Definition and significance of the first vote
Die First Vote is an essential element of German electoral law for Bundestag elections and many state parliamentary elections. In the context of the personalized proportional representation system, the first vote constitutes the individual right of voters to directly elect a constituency representative. Unlike the second vote, which is used to choose a party’s state list, the first vote is tied directly to a specific individual. The first vote significantly influences the personal composition of the respective parliament and fulfills the principle of personalized representation.
Legal Basis for the First Vote
Legal Sources
The legal framework for casting and processing the first vote can be found in:
- Basic Law for the Federal Republic of Germany (GG)
- Art. 38 GG: Principle of general, direct, free, equal, and secret elections to the Bundestag.
- Federal Election Act (BWG)
- Sections 1, 4-9a BWG: Provisions on the electoral system, division of constituencies, candidacy, and electoral procedures.
- Federal Election Regulations (BWO)
- Detailed regulations on the conduct of elections and vote counting.
Function and Meaning under the Federal Election Act
According to § 1 BWG, elections to the German Bundestag are held under the principles of proportional representation associated with individual candidate voting. With the first vote, the eligible voter decides which constituency candidate should represent them in the Bundestag. The constituency candidate with the highest number of votes is deemed elected according to § 5 (1) BWG (majority voting system).
Mechanics of the First Vote in the Electoral System
Constituency Division and Candidacies
For Bundestag elections, Germany is divided into 299 constituencies. In each constituency, a set number of individual candidates—nominated by parties or running as independents—compete against each other. Every eligible voter has one first vote per election, used to elect a specific person. Giving multiple votes or marking more than one candidate renders the first vote invalid.
Majority Voting (Individual Candidate Election)
The first vote is allocated according to the principle of relative majority: The candidate with the most first votes in a constituency wins a direct mandate in the Bundestag—regardless of whether they achieve an absolute majority. This is also called a ‘winner-takes-it-all’ system. Accordingly, the total number of constituencies means that first votes determine at least 299 members of the Bundestag.
Connection with the Second Vote
The German electoral system combines individual candidate voting (first vote) with list voting (second vote). While the first vote stands for direct representation of the constituency, the allocation of seats in the Bundestag is primarily governed by the proportion of second votes. Direct mandates won through the first vote are credited to the party’s total seat quota.
Legal Effects and Special Features of the First Vote
Overhang and Compensation Seats
According to § 6 BWG, it may happen that a party wins more direct mandates (through first votes) than it would be entitled to based on the second vote results. This leads to so-called overhang seats. To preserve proportional representation, compensation seats are allocated to other parties to restore balance. The resulting enlargement of the Bundestag is a direct consequence of the majority decision of citizens through the first vote.
Impact on the Composition of Parliament
The first vote gives both independent and party-affiliated direct candidates a chance to enter parliament. Therefore, it significantly influences diversity, regional representation, and the potential independence of individual members.
Casting the Vote and Validity
The first vote is cast on the official ballot, and only one vote may be given to one candidate per constituency. The first vote is invalid if more than one candidate is marked or if the voter’s intention is not ascertainable. The validity of the second vote remains unaffected by the first vote.
Constitutional Law Analysis
Principle of equality and directness
The design of the first vote takes into account the Federal Constitutional Court’s principles regarding equality of voting rights and equal opportunities for parties. Since the majority voting principle applies to the first vote, this can in practice cause some distortion of the equality principle. However, through the system of compensation seats and seat allocation based on second votes, a balanced parliamentary proportion is sought.
Legal Protection and Election Review
In case of disputes over the validity of first votes cast, incorrect counting, or irregularities in the election process, legal recourse is available through election review proceedings under Art. 41 GG. In this context, an objection to the election result can be filed with the Bundestag, and further review by the Federal Constitutional Court is possible.
Comparison and Special Regulations in State Parliamentary Elections
First Vote in State Election Laws
Many state electoral systems—such as those in Bavaria, Hesse, and Brandenburg—have electoral systems similar to the Bundestag election. The first vote plays a comparable role for electing direct candidates in constituencies. Differences exist in the delineation of constituencies, the number of direct mandates allocated, and specific rules for the distribution of compensation seats.
Municipal Levels
At the municipal level, the first vote is generally not used. Here, either pure list elections or cumulative and panachage voting systems predominate.
Historical Development and Reform Debates
Introduction of the Two-Vote System
The two-vote system was introduced in the 1956 Federal Election Act to ensure both direct personal representation and proportional party representation in the Bundestag. From the outset, the first vote was designed to strengthen the link between voter and representative at the constituency level.
Current Reform Efforts
Debates over reducing the size of the Bundestag and limiting overhang and compensation seats indirectly affect the function of the first vote. Reforms aim to make the operation of the first vote more efficient and the size of parliament more predictable.
References and Sources
- Federal Election Act (BWG), current version
- Federal Election Regulations (BWO), current version
- Basic Law for the Federal Republic of Germany (GG)
- Federal Agency for Civic Education: Electoral System of the German Bundestag
- Federal Returning Officer: Information about the Bundestag election and first vote
A legal analysis of the first vote makes it clear that it is a central component of Germany’s democratic representative electoral system. Its precise legal design aims to maintain the balance between individual representation and proportional representation and thus optimally secure parliamentary legitimacy.
Frequently Asked Questions
How is the right to cast the first vote legally regulated?
The right to cast the first vote is established in the Federal Election Act (BWahlG) and the Federal Election Regulations (BWO). In principle, all Germans as defined in Article 116(1) of the Basic Law who are at least 18 years old on election day and have lived in Germany for at least three months are eligible. The first vote may only be cast in person and only once. Section 14 BWahlG explicitly stipulates that voting rights must be exercised personally, thereby excluding delegation to others. In addition, section 34 BWahlG specifies that voting must be secret. Violations, such as multiple voting or coerced voting, are punishable and can be prosecuted as electoral fraud or obstruction of elections under section 107a of the German Criminal Code (StGB).
Are there legal requirements for the design of the ballot for the first vote?
Yes, the legal basis for this can be found in § 30 BWahlG and § 49 BWO. Ballots must be designed so that eligible voters can clearly and unambiguously assign their first vote to one of the listed direct candidates. The order of names on the ballot is generally by constituencies and, within a constituency, alphabetically by the names of parties, followed by the names of individual candidates. The purpose is to ensure transparency and traceability of the election. Manipulations or misleading representations on the ballot are prohibited and can make the validity of an election contestable.
Under what legal conditions is a cast first vote invalid?
The legal grounds for invalidity of the first vote are set out in § 39 BWahlG. A first vote is particularly invalid if more than one constituency candidate is marked on the ballot, if the voter’s intention is not clearly ascertainable, or if the ballot contains an addition or reservation. Furthermore, ballots that are obviously not officially produced by the election authority or are marked in a way that endangers ballot secrecy are declared invalid. Determining invalidity is the responsibility of the election committee.
What legal options exist to lodge an objection to the result of the counting of first votes?
According to § 49 and § 50 BWahlG, there is the right to lodge an objection to the result of the election—and therefore also directly to the counting of first votes. Persons entitled to object are eligible voters, eligible voters residing abroad, parties, as well as state election officials and the federal election official. The objection must be submitted to the German Bundestag within two months of the announcement of the election result. The Election Review Committee of the German Bundestag reviews the objection for violations of electoral regulations; serious errors or systematic legal violations in handling first votes could affect the election result and, in extreme cases, lead to a repeat election.
What are the legal consequences of intentionally falsifying a first vote?
Intentional falsification of a first vote constitutes a criminal offense, punishable under § 107a StGB (electoral fraud). The law particularly defines electoral fraud as the deliberate falsification or manipulation of ballots or deception about identity during personal voting. Criminal penalties include fines or imprisonment for up to five years. Additional consequences can include the loss of active and passive voting rights (§ 45(5) StGB).
What legal regulations exist regarding accessibility in exercising the first vote?
According to § 50(3) BWahlG and § 16 BWO, it must be ensured that polling stations and voting procedures are accessible. This includes providing accessible information about candidates, tactile ballot templates for the visually impaired, and accessible polling stations. In cases of physical impairment, a trusted election assistant may provide support, but assistance must be limited to what is strictly necessary in order to preserve ballot secrecy. Violation of these provisions may render the election contestable.
