Alex Salmond has been a controversial figure (to say the least) in Scottish politics for quite some time. Recently, he sparked further controversy when he introduced his newly founded Alba Party alongside a strategy to secure a supermajority for Scottish independence in the upcoming 2021 Scottish Parliament election. While it is not clear what exactly makes a supermajority in Salmond’s understanding, how he aims to achieve it is.

The Scottish election system is different from that of Westminster. Instead of a pure first past the post system (FPTP) Scotland uses the Additional Member System (AMS). Scots elect a Member of the Scottish Parliament (MSP) in their constituency just as they do for Westminster elections, but additionally they vote within their electoral region to send seven further MSPs to Holyrood. While the MSPs in constituencies are chosen according to FPTP, MSPs within the region are not. This is what Alex Salmond and his Alba Party want to take advantage of.

In the electoral regions, consisting of between seven and nine constituencies, Scots do not vote for individual candidates, but for a list of candidates. The amount of votes a list of candidates wins determines how many of the seven seats in each region they get. The distribution here, thus, is proportional. However, it is not that simple. Seats won by a party’s candidates in the constituencies are included when assigning the seven regional seats using the so-called d’Hondt method. In the 2016 elections this led, for example, to the SNP’s 44.8 % vote share in the Glasgow electoral region amounting to zero seats for its list, while Labour with 23.8 % got four seats, and the Conservatives and Scottish Greens with 11.9 % and 9.4 % two and one, respectively. The SNP did, however, win all nine FPTP races in the Glasgow region’s constituencies, amounting to a total of nine out of sixteen MSPs elected by voters in the Glasgow electoral region for the SNP, thus 56.3 %.

Given this system, Alex Salmond’s plan for his Alba Party is straightforward: motivating voters keen on Scottish independence to split their vote, voting for SNP candidates in the constituencies’ FPTP races, but for the Alba Party when it comes to the regional vote. While the SNP is unlikely to win many regional seats due to its high share of expected FPTP wins, the Alba Party does not face this obstacle, as it is not running in constituency races. Thus, if the Alba Party would win those votes in the regional races that would otherwise go to the SNP, it could win a significant number of seats pushing the overall number of pro-independence MSPs beyond what the SNP could get on its own.

Reactions to the move were less than favourable, accusing Salmond of ‘gaming’ the system, and even ‘essentially manipulating’ it. But is this really a mischievous act one needs to condemn and oppose, or is this how the system is meant to work?

While the recent debate about the Scottish election system is mudded by political controversy surrounding Scottish independence or even Alex Salmond personally, a comparative view gives some perspective. Many countries use AMS, and questions on how to put seats won in constituencies into relation to a party’s overall vote share arise there, too. Take Germany as an example.

Most seats in Germany’s federal election constituencies go to the two largest parties, giving them more seats in constituencies and regional lists combined than the proportion of their votes for regional lists would have allowed for. They do not win a sufficient share of votes for their regional lists to back up those constituency seats. This is what could happen to the SNP, if its voters decide to give the Alba Party their regional vote.

In Germany, those seats – won in constituencies but not backed by the share of regional votes – are called Überhangmandate (overhang seats). They occur when the amount of members elected directly in constituencies is higher than the amount of seats – list and constituencies combined – the party would have been entitled to according to their share of the regional vote. The number of Überhangmandate rose from two in the first election in 1949 to forty-six in 2017 due to a diversifying political landscape, shrinking the share of the two largest parties. Überhangmandate distort the proportional representation, giving a party a higher percentage of seats than the percentage of votes they received in the regions.

The German Constitution Court addressed the issue of Überhangmandate in several decisions, the most influential being that of 2012: In its decision, it set out that the current election system aimed for a proportional representation of parties. While the FPTP in constituencies increased local accountability, the proportional result on the regional level was set up to determine the distribution of seats in parliament. The Constitutional Court, therefore, declared the relevant section of the electoral code void, stating that within this election system only an allocation of seats in accordance with the proportionate results could be constitutional. To comply, the legislator chose to introduce Ausgleichsmandate (balance seats). Whenever a party won more constituencies than its proportional share in the regional votes, other parties got more seats until the allocation of seats represents the regional share of votes of each party, adding additional seats to parliament if needed.

If the same system were adopted in Scotland, Alex Salmond’s strategy would not work out. The disproportion between regional list votes and constituencies won would be equalised by adding further seats. This being said, ought Ausgleichsmandate (or a similar measure) to be introduced in Scotland?

That depends on whether the system was designed like the German one to facilitate proportional representation. If that were the case it would consequently need to intercept strategies aimed at interfering with a proportional overall allocation of seats. The Scottish system, however, is not designed for the most proportional representation in parliament in the first place.

Firstly, a non-proportional distribution of seats is almost inevitable given the ratio of FPTP constituency seats to regional seats. While in Germany, 299 seats in constituencies can be put into proportion by the equal number of seats distributed in electoral regions, in Scotland the ratio is tilted in favour of constituencies. This gives the Scottish system less leverage for a proportional allocation of seats in the first place.

Secondly, this ratio between regional and constituency seats did not happen by mistake. In 1995, the Scottish Constitutional Convention (SCC) proposed to level out FPTP with AMS, combining both into a mixed system. The SSC’s vision was for AMS to allow smaller parties to win seats, while FPTP preserved local accountability of MSPs. Not representation, but participation was at the centre of what the mixed system and especially AMS should bring to the Scottish parliament. It was hoped to bring consensus and collaboration in the political culture, stressing the Scottish parliament’s function not just as legislator, but also as civil forum.

This makes the Scottish system not primarily designed to ensure proportional representation in parliament, but to allow for more parties to participate in parliament, while simultaneously allowing for local accountability of directly elected SMPs in constituencies. It accepts a non-proportional allocation of seats if that allows for more plurality and a broader range of represented groups. Does that mean, however, that one ought to accept strategic approaches to make use of the system’s openness to non-proportional allocation of seats? Is encouraging voters to split their vote to maximise their impact on the allocation of seats compatible with the aims of the Scottish voting system?

Tactical voting in itself is nothing new. In fact, FPTP races often encourage tactical voting. Choosing one of the two candidates with a realistic chance of winning instead of ‘wasting’ one’s vote for an unpromising third party candidate is a common occurrence. A voter’s attempt to increase the impact of her vote on the allocation of seats in this way does not seem to raise much criticism. Tactical voting in a mixed system such as the Scottish one is not categorically different from tactical voting in FPTP races, it merely is done differently. One way to do this is to split one’s vote, taking advantage of the fact that a vote for a party’s regional list is unlikely to give it further seats if it already won constituency seats. In the end, it is for Scottish voters to decide whether they want to do this or not, just as a voter in a FPTP race is free to vote for the second best candidate hoping to prevent a less liked candidate from winning. What is important, though, is that voters are aware of how the voting system works and how they could potentially increase the impact of their votes. Educating voters on this matter, however, is a task for everyone within the diverse political landscape, and parties standing for election can advise their potential voters on how to give their vote the highest impact, just as the Alba Party is doing.

Kathrin Strauss, PhD student, University of Cambridge

(Suggested citation: K. Strauss, ‘Ausgleichsmandate for the Scottish Parliament? – Scotland’s mixed electoral system and the Alba Party’, U.K. Const. L. Blog (7th Apr. 2021) (available at https://ukconstitutionallaw.org/))