Basic mandate clause

Bundestag

For federal elections, the five percent threshold clause is stipulated in the Federal Election Act [de] (BWahlG) in Section 4 Paragraph 2 Sentence 2 No. 2 BWahlG.

In addition, the basic mandate clause applies to parties that fail to meet the threshold: A party that receives a relative majority of first votes in three constituencies will be considered in the distribution of seats according to the ratio of second votes.

On 17 March 2023, the German Bundestag passed an electoral reform law abolishing the basic mandate clause.^[1][2] On 12 May 2023, the Bundesrat waived its right to convene the Mediation Committee [de] with regard to this reform, thereby approving it.^[3]

In its decision of 30 July 2024, the Federal Constitutional Court declared the five percent threshold clause without exceptions (following the abolition of the basic mandate clause in the Federal Election Law amended in 2023) unconstitutional and established the incompatibility of this threshold clause with the Basic Law. In the same decision, it ordered the continued application of the threshold clause and issued a regulation corresponding to the former basic mandate clause until the legislature enacts a new regulation for the threshold clause.

The basic mandate clause was applied in the 1953 federal election (in favor of the DP and the Centre Party, where one direct mandate was sufficient), the 1957federal election (DP), the 1994 federal election (PDS), and the 2021 federal election (Die Linke).^[4] In contrast, the PDS only won two direct mandates in the 2002 German federal election, so only those who won these two entered the Bundestag. In the 2021 German federal election, The Left Party entered parliament with enough seats to form a Fraktion due to the basic mandate clause, having fallen below the five percent threshold with 4.9% of the second votes, but winning three direct mandates. This gave Die Linke 39 seats, representing 5.3% of all members of parliament, enough to form a parliamentary group.^[5]

The DP also formed parliamentary groups after the elections of 1953 and 1957, as it had reached the then necessary limit of 15 members of parliament in each case.

Constitutionality

The constitutionality of the basic mandate clause is disputed. Some legal scholars consider the basic mandate clause unconstitutional because it violates the principle of equality of suffrage. It prevents parties that have not won at least three direct mandates or have not received at least 5% of the vote from entering parliament. Conversely, a party that has won at least three direct mandates but received significantly fewer votes is successful.

Furthermore, the clause can be abused if a larger party cedes some safe constituencies to a smaller party to pave its way into the Bundestag. The Federal Constitutional Court considers the regulation constitutional. According to the Federal Constitutional Court and one view in legal literature, the compelling reason for differentiating based on the number of directly won seats lies in "the concern for the effective integration of the nation".^[6]

The CSU and Die Linke challenged the abolition of the basic mandate clause.^[7] This and other objections to the Federal Election Law in the form of the 2023 reform were the subject of proceedings before the Federal Constitutional Court.^[8] In the corresponding joint judgment, the Second Senate of the Federal Constitutional Court reiterated the view that the basic mandate clause was constitutional.

State elections

In state elections, basic mandate clauses apply in Berlin, Brandenburg, Saxony ^[9] and Schleswig-Holstein. In Saxony, winning two constituencies is required, while in the other states a single basic mandate is sufficient.

In the 2014 Brandenburg state election, Christoph Schulze [de] won the direct mandate in the Teltow-Fläming III constituency, which he had previously held, with 27% of the vote. This time, however, he was no longer running for the SPD as in the 2009 election, but for the political association Brandenburg United Civic Movements/Free Voters, for which he was also the lead candidate.^[10][11] Due to the basic mandate clause, the BVB/Free Voters therefore entered the state parliament with three representatives, corresponding to their share of the second votes (2.7%).^[12]

Die Linke reached the threshold of two direct mandates in the 2024 Saxony state election and therefore entered the state parliament with six members despite receiving only 4.5% of the party list votes.^[13]