The constitutionality of election thresholds in Germany

Abstract

Germany is often thought of as home to the hurdle or threshold requirement: parties that fail to obtain 5 percent of the votes in an election are excluded from sitting in Parliament. This idea has been widely copied throughout the world, although the five-percent threshold has not been implemented everywhere, and other variations on the theme exist. Recently, however, doubts have started to emerge in Germany itself about the hurdle. It remains constitutionally valid in federal and state elections, but the Federal Constitutional Court has recently held it invalid in European elections. Its decision deserves endorsement, although it had a range of justifications for holding the hurdle invalid-some remarkably insightful, some rather less praiseworthy.