Should college elections be banned

Bundestag election 2017

Frank Decker

Prof. Dr. Frank Decker, born in Montabaur in 1964, has held a chair for political science at the Institute for Political Science and Sociology at the Rheinische Friedrich-Wilhelms-Universität Bonn since 2001. Since 2011 he has also been Scientific Director of the Bonn Academy for Research and Teaching of Practical Politics (BAPP).
[email protected]

Each voter has two votes - one person is elected with the first vote, but the second vote is decisive for the composition of the Bundestag (& copy picture-alliance, Ulrich Baumgarten)
The legal basis of the Bundestag election is laid down in the Basic Law, the Political Parties Act (PartG), the Federal Election Act (BWahlG) and the Federal Electoral Code (BWO). Certain aspects of the form of government, such as the length of the legislative period, are also covered by the right to vote. In common parlance, the term is often equated with the "electoral system", which, however, only describes a partial aspect of the right to vote. The Basic Law is satisfied with laying down general "principles of electoral law" which are intended to guarantee the democratic character of the election. According to Art. 38 (1), these are generality, immediacy, freedom, equality and secrecy of the election, to which the public of the election is added as a further principle derived from a judgment of the Federal Constitutional Court in 2009. A distinction must be made between the right to take part in the election (active right to vote) and the right to stand as a candidate and be elected (passive right to vote).

The Generality the election requires that the right to vote is open to all citizens. Exceptions are only permitted with regard to age, settling down, coming of age and - by court order - serious criminal offenses. Otherwise, prisoners are allowed to vote, but de facto they can hardly exercise the right. The voting age has been 18 since 1970. This applies to both active and passive voting rights. Some federal states have now lowered the active voting age in local and / or state elections to 16.


Source text

Art. 38 GG paras. 1 and 2

(1) The members of the German Bundestag are elected in a general, direct, free, equal and secret ballot. They are representatives of the whole people, not bound by orders and instructions and only subject to their conscience.

(2) Anyone who has reached the age of eighteen is entitled to vote; It is possible to choose who has reached the age at which they come of majority.
In 2013, the right to vote for Germans living abroad was reorganized. Germans living abroad have been able to vote since 2013, provided they moved no more than 25 years ago and have spent at least three months in Germany since the age of 14.

The right to vote is linked to nationality. There are exceptions to the municipal and European elections, in which citizens from other EU countries living in Germany are also entitled to vote. In 1990, the Federal Constitutional Court put a stop to the introduction of a general right to vote in local elections for people from non-EU states living permanently in the country. This also has consequences for the list of candidates for the Bundestag and Landtag elections regulated in the Political Parties Act, in which, unlike the other party elections, only German nationals are allowed to participate.
Vote by letter (& copy picture-alliance, dpa-infografik, Globus 11595)

The general public of elections also obliges the legislature to ensure the highest possible voter turnout. This is ensured by a dense network of polling stations and sufficiently long opening times for the ballot box (on election day from 8 a.m. to 6 p.m.) as well as the possibility of (early) postal voting for those who cannot vote in person at the polling station. Since the freedom and secrecy of voting in postal votes cannot be guaranteed one hundred percent, the Federal Constitutional Court initially attached strict requirements to their approval, which were later relaxed. Since 2008 a postal vote can be requested without giving reasons. The proportion of postal voters has increased accordingly; in the 2013 federal election it was already 24.3 percent.

People with disabilities must also be given the opportunity to participate in the election. Blind and visually impaired people can cast their votes using a voting form, which is issued free of charge by the German Association for the Blind and Visually Impaired (DBSV).

immediacy Voting means that the citizens vote the MPs directly, so there is no intermediate electoral body (like the Electoral College in the USA). Both the constituency and list candidates must be announced in advance.

The freedom the election is intended to protect the voters from impairment of their volitional decision; they must be able to cast their votes without pressure or coercion from government or non-governmental sources. At the same time, the principle requires a competing offer from parties and candidates. In parties, the list may not be made solely by decision of the management bodies. Applicants who want to stand for election independently of a party and who have the right to stand as a candidate will be admitted to the election if they can prove the support of at least 200 eligible voters in the constituency.

Whether freedom of choice also includes the right not to vote is controversial. Compulsory voting, as is the case in Belgium, would be a suitable means of countering low or falling voter turnouts; but it would contradict the German constitutional tradition.

The equality The election requires, on the one hand, that each vote is worth the same and thus has the same influence on the election result. In majority voting systems, this requirement is limited to the count of the vote: each vote counts exactly the same. However, only the candidate or party with the most votes wins the mandate. The votes for the losing candidates or parties are therefore not represented in the form of a mandate. In proportional representation systems, there is also a so-called success value, since the vote for a lower-ranking party is also taken into account in the distribution of mandates and not only, as in the majority election, the votes of the first-placed party lead to the mandate.

On the other hand, there must be equal opportunities between those who face political competition. In terms of voting rights, party funding or access to the media, they must not be unilaterally preferred or disadvantaged. The government is strictly neutral. She has to stay out of the election campaign, which is exclusively a matter for the parties.

Secrecy of choice means that no one is allowed to know who a person is voting for. This is ensured by the protected voting booth when voting on the ballot box; when voting by post it is the responsibility of the voters themselves. In March 2017, a passage was added to the federal election regulations that allows filming and photography, for example with a smartphone, in the voting booth prohibited.

The principle of Publicity is intended to ensure that the election proceeds properly and comprehensibly - from the election proposals to the actual election act (here with regard to the casting of votes broken by election secrecy) to the determination of the election result. The principle also includes that voting takes place in public and that the election is visible as a public event. A complete replacement of the ballot box with the postal vote would therefore be inadmissible.

If these principles are violated, the validity of the election can be challenged. The election review is incumbent on the Bundestag, against whose decision an appeal to the Federal Constitutional Court is possible. Even proven irregularities (e.g. in the counting of votes or the list of candidates for election) do not automatically invalidate an election, but only if they have an impact or have had an impact on the distribution of mandates. So - in the only case so far - the state election in Hamburg in 1991 had to be repeated because the candidates were not properly drawn up.

The Federal Constitutional Court has repeatedly corrected the electoral law. Its jurisprudence had far-reaching consequences in the area of ​​the electoral system, for example where it repealed the five percent clause at local level and in the European elections. In the NPD proceedings that were concluded at the beginning of 2017, the court did not follow the Federal Council's request to ban the right-wing extremist party, but considered it legally possible - in a departure from the previous principle of strict formal equal treatment - to withdraw state party funding. And in 2009 it declared the voting by voting computer, which was made possible for the first time in 2005, to be inadmissible because this procedure did not guarantee the verifiability of the counting of votes.

From the vote to the mandate - seat calculation (& copy Bergmoser + Höller Verlag AG, figure 086 131)
The electoral system

The electoral system is part of the broader franchise. It regulates how voters express their preferences for candidates or parties in votes and how these votes are then transferred to mandates, i.e. parliamentary seats. Three areas or aspects are particularly important here: the constituency division, the forms of candidacy and voting as well as the allocation of votes.

Different functional expectations are applied to electoral systems. On the one hand, in line with the goal of representation, they should ensure that the opinions and interests that exist in society are represented approximately in mirror image (proportionally), on the other hand, enable the formation of a majority capable of governing. At the federal level, as in the federal states, the Federal Republic has opted for a proportional representation system that gives priority to the first-mentioned goal. In order to avoid an excessive fragmentation of the parliamentary balance of power, the proportional representation is limited by a blocking clause (five percent hurdle). This is intended to facilitate the formation of a majority. The Sainte-Laguë / Schepers method has been used to calculate the allocation of seats since the 2009 Bundestag election.

Another aim of the electoral system is to give citizens the opportunity to influence not only the party-political but also the personal composition of the parliaments. The federal election system takes this into account by distinguishing between constituency and list candidates. 299 of the (regular) 598 MPs are directly elected by the citizens in constituencies of roughly the same size in terms of population (direct mandates). Whoever receives the most votes wins the mandate. The remaining MPs move into the Bundestag via the state lists. The order of the candidates is given here by the parties. If a party wins at least three direct mandates, its share of the second vote is converted into parliamentary seats even if this is below five percent.

This is how the federal election works (& copy picture-alliance, dpa-infographic)
Voters have two votes to choose from. With the first vote on the left of the ballot paper you choose the constituency candidate, with the second vote on the right you choose the party. They can "split" the votes, for example by giving the first vote to the candidate of party A, but choosing party B with the second vote. The proportion of voters who make use of this option has risen almost continuously since the introduction of the two-vote system in 1953 and was 24.5 percent in the 2013 federal election.

The half division of constituency and list mandates promotes the misunderstanding that the German electoral system is a mixture of majority and proportional representation. In fact, the mandate share of the parties is based solely on the result of the second votes. The electoral law therefore rightly speaks of a "proportional representation linked to the election of persons". After it has been determined how many mandates each party receives in total, the directly elected MPs are counted towards this share. The fact that the decisive importance of the second vote is not familiar to a considerable part (around 40 percent) of the citizens is likely to be attributed primarily to the misleading designation "first and second vote". In this respect, the electoral system lacks comprehensibility.

Problems with overhang mandates: The connection of constituency and list mandates also has another serious consequence: the possible creation of overhang mandates. If a party wins more direct mandates with the first vote than it is entitled to based on the share of the second votes, it may keep these mandates. The proportionality resulting from the second vote result is thereby distorted. Critics therefore see the overhang mandates as a violation of the principle of equality. With their help, a party or coalition of parties could gain a majority of the seats without having a majority of the votes at the same time.

While the overhang mandates were only sporadic until German unification, their number has increased significantly since then. This happens especially when the second vote share of the strongest party is reduced to 30 percent or less by competition from the other parties, but it retains a lead of around five to seven percentage points over the second strongest party in the first votes. The high number of direct mandates that she can obtain with this would probably no longer be covered by the second vote result.

The Federal Constitutional Court, which had to deal with the problem several times, still declared the overhang mandates to be admissible up to a limit of 15 in its most recent electoral ruling issued before the 2013 federal election. However, the parties decided not to exhaust this leeway and instead agreed to fully compensate for the overhang mandates with additional mandates. In their endeavors to find a perfect solution, of course, they overshot the target: The new regulation, which has been in force since 2013, means that a multiple number of compensation mandates may be required for a single overhang mandate. (In the 2013 Bundestag elections, there were 29 additional seats for just four overhangs.) Simulation calculations based on current election surveys came to the conclusion at the beginning of 2017 that the upcoming Bundestag could grow to up to 700 members.

extra information

Reform of the overhang mandates?

Repeated warnings from Bundestag President Norbert Lammert to change the current regulation of the overhang mandates found little attention among the parliamentary groups. In April 2016, Lammert therefore submitted its own proposal, which provided for the mandates to be capped at 630 and no more full compensation to be carried out from this number. However, this was rejected by the SPD, the Greens and the Left because it fell behind the consensus found in 2013. Conversely, the Union was not prepared to agree to offsetting the overhang mandates against list mandates from the same party in other federal states, because individual state associations would have been severely disadvantaged as a result. In addition, in this case a special solution would have been required for the CSU, which can only be elected in Bavaria, whose overhang mandates cannot be offset against the list mandates of the CDU.

A sustainable solution that tackles the problem of overhang mandates at the root would only be feasible in the next legislative period, as it would require a complete redesign of all constituencies. According to experts, two variants can be considered. Either you reduce the proportion of direct mandates to 40 percent or a third. Or one forms constituencies that are twice as large, in which two direct mandates are awarded instead of one. This would cut the number of constituencies in half, and in both cases there would practically no longer be any overhang mandates because the ratio of direct mandates between the two major parties would be more balanced than it is now. The larger of the two parties would then - with the same election result - have fewer direct mandates than in the current system with single constituencies, so that these would be fully covered by the second vote result.

A "major" reform of the electoral law would also have to put the two-vote system to the test. A return to the single-vote system, in which the constituency and party votes coincide, would be conceivable. This system applied in the first federal election in 1949. If no agreement can be reached, critics recommend at least replacing the ambiguous terms "first and second vote".



The election process

For government agencies the election begins with the appointment of the election date. It is the task of the Federal President, who follows a recommendation from the Federal Government. Election day is always a Sunday.Article 39 of the Basic Law stipulates that elections must take place no earlier than 46 and no later than 48 months after the beginning of the electoral term. The electoral term begins with the first meeting of the newly elected Bundestag no later than the 30th day after the election. September has established itself as the preferred month for election.

The Federal Returning Officer, who is appointed by the Federal Minister of the Interior, has the ultimate responsibility for the preparation and implementation of the election. As a rule, it is the respective President of the Federal Statistical Office. The Federal Returning Officer chairs the Federal Electoral Committee. This consists of eight members who are entitled to vote and who are appointed on the proposal of the parties, as well as two judges from the Federal Administrative Court. Among other things, the committee decides which parties are allowed to vote and reviews the nominations. Parties that are represented in the Bundestag or a state parliament with at least five MPs are automatically admitted. The other, so-called non-established parties, must apply for it no later than 97 days before the election and also deposit a certain number of support signatures.

The Federal Returning Officer and the Federal Electoral Committee work closely with the 16 Land Returning Officers and 299 District Returning Officers who are responsible for conducting elections in the federal states and constituencies. These have to take care of, for example, the production of the ballot papers and postal voting documents. Their provision or dispatch is in turn the responsibility of the municipalities, which are also responsible for appointing the electoral officers and boards working on site - in the polling stations. They check the identity of the voters on the basis of the electoral roll and ensure that the formal regulations are complied with when voting. After the polling stations have closed, they count the votes and transmit the result to the municipal authority, which forwards it to the district election officer together with the results from the other voting districts and the postal voting results.

The task of the Federal Returning Officer also includes protecting the election from outside influence. After the cyber attacks on the Bundestag two years ago, this time the voting data centers and computers could be targeted primarily by hackers suspected in Russia. The electoral offices are trying to arm themselves against it by increasing their computer capacities. In addition, there are fears that the election process will be disrupted by targeted false information (fake news) spread via social media. In order to counter such manipulations quickly and effectively, the Federal Returning Officer set up his own Twitter account under @wahlleiter_Bund in January 2017.

extra information

What is fake news?

[...] The basic function of fake news is as old as humanity, it is a technicalized form of rumors. The first problem arises from this, because in social media such as Facebook the dosage form is the same for all media. An article in the "New York Times" checked by 15 fact checkers (initially) looks the same as a nonsense text made up by Macedonian teenagers. [...]

Fake news serves two main purposes: Awareness, to make money from advertising. And political influence through fake news. This has a political effect because the function of news in social media is different from what is often assumed. It's less about disseminating information than about community building.

Because messages are presented with the aim of portraying your own personality, strengthening connections with like-minded people and setting yourself apart. This usually applies regardless of political convictions: Show me what you are sharing and I will tell you who you want to be. [...]

The personal, digital environment is becoming more important and fake news can lead to a self-reinforcing spiral of opinion - classic media and thus journalistic criteria become less important. The basis for the voting decision, the personal perception of the world, gets a twist in the direction of "perceived truth". [...]

SPIEGEL ONLINE, Sascha Lobo, November 16, 2016



For the parties the choice also has a long lead time. Because the proposals for the list candidates (state lists) must be submitted to the responsible state returning officers and the proposals for the constituency candidates to the constituency leaders at least 69 days before the election, their candidates must be determined by then. The applicants in the constituencies are often nominated by the district associations a year before the election. The respective state delegate assemblies later decide on the list candidates because they have to take into account which candidates have already been nominated in which constituencies when drawing them up. In terms of organization and time, the nomination is more time-consuming if the members of a party decide instead of the delegates. In 2017, the Greens selected their top candidates for the second time in a primary election, which spanned more than four months from the start of the application phase to the announcement of the results.

The election campaign planning and preparation begins parallel to the list of candidates. It takes place from the party headquarters, which temporarily increase their staff considerably. The election campaign can be roughly divided into three phases. The first phase begins with the nomination of the top candidate (s) around eight to ten months before the election. In this phase, the election program is drawn up and discussed in the party committees. It ends with an electoral party conference, which usually takes place four to five months before the election.

In the subsequent phase, the focus is on mobilizing one's own supporters, who are supposed to carry the party's election campaign messages into the population. It is accompanied by numerous events and rallies.

Election posters around six to eight weeks and election advertising in the last four weeks mark the third, "hot" phase. In order to reach the undecided voters who are not committed to a party, the competitors pull out all the stops of traditional street and modern media election campaigns. The highlight is the TV duel between the two candidates for chancellor from the CDU / CSU and the SPD, which has become an integral part of the election dispute since 2002.

For the Voters the choice is, at least formally, a convenient matter. If you are properly registered, the voting card will be sent to you automatically. The polling stations are within walking distance for most voters. The electoral authorization card must be presented at the polling station. If it is missing, identification can be made with the identity card. If you want to vote in another polling station within the constituency, you can apply for a voting slip. This is also attached to the postal voting documents, which are usually available about five weeks before the election. However, it is advisable to apply for the ballot paper and postal voting documents earlier, i.e. not after receiving the voting card. The voting letter must arrive at the municipal authority by the time the polling stations close. If you do not want to entrust it to the post office, it can be handed in personally beforehand.

When the result is known on election night, the process of forming a government begins. This consists of four stages. First, the parties sound out which partners they want or can form a coalition with. Coalition negotiations are then conducted, which lead to a coalition agreement or a coalition agreement. Over time, these contracts have become more and more extensive, which makes the negotiations more complex and can drag on. The parties then submit the coalition agreement to their committees for approval. If, instead of a party congress resolution, there is a membership decision as in the SPD 2013, this also takes up more time. The formation of a government ends with the election of the Chancellor in the Bundestag and the appointment of the ministers. Then the members of the new federal cabinet are sworn in in the Bundestag.

extra information

Who will be ahead on election night? Polls, Forecasts and the Problem of Populism

[...] If the result for a candidate is continually predicted to be measly who ultimately wins the race, to everyone's surprise - then the forecasters are in need of an explanation.

[…] The pollsters' dilemma can be broken down into four problems: First, they have to find a sample of citizens that is as representative as possible and question them. Representative means that among the perhaps 1,000 or 2,000 respondents, the proportion of men and women, old and young, educated and uneducated, urban and rural people should correspond to that of the total population. Second, you have to get these people to be honest about their views. Thirdly, those who do not want to commit themselves in the survey have to be included in the calculation. Are they non-voters or will they choose a party at the last minute? Fourth, electoral researchers have to assess whether those who express their opinion actually vote. All four factors are possible sources of false prognoses.

Mathematics says: If a thousand randomly selected answers from all eligible voters, then I have a general answer with two to four percent uncertainty. And in the past, pollsters could rely primarily on landline telephone surveys. […] Today, many people only use their mobile phones. That is why Infratest dimap has been measuring ARD's German trend for four years using a dual-frame sample: with 70 percent landline and 30 percent mobile numbers. [...] But whoever is called does not always take part in the survey. Not only are the times in which almost everyone dutifully replied, are over. The willingness to speak is also not evenly distributed across the political spectrum. [...]

By no means everyone goes to vote. Because voter turnout is different in each demographic segment, the researchers have to assess for each subgroup - by region, age, social class and party preference - which proportion will vote.

[...] In the spring of 2016, the German opinion polls were caught off guard by the success of the AfD in Saxony-Anhalt [...] Only after several state elections, in which they had underestimated the new party every time, did the polls adapt their filters to the new reality . [...]

But that is not a guarantee for the future. The effect of "tactical voting" is known, especially from FDP supporters. Could potential AfD voters sign a significant number of their crosses with the CDU in the upcoming federal election to prevent red-red-green? [...]

Today's situation reminds many of the seventies, when Elisabeth Noelle-Neumann, head of the Allensbach Institute for Demoscopy, launched her theory of the spiral of silence: She accused the media of creating a climate of opinion in which large sections of the population can find themselves felt excluded. Out of "fear of isolation" these people did not express their opinion, not even in surveys. [...]

Are opinion polls just too direct? Are behavioral patterns better suited to predicting a person's choice than what they (if at all) say? This is no longer an academic question since the internet and social media generate huge amounts of personal data - and can be automatically evaluated. [...]

However, no election prognosis can be derived from observing Facebook debates alone. The data collectors have detailed personal profiles of millions of voters. But how do they relate to political attitudes? And [...] how likely is this to lead to a voting decision? Above all, although these data sets are extensive, they are not a representative sample. And without them, you cannot make reliable forecasts. Big data is not yet an alternative to representative surveys, but rather a supplement that can offer a more colorful and less fragmentary picture of society. [...]

"If you want to predict what kind of decision people will make, then there is no alternative to questioning them directly," the science magazine Science quotes the statistician Andrew Gelman of Columbia University. In February the magazine devoted an entire focus to the question of whether polls were still a timely means of predicting election results. Ryan Kennedy of the University of Houston examined 500 elections since World War II. When comparing whether survey results or other factors such as economic growth would have been more predictive, it emerged that surveys are by far the best tool; they predict 80 to 90 percent of the results correctly. So it won't work without them. [...]

Christoph Drösser, "More than coffee grounds", in: Die Zeit No. 12 of March 16, 2017