Direct mandate: Definition, legal classification, and significance in German electoral law
The direct mandate is a central element of the German electoral system and refers to obtaining a parliamentary seat by directly winning a constituency. The term is especially used in connection with elections to the German Bundestag and state parliaments. The following provides an in-depth legal analysis of the term.
Definition and legal foundations
Definition of terms
A direct mandate is the parliamentary seat that a candidate receives by obtaining the majority of votes in a constituency during a parliamentary election. In the German electoral system, the allocation of this mandate is based on the principle of majority voting in single-member constituencies.
Statutory basis
The direct mandate is regulated in the Federal Election Act (BWahlG). The relevant provisions are Section 5 BWahlG (“Voting and number of votes”) and Section 6 BWahlG (“Distribution of seats to state lists”). These regulations stipulate that one person is elected in each constituency and the candidate with the most votes receives the direct mandate (relative majority voting).
Relationship between first and second votes
In federal elections, each eligible voter has two votes. The first vote decides the direct mandate in the respective constituency. With the second vote, the voter selects a state list (proportional representation).
Functioning of the direct mandate
Constituency division and candidate nomination
For Bundestag elections, Germany is divided into 299 constituencies. In each constituency, parties or independent applicants can nominate candidates. The requirements and procedures for nomination are governed by the Federal Election Act and the Federal Election Regulations (BWO).
Majority requirement and allocation of mandates
The candidate who wins the majority of first votes in the constituency is elected (§ 5 para. 1 BWahlG). An absolute majority is not required; a relative majority (highest number of votes) is sufficient.
Connection to overhang and leveling seats
If a party wins more direct mandates than it would be entitled to based on the second vote results, so-called overhang seats arise. To balance this, leveling seats are allocated in accordance with the Federal Election Act to maintain proportional representation.
Significance of the direct mandate in the electoral system
Personalization of parliamentary elections
By means of the direct mandate, the majority voting element is integrated into the proportional representation system. It is intended to ensure that voters have a direct contact person in parliament who comes from their constituency.
Significance for party diversity
Securing a direct mandate also enables parties that fail to clear the five percent threshold to enter the Bundestag, provided they win at least three direct mandates (§ 6 para. 3 BWahlG, so-called basic mandate clause).
Legal specificities of the direct mandate
Link to the basic mandate clause
A party that receives less than five percent of the second votes nationwide but wins at least three direct mandates is nevertheless allocated seats in the Bundestag based on its share of second votes (basic mandate clause).
Succession in case of mandate loss
If a directly elected member leaves the Bundestag, the seat is generally not filled from a party list; the direct mandate remains vacant until a by-election elects a new member directly, provided such a by-election is legally required or ordered.
Judicial review and challenge
The election of a direct candidate may be challenged by way of an electoral scrutiny complaint according to § 49 BWahlG. The initial review is conducted by the Bundestag, and subsequently, if applicable, by the Federal Constitutional Court.
Direct mandate in state parliamentary and local elections
Analogous application in state parliamentary elections
Direct mandates are also used in many state parliamentary elections. The regulations often follow federal electoral law, but may differ regarding the number of constituencies and specific details.
Distinction at the municipal level
In the municipal sphere (local council or mayoral elections), comparable majority voting systems exist; however, legally, the term “direct mandate” is predominantly used in the supraregional contexts mentioned above.
International comparison
Comparable direct voting systems exist in many other countries, such as in the United Kingdom (“first-past-the-post”) or in French parliamentary elections. The specific linkage to proportional representation (“personalized proportional representation”) is a distinctive feature of the German model.
Literature and further regulations
Key legal foundations
- Federal Election Act (BWahlG), especially §§ 5, 6
- Federal Election Regulations (BWO)
It is also recommended to consult the following sources:
- “Elections and Electoral Law in Germany” (Federal Agency for Civic Education)
- Bundestag printed papers on electoral law reform
Summary
The direct mandate in German electoral law enables candidates to enter parliament directly by winning a constituency majority. It is clearly regulated by the Federal Election Act and represents a fundamental element of the personalized proportional representation system. Its legal structure affects not only the determination of the election results, but also the formation of overhang and leveling seats, the basic mandate clause, and the legal consequences of holding and reviewing a mandate.
The direct mandate helps connect voters with parliament and significantly shapes the composition of parliament, particularly in closely contested elections or for small parties. Its legal significance goes far beyond the mere election result and is crucial for ensuring the functioning of the representative system in Germany.
Frequently Asked Questions
How is the direct mandate allocated legally?
The direct mandate is allocated in German federal electoral law pursuant to the Federal Election Act (BWahlG) through majority voting in the constituencies. Each voter has a first vote with which they elect a constituency representative. Candidates are elected by relative majority, meaning the candidate with the highest number of first votes receives the direct mandate. According to § 5 para. 1 BWahlG, constituency candidates are subject to certain admission criteria, such as support from a specified number of eligible voters or nomination by a party. After the election result is determined as per § 66 BWahlG, the mandate is awarded to the first-place candidate, even if they do not obtain an absolute majority. The exact allocation is handled by the district election committee, which prepares an election record and reports it to the federal returning officer.
Under which legal conditions can a direct mandate be revoked?
A direct mandate that has been allocated can only be revoked under strictly regulated legal conditions. Relevant provisions can be found in the Election Scrutiny Act (BWahlPrG). The validity of the election or the allocation of a direct mandate can be challenged by any eligible voter, a constituency candidate, or parties pursuant to §§ 2, 3 BWahlPrG. Revocation may particularly be considered if there have been significant legal violations during the conduct of the election or the determination of the election result, such as manipulation, incorrect vote counts, or unlawful campaigning. The review is initially handled by the Bundestag; an appeal against this decision may be made to the Federal Constitutional Court (§ 48 BWahlG, Article 41 Basic Law). The revocation of a direct mandate requires substantial breaches that may have influenced the election result.
Are there legal particularities when running for a direct mandate compared to a state list?
Electoral law distinguishes legally between constituency nominations (direct mandate) and state lists. A candidate may stand both on a party’s state list and as a constituency candidate (§ 18 para. 3 BWahlG). The legal requirements for the admission of a constituency candidate differ: While nomination for a state list is centrally organized by parties, an individual can also run for a direct mandate without party affiliation (§ 20 BWahlG). Whereas state lists may require state-wide supporting signatures, direct mandate candidacies require signatures only from the relevant constituency. Furthermore, the law explicitly prescribes separate nomination procedures and deadlines for both types of candidacy.
What are the legal consequences of resigning or relinquishing a direct mandate?
An elected member may resign their mandate at any time by submitting a written declaration to the President of the Bundestag (§§ 46, 47 BWahlG). However, the legal consequences differ from those for a list seat: Since the direct mandate is personally awarded in the constituency, there is no automatic succession as with a state list seat. Instead, a by-election in the relevant constituency is required (§ 48 BWahlG), unless the timing is very close to the next regular election. The deadlines and procedures are determined individually by the electoral laws and implementation regulations of the respective state election authorities.
Can parallel mandates be held legally, i.e., can one enter several parliaments with a direct mandate?
German law expressly prohibits, pursuant to Article 137 Basic Law and the respective parliamentary acts, the simultaneous holding of mandates (double mandate) in both the Bundestag and a state parliament. If a directly elected Bundestag mandate is accepted, any existing state parliament mandate must be relinquished by declaration. However, holding several municipal mandates at the same time is permitted. If there is nonetheless a mandate overlap, state and federal parliamentary administrations recognize the resignation as an automatic legal consequence. Violations can lead to forfeiture of the mandate without the need for a new election by those affected. Changing from one mandate to another (e.g., Bundestag to state parliament or vice versa) is also subject to strict formal requirements as well as notification and deadline obligations.
What legal provisions govern by-elections in the event of the death of a direct mandate holder?
If a directly elected constituency representative dies, § 48 BWahlG expressly requires a by-election. The by-election must be held if at least six months remain in the legislative period, provided that the constituency would otherwise remain without representation. The exact procedure follows the same legal provisions as a regular election: new nominations and a full new vote in the affected constituency are required. By-election dates are determined by the federal returning officer in consultation with the federal government. Legally, the by-election is equivalent to a full Bundestag election in the constituency.
