Feb.28

electoral-vote.com

Dem 47

   

GOP 53

Teutonic Shift: Debating the Utility of the 5% Approach

On the same day we wrote about the budget, we also had some reader responses about the German election. Among those was a comment from reader J.A. in Mainz that was broadly critical of the 5% threshold that it takes for a party to get representation in the German Parliament.

We got quite a lot of response to that criticism, and we know that many readers, even if they are not particularly interested in German politics, ARE interested in voting systems. So, we're going to run a couple of comments about the 5% system today, which seem to cover most of the points raised by the various readers who wrote in. We'll have some more comments about the actual election next week.

• P.S. in Ariel, Israel: I'm a German citizen and voter (although not currently living in Germany) and would like to provide a bit more background about the peculiarities of the German electoral system described by J.A. in Mainz. First of all, the second vote is, despite the name, the more important vote: The number of seats in the Bundestag for each party depends solely on the second-vote share. It's not 100% accurate that the second vote is just for a party name; rather, it is for a party's list of candidates in that state (each party has to file separate lists in each of Germany's 16 states that they want to run in; some parties run in all or most states, other parties only in a few states). The names of the first few candidates on each list appear on the ballot, so the voter can get an idea who might end up in the Bundestag if they vote for that party's list. That said, there is no guarantee that the first [X] candidates from the list get a seat if the party wins [X] seats in that state.
  
  The purpose of the first vote is to add a more local and personal component: There are 299 voting districts with similar population size, in which parties can nominate a candidate (who may also, but does not have to be on their list) and voters can express their preference for whom they would like to represent them. Candidates who win the first-vote plurality in their district get priority over their party's list in their state when the seats are allocated to the candidates. Sometimes a party has more candidates winning their district in one state than it gets seats based on its second-vote share in that state; this is what used to be called "Überhangmandate." In the past, Überhangmandate and additional seats for the other parties to keep proportionality with the second-vote share could lead to a much larger number of seats in the Bundestag. Following an electoral reform passed by the SPD/Greens/FDP government in 2023, however, the winning candidates with the lowest first-vote shares are now simply ignored in the seat allocation if their party did not win enough seats in their state based on the second-vote share. As 18 CDU/CSU candidates did not get a seat despite winning a first-vote plurality in their districts, their parties are already making noise about undoing the 2023 electoral reform.
  
  So, in short, the second vote decides how many seats each party gets, while the first vote has some influence on which candidates take these seats. If you think that this is complicated and confusing, I won't disagree with you. While the ballot, above the column for the second vote, clearly states that this vote is decisive for the seat distribution, I would not bet on every voter being aware of this. An earlier draft of the 2023 electoral reform actually proposed renaming the first vote to "Wahlkreisstimme" (voting district vote) and the second vote to "Hauptstimme" (main vote) to make it more clear, but for some reason unbeknownst to me this idea did not make it into the final law.
  
  Regarding the 5% rule, I agree with J.A. in Mainz that it is problematic if a sizable number of voters ends up without representation because their party didn't make it above 5% in the second-vote share. However, I will point out two things: First, unlike the gory details of seat distribution and allocation, the 5% rule is well known among voters, and the opinion polls before the election are good enough to see which parties will definitely come up short. So anyone voting for a really small party is either delusional or knows full well that this party will not make it to the Bundestag, which means that these voters are either really enthusiastic about that party or are protest voters who want to send a particular message (not unlike third-party voters in the U.S.). As an example, the Party for Rejuvenation Research ran only in Bremen, where less than 1% of the voters live, so it had no chance at all to make it to 5% of the total second-vote share unless the turnout outside of Bremen would have been severely depressed. It still received 304 votes. In addition, parties close to 5% in the opinion polls used to get a few votes from voters who preferred a large party but did not want its potential partner to come up short; however, this is not as relevant as it used to be from the 1950s through the 2000s, as it is less clear which parties might form a coalition government after the election.
  
  Second, a party with less than 5% of the second-vote share can still win a proportional number of seats if its candidates win the first-vote plurality in three or more voting districts. This helps parties with regional strongholds such as Die Linke and its predecessor, the Party of Democratic Socialism (PDS), who made it to the Bundestag in 1994 and 2021 with only 4.4% and 4.9% of the second-vote share, respectively, by winning a first-vote plurality in a few districts in (East) Berlin and Leipzig. The CSU (which runs only in Bavaria) might also benefit from this rule in future; in 2021, it finished just above 5% (5.19%) of the total second-vote share, while winning a first-vote plurality in 45 out of 46 districts in Bavaria. When the SPD/Greens/FDP government tried to abolish the 3-district rule with their electoral reform, the Constitutional Court ruled that it has to stay in place as long as the 5% rule is kept. I personally like the idea of keeping the 5% rule, but adding some kind of ranked-choice voting to the second vote; however, this would make an already complicated system even more complicated.
  
  Finally, I would like to share a side story regarding the voting process. As has been noted on Electoral-Vote.com a couple of times in the past, pretty much every eligible voter in Germany is automatically registered and gets a notification with instructions on where they can vote on Election Day and how they can request a mail-in ballot. Only voters without a registered domicile in Germany have to register in advance; this applies mainly to homeless persons and Germans living abroad. For previous elections, it was necessary to submit the registration form on paper. Fortunately for Germans abroad, it was possible to submit the form by e-mail this time. However, the mail-in ballots still had to be sent from the election offices to the voters and back, and the ballots obviously could not be printed before the parties had chosen their district candidates and filed their lists. Some legal procedures could not start before the snap election was formally called on December 27 (this could not happen more than 60 days before the election) and therefore could not be finished before end of January, so the ballots could not be printed before early February. My small hometown informed me that they received the printed ballots on February 6 and almost immediately sent out my ballot, but some large cities sent out the ballots only after the following weekend (i.e., less than 2 weeks before the election). Since I'm living close to Tel Aviv, I arranged for my ballot to be sent to the German embassy there by diplomatic mail, but voters in more remote places may have had to rely on the local post service (though I read that a few voters living on the Seychelles had their ballots sent to the German embassy in Nairobi, Kenya, and traveled there to cast their votes!).
  
  While I could finally cast my votes on February 18, just in time to send my ballot to Berlin by diplomatic mail and from Berlin back to my home town by the German post service, other voters received their ballots too late to send them back by diplomatic or regular mail. Apparently, a few voters did not give up and waited at airports for people flying to Germany to ask them to take the ballots with them, but it is likely that thousands or even tens of thousands of voters could not send their ballots back in time (and there is no grace period; any mail-in ballot that arrives at the local election office after 6:00 p.m. on Election Day is invalid). BSW actually considered filing a formal complaint about this, claiming that it might have made it above 5% if all the voters abroad had been able to cast their votes. It won't be possible to prove that claim, so there is no chance that the election has to be repeated partly or completely, but hopefully the process for voting from abroad will be improved a bit for the next election. I have to admit that I am quite annoyed at the (mostly CDU/CSU) politicians who, after the government collapse, immediately demanded that the snap elections be held in January. There is absolutely no way that anything would have worked out any better with even less preparation time and the Christmas holidays occurring in the middle of the process.
  
  
• F.S. in Cologne, Germany: Regarding the German election, it's worth noting that the threshold is also used in other countries like Sweden, Austria, Poland and Slovakia, though it's not always 5%. It's true that this threshold is undemocratic, but it leads to a more stable system. Germany tried a system without a threshold during the Weimar Republic. As a result, many parties were represented in the Parliament, and it was very difficult to form a stable government, which led to dissatisfaction with the democratic system and contributed to the rise of the Nazis. So Germany established a threshold after World War II.
  
  In the past, the preliminary results were very close to the final results, so it's extremely unlikely that the BSW will somehow gain enough votes to be above the threshold of 5%. If they had won over 5% of the vote, a government between the CDU/CSU and the SPD wouldn't be possible and the forming of a new government would be even more difficult than now (it would probably have meant a coalition between the CDU/CSU, the SPD and the Greens, even though the CSU ruled out a coalition with the Greens).
  
  It's clear that the major parties CDU/CSU and the SPD are in a deep crisis. In 2002, they won 77% together; in this election, they won only 44.9% together. For the SPD, it's the worst result in a national parliamentary election since 1887 (!), for the CDU/CSU it's the second-worst result ever (CDU/CSU were founded after World War II). Only in 2021 did they have a (slightly) worse result. The CDU/CSU had only modest gains despite the bad performance of the "traffic light" coalition. So the next German government has to be a good one, otherwise the AfD could indeed gain power 4 years from now.

Thanks for your contributions! (Z)