Election Thresholds Including Allocation of Non-counting Votes

3.2.1 Overview of the Threshold Clause

3.2.1.1 Definition

A “formal” or “legal” threshold is the legally prescribed minimum number of votes needed for a party to gain representation in a legislature.^[206] For example, in a proportional representation system, a typical threshold clause may define that a party must receive at least 5% of all votes cast in order to take part in the distribution of parliamentary seats.

The term “threshold” can also be understood in a broader sense, encompassing all mechanisms which can exclude smaller parties from access to parliament. This includes restrictions on ballot, funding and media access which ultimately prevent parties from representation. Since these mechanisms only indirectly affect access to parliament, they will not be covered in this chapter.^[207]

3.2.1.2 Historical Context and Purpose of a Threshold Clause

The constitution of the Weimar Republic^[208] provided for a proportional voting system but did not contain a legal threshold for winning a seat in the Reichstag parliament. This resulted in up to 14 parties being represented, making it very difficult to form a stable Government or stable majorities.^[209] Furthermore, it facilitated access to Parliament for extremist parties and allowed them to gain influence quickly. With today’s hindsight, the absence of a threshold clause is considered one of the fundamental weaknesses of the Weimar Constitution and a contributing factor to the seizure of power by the Nazis.

Thus, a threshold clause can avoid fragmentation of Parliament and thereby ensure a certain level of stability. It can also provide a safeguard against minority extremist parties being represented in a legislature and will generally strengthen the role of parties and fractions in parliament, which are key to a functioning parliament.

3.2.1.3 Disadvantages of a Threshold Clause

The introduction of a threshold clause also bears several disadvantages:

First of all, an electoral threshold reduces the equality of chances of the parties to participate in a legislature. Smaller and less popular parties might be barred from representation only due to a legal threshold.

Secondly, a threshold interferes with the principle of electoral equality. This principle particularly requires that votes have an equal effect upon the allocation

Fig. 3.3 Structural approach when drafting a threshold clause

of seats.^[210] With a threshold clause in place, the votes which were given to parties that do not pass the threshold do not have any effect (so-called “wasted votes”).

Finally, a threshold can lead to tactical voter behaviour which is inconsistent with the voters’ actual preferences.

3.2.1.4 Structural Approach and Guiding Questions

When drafting a threshold clause, several questions (shown in Fig. 3.3) need to be answered.

3.2.2 Details of a Threshold Clause in a Constitutional System

Table 3.8 lists the various applications of threshold clauses in constitutions.

A threshold clause is not advisable in every constitution. Instead, the need for such a clause depends on the design of the electoral system as a whole. The choice between a majority/plurality system and a proportional system has a major impact on the necessity for a legal threshold.

3.2.2.1 Majority System

In a majority system, there is generally no need for a legal threshold. Since in such a system, only the winning party in each constituency gains access to parliament, the number of parties represented is automatically lower than in a proportional system. In fact, majority systems even tend to party-dualism.^[211] As a consequence, there is no danger of party fragmentation and majorities can easily be achieved.

Table 3.8 | | Necessity of threshold clauses and their mechanism

^a Art. 77 Consolidated Act No. 369 of 10 April 2014, Folketing (Parliamentary) Elections Act

3.2.2.2 Proportional System

In a proportional system the individual political circumstances need to be assessed in order to determine whether a threshold clause is required. Since an electoral thresh­old interferes with the principle of equality of votes, it should only be established if there are specific indications that the Parliament might be instable due to the admission of too many parties. To assess whether this is the case, an analysis of the number of parties that are likely be represented without a legal threshold is useful. As a consequence of the absence of a threshold clause in South Africa, 13 parties obtained a seat in Parliament in the election of 2014. In such a case a threshold case clearly is advisable.

An important factor for this analysis is the so-called “natural threshold”.^[212] It exists in every proportional system, no matter whether the electoral system provides for a legal threshold.^[213] The “natural threshold” purports to estimate the percentage of votes required to obtain one seat in Parliament if no legal threshold is in place.^[214] It is mainly dependent on the mean district magnitude (the average number of legislators returned per district)^[215] and can be estimated by a mathematical formula for both the district and the national level.^[216] For example in Finland, which does not provide for a legal threshold, the natural threshold has been estimated at 5% on the district level

Table 3.9 I I Level of the threshold

and at 1.32% on the national level,^[217] resulting in nine parties being represented in Parliament after the elections of 2012.

In the exceptional case of a well-developed party system consisting only of very few parties, thus not facing the problem of party fragmentation, the natural threshold can already be sufficient to ensure a stable parliament.

In a typical proportional system with many parties desiring to enter parliament, however, a threshold provision is generally recommendable.

3.2.2.3 Level of the Threshold

For reasons of clarity, the following analysis (Table 3.9) shall only consider thresholds on a national level as opposed to thresholds on the district level.^[218]

In general, the level of a legal threshold needs to balance the interests of guaranteeing parliamentary stability on the one hand and intervening as little as possible with the principle of electoral equality by keeping the number of wasted votes low on the other hand. A threshold of 10% can generally be regarded as too high with 46.3% of the votes not being represented in the elections in Turkey in 2002. In Israel the threshold of 3.25% resulted in only 4.5 of the valid votes being wasted in the election of 2015.^[219] This creates an avoidable and unnecessary misbal­ance leading to the disadvantages pointed out under Sect.

Commonly, the legal threshold in proportional systems ranges from 3% to 5%. No general recommendation can be given as to how high a legal threshold should ideally be within that range, however. The optimal level primarily depends on the individual circumstances, with the party landscape being the most important factor:^[220]

Introducing a rather low threshold of around 1% may be advisable in a country with only one or two very dominant and established parties. By enabling smaller parties to enter the legislature, party pluralism can be promoted.

On the other hand, in a new party system which has only recently transitioned from a (semi-) presidential system to a parliamentary system, a higher threshold may be reasonable. It is likely that a great number of newly founded parties will try to enter parliament. Therefore, it becomes necessary to ensure a certain level of parliamentary stability by a higher threshold until some major parties have established themselves.

3.2.2.4 Does the Threshold Apply to Parties or Party Coalitions?

Importantly the difference between the application to parties and/or party coalitions needs to be reviewed. In particular in elections relating to authoritarian leaders forging opposition coalitions is often challenging and a threshold clause has a significant influence (see Table 3.10).^[221]

Some countries provide for an additional legal threshold for party coalitions (or so-called electoral blocs). This mechanism enables small parties to form groups for the purpose of the election. Under this concept, the parties remain separate entities, but all votes cast for the parties of the coalition are added up, making it easier for smaller parties to pass the threshold and thus reducing the number of wasted votes. The mechanism is partly used in continental Europe and Latin America but rather uncommon in Africa and Asia.^[222]

Allowing electoral blocs can be problematic as coalitions might be formed only for the election period. Consequently, the electoral coalitions are merely a partner­ship of convenience, not necessarily leading to compromises and majorities being found more easily in the later parliamentary work. If instead there is no additional threshold allowing electoral coalitions into parliament, small parties which would not be able to pass the threshold by themselves are urged to make compromises already before the election with the aim of merging into a larger party which is then able to pass the threshold and will pursue one common interest in parliament. Therefore, it is reasonable not to implement a threshold regarding coalitions or electoral blocks.

Table 3.10 | | Application to parties or party coalitions

3.2.2.5 Exemptions to Support Regionally Strong Parties

3.2.2.5.1 Option 1: (Alternative) Threshold on District Level

A threshold can either be established on the national level (“national threshold”) and/or on the constituency/district level (Table 3.11).

The national threshold is the most frequently adopted alternative, ensuring that not too many parties get access to Parliament on a national level. A national threshold can, however, have the negative effect of barring minority parties from representation which are strong in only one region of a country.^[223]

If the threshold only applies on district/constituency level, as is the case in Belgium and Spain, regional minority parties obtain a better opportunity to gain access to Parliament since they only need to pass the threshold in one constituency.

Table 3.11 | Threshold on district level

Such mechanism can be advisable in countries where the representation of regional minorities has a high priority.

However, a threshold clause on district level is not advisable if a country has many strong regional minorities. In this case, the number of parties represented in Parliament can become too large, thus causing fragmentation.^[224]

3.2.2.5.2 Option 2: No Application of Threshold if Party Wins Several Seats in a Constituency

The additional possibility of not applying the threshold if a party wins several seats in a constituency should be considered in electoral systems which allocate seats both directly from electoral districts and at the national level.^[225] It is ensured by this

Table 3.12 | Exception if several seats in one constituency are won

procedure that the particular parliamentarian is sufficiently supported by the elector­ate. The mechanism provides an opportunity to parties, which are strong only in a certain region since they only need to win a certain number of seats in local constituencies in order to be represented in parliament (Table 3.12). For example, in Germany in 1994, the Party of Democratic Socialism (PDS) failed to pass the 5% threshold but won four seats in constituencies. As a consequence, the threshold did not apply so that the PDS finally obtained 30 seats in parliament.^[226]

In some cases exemptions are provided for minorities in general (see Table 3.13).^[227]

In Germany, § 10 of the Federal Election Law of 1949 provided for a 5% threshold on constituency level. As a consequence, 11 parties were elected to the Bundestag. Thus, the clause was changed to only apply on a national level in 1953.^[228] The need for an adequate representation of minorities results from the democratic principle vested in most constitutions.^[229]

Beyond that, including minorities is an important factor in order to guarantee political stability and to create a sound basis for finding compromises.^[230]

While some parties representing minorities are able to pass the legal threshold without having to make use of any additional mechanisms, as for example the Democratic Alliance of Hungarians in Romania (DAHR) representing the Hungar­ian minority of Romania,^[231] smaller minorities may struggle to get access to parlia-

Table 3.13 | | Exemptions for minorities in general

^a “National minority - that ethnic which is represented within the Council of National Minorities.” The party “Democratic Alliance of Hungarians in Romania” representing the Hungarian minority of Romania has constantly been able to pass the legal threshold without having to make use of the exemption clause

^b “Organizations of citizens belonging to national minorities, which fail to obtain the number of votes for representation in Parliament, have the right to one Deputy seat each, under the terms of the electoral law. Citizens of a national minority are entitled to be represented by one organization only”

ment.^[232] It is therefore essential to provide mechanisms which facilitate adequate minority representation in a modern democracy.^[233]

The strongest feature to support national minorities is by granting them a reserved seat in parliament.^[234] For this purpose, a minority does not even need to be organized in a party.^[235] In addition to the reserved seats, states should establish advisory or consultative bodies to serve as channels for dialogue between governmental authorities and national minorities.^[236]

Furthermore, we recommend that parties which represent and primarily pursue the interests of minorities should be exempt from the legal threshold completely. This means that they still need to pass the natural threshold in order to obtain a seat. In order to create legal clarity, the electoral law should also provide a definition of national minorities or name them explicitly.

Any country neither providing for reserved seats nor exempting minority parties from the threshold clause should be able to present a well-founded justification for not doing so.

3.2.2.6 Allocation of "Wasted" (i.e. Unallocated) Votes

When a party does not reach the electoral threshold, the votes that were cast for that party do not have the effect originally intended by the voters. Whereas most countries do not attribute an impact on unallocated votes, some countries reallocate them (Table 3.14).

As one of the major disadvantages of a legal threshold, the votes which were cast for a party not passing the threshold do not find any consideration in the allocation of seats.^[237] Instead, these “wasted votes” can be regarded as being automatically and proportionally distributed among the parties which passed the threshold according to the election result. This outcome might not necessarily be in the interest of those voters whose votes are wasted. However, it is an adequate way of strengthening the parties which passed the threshold.

Nevertheless, there have recently been several new approaches in order to attribute some additional value to the “wasted votes”:

One method being discussed is the establishment of an alternative voting sys­tem.^[238] In such a system, each voter has two votes. The second vote is only considered if the first vote was cast for a party which did not pass the threshold. The alternative voting system can therefore reduce the number of wasted votes, thus improving the equality of vote. Additionally, the side effect of tactical voting can be

Table 3.14 I | Allocation of unallocated votes

^a § áðàã. 3 Federal Election Law, version as promulgated on 23 July 1993 (Federal Law Gazette Ipp. 1288, 1594), last amended by Art. 4 of the Act of 8 June 2017 (Federal Law Gazette I p. 1570)

^b Art. 77 Consolidated Act No. 369 of 10 April 2014, Folketing (Parliamentary) Elections Act

^c § 100 Federal Law on National Council Elections (Regulations on National Council Elections 1992—NRWO), rev. 2017

^d Sec. 191 Electoral Act 1993, rev. 2012

^e Art. 189 Public Official Election Act, lastly amended by Act No.10303 of 17 March 2010

^f Art. 162 par. 1 The Electoral Code of The Republic of Albania (approved by Law No. 10 019, dated 29 December 2008, amended by Law No. 74/2012, dated 19 July 2012 and Law No. 31/2015, dated 2 April 2015)

^g In a majority system, a similar mechanism is referred to as Instant-runoff voting (IRV, synonymous for ranked-choice voting (RCV) or preferential voting). It is for example used in Australia to elect the members of the Australian House of Representatives

^h A similar majority bonus system, however unrelated to electoral thresholds, is in place in Greece, where the winning party is generally awarded an extra 50 seats. In Italy, a party winning at least 40% of the votes it attributed a bonus giving it 55% of the seats

¹ Art. 37 (6) Draft Revised Constitution of Georgia, CDL-REF (2017)027

^j Ibid

^k Reynolds et al. (2005), p. 58

¹ However, on 21 July 2016, the Greek Parliament approved to end the bonus system. The change will not take effect in the next election, but the election after

minimized. However, such method also increases the election system’s complexity and its susceptibility to errors.^[239]

Another option is to allocate the undistributed votes to the winning party, as was proposed for the constitutional amendment of Georgia in 2017. However, it is highly questionable whether this mechanism is compliant with the principle of electoral equality.^[240] In particular, the will of the voters is not sufficiently respected.^[241] A voter might in the end support a party with a completely different political orientation than the party he as originally voted for.^[242] As a consequence, the system could even increase tactical voting behavior in such a way that voters refrain from supporting smaller parties in case they do not want to support the winning party by any chance.

A similar bonus system favouring the winning party, however unrelated to electoral thresholds, is in place in Greece, where the winning party of an election is generally awarded an extra 50 seats. In Italy, a party which wins at least 40% of the votes is attributed a bonus giving it 55% of the total number of parliamentary seats.^[243]

3.2.2.7 Regulation on Constitutional Level or by Ordinary Law?

Most countries do not regulate electoral thresholds on a constitutional level. Some countries regulate minority rights on a constitutional level, though, to give them more weight (Table 3.15).

Generally, it is not advisable to vest such electoral provisions in the constitu­tion.^[244] Particularly the optimal level of a legal threshold is highly dependent on the current party landscape and voting behaviour which might regularly be subject to change.

However, in order to avoid abuse by a governing party which might want to change the election law in its favour, it is recommended to regulate minority rights on the constitutional level and to set up additional conditions for changing the ordinary election law. These additional requirements can either be of the nature that amendments do not apply to an upcoming election or that a qualified majority is necessary in order to change the election law.

Table 3.15 I I Regulatory level

??Electoral Laws Referred to in This Chapter