The procedure for calculating the distribution of seats was last modified by the 25th Ordinance amending the Federal Elections Act of 14 November 2020 (Federal Law Gazette I p. 2395). It uses the Sainte-Laguë/Schepers procedure in a two-stage calculation process, with two steps per stage.
In Bundestag elections, the allocation of seats is based on proportional representation and a candidate-centred election. The system combines two elements: the first vote elects a constituency candidate. The candidate who obtains most votes wins (majority voting). The second vote goes to the Land list of a party. The number of second votes determines the number of Bundestag seats a party receives (proportional representation) and therefore is decisive.
Parties which have obtained less than 5 % of the second votes cast (restrictive clause) and have not won at least three constituency seats (clause on the minimum number of constituency seats required for party representation in Parliament) are not considered in the distribution of seats. Therefore, votes cast for parties which do not overcome the 5 % threshold do not have an impact on the distribution of seats in the Bundestag.
The final distribution of seats is not yet calculated at this stage but the minimum number of seats each party is entitled to.
First, the 598 Bundestag seats initially available are distributed among the individual Länder on the basis of the share of the German population living there (seat contingent).
Second, the seats going to each Land are distributed among the parties in accordance with the second votes they have won in the respective Land. To calculate the minimum number of seats, each Land list is assigned either the number of constituency seats won in the Land or the average, rounded up to whole seats, of the constituency seats and the Land list seats (seat contingent) determined in stage 1 of the distribution process based on second votes – whichever is higher.
The minimum number of seats a party is entitled to is either the total of the Land lists’ minimum number of seats or the total seat contingents of the parties’ Land lists.
The total number of seats is increased on the basis of its share of second votes until each party has received at least the minimum number of seats it is entitled to and a total of up to three overhangs remains.
Then it is established in the second step how many of a party’s seats, as calculated above, go to each of its Land lists. This depends on the number of second votes the party has obtained in each Land. In any case, however, the party will be assigned the minimum number of seats calculated for the respective Land in stage 1 of the calculation process.
In European elections the 96 seats of the German deputies are assigned in line with proportional representation only. Every person entitled to vote has only one vote to be cast for a list. Every party or political association of voters may draw up a list for all Länder or lists for individual Länder, the latter are usually regarded as one nomination.
Since the 2009 European Election the seats have been distributed in accordance with the Sainte-Laguë/Schepers calculation method. All votes cast for the same nomination are added up.
In European elections there is no such restrictive clause as the 5 per cent threshold of Bundestag elections. The Federal Constitutional Court declared unconstitutional both the former 5 % restrictive clause and the 3 % restrictive clause introduced as its substitute. This means that all political parties are considered when the seats are distributed.