Suffrage (Hamburg)

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The right to vote in Hamburg regulates the elections for the citizenship (Hamburg state parliament ) and for the district assemblies . Between 2004 and 2014 it was fundamentally changed in several steps and since then has been considered one of the most modern, albeit also quite complicated, state and local electoral rights.

When the electoral law was last changed in 2013, a. the voting age was reduced to 16 years and the legislative period extended to five years. Since then, it has been a proportional representation with open constituency lists (multi-mandate constituencies) and open state lists . The individual points of the electoral system are presented below.

Electoral system since September 2013

particularities

  • open constituency and state lists
  • Multi-mandate constituencies (3–5 seats)
  • active voting right from 16 years
  • Changes to the Hamburg electoral law are only possible with a two-thirds majority. In addition, the change will not come into effect before three months have elapsed. Within this period, 2.5 percent of Hamburg's eligible voters can request a referendum on the change. The change is only accepted in a referendum if at least two thirds of the voters agree. The number of yes votes must also correspond to at least 20 percent of the electorate (if the referendum does not take place on an election day for the citizenship or the Bundestag) or two thirds of the votes represented in the Hamburg elected parliament. These hurdles apply analogously to a change in voting rights initiated by a referendum.

Number of MPs

The citizenship consists of 121 seats, of which 71 mandates in 17 multi-mandate constituencies are awarded via open constituency lists, the remaining 50 via open state lists. In the 17 constituencies, three, four or five seats are allocated depending on their size. By overhang and compensatory seats ( s. U. ), The total number of deputies of citizenship may increase.

Electoral term

The legislative period is five years.

Active and passive right to vote

Every German who has reached the age of 16 and has had his (main) place of residence in Hamburg for at least three months is eligible to vote.

Anyone who has reached the age of 18 is eligible to vote, i.e. can be elected.

Number of votes

Each voter has ten votes:

  • five constituency votes for candidates in the constituency
  • five state votes for candidates on the state lists or for state lists in their entirety.

The five constituency votes can all be combined for one candidate ( accumulate ) or distributed in any way to several candidates (also from different parties or groups of voters) ( variegated ). Any division is possible as long as no more than five votes are given.

The five national votes can also all be given to a national list in their entirety or distributed to several people and / or general lists.

Threshold clauses

For the distribution of seats in the Hamburg citizenship, only state lists of those parties and voter groups that have received at least five percent of the valid state votes are taken into account. A 3 percent clause applies to the distribution of seats in the district assemblies.

Distribution of seats

The 71 constituency seats are distributed in the constituencies to the constituency nominations of the parties, voter groups and individual applicants (Sainte-Laguë in the constituencies). There is no threshold clause in the constituency. The electoral district seats to which a party is entitled are awarded to the applicants with the most votes for that party.

Constituency seats of individual applicants or parties that did not get through the threshold increase the number of citizenship seats accordingly. If this results in an even number of seats, another seat is added to avoid a stalemate.

All 121 regular seats (as well as the stalemate avoidance seat, if applicable ) are distributed according to the Sainte-Laguë procedure to the parties that were able to skip the five percent hurdle according to the ratio of their total number of national votes in the country. The number of seats won by each party in the constituencies is deducted from this. The remaining seats go to those candidates on the state list who have not already been elected via constituencies. According to Sainte-Laguë, the ratio of list votes and personal votes of a state list is used to determine how many seats are distributed according to the list order and how many seats are distributed according to the number of votes of the candidates. First, the seats are allocated according to the list, then the seats according to the choice of person.

Overhang and compensation mandates

  • If a party achieves more constituency seats than it is proportionally entitled to in the country, and if it overcomes the 5% hurdle, it retains these overhang seats . The total number of proportionally distributed seats increases by the necessary number of mandates (compensation mandates).
  • Mandates from parties that have not jumped the five percent threshold or that have not drawn up a state list at all, increase the total number of seats in the citizenship. There are no compensation mandates for these seats.
  • If the size of the citizenship increases to an even number through such constituency seats or through overhang and compensatory mandates, this is increased by another seat.

Majority clause

A party or electoral association that receives the absolute majority of the total votes cast for the state lists to be considered also receives the absolute majority of all citizenship mandates. The party or electoral association concerned may receive additional mandates required for this purpose.

Changes to the electoral law since 2004

Change 2004 (never applied)

On June 13, 2004 , a new electoral law for Hamburg was passed through a referendum with 66.5% yes- out of 385,542 valid votes cast. It was a highly personalized proportional representation . The law was in effect until October 11, 2006, when the ruling Hamburg CDU voted with a majority of 62 of the 121 votes in favor of another change in the electoral law that revised crucial elements. In this way, the parties' influence on the composition of the citizenry was restored, so the electoral law passed in 2004 was never applied.

Citizenship election

General list choice

The right to vote on lists in the state elections was personalized by the fact that the order of the candidates on the lists submitted by the parties for election was almost irrelevant. Decisive for the prospect of a mandate (= seat) in the citizenry was only the number of votes that each individual candidate could personally unite (the voter could not only have put his crosses on the lists in general, but also on the individual candidates on the lists). The seats per list would only have been distributed according to the order of the number of candidates after the election (the order of the party lists would only have been decided in the event of a tie between candidates). The power of the parties that would otherwise decide in general or delegate assemblies which of their candidates would move into the next parliament with what probability (the higher the list position, the higher the probability) would have been suspended.

As before, the voter could have made his mark at a party in general. His vote would then only influence the overall party result, which would have been the sum of the votes for candidates for a party and the general votes for a party and from which the number of seats that would have been allocated to the party, but not which persons would have these seats would take. That decision would then have been left to the voters of a party to those who personally elected candidates.

Country list election

As before, the total number of seats of a party in the citizenry would have resulted from the result of the state list election (i.e. the sum of the votes for candidates for a party and the votes for the party concerned in general). As before, the five percent hurdle for state lists would have applied.

50 of the 121 citizenship mandates would have been filled from the state lists.

Constituency election

71 of the 121 citizenship seats would have been awarded based on the results in the 17 constituencies. With the new electoral law, the constituencies were multi-mandate constituencies with 3 to 5 (depending on the size of the constituency) to be assigned and corresponding lists of candidates that are available for election. Here, too, only the number of personal votes that the individual candidates could have decided which candidates would have won the mandate. So there would have been personal competition between candidates from the same party in the constituencies. How many seats in the constituency a party would have been entitled to would have been determined, as in the case of the state list, from the sum of the votes for the candidates for the party and the general votes for the party. Party or individual candidates who would have been elected in the constituency would in any case have had a seat in the citizenry, even if the state list of party candidates had not overcome the five percent hurdle.

Number of votes

Each eligible voter would have had a total of ten votes, five for the state list and five for the constituency list. Each candidate (or party in general) would also have had five checkboxes on the voting slip. The voter would now have been able to accumulate ( accumulate ) several votes on a candidate or party or distribute them ( variegate ) to different candidates or parties . So if the voter had personally considered five candidates to be particularly capable and wanted to be represented by them in parliament, he would have been able to distribute his votes accordingly even if the candidates had belonged to five different parties.

Elections to the district assemblies

  • The new citizenship suffrage was carried over to the elections for the district assemblies.
  • The elections for the district assemblies were separated from the citizenship election and merged with the European elections (every five years). This is intended to strengthen the political independence of the district assemblies.
  • The five percent hurdle was lifted - in line with developments at the municipal level in other federal states.

See also: Local voting rights .

Comparable existing option

The principle of dynamic party lists and polyphony has long been anchored in the local electoral law of other federal states, such as Bavaria , Hesse and Rhineland-Palatinate , and is applied accordingly. The party list dynamic is also enshrined in the right to vote in the Bavarian state parliament .

The parties' attitudes to the 2004 electoral law

In the referendum on the new electoral law in 2004, the two parties CDU and SPD submitted a joint counter-draft that was similar in most points to the proposal of the citizens' initiative, but did not contain the crucial points, namely multi-mandate constituencies and dynamic party lists . The voters voted in favor of the citizens' initiative bill.

  • CDU: The CDU, which ruled alone with an absolute majority, set up a secret commission under the long-time CDU party chairman Jürgen Echternach (born November 1, 1937 - † April 4, 2006) after the referendum, which did not correspond to their ideas . This commission worked out a proposal to reform the electoral law. From the point of view of the electoral initiative, this proposal should increase the influence of the parties on the composition of the staff and make the influence of the voters practically impossible. From the point of view of the CDU, the proposal served in particular to rectify technical errors in the legal text of the initiative. The CDU parliamentary group should decide on a corresponding legislative proposal in a special session on October 31, 2005. However, this did not happen because it did not seem certain that the bill would find a majority in the citizenship, although the CDU has an absolute majority in the citizenship. Criticism came e.g. B. from the CDU local chairman of Hamburg-Nienstedten, Lars Möller , who described the project as "a secret operation that was whipped through from above". On May 8, 2006 the CDU parliamentary group passed a bill for a new electoral law, with the Harburg MPs abstaining. This saw u. a. rigid party lists and only one vote (i.e. no accumulation and variegation possible) for the state list election, the reintroduction of the 5% hurdle at the district level, as well as filling vacant constituency seats from the state list, whereby the decisive features of the electoral law determined by the people are abolished should.
  • SPD: SPD parliamentary group leader Michael Neumann assured in the program hamburg journal that referendums from the SPD's point of view are “morally binding and must not be attacked”. The Hamburg SPD thus accepted their defeat in the referendum.
  • Bündnis 90 / Die Grünen GAL: The constitutional expert and member of the GAL parliamentary group, Farid Müller, supported the new electoral law both before and after the referendum with numerous speeches and press releases. In his opinion, it is “a good recipe against disenchantment with politics and extremism”, since it strengthens voters against the parties. He predicted a painful defeat for the SPD and CDU in the referendum. He condemned the plans of the CDU to change the electoral law as "electoral robbery". Also Krista Sager , chairman of the parliamentary group of Alliance 90 / The Greens and former Deputy Mayor of Hamburg, took up a position in favor of the new electoral law.
  • FDP: Ekkehard Rumpf , constitutional spokesman for the FDP parliamentary group, praised the sophistication that cumulation and variegation would allow voters. According to his statement, the new right to vote corresponds to “a year-long demand by the FDP” and promised him the full support of his party.

Change in 2006

On October 11, 2006 , the Hamburg citizenship decided with the votes of the CDU parliamentary group (with the exception of one CDU MP) against the votes of the opposition to make decisive changes to the electoral law for Hamburg, which included the core elements of the 2004 electoral law, which was therefore never applied. undone.

As a result of the amendment to the law, the five votes for state lists were converted into one list or party vote (see second vote ). In the constituencies, a candidate had to receive 30% of the voting number as personality votes in order to improve his ranking (this clause was later declared illegal by the Hamburg Constitutional Court). Taking into account the example given in the explanatory memorandum for the law, the option of choosing a person was de facto abolished for voters. At the district level, there is a five percent clause (according to the CDU draft) to make it more difficult for extremist parties to enter the district assemblies.

If a party wins more seats in the constituency than it has put up for candidates, the empty seats are now filled with candidates from the list of the relevant party. In contrast to popular suffrage, in which empty seats would have been distributed among the other parties, giving the parties massive incentives to put up more candidates than they thought they would be elected, this incentive is no longer applicable. Basically, after the change, each party could now only put up one candidate in the constituency and place any successors safely in the desired priority on the state list, so that from the larger selection of candidates originally desired by the people and the possibility of choosing the candidates personally (and also from , may be no more talk of changing zuwählen and not just the order).

The change in electoral law also takes account of the ratio of list votes to personal votes. At z. B. 50% list votes and 50% person votes, half of the seats are initially occupied by the candidates in the order of their personal votes, the other half with list candidates, whereby the candidates who may already have been selected in the first step are now disregarded and the empty seats by List followers are filled, which also enables list protection.

Criticism of the 2006 election law change

The change of the electoral law, determined by almost two-thirds majority of the voters, by the three-vote majority of a single party in the citizenry met with criticism not only of the CDU's understanding of democracy the next but one choice changed), but also raised legal questions, e.g. B. after the protection of the confidence of constitutional institutions (referendum) and the justification of the five percent hurdle at local level (now uncommon in Germany).

Based on an expert opinion by the former Vice President of the Federal Constitutional Court Ernst Gottfried Mahrenholz , the parliamentary groups of the SPD and GAL moved together before the Hamburg Constitutional Court to sue the changes to the electoral law decided by the CDU. According to Mahrenholz, the majority of the citizens had “completely changed” the popular suffrage and thus “violated the principle of loyalty to the people's legislature”.

After subjects election was abolished immediately on the state list, depends the possibility as a voter in the constituency a real choice people (and especially from choice) to make, in particular on the following factors:

  1. The parties have to put up more candidates than they are later entitled to (but the parties do not benefit from this).
  2. There must be significantly more person votes than list votes.
  3. Candidates on the lower list must receive the most person votes.

Judgment of the Hamburg Constitutional Court on changing the electoral law

On April 27, 2007, the Hamburg Constitutional Court pronounced the judgments in the judicial review procedure and in the organ dispute procedure. The court declared the change of the electoral law passed by referendum by the Hamburg citizenship, before this electoral law was even applied, as permissible. There was no violation of the duties resulting from loyalty to the organ.

However, the relevance threshold for the election of the constituency candidates in the citizenship election was judged to be unconstitutional. The voter is being misled if the overcoming of the relevance threshold is only theoretically possible but not practically possible and the voter cannot easily recognize this. The five percent hurdle in the district assembly elections, on the other hand, is constitutional.

The court denied the right of action for the people's initiative, which initiated the referendum on the electoral law, because the people's legislative process was concluded with the referendum and the initiative no longer had any constitutional powers. However, two of the nine constitutional judges held a different opinion.

Change 2007

After the ruling, the citizens had to change their voting rights with regard to the relevance threshold for constituency elections. In 2007 it therefore passed an amendment to the electoral law, which should take into account the unconstitutionality of the amendment to the popularly decided electoral law, which was declared in the judgment. As a result of this change, a constituency list vote is evaluated as a confirmation of the list order by the candidate and the influence of the personality votes is further weakened by the chosen order of seat allocation.

Change in 2009

After the not insignificant changes to the electoral law decided in 2004, the Hamburg regional association of Mehr Demokratie had started a new attempt to further change the electoral law. After a successful popular initiative in the fall of 2008 beginning of 2009 was a successful referendum conducted. The proposal was accepted by the citizens on June 26, 2009. If a referendum had come about, it would have taken place on September 27, 2009 (parallel to the federal election ).

In the case of the general election, the fact remains that in each of the 17 constituencies three to five seats can be won by the parties. What is new is that Hamburg voters have the option of giving their five votes on the constituency lists exclusively to people and not, as before, to parties. The number of votes received determines who enters the citizenry.

What is new in the state lists for the citizenship election is that voters now have five votes instead of one vote. These can be given to the persons nominated by the parties, but also to the party list itself. The latter means that they vote in favor of assigning the mandates allocated to the party in the order in which the party has put it in its list of candidates.

These structures also apply in principle to the elections for the district assemblies, but with the special feature that a 3 percent hurdle is introduced instead of the 5 percent hurdle. The current versions of the BezVWG and the BüWG have been in force since July 7, 2009. As a result, the township and district assembly elections were held together for the last time in February 2011. From 2014 the elections to the district assemblies will take place every five years together with the European elections.

See also

literature

Hans Herbert von Arnim : A fat stomach doesn't like to rule . Kindler, Munich 1997, p. 370 ff.

Web links

Individual evidence

  1. ↑ Suffrage Ranking 2010 , brochure by Mehr Demokratie e. V. , 2011 (PDF; 2.17 MB).
  2. ↑ www.ndr.de ( Memento from February 14, 2013 in the Internet Archive ).
  3. ^ Right to vote in Hamburg .
  4. ↑ Due to an editorial error in the current legal text (which was neither contained in the previously valid nor in the text of the 2009 referendum) the stalemate avoidance seat is not expressly included in the balance.
  5. ^ Judgment of the Hamburg Constitutional Court on the amendment to the electoral law (HVerfG 04/06) (PDF; 318 kB).
  6. ↑ Dissenting opinion on the ruling on the change in electoral law (PDF; 81 kB).
  7. ↑ Law on the election for Hamburg citizenship (BüWG) - amended several times by Article 1 of the law of July 7, 2009 (HmbGVBl. P. 213) on landesrecht.hamburg.de .
  8. ↑ Law on the election to the district assemblies (BezVWG) - amended by the law of 7 July 2009 (HmbGVBl. Pp. 213, 219) .