Local electoral law (Hessen)

The local electoral law of the state of Hesse regulates the elections to the organs of the Hessian municipalities as state law in various legal sources .

With the law to strengthen citizen participation and local self-government of December 23, 1999, the local electoral law was completely reorganized and the possibility of accumulation and variegation was introduced. This tended to strengthen small parties and electoral rolls. The abolition of the five percent hurdle also had the same effects.

Electoral principles

Within the framework of Article 28, Paragraph 2, Sentences 1 and 2 in conjunction with Paragraph 3 of the Basic Law , the elections take place in accordance with the general electoral principles in free , general , secret , equal and direct form after a proportional representation combined with a person election. If only one nomination is accepted, the elections are carried out according to the principles of majority voting.

Each voter has as many votes as there are representatives to be elected, which he can distribute among the applicants for a nomination or different nominations; if fewer applicants stand for election than there are seats to be allocated, the number of votes is reduced accordingly. He can give applicants up to three votes.

scope

The municipal electoral law regulates the elections to the municipal councils or in cities to city councils , to the district assemblies , the direct elections of the mayors and district administrators , referendums as well as the elections to the local councils and the councils for foreigners .

The right to vote and the eligibility as well as the number of community representatives, local council members and district council members (representatives) to be elected are determined by the provisions of the Hessian municipality code (HGO) and the Hessian district code . The Local Election Act (KWG) and the Local Election Ordinance (KWO) apply to the election of local councils (local elections), local councils (local council elections), district assemblies (district elections), mayors and district administrators (direct elections), foreigners councils (foreigner council elections) and during implementation of a referendum (vote). This is regulated in paragraph 8b paragraph 8 of the HGO.

Duration of the election period

The electoral period of the municipal representative bodies is five years (§ 36 HGO, § 26 HKO). The election period for the directly elected administrative director, the mayor or the district councilor is six years (Section 39 (3) sentence 2 HGO, Section 37 (3) HKO). The election period begins on April 1 (Section 2 (1) KWG). The election period of the municipal electoral officer begins on the day after the end of the term of office of the predecessor or the previous term of office.

Election date

The election for community councils, district assemblies and local councils takes place on a Sunday in March. The election day is determined by the state government by ordinance (Section 2 (1) and (2) KWG).

The mayor is to be elected no earlier than six and no later than three months before the position becomes vacant, and in the event of an unforeseen vacancy no later than four months (§ 39 (3) sentence 1 HGO). The last local elections took place on March 6, 2016 . The election dates for the mayor and district council elections and the dates of citizens' decisions are to be set by the respective representative body. The election dates must be announced no later than 90 days before the election (Section 42 KWG; Section 61 KWO), the voting dates must be announced 24 days in advance (Section 77 (2) KWO).

Election announcement

With the revision of the KWG and the KWO at the end of 2011, the two notices previously to be published by the municipal board were combined into one election notice . This takes place on the 24th day before the election or vote. Until then, a notice of the right to inspect the electoral roll and the issuing of ballot papers for the (respective election) and the right to vote of Union citizens was announced up to the 24th day before the election and an election announcement had to be made by the sixth day at the latest before the election.

Electoral process

The Hessian Local Election Act provides for two different voting procedures for the election to a representative body. These are majority and proportional representation.

Majority vote

A majority vote is always used when it is crucial for the success of an election that the person or persons elected receive a majority of the number of votes cast. As a rule, only the valid votes cast are important; abstentions are treated as invalid votes and are therefore not taken into account when determining the election result.

Direct election of mayors and district administrators

When conducting a direct election, the aim is to confirm an applicant or to select a person from a large number of applicants as the future mayor or district administrator. Accordingly, the voter must choose between different nominations on his ballot paper.

Election of representative bodies

A majority election will only take place as an exception if there is only one nomination. In such a case it is of course not possible to choose between different lists. The voter is therefore entitled to as many votes as the total number of mandates to be awarded. All applicants are listed on the ballot, among whom the voter then distributes his votes.

Proportional representation

In the case of a proportional representation, unlike a majority election, it is not important to achieve a majority of the votes cast. Rather, after the end of the election, the number of mandates to be awarded is divided among the proposal lists according to the success of the lists among those entitled to vote, i.e. proportionally.

Counting procedure for proportional representation

The mathematical proportion method according to Hare-Niemeyer is used to distribute the mandates to the proposal lists . This method of calculation tends to work in favor of the smaller lists.

Personal proportional representation

With the local elections in 2001, following the example of Baden-Württemberg and Bavaria, the possibility of accumulation and variegation was introduced in Hessen. It is now possible to distribute the votes between the applicants of different lists, to delete individual applicants from the lists or to give them up to three votes. In this way, voters can influence the composition of the parliamentary groups after the election.

Postal vote

In addition to the ballot box elections , citizens in Hesse also have the option of voting by post. For this purpose, a voting slip is issued to the voter by the electoral office and delivered together with the documents. In addition to the ballot paper and an official leaflet, the postal voting documents contain a colored ballot paper for each election and a ballot paper envelope in the same color. The voting slip must be placed in the voting slip envelope and sent to the municipality together with the signed voting slip in the voting envelope. Accordingly, if several elections or votes are held at the same time, the ballot papers must be placed in the associated ballot envelopes. If several elections take place at the same time, a joint voting slip is issued, from which it can be seen which elections are eligible for voting (Section 88 (1) sentence 1 KWO). Ballot letters are to be rejected under various circumstances, for example if the ballot envelope contains several ballot envelopes, but does not contain the same number of valid ballot papers with the required affirmation on oath in lieu of voting (Section 21a (1) (5) KWG). Due to this technical error of the majority in the Hessian state parliament in the last change of the municipal electoral law in Hesse, almost all postal votes cast will be declared invalid.

The voter also has the opportunity to vote in the ballot box with the ballot paper. In this case, the voting slip will be withdrawn by the electoral committee and noted separately in the electoral record.

Postal elections on the occasion of elections to the foreigners' advisory council will only take place if this is provided for in the main statute of the municipality (Section 58 sentence 2 KWO).

Cumulate and variegate

General information on cumulation and variegation

The electoral law has its own regulation on how ballot papers are to be interpreted. Due to the various options that the eligible voter has to cast his or her many votes, markings can also arise in which a single mark can be used to deduce the underlying will to vote and then make appropriate additions to the counting.

The voter is entitled to as many votes as the total number of mandates to be awarded. Spreading means that the voter can also distribute his votes to the applicants for various election proposals. He can give individual applicants several votes within a narrow framework. Every eligible voter can give individual candidates up to three votes, cumulating . He can combine the two options. Those entitled to vote can also use a list cross to assign a larger number of votes to an election proposal. If a list cross is combined with the possibility of deleting individual applicants from the nomination, combinations are created in which the distribution of votes to the individual applicants on the lists is no longer automatic. The regulation contains the necessary regulations for such cases.

Rules for casting applicant votes

Applicant votes can be submitted by eligible voters in two different ways. You can tick the boxes behind each candidate in the three voting boxes for each vote that you want that candidate to vote. It does not matter in which box the cross is placed or in which box the cross is placed; a cross in the right field does not count three times, but only once. The number of votes that should be given to this candidate can also be entered as a number in one of these fields. In both cases no more than three votes may be accumulated for one candidate.

In contrast to the voting rights of other federal states, voters in Hesse are not allowed to add additional names to the ballot paper and assign votes to them. It is limited to the distribution of one's own votes between the applicants selected in advance by the parties and groups of voters.

Example 1 for the voting slip on the right: The person entitled to vote has given a total of 15 applicant votes.

He distributed his votes to applicants on all three lists, i.e. variegated. He also gave applicants 108, 205, 301 and 302 more than one vote, so he also accumulated. Both options can also be combined with one another as here. In the header of the nominations it is indicated how many votes are allocated to the various lists when a ballot slip is marked.

Rules for casting list votes

To cast the list votes, the voter may only tick the list if his votes are to be cast effectively in this way. Multiple crosses in the list mean that the vote is at least invalid to that extent. See examples.

The deletion of candidates

The Hessian electoral law also gives those eligible to vote the opportunity to delete applicants. While such an addition on the ballot slip regularly leads to the invalidation of a vote in other elections, in a local election it is a permissible type of vote. The deletion of an applicant means that no votes should be cast on them (Section 20a (1) KWG). A deletion alone has no effect if no lists have been ticked, because only those applicants receive votes to which the voter has directly assigned applicant votes.

A deletion of an applicant and the associated statement that he should not receive any votes can only have an effect if the same applicant would actually receive votes due to further markings. This is generally the case via the allocation of remaining votes if the person entitled to vote has ticked the list of the deleted candidate. The deletion also has an effect if the person entitled to vote has given this applicant one or more applicant votes and has also crossed it out. In such a case, the voting of the person entitled to vote is contradictory, his intentions cannot be recognized and the applicant's votes for this applicant are to be treated as invalid (Section 21 KWG).

Example 2: The deletion of applicants in nomination 1 has an effect on the count, because no votes are cast on these crossed out applicants.

The deletions in proposal 2 have no effect, because there is no list cross. Cancellations of applicants in lists for which no list cross has been placed are not counted.

Allocation of votes for pure list votes

The so-called remaining votes always take place when an eligible voter has put a list cross on the voting slip. Their scope depends on whether the applicant has also submitted applicant votes and, to a limited extent, also on how many applicants the list marked by the person entitled to vote contains. The effect of the number of candidates is shown in Examples 3-5 below. The green numbers entered in the boxes for voting represent the consecutive number of the person's vote given in the remaining votes.

Example 3: An election proposal contains at least as many applicants as there are seats to be allocated.

The list receives all 15 votes that the eligible voter can give. Each of the applicants on the list receives one vote from top to bottom. Since all votes have already been used after the first round, no further votes have to be distributed among the applicants. A list vote is to be regarded as neutral to the extent that it does not cause any changes or stabilization of the order of applicants on the ballot.

Example 4: An election proposal contains fewer applicants than seats are available, but more than 33 percent of the possible number of applicants on the ballot.

In this example, the nomination also has 15 votes, which means that the voting rights of the eligible voters are exhausted. After each applicant has received one vote from top to bottom, four votes are still open. Therefore, from top to bottom, each applicant who has not already received three votes is given one vote. It becomes clear that the applicants elected to the top list positions by the party have a significantly higher chance of getting more votes. Such a list is therefore somewhat better protected against significant shifts by the voter than is the case in example 1.

Example 5: An election proposal contains less than 33 percent of the possible number of applicants on the ballot.

Of the total of 15 votes that the eligible voter can give, the largest possible number falls on list 3. Since no applicant may receive more than three votes, this list is given a total of 12 votes, the remaining 3 votes of the eligible voter expire. For the supporters of a nomination, the at least tactical necessity can be derived from this to fill at least 33 percent of the mandates to be awarded with applicants, because only then can this nomination make full use of the possible quota of a list vote. It is therefore even more difficult for the voter to influence the actual order of the candidates after the election than in the previous example 4.

Allocation of remaining votes for a combination of list and applicant votes

When determining the election result, it becomes considerably more complicated when a person entitled to vote makes full use of the options given to him. The combinations that are most common in practice are shown and explained in Examples 7-9 below:

Example 6: Allocation of remaining votes with cumulative applicant votes.

The elector had given some of his candidate votes to the candidates for nomination 1 himself. The four applicant votes assigned directly in this way are deducted from the quota of eligible voters. The remaining 11 votes will be distributed to the applicants of nomination 1 according to the legal regulations, because the list cross is attached there. The distribution is carried out in such a way that, from top to bottom, each candidate for the nomination who has not yet received three votes from this voter gives one vote each. Applicant 101 therefore receives a second vote, whereas applicant 103 does not receive any further vote because he has already received three applicant votes.

Example 7: surplus votes Selected at cumulative and variegated candidate votes and deletions.

In this example, the person entitled to vote has also used the options of varnishing and deleting. The distribution of the remaining votes is basically carried out according to the scheme already presented. It is first determined how many applicant votes the person entitled to vote has already given himself, the remainder is distributed among the applicants of the nomination marked with a list cross. From top to bottom, each applicant receives one vote if he has not already received the highest possible number of three votes or if he has not been deleted by the voter. Applicants 102 and 106 therefore receive no vote, applicant 101 a second vote and applicant 103 no further vote beyond the three votes already received. In this example, the cross on the list means that the voting proposal1 receives eight remaining votes in addition to the four direct votes received, for a total of 12 votes. Together with the three votes for nomination 2, all 15 votes of the eligible voters are then distributed.

Example 8: Incomplete allocation of remaining votes in the case of cumulative and variegated applicant votes as well as deletions.

In principle, the evaluation here corresponds to the scheme in example 7. Due to the fact that nomination 3 only has four applicants, there are differences in the result. It becomes clear that, due to the small number of applicants, the preference of applicant 302, which the eligible voters want, does not work. As a result, he has just as three votes as the other applicants on the list. By drawing up correspondingly small lists, it is therefore at least considerably more difficult for those entitled to vote to have a lasting influence on the order of the applicants for this nomination. Since 12 candidate votes were still available through the list cross, but only 11 candidate votes could be distributed for the applicants of nomination 3, a total of only 14 votes are distributed. The rest of the vote expires.

Healing prescriptions

Healing prescriptions are required if an actually occurring success is to be avoided. The rules of interpretation for the evaluation of ballot papers mainly regulate the cases in which an actually invalidly filled in ballot paper is to be "saved" in whole or in part.

So far, only examples have been considered in which the voter did not make any mistakes. However, the legislature has assumed that the multitude of new options when filling out the ballot papers will result in more errors. He has therefore created additional healing regulations to prevent invalid votes as possible.

When assigning several list votes

Example 9: Several list votes without further markings.

A voting slip is invalid if it only contains several list votes. The example shows one of the few ways a voter can actually invalidate an entire ballot. Here it is not possible to determine which election proposal the person entitled to vote actually wanted to give how many of his votes.

Example 10: Multiple list votes and applicant votes.

With this combination, the provisions of Section 20a (6) KWG apply. If an eligible voter has cast several votes on the list and has also given applicant votes, the marking of the nominations is irrelevant. The voting slip is therefore not invalid in its entirety, but initially only with regard to the list votes. With regard to the applicant votes, the person entitled to vote has not exhausted his total quota, so only the eight directly assigned applicant votes are assigned to the three nominations, the remaining seven votes are lost. However, the voting slip as a whole is valid.

When too many applicant votes are given

When awarding candidate votes, the person entitled to vote can make a number of different mistakes, but these only in exceptional cases lead to the voting slip becoming invalid as a whole. In the examples below, it should be noted that it is easy to keep track of the overview when electing a representative body with 15 members. But if a correspondingly larger number of votes is available, z. B. 45 seats in a representative body of a municipality with over 25,000 inhabitants, it is much more difficult for the voter to fill in correctly. Possible errors are:

Too many applicant votes for one candidate (when accumulating)

The eligible voter is not dependent on casting his votes for one of the applicants with a corresponding number of crosses. Instead, he can also enter corresponding numbers on the voting slip. It can then happen that a number greater than “3” is entered for one of the applicants.

Example 11: Too many applicant votes for one candidate.

From here on, the final results for the candidates who still receive votes after the corrections are made are given in a separate Evaluation column in the examples. In this example, the person entitled to vote has actually assigned 17 applicant votes. For applicant 304, the person entitled to vote entered a “5”. In the opinion of the legislature, this leads to the conclusion that he wanted to give this candidate five votes. However, each candidate may only receive a maximum of three votes. According to Paragraph 20a (2) of the KWG, multiple votes that exceed three votes for a candidate are deemed not to have been cast; they are neglected. Because two votes are deemed not to have been cast, the person entitled to vote has only given 15 votes, so the ballot is valid with all 15 applicant votes.

Example 12: Too many applicant votes and remaining votes assigned.

In this example, the voter apparently wanted to send his 15 applicant votes to the (first four) applicants for nomination 3. Due to the fact that the multiple votes as three per applicant are considered not to have been cast, only 12 votes were actually cast for candidates of nomination 3. This leaves three votes “left”, which, thanks to the cross in the list in proposal 1, are assigned to the first three applicants. The reduction of the oversized number of applicant votes to the legally permissible level, contrary to the explicit marking of the voter, creates the remaining votes that have to be distributed afterwards.

Too many candidate votes in one nomination

In example 13 , the person entitled to vote, who has a total of 15 votes, actually put 27 voting crosses on the various applicants for a nomination. Even for such a drastic exceeding of the given possibilities to distribute votes, the legislature has made a regulation that is supposed to prevent the invalidity of the ballot.

In such a case, the law stipulates that applicant votes should be deleted until only 15 applicant votes have been cast. This is done in the reverse order of applicants, i.e. from bottom to top. First of all, the applicants to whom the voter has only given one vote are deleted. Once this has been done (deletions 1 to 4 in the example), one vote will be deleted from applicants for whom two votes have been cast (deletions 5 to 11). If after that there are still too many votes, the applicants who received 3 votes will be deleted one vote each (deletion 12).

The list cross for proposal 3 is now empty, because there are no remaining votes left to distribute.

Too many applicants' voices when variegating

Example 14: A voter can also cast too many applicant votes and thereby make use of the possibility of variegating. There is then again the possibility that the voting slip will be invalid overall. This is not always immediately recognizable, as the example opposite shows, despite only 15 applicant votes available and thus actually even greater clarity. This voting slip is not valid. The voter cast 22 votes. Due to the already described regulation of Section 20a Paragraph 2 KWG, 2 applicant votes are deemed not to have been cast, leaving 20 votes cast. This is five more votes than the maximum that can be given. This voting slip is therefore invalid as a whole in accordance with Section 20a (3) of the KWG. In the course of the count, however, this will only be determined regularly by the counting election committee .

Common mistakes when dialing

Due to the complexity of the electoral law, voters often cast ballot papers that are formally valid, but not practical. Even if the voting is targeted in individual cases, these are mostly due to ignorance of the effect of the right to vote. Typical errors of this type are:

• a cross next to the list leader instead of the list
  • Mistake: The voter makes exactly one cross at the list leader of a list.
  • presumed wish of the voter: the elected candidate should go to parliament.
  • Actual effect: This list receives 1 vote. The remaining votes expire. This also increases the chances of the chosen candidate only marginally.

• Panaschieren in favor of other lists, which however have fewer candidates than mandates to be given
  • Mistake: The voter makes a cross on the list for party A, and also a cross on the list leader of another list.
  • Presumed wish of the voter: The elected party should be strengthened, but the elected candidate should also be in parliament.
  • actual effect: the elected party only receives part of the votes. However, the chances of the elected candidate do not increase, as their list is smaller than the number of mandates. This means that normal list votes assign multiple candidate votes to the candidates placed in front. A change of this list by variegated candidate votes is improbable or impossible.

In small towns, parties specifically draw up lists that are the expected number of mandates shorter than the total number of mandates. By doing this, they intend that the lists should not be able to be changed by the voter if possible.

Citizens' petitions and referendums

With the amendment to the HGO in 1992, Paragraph 8b introduced a genuine referendum in Hesse . The aim of a referendum is to carry out a referendum . Various content-related and formal requirements are tied to the admissibility of a referendum. In addition, a referendum is not permissible on all matters of local self-government. In addition to the HGO, the regulations of the KWG and KWO apply to the implementation of the referendum and referendum.

Citizen survey

As a de facto light version of the referendum / referendum, citizens' surveys are held in some Hessian municipalities, which are intended to reflect the mood and opinion of the population. However, these surveys are not permitted, as the HGO contains an exhaustive list of the possibilities for public participation.

criticism

Complexity

After the local elections in Hesse in 2016 , Forsa carried out a representative survey on local voting rights on behalf of the Frankfurter Neue Presse . 74% of those questioned were in favor of simplifying the voting process and 24% supported the current right to vote. This large majority was found in the survey among supporters from all parties and from all levels of education. 58% of those questioned also spoke out in favor of reintroducing a five percent hurdle .

Minimum length of the candidate list

The discrimination against election lists that have fewer candidates than a third of the seats to be allocated in the respective local parliaments is also criticized (see example 5 in the section "Allocation of votes in the case of pure list votes"). The alternative for Germany received 9.6% of the list votes in the 2016 city council election in Bad Homburg . However, since the party only had 10 candidates (the city parliament has 49 seats), it received only 30 and not 49 votes for each of these list votes and thus landed in the official election result at 5.9%. AfD spokesman Peter Münch spoke out in favor of an electoral system that does not force the parties to draw up long lists of applicants.

Direct elections

While the KWG provides the possibility of rejecting the applicant as unsuitable for only one applicant, this possibility is not given if there are two or more applicants. The voter cannot vote no. The state legislature assumes that a suitable person can be found with at least two applicants. However, according to Schmidt , life experience shows that this is not always the case.

literature

• Gerhard Bennemann, Helmut Schmidt: Local constitutional law Hessen - Hessian local electoral law (KWG) , Kommunal- und Schul-Verlag, Wiesbaden 1999, ISBN 3-8293-0222-3

Legal sources

• Full text of the Hessian Local Election Act (KWG) in "Hesse Law"
• Local election regulations of the State of Hesse (KWO) in "Hesse law"
• Full text of the Hessian Municipal Code (HGO) in "Hesse Law"
• Hessian district regulation (HKO) in "Hesse law"

Web links

Commons : Local Suffrage  - Collection of Pictures, Videos and Audio Files

• Hessischer Rundfunk : Explanatory video - How do you choose correctly? - Local elections in Hessen on YouTube
• Hessian State Center for Political Education : Explanation of the Hessian municipal elections 2016
• Presentation "cumulating and variegating"
• Sample vote: Interactive sample ballot

swell

This article is based on the work Communal Constitutional Law Hessen - Comments and the commentary on Hessian communal electoral law (KWG) by Gerhard Bennemann and Helmut Schmidt, Kommunal- und Schul-Verlag, Wiesbaden 1999, ISBN 3-8293-0222-3 - there: Comment to paragraphs 1, 2 and 20a. The author has been given permission to publish this information under the GNU Free Documentation License .

Individual evidence

1. ↑ Christoph Barkewitz: How should we choose ?; in: Taunus-Zeitung of April 19, 2016, p. 21
2. ↑ Fabian Böker: AfD two-digit in a circle; in: Frankfurter Rundschau from March 7, 2016, online
3. ↑ Christoph Barkewitz: How should we choose ?; in: Taunus-Zeitung of April 19, 2016, p. 21
4. ↑ Helmut Schmidt: The problem of the “no” votes in mayoral elections in Hesse , LKRZ 10/2008, p. 372 ff.