Germany’s electoral law and overhangs

In response to a query about a challenge to Germany’s electoral law, Espen Bjerke has the following reply. (All of what follows is from Espen.)
It seems the deadline to fix the problem of “negative vote-values” will be missed, meaning that Germany will be without a valid electoral law starting 1 July. The deadline was imposed by the Constitutional Court three years ago when it ruled against that inherent paradox.

From what I just read it seems the problem is that the CDU wants to keep its current advantage but has been unable to come up with changes that would be constitutional as well as practical. The coalition parties say they will introduce something after the summer break, so that this rather Merkelian disarray is ended.

For those who read some German, is probably the best source on this, especially since they were among those who brought the suit in the first place.

7 thoughts on “Germany’s electoral law and overhangs

  1. Perhaps it would be simplest if a party wins, say, 20 district seats but warrants only 18 on a proportional basis, to unseat its two local winners with the smallest pluralities (fewest votes, smallest percentage of all eligible voters, closest margin over the runner-up, whatever).

    This would make MMP more of a flexible list system where the local heroes (at least those with a plurality in their district) jump to the top of the Land list, from largest to smallest vote scores, followed by the list-only candidates in the order as originally ranked.

  2. The trouble with MMP is that you hold an old-fashioned FPTP election and then superimpose a proportional election to try and compensate for the mess you made in the FPTP election. Along the way quite large groups of electors have their votes binned because of the threshold. It is seriously hard to see why you would not simply hold a proportional election in the first place.

    • In evaluating MMP in comparison with pure PR, one should keep the two-tier compensatory feature of the system separate from the threshold. MMP need not have a legal threshold, and many PR systems do have one, or else use low district magnitudes that establish a relatively high “effective” threshold.

      The advantage of MMP, and even of overhangs, is that it encourages various forms of “localism” in ways that pure PR does not — unless it is of low-magnitude, in which case one sacrifices proportionality. For that reason, it is clear that unseating members who have won their nominal-tier seats fairly and squarely would be anathema (to advocates of MMP), regardless of whether such wins put a party above its proportional entitlement, based on party-list votes. It would mark a really fundamental change of the system, rather than merely a reform to “improve” it.

      MMP is an attempt around that tradeoff across the intra-party and inter-party dimensions of representation. Of course, one can argue that the attempt around it fails (an empirical question on which there is more and more research suggesting it indeed works), or that the values that MMP promotes distinct from those of a comparably proportional PR system are not worth the effort (a normative question). But those are different arguments from the one I am making here, which is that the different aspects of MMP, as with any system, need to be evaluated on their own merits.

      (Tom’s proposal, by the way, would indeed transform MMP into a variant of flexible lists such as is used in Slovenia and by many parties in Denmark. In these cases, the use of list PR but with “nominating districts” is yet another way around the tradeoff across the two dimensions of representation. — in this case one that prioritizes party proportionality when there is a conflict between that goal and local/personal representation. Unfortunately I am not aware of specific research that addresses these questions.)

  3. I disapprove mightily of those who point out spelling errors on the Interwebs, but the ‘flexible lusts’ of Slovenia and Denmark is a typo that a saint could not ignore.

  4. > ‘encourages various forms of “localism” in ways that pure PR does not – unless it is of low-magnitude, in which case one sacrifices proportionality’

    What about smallish districts (4-8 seats) but a nationwide allocation as in Sweden or South Africa? A party would get to keep any seats it won on whole (nationwide) (Droop) quotas in a particular district, but the unfilled seats would then be allocated (using highest averages) among those over a certain nationwide threshold [*] (ie, no overhangs) and then sub-allocated to a district. My point being that something like that would ensure both localised representation (esp with open or flexible lists) AND nationwide proportionality.

    [*] I actually don’t support thresholds as absolute cutoffs – where, say, a party with 5.001% gets 5% of the seats but a party with 4.999% has all its ballots thrown in the bin. What I would prefer instead is that votes for parties under the threshold get reduced in value but still counted. A tradeoff could be a higher threshold than would be tolerable if it were absolute. If, frex, the threshold were 10%, then a party with 8% would be treated as polling 6.4%; a party with 5% treated as polling 2.5%; a party with 9% treated as if it had polled 8.1%; and so forth. Obviously, a party with under 3% (re-weighted as 0.9%) is unlikely to win any seats if there are fewer than a thousand on offer, but this is a function of the size of the parliament rather than plucking an all-or-nothing figure out of thin air.

  5. Tom, it depends what the justification is for thresholds. If the point is to encourage like-minded parties to merge, then reduced-value votes could work. But it doesn’t help the other common reasons for thresholds: excluding extremists, and reducing the chance of a tiny party having the balance of power and “holding the government hostage”.

    (I don’t dispute that having a sharp threshold, below which votes are wasted, could have unfortunate effects. I think someone here once suggested a secondary-list-vote, to take effect only if the first choice fell below the threshold. I guess once we’re using a Frankenstein system like MMP, it can’t hurt to throw in a few bits and pieces of Supplementary Vote, too!)

    Returning to the main issue: As Espen mentioned the last time this issue came up, the court’s problem with Germany’s system is not the disproportionality of overhangs per se, but rather a specific situation in which votes have negative value. As a reminder, this is the sort of thing that happened in the 2005 election, due to a deferred vote in Dresden I district in Saxony. The CDU had already won enough constituency seats in Saxony to ensure they would have an overhang. Had the CDU received many list votes in Dresden I, it would have altered the intra-party allocation of pre-overhang seats between Länder. The CDU would lose one seat from another Land without an overhang, and gain a pre-overhang seat in Saxony. But since the CDU was guaranteed an overhang in Saxony, an extra pre-overhang seat there does them no good, and they would have a net loss of one seat. Thus, list votes in the deferred election actually hurt the CDU, ie: had a negative value.

    It is possible to repair this problem without fixing the disproportionality caused by overhangs. One solution would be to simply calculate results in each Land separately, instead of calculating the results globally, and then allocating seats between Länder. (Deferred elections could still cause list votes to have effectively zero value, but not negative value.) It might also be enough to release full results only after any deferred elections, which would make it impossible to identify which votes had negative value.

  6. > “But it doesn’t help the other common reasons for thresholds: excluding extremists, and reducing the chance of a tiny party having the balance of power and “holding the government hostage’

    Well, it might. If a ratio of (say) 5-46-49 in votes cast becomes a ratio of 2.5-46-49 in seats allocated, you have a greater chance of the largest party winning an absolute majority (while – unlike FPTP – still ensuring that it’s the largest party and not the runner-up that wins; that it wins a thin majority and not a landslide; and that it has to have around 47-48 of the votes… 35% won’t do).

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