In Bundestag elections, seats are allocated to parties only if they have complied with the restrictive clause or the clause on the minimum number of constituency seats required for party representation in Parliament.
The restrictive clause stipulates that only parties which have won at least 5 % of the valid votes cast in the electoral area are considered in the proportional distribution of Bundestag seats. The restrictive clause refers to second votes only. Therefore, constituency candidates elected by first vote always enter the Bundestag even if they are members of a party which has received less than 5 % of the valid second votes cast.
The restrictive clause was introduced for elections to the German Bundestag especially in view of developments under the Weimar Constitution. The Bundestag was to be prevented from splitting up into a great number of small groups, thereby losing its ability to act. However, parties representing national minorities are excluded from the restrictive clause.
The effect of the restrictive clause is mitigated by the clause on the minimum number of constituency seats required for party representation in Parliament. Parties which do not comply with the restrictive clause are nevertheless considered in the distribution of seats if they have won a seat in at least three constituencies.
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Section 6 (3) of the Federal Elections Act (BWG)