During a public discussion on constitutional amendments held in Kutaisi, Movement for Freedom–European Georgia member, Sergi Kapanadze, talked about the new rule for the distribution of parliamentary mandates which stipulates that under the 5% election threshold and where the establishment of election blocks are not allowed, non-distributed mandates are automatically given to the winning party. Mr Kapanadze stated: “There is no such country where there is a 5% threshold for a proportional election and all of the votes of those parties which did not pass the threshold are taken by the winner.”

FactCheck verified the accuracy of the statement.

According to the draft constitution prepared by the State Constitutional Commission, the rule for conducting parliamentary elections has significantly changed. At the present moment, the existing Constitution of Georgia stipulates the having of a mixed election system which means that elections are conducted in both proportional and majoritarian ways. The Parliament of Georgia includes 77 MPs elected by the proportional system and 73 MPs who won their respective single-mandate constituencies. The 77 parliamentary mandates in the proportional system are distributed only among those parties which manage to get at least 5% of the votes.

The distribution of parliamentary mandates among those parties which passed the election threshold is regulated by a special formula. In the case of the total amount of mandates allotted to the parties being less than 77, the non-distributed mandates are first of all given to those parties which have less than six mandates. In this way, the parties will manage to have at least six MPs in the parliament. After that, if the non-distributed mandates still remain, they will be given in numerical order to those parties which have already obtained more than six mandates. These clauses of the existing Election Code of Georgia are aimed at ensuring that the party which takes the first place in the elections does not take all of the non-distributed mandates (which is stipulated in the new constitution).

The new constitution offers a different rule for mandate distribution. Specifically, the last sentence of Article 37.6 says that non-distributed mandates are automatically given to the party which receives more votes as compared to the other contenders, even if the difference is marginal.

Sergi Kapanadze also talked about those theoretical chances which could be materialized if the new system is adopted. According to his statement, it is possible that a party with 20% electoral support could gain a constitutional majority in the parliament. At a glance, this might be an unrealistic scenario although the draft constitution does not take these kinds of risks into account and does not provide respective checks and balances.

Of note is that in his interview with the news broadcast, Moambe, Speaker of the Parliament, Irakli Kobakhidze, acknowledged the theoretical existence of the aforementioned risks. Mr Kobakhidze stated that “it is possible that a party could get 30% of the votes and 70% of the parliamentary seats because of the bonus.” He made a promise that certain limits would be imposed on bonuses in order to prevent such risks.

It is also important that the draft constitution does not stipulate the establishment of election blocks. Georgia’s existing constitution allows for this. The ban on election blocks could significantly reduce the ability of certain political parties to pass the 5% election threshold.

FactCheck tried to verify those countries with proportional election systems and 5% election thresholds where all of the votes for those parties which do not pass the threshold are given to the winning party.

We studied countries which have a 5% election threshold (for instance, Germany, Belgium, Estonia, Hungary, Moldova, etc.) although we could not find a single instance of the bonus system being used. We also conducted separate studies for those countries which use the bonus system (Greece, Italy and San Marino) although none of these countries has a system similar to what is being proposed in Georgia’s draft constitution.

As a result of the research, FactCheck concluded that there is indeed no such country with a parliamentary election system where the threshold is 5% and the winning party receives all of the votes of those parties which did not pass the threshold in the form of a bonus.

According to the explanatory note of the draft constitution, awarding the winning party the non-distributed mandates ensures the stable functioning of the democratic system. The note reads: “The rule for giving non-distributed mandates to the winning party creates an additional opportunity to ensure the stable functioning of the system. Furthermore, this rule is much softer as compared to giving a greater advantage to the winning party as is stipulated in the Italian and Greek models.” FactCheck decided to review the Italian and Greek systems and compare them to the Georgian one.

Italy

Italy switched to the proportional election system in 2015. As opposed to Georgia, however, Italy’s election threshold is 3% and the establishment of election blocks is allowed (Georgia’s new constitution bans the establishment of election blocks). At the same time, the winning party only receives the additional mandates in the case when it garners more than 40% of the votes. However, getting the additional mandates also has its limitations. Specifically, the Italian system imposes a ceiling which stipulates that the winning party can only increase its mandates up to 54% which serves as a safeguard to prevent the party from obtaining a constitutional majority. In the case of Georgia, a party with low electoral support can get a constitutional majority with bonus mandates because there is no such provision which could prevent that scenario.

If none of the parties in Italy manages to receive 40% of the votes in the first round, a second round is held after two weeks. Only those two parties which had the best performance in the first round are allowed to compete. The winner of the second round receives 54% of the parliamentary mandates whilst additional mandates are distributed between the other parties on the basis of the first-round results.

Of note is that before the aforementioned model, Italy had a different election system in 2005-2014 which automatically gave the winner 54% of the parliamentary mandates without any additional threshold. In 2014, the Constitutional Court of Italy judged the system to be unconstitutional.

As a result of the Constitutional Court’s decision, the 40% minimal threshold was imposed in order for the winning party to get the bonus. However, in the case of Georgia, the draft constitution does not impose any requirement, except for a victory, that a party has to meet in order to take all of the non-distributed mandates.

Greece

In the case of Greece, parliamentary mandates are distributed among those political subjects which manage to get at least 3% of the votes. The establishment of election blocks is also allowed. In regard to the bonus system, the party with the highest number of votes automatically gets 50 of the 300 mandates which is 16.7% of the total amount.

Even though Greece has this type of election system, the law adopted by the Parliament of Greece in 2016 stipulates that the existing system, which gives a 50-mandate bonus to the winning party, will be abolished after the next two parliamentary elections.

The differences between the proportional system envisioned by Georgia’s draft constitution and the Greek model are obvious. The only resemblance between these two systems is the similarity in getting the additional mandates. At the same time, in the case of the Greek model, the amount of additional mandates is strictly defined whilst Georgia’s draft constitution does not impose any limit which might result in giving a much bigger reward to the winning party in Georgia as compared to Greece. We should also remember that the aforementioned election model in Greece will be abolished in a few years.

Considering all of these factors, the opinion written in the explanatory note that the Georgian system is softer as compared to the election models in Italy and Greece does not correspond to the reality. This is because there are no safeguards in our model and mechanisms to balance the risks of a winning party getting unlimited power are absent, all of which might seriously question the country’s democracy.

Indeed, there is no such country where the election threshold is 5% and the winning party takes all of the votes, as a bonus, cast for those parties which did not pass the threshold.

At the same time, there is almost a zero similarity to the Italian and Greek models. On the contrary, Italian legislation imposes a 40% threshold for the party and bonuses are given only in the case of the party managing to pass the threshold. In the case of Greece, the winning party does receive a 16.7% bonus but this rule will be abolished after the next two parliamentary elections. However, we may now adopt a constitution which will give the winning party an unlimited amount of mandates as a bonus without imposing any kind of sound threshold. The absence of constitutional safeguards creates the chances that a party with little electoral support might even obtain the constitutional majority. However, considering the statement of the Speaker of the Parliament, we hope that the offered rules of the proportional system will be revised and amended.

FactCheck concludes that Sergi Kapanadze’s statement is TRUE.