Overhang seats (excessive mandates, Überhangmandate) arise upon elections in states, in which a party is entitled to less seats according to party vote than it has won constituencies. These “Overhanging seats” (for missing votes) remain with the party.
The two reasons for Overhang seats
(1. High number of constituencies won, 2. Low(er) number of party votes)
Possible procedures and procedures in practice with regard to Overhang seats
not awarding – compensatory Seats – Remaining – reducing the seats of other parties
The awarding of overhang seats without compensation, as mandated in the Federal Electoral Law, is being criticised especially for two of it's aspects:
Negative weight of votes
(contradiction to direct and free elections, parties get less seats, the more votes they get!)
In our opinion this is unconstitutional.
As yet, there hasn’t be a court decision on “negative vote weight”. On July 3rd, 2008 we got a decision of the constitutional court, “negative vote weight” is unconstitutional.
Disproportionality (contradiction of the equality of election)
The overhang seats are outside of proportionality, enlarge the number of seats and change the proportional composition of parliament. On this aspect there are some court decisions (BVerfG, 24 November 1988 – 2 BvC 4/88 – and BVerfG, 10 April 1997 – 2 BvF 1/95 –), which partially approve overhang seats and limit their consequences.