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Overhang seats

The Bundestag elections of 1949 to 2009 could result in what were termed “overhang seats”, which occurred when a party had more seats than its entitlement. In the Bundestag elections of 2013 and 2017, any overhang situation arising in the course of the calculations was offset by an increase in the number of seats so that there were no overhang seats anymore at the end of the seat allocation process. Due to an amendment to the legislation governing Bundestag elections, up to three overhang seats could again be created in the 2021 Bundestag election. By contrast, there can be no overhang seats in European elections as every voter has only one vote.

The German Bundestag is elected according to the principles of proportional representation in combination with a candidate-centred election. Up until and including the 2021 Bundestag election, 299 candidates were elected directly in the constituencies by the first vote (candidate-centred election). The number of second votes cast for a party then determined how many of the 598 seats in the Bundestag that party would get (proportional representation).

The principles of proportional representation will apply from the 2025 Bundestag election onwards. As the first votes are still cast for constituency candidates in the 299 constituencies, the candidate-centred element remains but has become less important. This is due to the fact that a majority of first votes in a constituency will only secure a seat if there are sufficient second votes to back the seat. The total number of seats will be increased to 630 as of the 2025 Bundestag election.

Legal situation until the Bundestag election of 2009

Legal situation since the Bundestag election of 2013

Legal situation as of the 2025 Bundestag election

Overhang seats were created whenever a party won more constituency seats in a Land than it was entitled to by its share of second votes. As a consequence, the composition of the Bundestag did not correspond exactly to the distribution of second votes among the parties. This impaired electoral equality and parties’ equal opportunities.

In its judgment of 25 July 2012 (2 BvE 9/11, 2 BvF 3/11, 2 BvR 2670/11), the Federal Constitutional Court therefore ruled that Section 6 (5) of the Federal Elections Act in the version in force at the time was unconstitutional because overhang seats were not offset by extra seats even if numerous overhang seats were created. The Court ruled that no more than approximately 15 uncompensated overhang seats may be created, which is half of the seats required to form a parliamentary group.

1  Including Bundestag members representing Berlin.

Legal situation since the Bundestag election of 2013

Lawmakers then modified the provision by the 22nd Act amending the Federal Elections Act of 3 May 2013 (Federal Law Gazette I p. 1082). Until the 2017 Bundestag election, any overhang produced in the two-stage seat allocation process was balanced completely by extra seats so that there were no overhang seats anymore at the end of the seat allocation process.

The 25^th Act amending the Federal Elections Act of 14 November 2020 (BGBl. I p. 2395) modified the calculation procedure slightly. Under the new provisions a maximum of three overhang seats can remain at the end of the allocation process. Any additional overhang is offset in the calculation process by increasing the number of seats.

Legal situation as of the 2025 Bundestag election

There can be no more overhang seats from the 2025 Bundestag election onwards as constituency seats have to be backed by sufficient second votes.

Last update: 13 March 2024