Definition and Legal Principles of the Overhang Mandate
The overhang mandate is a central concept in German electoral law, especially in connection with federal and state elections. It refers to a seat allocated to a party in a federal state when that party wins more direct mandates through first votes in constituencies than it would be entitled to based on the second vote result and the proportional seat allocation system. The overhang mandate is therefore a systematic consequence of the so-called personalized proportional representation system. The legal regulations and effects of overhang mandates have repeatedly occupied the Federal Constitutional Court and have been the subject of extensive reforms of election law in Germany.
Legal Basis and Statutory Regulation
Federal Elections and the Federal Election Act
The legal basis for overhang mandates is provided by the Federal Election Act (BWahlG). Particularly relevant are Sections 6 and 7 BWahlG, which regulate the allocation of seats in the German Bundestag. Under the principle of personalized proportional representation, seats in the Bundestag are assigned both to candidates directly elected in the 299 constituencies by relative majority (first vote) and to party lists according to proportional representation based on second votes.
The core issue and legal reason for overhang mandates is that the mandates won by direct candidates (direct mandates) are credited against a party’s total seat entitlement. If a party wins more direct mandates in a federal state than it would be entitled to according to its second vote result, overhang mandates arise.
Importance of the Second Vote
The second vote is primarily decisive for the allocation of seats in the Bundestag. Subject to the 5 percent threshold, parties receive a number of seats proportional to their share of the votes. These seats are first filled with the party’s direct candidates. Any excess leads to overhang mandates, which exceed the regular number of seats in parliament.
State Lists and Allocation of Seats
Seats are allocated internally by party according to state lists (§ 6 (2) BWahlG). If a party’s number of direct mandates in a federal state exceeds the number of seats allocated by proportional representation, the law stipulates that the direct mandates are retained. The total number of members of the Bundestag then increases by the number of overhang mandates.
Constitutional Assessment and Reform Discussion
Decision of the Federal Constitutional Court
The Federal Constitutional Court has repeatedly dealt with the constitutionality of overhang mandates, as they can potentially impair the equality of elections and the equal opportunity of parties. In its rulings (for example BVerfG, 25 July 2012, ref. 2 BvF 3/11 et al.), the Court stated that significant overhang mandates can violate the principle of equal voting rights (§ 38 (1) sentence 1 GG). The Court called for corrections to prevent unjustified distortions of election results.
Compensatory Mandates
As a result of constitutional court decisions, the Federal Election Act was revised. Since the 2013 reform, overhang mandates have led to a proportional increase in parliament through so-called compensatory mandates. These seats are allocated to other parties to restore the proportionality of mandates in the Bundestag according to party proportions (§ 6 (5) BWahlG). Thus, the principle of proportional representation is upheld, although the overall number of seats in the Bundestag increases.
Practical Effects and Significance within the Electoral System
Consequences for the Size of the Bundestag
Overhang mandates, and the associated compensatory mandates, have led to the Bundestag regularly exceeding its original standard size of 598 seats. In the legislative period 2021-2025, for example, the Bundestag consists of 736 members, which is largely attributable to overhang and compensatory mandates.
Political Importance and Criticism
The overhang mandate system is evaluated differently. Proponents emphasize that it strengthens the regional connection of members of parliament through direct election. Critics regard it as a reason for the inflation of parliament and potential distortion of election results if there is no effective compensation through compensatory mandates.
Reform Efforts
In political discourse, proposals are regularly made to limit the number of overhang mandates or to fundamentally reform the electoral system in order to achieve a permanent reduction in the size of parliament. Most recently, in 2023, the legislature passed a further reform, the “Federal Election Act 2023,” to regulate the allocation of seats and the occurrence of overhang mandates.
Overhang Mandates in State Elections
The overhang mandate system also exists in most federal states, sometimes with differing statutory provisions. Details are governed by the respective state election laws. Many states have introduced compensatory mechanisms to preserve the principles of proportionality in seat allocation.
Summary
Overhang mandates are a key feature of personalized proportional representation in Germany. They arise when a party’s success with direct mandates does not exactly match its second vote result (party proportionality). Legal regulations provide for compensatory mandates to address these imbalances. Dealing with overhang mandates is one of the main challenges of German electoral law and the subject of intense political and legal debate.
Further Legal Provisions
- Basic Law for the Federal Republic of Germany (Art. 38 GG)
- Federal Election Act (BWahlG), in particular § 6 and § 7 BWahlG
- State Election Laws of the Federal States
Literature and Case Law
- Federal Constitutional Court, judgment of 25 July 2012, ref. 2 BvF 3/11 et al.
- Federal Election Act in its respective current version
- Commentaries on the Federal Election Act and electoral law in Germany
This article provides a comprehensive, objective and detailed account of the term overhang mandate, its legal basis, development, and significance in the German electoral system.
Frequently Asked Questions
How is the overhang mandate classified under constitutional law?
The overhang mandate has particular constitutional significance as it affects the principle of equal suffrage under Art. 38 (1) sentence 1 GG (Basic Law). The Federal Constitutional Court has repeatedly affirmed that the occurrence of overhang mandates within the framework of personalized proportional representation is not per se unconstitutional, as long as the impact on the seat distribution in the Bundestag does not result in violation of the principles of equal suffrage and equal opportunities. In particular, the judgment of 25 July 2012 (BVerfGE 131, 316) made clear that overhang mandates are permissible as long as a compensatory mechanism exists that ensures an appropriate approximation to proportional representation. This was implemented by the introduction of compensatory mandates in the Federal Election Act.
Which statutory provisions are decisive for overhang mandates?
The relevant statutory provisions for overhang mandates are found in the Federal Election Act (BWahlG), foremost in §§ 6 and 6a BWahlG. These provisions stipulate that a federal state sends as many direct members of the Bundestag as the party has directly won constituencies there—even if this number exceeds the entitlement resulting from the second vote share (overhang). Furthermore, the BWahlG stipulates that by awarding compensatory mandates under § 6a BWahlG, the overall proportion in the Bundestag corresponds to the second vote distribution chosen by voters. These legal provisions have been repeatedly adjusted to comply with the rulings of the Federal Constitutional Court.
Are there upper limits for the number of overhang mandates?
The Federal Election Act explicitly does not provide for a fixed upper limit for overhang mandates. However, due to the requirements of proportional representation and constitutional court guidelines, there is a de facto limitation since overhang mandates must be compensated by compensatory mandates for other parties. The amendments to electoral law that have been in force since 2023 also include regulations to limit the total number of members of the Bundestag, which in turn results in a limit for overhang mandates as well. In extreme cases, the compensation mechanism may lead to a significant expansion of the Bundestag, which regularly prompts discussions about reform.
How are overhang mandates officially determined in the election result?
The determination of overhang mandates is carried out as part of the official final count by the Federal Election Committee in accordance with § 42 BWahlG. First, it is established how many direct mandates a party has won through the first vote. This number is then compared to the number of mandates the party is entitled to based on the total second votes. If the number of directly won constituency mandates (first vote) for a party in a state exceeds the mandates allocated according to the second vote result, overhang mandates arise. These are transparently documented and published in the official result. The necessary compensatory mandates are then allocated.
What is the impact of overhang mandates on the distribution of seats in the Bundestag?
Overhang mandates have a direct impact on the size of the Bundestag, as they lead to additional seats beyond the regular seat allocation. As a result, the ratio between parliamentary groups in the Bundestag could be shifted if no compensatory mandates were allocated. Since the reform of electoral law, compensatory mandates are mandatory, so that the number of seats ultimately held by parties in the Bundestag corresponds proportionally to their second vote results. Thus, proportional representation is preserved, even if it may lead to a significant increase in the total number of members of parliament.
What legal controversies are associated with overhang mandates?
In legal scholarship, overhang mandates are a recurring subject, particularly with regard to compatibility with equal suffrage (Art. 38 GG). One issue was the extent to which a party is advantaged by overhang mandates beyond what its second vote result justifies, which could distort the will of voters. The Federal Constitutional Court has reiterated in its case law that permanent and significant overhangs without compensatory mandates are unacceptable. In addition, there are ongoing discussions about how practical and efficient the legal mechanisms are for compensating overhangs. The impact on the size of the Bundestag and the resulting costs are also regular topics of legal and political debate.
Can overhang mandates also arise in state elections?
Yes, overhang mandates are not exclusive to federal elections. Many federal states also apply a personalized proportional representation system, under which overhang mandates can arise, for example in Bavaria, Baden-Württemberg, or North Rhine-Westphalia. The respective state election laws govern these mandates independently and sometimes also provide for compensatory mechanisms. Here too, the constitutional standards of the Federal Constitutional Court apply analogously, especially with regard to adherence to the principles of electoral law and equal opportunity. However, differences in design and compensation modalities are possible due to the legislative competence of the states.
