Concept and significance of the second vote
Die Second vote is a central element of German electoral law in federal, state, and in some cases, municipal elections. It is subject to various legal regulations and forms the core of proportional representation in the distribution of seats in the respective parliaments. While the first vote is used for electing a direct candidate in a constituency, the second vote largely determines the party-political composition of parliament.
Legal foundations of the second vote
Statutory basis
The legal foundations of the second vote are primarily found in the Federal Election Act (BWahlG) for federal elections as well as in the respective state election laws for state elections. Section 6 BWahlG explicitly governs the allocation of seats to parties according to the second vote results. Procedural rules are also established in the Federal Election Regulations (BWO).
Function within the electoral system
Germany uses a so-called personalized proportional representation systemfor federal elections. This combines elements of majority voting (through the first vote) with those of proportional representation (through the second vote), whereby the second vote is weighted more heavily in the outcome.
- First vote: Election of a direct candidate in the constituency (majority vote)
- Second vote: Election of a party or its state list (proportional representation)
The distribution of seats in the Bundestag is initially determined solely by the proportional share of second votes. The seats allocated to a state association of a party based on second votes are then filled by the elected candidates from the constituencies and lists.
Electoral threshold
A key legal barrier is the five-percent threshold according to Section 6 (3) BWahlG. Only those parties that receive at least five percent of the valid second votes cast or win a direct mandate in at least three constituencies will enter parliament proportionally. This regulation aims to prevent excessive fragmentation of parties.
Overhang and compensatory mandates
If a party receives more direct mandates through the first vote in a federal state than it is entitled to based on the second vote result, so-called overhang mandatesarise. To maintain proportionality, so-called compensatory mandates are allocated under the principle of proportional representation in accordance with Section 6 BWahlG.
Constitutional aspects of the second vote
Principles of democracy and electoral law
The system of the second vote is closely related to the electoral principles enshrined in the Basic Law, especially with the principle of equality and directness of elections (Art. 38 GG). The two-vote system has been reviewed several times by the Federal Constitutional Court; it was amended in particular in the context of safeguarding the equal value of each vote’s outcome (see BVerfGE 121, 266).
Proportional voting and list voting rights
By casting the second vote, the voter does not directly elect individual persons, but a party (Section 27 BWahlG). The order of the candidates proposed on each state list thus becomes a significant element in the allocation of mandates. The formation of lists by parties is subject to the democratic requirement of internal party order and transparency.
Second vote in state and municipal elections
Differences among the federal states
While the basic principle of the second vote is applied nationwide, there are sometimes significant differences in state election laws and regulations. Some federal states allow panachage and cumulation or provide other options for shaping the composition of their parliaments based on the second vote.
Application at the municipal level
At the municipal level, a comparable system is applied, but with significant variations regarding list voting, open or closed lists, and different forms of personalized proportional representation.
Importance of the second vote for election results and parties
Determination of the balance of power
The second vote is decisive for the allocation of seats to the competing parties and thus for the balance of power in parliament. Smaller parties can, provided they pass the threshold, participate proportionally to their second votes in shaping political will.
Split voting
The electoral law permits casting the first and second votes for different parties (split voting). This gives voters differentiated influence over the personnel and party-political composition of parliament.
Legal debate and points of criticism
Debate about overhang and compensatory mandates
Overhang and compensatory mandates resulting from the two-vote system have led to a significant increase in parliamentary seats in the past and have repeatedly been the subject of legal and political debate up to corrective guidelines from the Federal Constitutional Court.
Debates about the electoral threshold
The electoral threshold has been widely criticized, for example due to potential effects on equal opportunities for political groups and the representation of smaller parties.
Summary
The second vote forms the heart of the German proportional representation system and is at the center of all statutory, political and constitutional considerations regarding electoral law. Its design decisively influences the party-political composition of the representative body, secures the democratic legitimacy of parliament, and is subject to ongoing development in light of case law from the Federal Constitutional Court and political discourse.
Frequently asked questions
Does my second vote lapse if I vote invalidly or do not cast it?
The second vote lapses if it was not cast or does not comply with formal requirements, for example due to multiple markings, damage to the ballot paper, or clear marking deficiencies. If the second vote is missing, only the first vote is counted, provided it was cast correctly. Legally, the Federal Election Act (Section 39 BWahlG) stipulates that only valid votes cast are considered for seat allocation. An uncast or invalid second vote does not affect the validity of the voter’s overall voting process, but only concerns the counting of party votes. Every eligible voter retains the right not to use the second vote.
Is it legally permissible to cast the first and second votes separately?
Voters are allowed to allocate the first and second vote independently. There is no obligation to cast both votes together or for the same party or an associated direct candidate. The Federal Election Act (Section 30 BWahlG) explicitly provides that the first and second votes are to be cast and counted separately. It is permitted to cast only one of the two votes or to allocate them to different parties or candidates, without this affecting the validity of the vote.
What are the legal consequences of a false marking in the second vote?
A false marking occurs, for example, if more than one cross is made in the second vote or if it is unclear which party was intended. In this case, only the second vote is deemed invalid (Section 39 BWahlG, Section 52 BWO), while the first vote remains valid if it was cast correctly. An intentional or accidental false marking has no effect on voting eligibility or on any valid votes already cast in other categories.
What happens to second votes if a party fails to clear the five-percent threshold?
In legal terms, according to Section 6 (6) BWahlG, second votes for parties that receive less than five percent of the valid second votes and do not fulfill the basic mandate clause (at least three direct mandates) are not considered in the allocation of seats. These votes are effectively lost for the allocation of mandates, but they still impact the calculation of percentage shares and the absolute distribution of remaining votes. Legally, this ensures that only parties with significant voter support are entitled to seats in the Bundestag.
Does correcting a mistake on the ballot paper (e.g., erasing or crossing out) affect the validity of the second vote?
As a rule, Section 39 (1) BWahlG and Section 52 BWO require that the intention behind the vote must be clearly recognizable. If erasures, crossings out, or corrections are made, the ballot is nevertheless considered valid if the voter’s intention remains ascertainable without doubt. However, if there is any uncertainty about the intention, the second vote is declared invalid. Purely formal corrections that do not cast doubt on the chosen option do not affect the legal validity of the second vote.
Is a subsequent change or withdrawal of the second vote legally possible?
After the ballot paper has been deposited in the ballot box or after it has been returned in postal voting, a subsequent change or withdrawal is excluded (Section 39 BWahlG). Casting a vote is legally binding and final once the voting act has taken place. An application for correction, replacement or withdrawal of the second vote is neither provided for nor permissible in the legal process.
Can second votes be reviewed as part of an election challenge?
In the context of an election challenge, the validity and counting of second votes can be legally reviewed (Sections 49 ff. BWahlG). Objections to the vote count, declarations of invalidity, or incorrect counting can be investigated in more detail. If demonstrable legal errors are found, affected ballot papers can be re-evaluated or incorrect decisions reversed. Such a process is, however, subject to strict legal regulations and deadlines and requires a formal election challenge before the electoral review court.
