The German federal election system regulates the election of the members of the national parliament, called the Bundestag. According to the principles governing the law of elections, set down in Art. 38 of the German constitution, elections are to be universal, direct, free, equal, and secret. Furthermore, the constitution stipulates that Bundestag elections are to take place every four years and that one can vote, and be elected, upon reaching the age of 18. All other stipulations for the federal elections are regulated by the Federal Electoral Act. Elections always take place on a Sunday. Mail votes are possible upon application.
Germans elect their members of parliament with two votes. The first vote is for a direct candidate, who is required to receive a plurality vote in their electoral district. The second vote is used to elect a party list in each state as established by its respective party caucus. The Bundestag comprises, then, the seats representing each electoral district on the first vote and the seats allocated to maintain proportionality based on the second vote. Common practice is that direct candidates are also placed on the electoral lists at higher rankings as a fall-back in case they do not win their districts.
Constitutional basis
Principles governing the law of elections
According to Article 38, §1 of the German constitution, "the delegates of the German Parliament () [...] are elected in a general, direct, free, equal and secret vote." These five principles of suffrage are fundamental rights: Any violation of the law can be brought up to the Federal Constitutional Court of Germany in the form of a constitutional complaint.
An election is general if basically every citizen can take part: no restrictions in terms of income, sex, health, or any other arbitrary distinctions. But according to the jurisdiction of the Federal Constitutional Court, the prescription of a minimum voting age is compatible with the commonalty of the election. The exclusion from the active right to vote is also—within narrow limitations—consistent with the Basic Constitutional Law. The exclusion of the passive right to vote is governed by somewhat less strict regulations. The right to vote is in principle reserved for German citizens and the so-called "status Germans," who are refugees and expelled persons of German descent that settled in Germany. The introduction of a right to vote for foreigners would require an alteration of §20 of the constitution.
An election is immediate if the voters' will determines the result directly. The process of an election based on lists compiled by the political parties is, however, compatible with the principle of an immediate election.
An election is considered free if the government does not compel the people's voting decision in terms of content. According to the Federal Constitutional Court's dispensation of justice, the principle of a free ballot would not be harmed if a compulsory vote was introduced by the Federal Electoral Law. Electoral advertising at government expense would, however, be incompatible with this principle of electoral law. However, the Federal Government (made up of different political parties) is allowed to conduct public relations if its neutrality is strictly preserved.
Elections are confidential if the voter's decision is not known to anybody else. The German Parliament's voting law even states that no elector is allowed to announce his decision in the polling station. Postal voting is problematic because the secrecy of the ballot is not guaranteed; it has therefore to be taken as an exceptional case. Since the election's more important basic principle of universal suffrage would otherwise be violated, postal votes are admissible.
In principle, an election is considered equal if all electoral votes have the same weight. This is, for example, not the case if constituencies differ considerably in size or if gerrymandering causes advantages or disadvantages for certain groups of people.
For electoral lawmaking, the most difficult part in terms of constitutional principles is the equality of the election. On the one hand, certain inequalities are unavoidable as the constituencies can not be of exactly equal size and the turnout, too, is not homogenous. On the other hand, the (the 'overhang', or extra seats in Parliament a party gets due to gaining more constituency seats than it is entitled to according to Parliament's proportional seating principle) and a (negative vote weight: an unwanted outcome changing an elector's vote to the opposite of their intended political will expressed with that vote) might influence the "one man, one vote" principle. On 3 July 2008, the Federal Constitutional Court declared the paradox of the to be unconstitutional. The court allowed three years for these changes, so the 2009 federal election was not affected. The changes were due by 30 June 2011, but appropriate legislation was not completed by that deadline. A new electoral law was enacted in late 2011, but declared unconstitutional once again by the Federal Constitutional Court upon lawsuits from the opposition parties and a group of some 4,000 private citizens.
Finally, four of the five factions in the Bundestag agreed on an electoral reform whereby the number of seats in the Bundestag will be increased as much as necessary to ensure that any overhang seats are compensated through apportioned leveling seats to ensure full proportionality according to the political party's share of party votes at the national level. The Bundestag approved and enacted the new electoral reform in February 2013.
The five percent rule and the overhang are in principle approved by the Federal Constitutional Court and the German jurisprudence.
Suffrage
Right to vote Suffrage is the civil right to vote. All German citizens over the age of 18 are allowed to vote (Art. 38, para. 2 of the Basic Law for the Federal Republic of Germany), as long as they have lived in Germany after reaching the age of 14 for at least a three-month continuous period that was within 25 years of the election.
According to Art. 20, para. 2, p. 1 all power emanates from the people, that is the people of Germany. Therefore, Art. 12 para. 1 of German Federal Electoral Law determines in accordance with constitutional law, that only Germans in the sense of Art. 116, para. 1 are eligible to vote.
Excluded from suffrage are Germans, who have been deprived of active suffrage by a court in connection with a conviction because of delicts within the fields of treason, compromise of the democratic constitutional state, threat to the external national security, criminal offence against constitutional bodies, as well as criminal offence at elections and ballots, as well as indictable offences against the national defence. (§§ 13 Nr. 1 BWahlG, 92a, 101, 108c, 109i, 45 Abs. 5 StGB) for whom had been ordered a custodian with contained field of activity through interlocutory injunction (§ 13 Nr. 2 BWahlG) who find themselves in an asylum according to §§ 63, 20 StGB after having committed an illegal action being criminally incapable because of an order from the criminal court
Eligibility to stand for election Every German who has reached the age of majority, in Germany 18 years, is eligible to stand for election according to the German Basic Law (article 38, paragraph 2 BL). It has to be remarked that the age of majority can be altered by a simple federal law.
Eligibility to stand for election presupposes the right to vote. However, some German citizens are not permanent residents of Germany and also do not have the right to vote as a German citizen living abroad. They can still be elected if they meet all the other requirements. Yet, people can be deprived of their eligibility to stand for election in certain circumstances. This can happen in the case of an imprisonment of more than a year as is laid down in § 45, subparagraph 1 in the , the German criminal law.
Election management bodies The most important election management body is the Federal Returning Officer, appointed by the Federal Ministry of the Interior. Responsibilities include running electoral procedures and chairing the election committee. The leader of the Federal Statistical Office usually holds this office. The Federal Returning Officer is assisted by the electoral committee and the Returning Officers of each , the election supervisors and the electoral committee of each constituency as well as the election judges and the managing committee of each electoral ward. They are appointed by the federal government. The other members of the electoral committees are appointed by the Returning Officer.
Election management bodies (EMBs) are institutions of independent, societal self-organisation. In general they are considered to be a sort of federal agency. The Federal Ministry of the Interior, the Supreme Federal Authority, is responsible for the enactment of certain regulations necessary for federal election procedures. However, the Federal Ministry of the Interior does not have the authority to issue directives against the election management bodies.
Scrutiny of elections Within two months after the federal election () any voter can request the scrutiny of elections. According to the established practice of the Federal Constitutional Court () the Committee for the Scrutiny of Elections of the , the parliament of Germany, has to reject a request if the distribution of mandates did not change even with the request being granted. The Committee for the Scrutiny of Elections only makes sure that the Federal Voting Act is implemented properly; it does not deal with possible unconstitutionalities.
If the rejects the veto, an appeal to scrutiny of elections can be lodged to the Federal Constitutional Court of Germany within another two months. This appeal has to be joined by 100 eligible voters.
Affected members lose their seat in parliament if the veto is successful. This member can in turn file a lawsuit against the adjudication.
No appeal to scrutiny of elections against decisions made by the German has thus far been successful.
Party structure Membership Political parties are required to be membership-based, and the party determines its membership based upon its own bylaws, i.e., the party itself determines who can join, leave, and who is excluded from the party.§ 2(1) PartG, "Parties are associations of citizens...". § 6(2) PartG, "The statutes must contain provisions on ... joining and leaving the party...". Applications for membership may be rejected without justification, and party bylaws may impose requirements and restrictions on membership, but may not discriminate based on gender, age, religion or ethnicity. All parties have membership fees, which range from 0.5%–4.0% of members' salaries, with reduced fees for low-income members. There is no collective membership. (For example, some countries' labor unions have enrolled its members in parties automatically.)
As parties can reject applications without justification, it is possible to discriminate unofficially. Similarly to other parties using male pronouns for all genders, the feminist party even calls all its members women in its bylaws, but claims this term also applies to men.
Governance Full membership assemblies are used at the local- or district-level, but most parties rely on delegate assemblies ( or party conventions) above district-level, although all established parties use non-binding full membership referendums for important decisions such as leadership selection.§ 9 PartG. § 17 PartG.
Appointment of candidates
The parties' right to propose candidates