A threshold clause is a provision in a proportional representation system, according to which parties or lists below a certain percentage of all votes are not taken into account in the distribution of mandates. This is intended to counteract a “fragmentation” of Parliament.
In addition to this "explicit" threshold there is also an "implicit" (also: factual) threshold. It means the minimum number of votes a party needs to be eligible for a first mandate. This minimum amount already results from the number of mandates to be filled and the seat allocation procedure used.
In the case of an explicit blocking clause , the amount of the block is stipulated by law (e.g. 5% of the votes cast). If only the "threshold clause" is mentioned, an explicit threshold clause is usually meant.
Purpose of explicit thresholds
Without threshold clauses, there are often many small parties in parliament in proportional representation, and sometimes also splinter groups. This makes it difficult to form a government. In such a case, the coalition majority is often only narrow, so that small and small parties can have a relatively high weight in decisions.
A threshold clause reduces the number of parties in parliament. At the same time, it modifies the equality of choice , which is why the introduction and the level of a threshold clause must be weighed against the risk of party fragmentation.
Threshold clauses in different states
Blocking clauses in German-speaking countries
There are threshold clauses in Germany - each at a rate of 5 percent - in the general election and in all elections to the state parliaments. In municipal and European elections , there is no restrictive clauses (more). A threshold clause of 5% still applies to the election of Bremen city citizenship. In Berlin, there is an explicit hurdle of 3 percent for the elections to the district council assemblies. In Hamburg, too, a 3 percent threshold clause applies to elections to the comparable district assemblies. This was initially rejected by the Hamburg Constitutional Court as part of the electoral law in January 2013, but was reintroduced by the Hamburg citizenship in December 2013 - now as part of the constitution.
The introduction of the five percent hurdle in the Federal Republic of Germany was justified by the fact that the lack of a threshold clause in the Weimar Republic promoted fragmentation. At that time, up to 17 parties were represented in the Reichstag.
The threshold clause for the Bundestag has been regulated - since July 8, 1953 - by basic mandate clause : if a party wins at least three direct mandates, it moves into the Bundestag with a number of members corresponding to its nationwide percentage of votes. Nor does it apply to parties of national minorities .(3) of the Federal Electoral Act. Accordingly, a party must receive at least five percent of the votes nationwide in order to enter the Bundestag. This five percent hurdle can, however, be overcome with the
The Federal Constitutional Court declared the five percent threshold at federal level in its previous case law basically constitutional, emphasizing that "the compatibility of a threshold with the principle of equality of election cannot be assessed once and for all in the abstract"; the current conditions should therefore be taken into account. In some federal states, the threshold clause has been abolished at the municipal level due to changed views of the case law.
Explicit exceptions to the threshold clause apply at the federal level in accordance with Section 6 (6) sentence 2 BWahlG and in some countries (e.g. Schleswig-Holstein in accordance with Section 3 (1) sentence 2 SchlHWahlG) for national minorities. This is particularly relevant in Schleswig-Holstein for the exemption for the Danish minority represented by the SSW.
For the elections to the European Parliament , the German Bundestag has passed the law on the election of members of the European Parliament from the Federal Republic of Germany (European Election Act) . In the version dated March 8, 1994, Section 2 (7) provided for a threshold clause of 5 percent. On November 9, 2011, the Federal Constitutional Court declared this regulation to be incompatible with the Basic Law. To justify this decision, which deviates from the evaluation of the threshold clauses for national elections, the judges referred to structural differences between the EU Parliament and the Bundestag: The EU Parliament does not elect a government that depends on its ongoing support. It is not evident that the work of the parliament will be disproportionately more difficult due to the entry of further small parties.
The CDU federal party congress as well as 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.
In the 2013 Bundestag election , the 5 percent blocking clause excluded 15.7% of all votes.
On June 13, 2013, the German Bundestag passed a three percent threshold for European Parliament elections . On the other hand, several smaller parties have announced a lawsuit before the Federal Constitutional Court, and the non-partisan association Mehr Demokratie organized a lawsuit against the law. On February 26, 2014, the court announced the verdict with the tenor that the three percent threshold clause is unconstitutional. A special, objectively legitimized, "compelling" reason is required in order to justify differentiating regulations on equal voting rights and equal opportunities for the parties. According to the majority of the Senate, this is not the case. In its justification, the judgment refers to the judgment of November 9, 2011. Thus, there was no threshold clause for the 2014 European elections.
With the local representation strengthening law with the votes of the parliamentary groups of SPD, CDU and Bündnis 90 / Die Grünen of the state parliament North Rhine-Westphalia a threshold clause of 2.5 percent for local elections in Art. 78 Abs. 1 S. 3 constitution for the state North Rhine-Westphalia introduced, which, however, was declared invalid by the constitutional court for the state of North Rhine-Westphalia for the elections of the municipal councils and district assemblies as not with higher-ranking state constitutional law, more precisely with the equality of the election with judgments of November 21, 2017.
In Liechtenstein, a threshold of 8% applies to the elections to the Liechtenstein Parliament . After the introduction of universal suffrage in 1918, there was initially a majority suffrage without a threshold clause. As part of the truce between the various Liechtenstein parties, proportional voting rights were implemented in 1936 and a threshold clause of 18% was anchored in the electoral law. In 1962 the Liechtenstein State Court lifted this threshold because it contradicted the constitution. In 1973, the 8% threshold, which is still valid today, was added to the state constitution .
In Austria there is a four percent hurdle in the elections to the National Council and in the state elections in Burgenland , in Lower and Upper Austria . In state elections in the majority of the federal states, namely Vienna, Salzburg, Tyrol, Vorarlberg and Carinthia, a higher five percent threshold applies, in Styria there is no (explicit) threshold clause at all in state elections. Achieving a basic mandate leads to the circumvention of the respective threshold clause, but in Styria it is a basic condition for representation in the state parliament.
There is also a threshold clause in the Austrian European elections in accordance with (2) EuWO ( European Election Regulations ) . According to this, parties that received less than 4% of the valid votes cast in the whole of Germany are not entitled to be assigned mandates.
In Switzerland there are no threshold clauses in elections at federal level ( National Council and Council of States ). However, ten of the total of 26 Swiss cantons have threshold clauses in different amounts for the election to the respective cantonal parliament . The canton of Geneva has a seven percent hurdle and the canton of Neuchâtel has a three percent hurdle. The canton of Schwyz uses a one percent hurdle for 100 mandates to be awarded, so it is not only possible to achieve a remaining mandate . Likewise, in the canton of Ticino, 90 mandates to be awarded must explicitly reach at least 1/90 of the votes.
In the Canton of Zurich , the five percent threshold must be reached in at least one constituency. If this is the case, the party concerned takes part in the distribution of seats in all constituencies. In the cantons of Vaud and Basel-Stadt , a party is only considered in constituencies where the five or four percent hurdle has been overcome and the votes in the other constituencies are forfeited.
In the canton of Valais, reaching the eight percent hurdle in at least one sub-constituency entitles them to participate in the distribution of seats in the respective parent constituency.
Overview of threshold clauses in European countries
|Albania||3% of the valid votes for single parties, 5% for multi-party alliances, each at electoral area level (only practically relevant in the Tirana region )|
|Belgium||5% (at constituency level)|
|Bosnia Herzegovina||3% (at constituency level)|
- Faroe Islands
|2% or a constituency mandate (i.e. a mandate obtained in the major constituency; the major constituencies are multi-mandate constituencies with 10 to 20 mandates to be awarded according to the D'Hondt procedure; in the largest constituency, Zealand, a party would thus achieve a constituency mandate with around 5%)|
|no threshold clause in the Løgtingswahl|
|Germany||5% of the valid second votes or 3 direct mandates to participate in the ratio adjustment at federal level; 5% of the valid (Berlin: cast) second votes at state level; 3% hurdle in the European elections was rejected by the Federal Constitutional Court, therefore no threshold clause in 2014 and 2019; no threshold clause at municipal level with the exception of the district council assemblies in Berlin and Hamburg (3%) and the election to the city of Bremen (5%); Eligibility clause for the election of the district representatives and the Ruhr regional assembly in North Rhine-Westphalia (2.5%)|
|Georgia||7% regional, 5% parliamentary elections|
|Iceland||5% (only for compensation mandates)|
- Aosta Valley
|2/35, i.e. about 5.714% (double the hare rate)|
|Croatia (Sabor)||5% (at constituency level)|
|Liechtenstein||8% (since 1973, previously 18%)|
|Lithuania||Seimas: 5% (parties), 7% (party alliances)|
|Moldova||5% (parties), 3% (non-party), 12% (party alliances)|
|Netherlands||1/150, i.e. about 0.667% ( hare ratio )|
|Norway||4% (only for compensation mandates)|
|Austria||4% of the valid votes or a basic mandate ; Federal states of Lower Austria and Upper Austria: 4%; other federal states: 5%; Styria: basic mandate necessary|
|Poland||5% (parties), 8% (party alliances)|
|Romania||5% (parties), 8% or 10% (party alliances)|
|Sweden||4% (or 12% in a constituency) in Reichstag elections, 3% in elections to the provincial parliament , no threshold clause at the municipal level|
|Switzerland||For elections to ten cantonal parliaments, threshold clauses of 1% to 8% (see above ).|
|Slovakia||5% (parties), 7% (party alliances from two parties), 10% (party alliances)|
|Spain||3% (per constituency, i.e. not national level; the factual threshold clause is much higher in most constituencies due to the small number of mandates to be awarded)|
|Czech Republic||5% of the valid votes (10% for two-party alliances, 15% for three-party alliances, 20% for multi-party alliances)|
|Hungary||5% (10% for two-party alliances, 15% for multi-party alliances)|
|Cyprus||2/56 ≈ 3.57% (double the hare rate)|
- The Aosta Valley is an autonomous region with a special statute
- In elections in Sweden, a modified variant of the Sainte-Laguë procedure is used, which puts smaller parties at a slight disadvantage. Municipalities with fewer than 12,000 inhabitants - this is about a third of the 290 Swedish municipalities - have a municipal council of 31 members, which can create comparable hurdles for small parties even without a formal threshold clause.
Overview of threshold clauses in other countries
|Argentina||3% of eligible voters at constituency level (only practically relevant in the Province of Buenos Aires )|
Countries without threshold clauses
There are several countries without threshold clauses, e.g. B. South Africa , Portugal , Finland and North Macedonia . They have proportional representation systems without a statutory threshold (in the last three countries, however, with separate electoral districts a higher factual threshold).
In France , the threshold clause is only available at constituency level for the first ballot, if the candidate does not reach 50% or an absolute majority, in the second the relative majority with a quorum of 12.5% of all votes is sufficient. All politicians are thus directly elected by the people, comparable to the first vote in Germany, but without a party threshold. Most of the parliamentarians reunite to form parliamentary groups in the National Assembly.
In the 2012 election to the Libyan National Congress there was no threshold clause for the 80 seats elected by proportional representation. This made it possible for 21 parties to enter parliament; 15 of these received only one seat. Another 120 of the total of 200 seats were given to independent MPs from the outset. A possible formation of a government by individual major parties is already avoided in principle.
The most significant criticism is that electoral systems with threshold clauses lead to distortions and modify the equality of the election because votes for parties that fail because of the threshold clauses expire and the remaining votes are given greater weight. Barring clauses are also problematic as they can affect voting behavior . For example, a “big party” could be elected for reasons of electoral tactics, because the vote should not be “given away” to a party that is unlikely to pass the specified hurdle. On the other hand, a vote could also be given as a loan vote to a party that could otherwise fail due to the threshold clause. One option that has been discussed over and over again to limit tactical voting behavior without simultaneously lifting the threshold clause is to introduce a substitute vote .
In order to ensure the ability of parliament and government to act, threshold clauses are a largely accepted means in German politics. Individual politicians, on the other hand, are fundamentally critical of threshold clauses. Hans-Christian Ströbele sees threshold clauses as fundamentally undemocratic, as they would make it more difficult for new political movements to enter parliaments. Ralf-Uwe Beck , civil rights activist and one of the chairmen of the association Mehr Demokratie , also criticized the status quo and named as a solution either the “ five percent threshold to lower or abolish” or “a substitute vote for voters who assume that the party they favor may get stuck with the threshold clause. "
- AFP: Federal Constitutional Court: Five percent hurdle in European elections inadmissible. In: zeit.de. November 9, 2011, accessed December 9, 2014 .
- Archived copy ( Memento from March 28, 2014 in the Internet Archive )
- http://www.saarbruecker-zeitung.de/recht/land- art385321,4680279
- Wilko Zicht: Overview of the electoral systems in local elections. March 4, 2010, accessed December 21, 2013 .
- The Federal : The election system - The Federal Returning Officer. Retrieved November 26, 2018 .
- VerfG Hamburg, judgment of January 15, 2013, Az.HVerfG 2/11 (PDF; 418 kB)
- Report of the NDR from December 13, 2013 ( Memento from September 11, 2014 in the Internet Archive )
- Wahlrecht.de: The development of the electoral law for the 2nd Bundestag , accessed on May 14, 2012.
- Judgment of the Federal Constitutional Court, BVerfGE 82, 322 , September 29, 1990
- Press release of the Federal Constitutional Court , accessed on November 9, 2011.
- Resolution of the European Parliament of November 22, 2012 on the elections to the European Parliament in 2014 (2012/2829 (RSP)) . europarl.europa.eu. November 22, 2012. Retrieved November 3, 2019.
- Zeit Online: Bundestag resolves three percent hurdle for European elections. June 14, 2013, accessed August 6, 2013 .
- Zeit Online: Pirates complain against the three percent hurdle. October 8, 2013, accessed October 18, 2013 .
- Zeit Online: NPD complains against three percent hurdle. June 14, 2013, accessed August 6, 2013 .
- Zeit Online: Mehr Demokratie e. V. complains against the three percent hurdle. October 10, 2013, accessed October 18, 2013 .
- three percent threshold clause in European electoral law is unconstitutional under the current legal and factual circumstances . In: Press Office Federal Constitutional Court . Press office of the Federal Constitutional Court. February 26, 2014. Retrieved March 3, 2014.
- Reinhard Müller: European elections: three percent hurdle unconstitutional . In: Frankfurter Allgemeine Zeitung , February 26, 2014. Accessed March 3, 2014.
- Constitutional Court of North Rhine-Westphalia, judgments of November 21, 2017, Az. VerfGH 9/16; Az. VerfGH 11/16; Az. VerfGH 15 / 16-18 / 16; Az. VerfGH 21/16.
- LTO: VerfGH NRW: blocking clause unconstitutional . In: Legal Tribune Online . ( lto.de [accessed on November 22, 2017]).
- Article 46 (3) of the state constitution reads: “Mandates are allocated among those groups of voters who have achieved at least eight percent of the valid votes cast in the entire state.”
- The Electoral Code of the Republic of Albania ( Memento of March 31, 2010 in the Internet Archive ), Article 162; Before the 2009 election, with a completely different electoral system, it was 2.5% or 4% of the valid votes at national level (only for the allocation of compensatory seats; direct mandates were allocated to the candidate with the highest number of votes without any further conditions). See also Political System of Albania # Parliament .
- Lögtingswahlgesetz § 34; the Løgting has 33 seats, but a party with less than 1/33 of the votes could get a seat by rounding up the divisor procedure
- Parliamentary elections. Retrieved October 16, 2017 .
- Act CCIII of 2011 On the Elections of Members of Parliament ( Memento of April 26, 2018 in the Internet Archive ), Art. 14 Para. 1 and 2
- Código Electoral Nacional ( Memento of May 8, 2013 in the Internet Archive ), Article 160
- Timor Agora: PN APROVA BAREIRA ELEISAUN PARLIAMENTARY 4% , February 13, 2017 , accessed on March 23, 2017.
- Martin Fehndrich: blocking clause. Wahlrecht.de, September 4, 2006, accessed on August 6, 2013 .
- Mitteldeutsche Zeitung: More democracy calls for new regulations on the right to vote. September 24, 2013, accessed October 18, 2013 .
- Venice Commission: Compilation of Venice Commission opinions and reports concerning thresholds which bar parties from access to parliament ( online ; PDF)
- Commentaries on federal and state election laws
- Urs Kramer, Vanessa Bahr: The various electoral thresholds on the test bench . Journal for Legal Studies (ZJS) 02/2012, 184 ( online ; PDF)
- Admissibility of threshold clauses in local electoral law . Scientific Services of the German Bundestag , 208 ( online ; PDF, 103 kB)
- Blocking clause , at Wahlrecht.de
- Lothar Probst: The five percent hurdle in the German electoral system. Origins, comparison, current discussion (dossier Bundestag elections of the Federal Agency for Civic Education on the Bundestag election)