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- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
- Art. 30 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. History of origin
- II. Significance of the provision
- III. Commentary on the text of the standard
- Bibliography
- Materials
I. History of origin
1 Art. 35 PRA goes back to Art. 13 NWG, the content of which the provision has essentially adopted. When the PRA was enacted in 1975, it was "a rewrite without any material changes". Art. 13 para. 1 NWG already provided for the use of ballot papers with or without a form and expressly permitted deletions, amendments or additions to be made to a printed ballot paper. The possibility of casting a blank ballot resulted from the fact that voters were allowed to exercise their right to vote by voting for nominees who appeared on "any of the published lists". Art. 13 para. 3 NWG stipulated that the name of a candidate could not appear more than twice on a ballot paper. Accumulation was then permitted.
2 When the NWG was enacted in 1919 in the course of the introduction of proportional representation for the National Council, the possibilities of deleting and crossing out were undisputed. The Federal Council regarded the permission to cancel votes as a logical consequence of the upstream decision in favor of the system of single-vote competition in view of the electorate's freedom of choice. Conversely, he considered panache voting to be incompatible with the system of list vote competition, as voters would interfere in an unauthorized manner in the ranking of the candidates of a party to whose seat claim they had not contributed ("free panache"). In both the National Council and the Council of States, there were clear majorities in favor of the possibility of "free panache" in combination with the preferred system of single-vote competition.
3 The Federal Council, in line with the expert commission it appointed and chaired by Emil Klöti, but contrary to the view it still held in the preliminary draft, spoke out against the possibility of cumulation, as the pre-cumulation by the parties would severely restrict the influence of voters on the ranking of candidates. Furthermore, the accumulation of votes is not easy for voters to understand. Art. 13 para. 2 NWG therefore still read in the Federal Council's draft: "It is not permitted to place the name of a candidate more than once on a ballot paper".
4 The responsible committee of the National Council, on the other hand, wanted to allow one-time cumulation, primarily to enable small parties in cantons with many seats to present lists that were as "full" as possible by means of pre-cumulation. There were also calls for the possibility of triple or unlimited cumulation. The main argument against cumulation was that it creates an incentive for harmful competition between the candidates on a list. The criticism was primarily directed against pre-cumulation by the parties on the pre-printed lists, rather than against independent cumulation by the voters. The model of substitute candidates had been proposed by the opponents of cumulation. According to this model, the parties would have first defined who their preferred candidates were and then nominated substitute candidates. In the National Council, the Federal Council's proposal without cumulation and substitute candidates narrowly prevailed.
5 In the Council of States, the freedom of the voters' will was emphasized in favour of cumulation. However, the counter-arguments from the National Council and the substitute candidate system met with greater approval than in the National Council. In the end, however, cumulation won out by a narrow margin and achieved a clear majority compared to the National Council's zero solution. In the course of the settlement of differences, the majority of the National Council agreed that the panache system contained in the Federal Council draft required a corrective. In view of the decision of the Council of States, the National Council also voted in favor of the possibility of one-time cumulation. A para. 3 was therefore added to Art. 13 NWG, which read as follows: "It is not permitted to place the name of a candidate more than twice on a ballot paper".
6 On the occasion of the transfer of Art. 13 NWG to Art. 35 PRA, two amendments were tabled in the National Council with regard to the new version proposed by the Federal Council, which was unchanged in terms of content and again related to cumulation, which had already been controversial in 1919. On the one hand, a ban on cumulation was demanded. The motion was aimed at curbing competition within a list. On the other hand, a less far-reaching demand was made that accumulation should only be carried out by hand. This would have prohibited pre-cumulation on pre-printed lists. This was intended to reduce the influence of the parties. Although the Commission rapporteur acknowledged a certain potential for abuse with regard to pre-cumulation, he considered this to be generally justified by legitimate reasons, such as regional and group-related preference for certain candidates. Furthermore, one member argued that cumulation was the "most essential right of correction" of the people, expressing a remnant of personal choice. The National Council clearly rejected both amendments. The Council of States agreed without discussion to the version adopted by the National Council and thus to the Federal Council's draft.
7 Art. 35 PRA has not been amended since its enactment.
II. Significance of the provision
A. General
8 Art. 35 PRA regulates two issues that are of paramount importance for parliamentary election law: The design of the ballot papers and the options available to voters when filling in the ballot papers. On the one hand, the provision stipulates that ballot papers may be used with or without a form (para. 1 and para. 2). Secondly, para. 1 sets out the modalities for filling in blank ballot papers, para. 2 defines the variants for changing pre-printed ballot papers, namely crossing out and crossing out, and para. 3 allows cumulation for both types of ballot papers.
9 The changeability of the lists compiled by the parties - in addition to the possibility of entering into list combinations between the parties - has a decisive influence on the operation of the proportional representation system and thus represents a significant concretization of the constitutional framework through legislation. The proportional representation laid down in Art. 149 FC is enriched with the possibilities of using lists without a form as well as deletion, cumulation and panache with personality aspects typical of the majoritarian system.
10 In view of the possibilities opened up under Art. 35 PRA, the lists compiled by the parties are ascribed the character of a "non-binding proposal", giving voters "maximum" freedom of choice. However, the numerous options available to voters harbor a not inconsiderable potential for error when evaluating the ballot papers and thus determining the election result. Not least for this reason, the sometimes stricter requirements for referendums derived from Art. 34 para. 2 FC cannot be applied to National Council elections.
11 The changeability of ballot papers is regulated conclusively in Art. 35 PRA. At the level of the ordinance, there are only a few concretizations of the law. In connection with Art. 35 PRA, it merely states that ballot papers with a pre-printed form must leave sufficient space to enable the electorate to vote for a single candidate and cumulate in a legible manner (Art. 7 VPR).
12 Art. 35 para. 1 PRA contains specific requirements regarding the correct completion of ballot papers without a pre-printed form by voters. Like Art. 5 para. 2 sentence 1 and Art. 33 para. 1 PRA, the provision presupposes that ballot papers without a pre-printed form may be used for valid voting. The authorization of ballot papers without a pre-printed form is most clearly stated in Art. 33 para. 1 PRA. According to this provision, the cantons also issue ballot papers without a pre-printed form. As is clear from Art. 35 para. 1 ("Whoever uses the ballot paper without a pre-printed form"...), every voter is free to decide whether to use a ballot paper without a pre-printed form or a ballot paper with a pre-printed form.
13 Para. 2 regulates the requirements for the correct procedure when using a ballot paper with pre-printed form. The fact that ballot papers with a pre-printed form are the second permissible variant alongside those without a pre-printed form also follows from Art. 5 para. 2 sentence 2 and Art. 33 paras. 1 and 3 PRA. It is clear from Art. 33 para. 1 PRA what the pre-printed form required in para. 2 consists of. The following information must be pre-printed on the ballot paper for the respective list, i.e. for each nomination that has been adjusted and assigned an ordinal number (cf. Art. 30 PRA): list designation (cf. Art. 23 PRA), list affiliation if applicable (cf. Art. 31 para. 2 PRA), ordinal number (cf. Art. 30 para. 2 PRA) and candidate details (at least family name, first name and place of residence; cf. Art. 22 para. 2 PRA). Voters may delete pre-printed candidate names as well as the pre-printed serial number and list designation. They may also enter candidate names from other lists and replace the pre-printed order number and list designation with another.
14 Para. 3 allows candidates to be listed twice on the ballot paper when using a ballot paper with or without a pre-printed form.
15 Art. 35 PRA fulfills two functions, which are expressed in the section heading. On the one hand, it concerns requirements for the correct performance of the act of voting by completing the ballot paper and, on the other hand, the evaluation of the ballot papers cast by voters in a certain form as part of the determination of the results.
16 The title of the article ("Filling out the ballot paper") indicates the close relationship between the formal requirements and the grounds for invalidating entire ballot papers and individual candidate votes (cf. Art. 38 PRA). Thus, the election of exclusively non-candidates on a ballot paper without a pre-printed form (cf. Art. 38 para. 1 lit. a PRA) leads to the invalidity of the ballot paper, as does the use of non-official ballot papers (Art. 38 para. 1 lit. c PRA). Of even greater practical importance is the handling of invalid candidate votes on ballot papers that are valid in principle. Art. 38 para. 2 lit. a and Art. 38 para. 3 PRA regulate how to deal with surplus candidate votes caused by cumulation.
17 In addition, the provisions in Art. 35 PRA have a significant material impact on the evaluation of the ballot papers when converting the votes into mandates for the lists and determining the persons elected. This function of Art. 35 PRA comes into play both with regard to the candidate votes, which are primarily decisive (cf. Art. 39 lit. c PRA), and with regard to the party votes, which are ultimately decisive for the distribution of seats (cf. Art. 39 lit. e PRA).
18 With regard to the party votes, Art. 35 para. 1 and para. 2 sentence 2 in conjunction with Art. 37 para. 1 BPR. Art. 37 para. 1 PRA means that additional votes can only be cast on a ballot paper without a pre-printed form if the voter affixes a list designation or the ordinal number of a list, or on a ballot paper with a pre-printed form if the voter does not cross out the pre-printed ordinal number and list designation.
19 Party votes resulting from candidate votes on a list can be attributed to the inclusion of these candidate names on other lists (panache) (Art. 35 para. 2 sentence 1 PRA). In this respect, the voter votes for a party other than the one entered on the ballot paper (system of individual vote competition as opposed to list vote competition).
20 The result of the votes cast for candidates on a particular list, which is decisive in determining who is elected (Art. 43 para. 1 PRA), is influenced by deletions from pre-printed ballot papers (Art. 35 para. 2 sentence 1 PRA) and the accumulation of candidate names (Art. 35 para. 3 PRA).
21 The use of the various types of ballot paper by voters has been empirically recorded by the Federal Statistical Office since the 1975 National Council elections. At that time, 42% of ballot papers remained unchanged on average across Switzerland, while 54.2% were changed and 3.6% had no party designation. In 2019, voters submitted 45% unchanged, 43.5% changed and 8.5% ballot papers with no party designation. This data shows that the majority of voters make use of the options provided for in Art. 35 PRA by either changing ballot papers with a pre-printed form by crossing out, cumulating and crossing out or filling in ballot papers without a pre-printed form. In addition, the detailed statistics on panache voting provide information on the attractiveness of candidates, party discipline and affinities between different parties.
B. Comparison of laws
22 In the cantons with proportional representation in parliament, voters have largely the same options as in the National Council elections. This applies regardless of whether a constituency-based proportional representation system is used in the canton in question, a single constituency exists or the votes are counted according to double proportional representation across constituencies.
23 In accordance with the system of single-vote competition applied in all cantons, panache voting is permitted everywhere. Accumulation, on the other hand, is prohibited in the cantons of Fribourg, Valais, Neuchâtel and Geneva. The canton of Basel-Stadt, on the other hand, allows three-way accumulation. The other cantons follow the federal model of allowing candidates' names to be listed twice.
III. Commentary on the text of the standard
A. Para. 1 (ballot papers without pre-printed form)
24 Para. 1 refers exclusively to the use of a ballot paper without a pre-printed form. The provision therefore covers the option of a voter deciding to fill in a blank ballot paper completely by hand instead of using a ballot paper with a pre-printed form. The options available to voters when filling in the ballot paper extend to the candidates on the one hand and to the lists of candidates on the other.
25 The provision initially states that the voter "may" enter the names of eligible candidates. However, in order to create a valid ballot paper, it must contain at least the name of one eligible candidate in the constituency concerned (cf. Art. 38 para. 1 lit. a PRA). Accordingly, voters may not insert a ballot paper without at least one valid candidate name. The voter may enter a maximum of as many names as there are seats to be allocated in the constituency for the purpose of determining the result (cf. Art. 38 para. 3 PRA).
26 In addition, the voter may affix the list designation or serial number of a list. This is a purely voluntary option. If the voter chooses not to do so, only the candidate votes are included as party votes (cf. Art. 39 lit. e PRA) in the calculation of seats for a particular list (Art. 40 - 42 PRA). If a voter affixes the designation of a particular list, this may result in additional votes in favor of the list in question (Art. 37 para. 1 PRA), which are also included in the total of party votes (cf. Art. 39 lit. e PRA), provided that fewer valid candidate votes are allocated on the ballot paper than there are members of the National Council to be elected in the constituency. The affixing of a list designation or serial number is therefore only relevant if a voter does not complete a ballot paper without a form. If a voter fails to affix a list designation or serial number in such a case, this constitutes a waiver of the right to vote. The individual's voting power is then not fully utilized.
B. Para. 2 (ballot paper with pre-printed form)
27 Para. 2 covers the possibility of using a ballot paper with a pre-printed form. In practice, this is the more common voting behavior than using a ballot paper without a form. The provision regulates the extent to which the voter may make changes to a pre-printed ballot paper that has been designed by a specific party. Deletions and entries may be made both in relation to candidate names and in relation to the list designation.
28 The first option consists of deleting pre-printed candidate names. The immediate consequence of this is that the candidate does not receive a candidate vote and falls behind in the ranking of candidates with the most votes when determining those elected. If the voter makes no changes other than deleting candidates, this does not harm the list in question. Blank lines caused by crossing out are considered additional votes for the list (Art. 37 para. 1 sentence 1 PRA), meaning that the party votes relevant for the distribution of mandates remain unchanged. Crossing out is therefore only relevant for determining the elected persons on a list; it does not affect the distribution of seats in the National Council between the parties.
29 The second option is to enter the names of candidates from other lists (crossing out). Ballot papers with a pre-printed form must leave enough space to allow the electorate to write in the names of candidates in a legible manner (Art. 7 VPR). Pancaking has a significant impact on determining the distribution of seats on the lists. By voting for a candidate in this way, the voter firstly ensures that this person is given preference when determining the number of candidates on their list and, above all, that a list other than the one selected receives a party vote that is relevant for calculating the number of seats. For example, in the canton of Schwyz, if four seats are up for grabs on the SVP list and a candidate from the FDP and a centrist candidate are chosen, only 50 percent of the voters have voted SVP, but 25 percent FDP and 25 percent centrist.
30 As a third option, the voter can delete the pre-printed order number and list designation. The effects of this option can vary. If no further changes are made, deletion is meaningless if the list contains as many names as there are seats to be allocated. All candidate votes then flow as party votes to the list originally pre-printed on the ballot paper. As a result, crossing out is only significant if blank lines remain on the ballot paper, as these do not count as blank votes due to the lack of a list designation (Art. 37 para. 1 sentence 2 PRA). The originally pre-printed list therefore loses potential additional votes.
31 The fourth option of replacing the pre-printed serial number and list designation with a different one can also have very different effects on the election result. If the voter simply replaces the list designation and makes no further changes to a full list, the operation has no significance. De facto, the originally pre-printed candidates were simply crossed out and their candidate votes flow in full to the originally pre-printed list as party votes. Empty lines are added to the newly inserted list as additional votes. In practice, however, a voter is also likely to insert candidate names from the newly designated list after replacing the list designation in order to allocate party votes to the newly designated list. The names that are left in are added to the original list as candidate votes. As a result, this is a panache vote.
C. Para. 3 (cumulation)
32 para. 3 covers the use of a ballot paper with or without a pre-printed form. Accumulation is permitted in both situations. Ballot papers with a pre-printed form must leave sufficient space to allow the electorate to cumulate legibly (Art. 7 VPR).
33 The voter may list the name of the same candidate twice on the ballot paper (cumulate). Conversely, this means that candidates may not be cumulated more than twice. Consequently, in accordance with Art. 38 para. 2 lit. a PRA, excess repetitions, i.e. the name of a candidate who appears more than twice on a ballot paper, are deleted from the ballot paper.
34 While cumulation has been controversial in terms of legal policy and enjoys a great deal of public attention, its practical significance for the political composition of the National Council is much less important than the options contained in para. 2. Accumulation does not in itself affect the distribution of mandates between the lists. Rather, the relevant legal consequence of cumulation is that it favors the candidates in question in the determination of those elected to a list (Art. 43 para. 1 PRA). Cumulation therefore reinforces the phenomenon of majority voting within the lists, but does not affect the basic model of proportional representation. Accumulation only indirectly leads to an increase in the party votes of another list in connection with variegation. However, the reason for this is the process of panasching, not that of cumulation.
Bibliography
Biaggini Giovanni, Bundesverfassung der schweizerischen Eidgenossenschaft, Kommentar, 2. Aufl., Zürich 2017.
Hangartner Yvo/Kley Andreas/Braun Binder Nadja/Glaser Andreas, Die demokratischen Rechte in Bund und Kantonen der Schweizerischen Eidgenossenschaft, 2. Aufl., Zürich 2023.
Kölz Alfred, Probleme des kantonalen Wahlrechts, Darstellung und kritische Betrachtung der Gesetzgebung und der bundesgerichtlichen Rechtsprechung, ZBl 88 (1987), S. 1-40.
Schiess Rütimann Patricia M., Politische Parteien, Privatrechtliche Vereinigungen zwischen öffentlichem Recht und Privatrecht, Bern 2011.
Thurnherr Daniela, Kommentierung zu Art. 149 BV, in: Waldmann Bernhard/Belser Eva Maria/Epiney Astrid (Hrsg.), Basler Kommentar, Bundesverfassung, Basel 2015.
Weber Anina, Schweizerisches Wahlrecht und die Garantie der politischen Rechte, Eine Untersuchung ausgewählter praktischer Probleme mit Schwerpunkt Proporzwahlen und ihre Vereinbarkeit mit der Bundesverfassung, Zürich/Basel/Genf 2016.
Materials
Botschaft des Bundesrates an die Bundesversammlung betreffend die Wahl des Nationalrates nach dem Grundsatze der Proportionalität vom 26.11.1918, BBl 1918 V 121 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/1918/5_121_119_/de, besucht am 11.1.2024 (zit. Botschaft 1918).
Botschaft des Bundesrates an die Bundesversammlung zu einem Bundesgesetz über die politischen Rechte vom 9.4.1975, BBl 1975 I 1317 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/1975/1_1317_1337_1313/de, besucht am 11.1.2024 (zit. Botschaft 1975).
Bundesamt für Statistik, Nationalratswahlen: Typen von Wahlzetteln, Panaschierstatistik vom 24.2.2020, abrufbar unter https://www.bfs.admin.ch/bfs/de/home/statistiken/politik/wahlen/eidgenoessische-wahlen/nationalrat/panaschierstatistik.assetdetail.12047666.html, besucht am 11.1.2024 (zit. BFS, Panaschierstatistik).