Traffic Light Coalition

For election law aficionados and dispute-resolution practitioners alike, the news from Germany's northernmost state of Schleswig-Holstein provides some helpful insights into the dynamics of multi-party negotiations. Although the Pirate Party's rise continues, the stranger story is how a quirk of Schleswig-Holstein's version of list PR is pushing a small ethnic party to the fore. And despite the fact that the state is a relatively small one, the election's impact extends all the way into the federal parliament.

The Greens

It Takes Three

The recent elections left the two major parties, the Social Democrats (SPD) and the Christian Democrats (CDU), with 22 seats each in the 69-member parliament. For a workable majority, one of them will have to form a coalition with at least two of the smaller parties. The Greens obtained their best result to date, with just over 13% of the votes and 10 seats. The Free Democrats (FDP) managed to avoid collapse, but with just six seats now find themselves on a par with the new Pirate Party. The fifth party, and likely coalition partner with the Social Democrats and Greens, is the South Schleswig Voter Federation (SSW), which brings us to a curious feature of Schleswig-Holstein's election laws.

The Odd One Out

To win seats in the state parliament, a political party has to obtain at least five percent of the votes statewide. The same principle applies at the federal level, where the five-percent threshold helped keep extreme left-wing and right-wing groups out of office. But in the late 1970s and early 1980s it also served as an incentive for various anti-nuclear organizations to form the Greens. Coalescing into one electoral list enabled the Greens to gain a toehold in parliament, but in the years immediately after German reunification the five per cent threshold proved insurmountable.

However, the SSW, which represents the Danish and Frisian minorities in Schleswig-Holstein, does not have to meet this hurdle. As a result of a 1955 agreement with Denmark, the SSW is exempt from the fie percent rule and the party's special status has, until now, kept it from a king-making role. The last time the SSW looked poised to put the SPD into office, the CDU threatened to end the party's exemption from the five percent rule.

But with a combined force of just 28 legislators, the CDU and the Free Democrats (which had ruled together since 2009) cannot form a government. Similarly, a Green-SPD partnership would still find itself three seats short of an overall majority. This means that the SSW is now pivotal. Because the party's trademark color is blue, commentators have dubbed the putative new government the Danish Traffic Light Coalition (Denmark's traffic signals are red, green, and blue).

Pirate Power

But for the anomalous SSW, the pivotal party would have been the Pirates. The new digital-rights party's growing pains might have made it an unstable coalition partner over the lifetime of a parliament. On the other hand, as a party with a growing legislative presence across Europe and clear (albeit narrow) legislative priorities, the Pirate Party could have been a more predictable negotiating partner. With its ethnic base and almost automatic parliamentary presence the SSW has no incentive to grow, whereas the Pirates need to maintain momentum if they are to keep jumping over the five per cent hurdle. As a party that would benefit from power by obtaining specific policy commitments from the SPD, the Pirates might be easier to bargain with and lock into a long-term agreement.

National Impact

Ironically, by avoiding a complete rout the FDP in Schleswig-Holstein has made life more difficult for the national leadership.

Guido Westerwelle

Wolfgang Kubicki

Credit for the party's survival is going to Wolfgang Kubicki, the FDP's leading candidate in the state, to the detriment of the federal chair, Phillip Roessler, and parliamentary leader Guido Westerwelle.

In addition to its effect within the FDP, the state elections will have an impact on the composition of the federal legislature.

In the U.S., a state's legislative elections will not affect the composition Congress. Gone are the days when state assemblies chose U.S. senators. But the upper house of Germany's bicameral parliament resembles the United States in the days before direct elections. In Germany, each state government sends a group of delegates to Germany's upper house, the Bundesrat, where the delegation votes as a bloc. So Schleswig-Holstein's current CDU-FDP delegation to the Bundesrat will soon be replaced by one that reflects the partisan make-up of the new state government, with implications for the agenda of Chancellor Angela Merkel's Christian Democrat-Free Democrat government.

Conclusion

In the past, the five per cent hurdle did what its post-War designers hoped, and excluded small extremist parties from elective office. At the national level, one unforeseen consequence of the rule was to encourage various ecology and anti-nuclear factions to join together as Green lists. The decision to carve out an exemption for the SSW in Schleswig-Holstein may produce yet another unforeseen consequence for German politics.