.

A “one-seat clause” introduced as a result, according to which a party must mathematically have achieved at least 1.0 seats in order to move into the representative body, was inadmissible with the judgment of December 16, 2008.

In North Rhine-Westphalia , the Constitutional Court declared NRW on 21 November 2017, adopted in 2016 in the parliament of the SPD, CDU and the Greens 2.5 percent threshold for unconstitutional . However, it is valid for the election of the district representatives. There will be no 2.5 percent hurdle in the 2020 local elections .

Schleswig-Holstein

On February 13, 2008, the Federal Constitutional Court upheld a lawsuit by the Schleswig-Holstein Greens and Leftists and declared the five percent hurdle in local elections to be unconstitutional because it violated the equal opportunities of smaller parties. After the introduction of direct elections for mayors and district administrators in Schleswig-Holstein in 1995, stable majorities are no longer required for this election. In addition, the experience in other federal states without this hurdle showed that the municipalities are still functional.

Thuringia

On April 11, 2008, the five percent hurdle was also declared illegal in Thuringia .

Second votes not taken into account (Bundestag election)

Forfeited second votes in previous federal elections
	Valid second votes	Not taken into account ¹	Proportion not taken into account
1953	27,551,272	1,803,026	6.54%
1957	29,905,428	2,087,041	6.98%
1961	31,550,901	1,796,408	5.69%
1965	32,620,442	1,186,449	3.64%
1969	32,966,024	1,801,699	5.47%
1972	37,459,750	348,579	0.93%
1976	37,822,500	333,595	0.88%
1980	37,938,981	749,646	1.98%
1983	38,940,687	201,962	0.52%
1987	37,867,319	512.817	1.35%
1990	46,455,772	² 3,740,292	² 8.05%
1994	47.105.174	1,698,766	3.61%
1998	49,308,512	2,899,822	5.88%
2002	47.996.480	³ 3,376,001	³ 7.03%
2005	47.287.988	1,857,610	3.93%
2009	43.371.190	2,606,902	6.01%
2013	43,726,856	6,859,439	15.69%
2017	46,515,492	2,325,533	5.00%

¹Second votes will only be considered if one party overcomes the 5 percent threshold or receives at least three direct mandates .

²In the 1990 Bundestag election , the old (including West Berlin) and the new federal states (including East Berlin) each formed an electoral area. The five percent hurdle only had to be jumped in one electoral area. So the PDS and the East Greens (B90 / Gr.) Only got over 5 percent in the new federal states, the second votes of the PDS in the old federal states were also taken into account, those of the West Greens (GREEN) fell.

³ Including the 1,916,702 second votes (4.00%) of the PDS, which entered the Bundestag with first votes with two direct mandates.

Controversy

The aim of this threshold clause is to bring about a concentration of the distribution of seats in order to promote stable majorities and to counteract the fragmentation of the representative bodies by small and micro-parties and the associated internal conflicts. It was introduced after the experience of the Weimar Republic . The five percent hurdle is considered controversial. Critics think that it contradicts the idea of democracy and the Basic Law ( Article 38.1 of the Basic Law), according to which every vote must have the same value. With a blocking clause, the number of votes cast is still the same, but not necessarily the same success value (see also overhang mandates ). Small parties failing the five percent hurdle often means that a government coalition with less than 50% of the votes receives an absolute majority of the parliamentary seats. According to Dieter Nohlen , such disproportionate effects depend on whether an electorate anticipates the effect of such threshold clauses and fails to vote for such parties and called this a psychological effect.

Jurisprudence

In 1990, the Federal Constitutional Court declared the five percent threshold at federal level in its previous case law to be constitutional in principle, as it viewed a functioning parliament as a higher good than precisely reflecting the political will of the voters. It emphasizes, however, that “the compatibility of a threshold clause with the principle of equality of choice cannot be assessed once and for all in the abstract”; the current conditions should therefore be taken into account. In local elections, however, the five percent hurdle was declared inadmissible or subject to review by some of the federal states' constitutional courts. Shortly after the founding of the Federal Republic of Germany, the Federal Constitutional Court declared a threshold clause of 7.5% in Schleswig-Holstein to be unconstitutional.

Controversy after the 2013 federal election

In the 2013 federal election , 6.8 million second votes (15.7 percent) were not taken into account. In view of this result, the legal scholar Hans-Peter Schneider called a lowering of the threshold clause "constitutionally required". The political scientist and party researcher Hans Herbert von Arnim spoke of these voters as "double losers". On the one hand, their elected party is not represented in the Bundestag and, on the other hand, this increases the power of the victorious parties. Compared to Spiegel Online Arnim proposed the creation of a replacement voice before.

Political scientist Frank Decker considers the threshold clause to restrict the equality of choice. Parties that represent different positions would have no chance “to present their opinion in the Bundestag and to force the other parties to deal with it”. That is "questionable from a democratic point of view". On Deutschlandradio, the legal scholar Ulrich Battis described the fact that almost seven million votes had no effect as "difficult to reconcile with the principle of democracy".

The Green Bundestag member Hans-Christian Ströbele described the five percent hurdle as "questionable in terms of democracy law" and, like the former President of the Constitutional Court Hans-Jürgen Papier, advocated a lower hurdle of three percent. Likewise, the civil rights activist and chairman of the association Mehr Demokratie, Ralf-Uwe Beck, criticized the status quo and named the solution either to lower or abolish the five percent threshold or to provide a substitute vote for voters who assume that they will The political scientist Heinrich Oberreuter sums up: “The fact that 15 percent of the votes fall under the table and the election result is significantly distorted is worth pondering. You could think about whether the height of the five percent hurdle is still appropriate - given the fact that we have a certain stabilization of the political system. "