A Manufactured Majority?

With only three days to the election, a new topic has quite unexpectedly emerged and is dominating both the public and the academic debate on possible outcomes of next Sunday's vote. It's not a policy issue, it's not the performance of the top candidates, it's not even the well-known coalition game that now equally grabs the attention of politicians, the media and other observers. Instead, almost everybody in Germany seems to be electrified by the fact that so-called surplus mandates (Überhangmandate) may perhaps decide which parties will be able to form the next government. Admittedly, surplus mandates are a rather technical aspect of our electoral system, and neither voters nor many journalists do really know what they are and how they arise. Therefore, four questions should be answered briefly to understand the current debate: What is a surplus mandate? Why are they said to be so important in this year's election? How does this influence the electoral campaign? And what is, after all, the problem?

To start with, surplus mandates emerge if a party wins more constituency seats in any of the Länder than the number of seats to which it is entitled according to its share of second votes. Okay, okay, no worries, I'll explain it step by step. Each citizen has two votes, right? With the first vote, he can choose his favorite candidate in one of the 299 single-member districts. In each district, the candidate who has won the plurality of first votes is elected to the Bundestag. With the second vote, a voter chooses a party list. These party lists are valid for only one of the German Länder, i.e. the SPD has set up 16 different party lists, for example. The total (!) number of seats in the Bundestag is now distributed to the different party lists according to their share of total valid second votes. This distribution involves several steps in fact, but I hope you don't complain if I omit some of the details here.

We then know how many seats a party has won in a certain Land. However, as I explained before, this party may have already won some constituency seats in this particular Land, so they must be discounted from the total number of seats the party is entitled to in the specific Land. Only the remaining seats are then distributed to candidates on the particular party list. If, and that's the crucial point, the constituency seats won by a party in a Land outnumber the seats this party is entitled to by its share of second votes, the party retains these constituency seats as surplus mandates. In consequence, the Bundestag will then consist of more than the regular 598 members.

Why is all this so important now? As it seems today, the CDU/CSU and FDP, long seen as the undoubted winners of the election, can only expect a very small, if any, majority of popular votes. This would transform in either a similarly small or no majority of seats. Especially the Conservatives may, however, obtain several surplus mandates -- some observers expect up to 30 of them. To name but a few reasons, split-ticket voting (first vote for CDU/CSU, second vote for the Liberals) or an almost equal share of votes won by the second and third largest parties (i.e. the SPD and the Left Party in many Länder) contribute to a rising number of surplus mandates. These seats may then determine whether a CDU/CSU-FDP coalition gains a parliamentary majority.

As my remarks on the reasons why these "additional" seats emerge shows, the parties that expect to win constituency seats can influence the electorate in order to transform some of them into surplus mandates. And in fact, this is what the parties do right now by encouraging split-ticket voting. Chancellor Merkel declared on Friday last week that she is willing to form a coalition with the Liberals even if its parliamentary majority was secured only by surplus mandates. She was quoted saying that "a surplus mandate is no second class mandate."

Her party, the CDU, then started to ask liberal voters to cast their first vote for the conservative candidate in their constituency. The Liberals, at least in some of the Länder, have recently posted "Second vote for FDP", a less explicit, but still effective way of convincing their supporters to vote for the Conservatives with the first ballot. On the other hand, the Social Democrats and the Greens have sought to build a similar alliance at the state level. The struggle for surplus mandates has, therefore, become an important aspect of the election campaign.

If so, is there any problem related to the whole issue of surplus mandates? Those who will most probably benefit from them in the 2009 election argue, not very surprisingly, that there's no problem at all. CDU/CSU and their political ally FDP point to the fact that surplus mandates are a, perhaps peculiar, consequence of the German electoral system, which is undoubtedly a proportional system. They argue that the Constitutional Court has never declared the electoral system or the surplus mandates unconstitutional.

That's certainly true -- but not the whole truth either. As the SPD and many political scientists point out, the Constitutional Court has indeed accepted surplus mandates and their effects in past elections, but the judges stated very clearly at the same time that there are certain limits beyond which they would have to reconsider the whole issue. And if in 2009 these "additional" seats reversed majorities, this would almost inevitably lead to an intervention by the judges. They always argued that our electoral system strives above all for fair proportional representation. What in Britain or the United States is commonly accepted -- that a party without a majority of popular votes gets a comfortable majority in parliament -- is unknown to the German system. Here, manufactured majorities are widely rejected and considered unconstitutional.

At the end, the debate on surplus mandates and the controversy about their legitimacy have induced at least some notion of conflict to the election campaign. If the next government depends on this kind of seats in parliament, the Constitutional Court has to decide whether this is a sufficient basis for ruling the country. On Sunday, the election is certainly over, but the struggle for power may well continue.

Jörg Siegmund