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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. 37 PRA can be traced back to different origins. Para. 1 and para. 3 can be traced back to the NWG 1919. Para. 1 goes back to Art. 14 para. 1 NWG 1919, para. 3 to Art. 14 para. 3 NWG 1919. Para. 2 and para. 4 were newly created when the PRA was enacted in 1976. Para. 2bis sentence 1 (1994) and para. 2bis sentence 2 (2002) were added in the course of later partial revisions.
2 Art. 37 para. 1 PRA was already to be found in a similar form in the Federal Council's draft of the NWG 1919, which still simply referred to "list votes". Parliament introduced the term "additional votes" in Art. 14 para. 1 NWG 1919. The idea was to make incomplete ballot papers fully valid by "counting" the blank lines as a rule. This was primarily intended to protect small parties in cantons with a large number of seats to be allocated from the de facto constraint of always having to submit full lists in order to avoid losing a large number of votes from the outset. The Federal Council had also proposed the regulation because it had rejected the option of cumulation, which was later adopted by Parliament. With slightly different wording, the provision was incorporated into Art. 37 para. 1 PRA and has not been amended since.
3 Art. 37 para. 3 PRA goes back to the first sentence of Art. 14 para. 3 NWG 1919. The entire provision read: "Names that do not appear on any list shall be disregarded; however, the votes cast for them shall be counted as additional votes if the ballot paper bears a list designation". The wording had been changed from the Federal Council's draft due to the successful Grünenfelder motion. The provision was incorporated into the PRA. In 2007, part of the article was deleted in the course of a formal clean-up ("...the votes attributable to them shall, however, be counted as additional votes if the ballot paper bears a list designation or order number; in the absence of such a designation or order number, these votes shall not count (blank votes)"), as the content was a repetition of Art. 37 para. 1 sentence 2.
4 Art. 37 para. 2 PRA, which regulates the constellation of "collective lists", was deliberately not provided for in the Federal Council's draft of the PRA. The Federal Council had come to the conclusion "that the approval of collection lists and a corresponding provision should be refrained from". The phenomenon of collective lists occurred in the 1971 National Council elections in the canton of Berne. The BGB/SVP of the Canton of Berne had one of its national lists designated as a so-called collective list. Where there was uncertainty regarding the allocation of a list - and thus the additional votes - to a specific geographical area, the additional votes were to be allocated to the list that was considered the "collective list". The Federal Council did not want to legalize such a procedure, but rather wanted voters to provide precise information. In addition, difficulties in allocation could often be solved by "reasonable interpretation". In the National Council, however, a deviating motion (Akeret motion) prevailed, which essentially called for the current regulation. The main argument was that a clear regulation would prevent difficulties of interpretation from the outset. The aim of the regulation was to "allocate blank supplementary votes to the regional list that most closely corresponds to the will of the voters, i.e. the regional list that was submitted in their area of residence". The Council of States approved the motion without further discussion.
5 Art. 37 para. 4 PRA has no predecessor in the NWG 1919. It goes back to the Federal Council's draft for the PRA and was intended to establish a clear rule of interpretation in the event of contradictory information provided by the voter.
6 The enactment of Art. 37 para. 2bis sentence 1 PRA in 1994 was an indirect effect of the provision on sub-list connections in Art. 31 para. 1bis PRA. As the Federal Council did not want to allow sub-list connections, it did not propose any regulation for the resulting utilization of votes in the case of empty lines. However, after Parliament had permitted sub-list connections beyond the constellation of sub-lists with reference to a region covered by Art. 37 para. 2 PRA, there was a need for regulation with regard to the question of how to proceed with sub-lists with an addition to indicate gender, wing of a grouping or age with empty lines with regard to potential additional votes. Against this background, the responsible committee of the National Council proposed the current regulation, which was adopted by the plenary. There was no further discussion, although two minority motions were tabled. This can be explained by the fact that the issue had already been decided with the initial question of sub-list connections.
7 Art. 37 para. 2bis sentence 2 PRA from 2002 is again the consequence of the provision in Art. 23 sentence 2 PRA that was enacted at the same time. Groups that submit election proposals with identical elements in the main designation and wish to combine these with one another designate one of the election proposals as the master list. Sentence 2 refers to this master list in that, in case of doubt, the blank lines are counted as additional votes. The provision "guarantees the precise legal consequence of designating a list as the parent list in the case of several lists with the same main name".
II. Significance of the provision
A. General
8 Art. 37 PRA contains regulations in the area of conflict between the list election of parties, which is characteristic of proportional representation (cf. Art. 30, Art. 40 et seq. PRA), and the options open to individual voters with regard to the persons standing as candidates (cf. Art. 35 PRA). In a proportional representation system with fixed party lists and no power for voters to make changes, the questions regulated in Art. 37 PRA do not arise. Each ballot paper is counted once in full. It is not possible for voters to not use all of their potential votes. In contrast, the system used in the National Council elections with changeable lists and individual vote competition means that each voter can mathematically cast as many votes as there are seats to be allocated. A ballot paper is valid as soon as it contains at least one name of a person standing as a candidate in the constituency (cf. Art. 38 para. 1 lit. a PRA). Without further regulation, unallocated votes, i.e. blank lines on the ballot paper, would not be counted. They would have no influence on the election result.
9 The provisions in Art. 37 PRA on the introduction of "additional votes" are an expression of the parties' desire to have as many potentially blank votes as possible attributed to their respective lists. The voters' expression of will is interpreted with the help of legal fictions in such a way that as few empty votes as possible remain. As a result, additional votes can even lead to a list being allocated more mandates than it has candidates (Art. 44 PRA).
10 The legal interpretation of the will of the voters requires justification in view of the undistorted casting of votes protected by the freedom to elect and vote (Art. 34 para. 2 FC). In a system of changeable lists, it would seem obvious to treat empty lines as empty votes and thus not to attribute them to any candidate or list. Although the extensive consideration of empty lines in the distribution of mandates serves the equality of voting power resulting from equal voting rights, it also assumes that voters do not actually express a preference. Voters are also required to have detailed knowledge of the attribution mechanisms. Overall, the regulations are difficult to understand and their effects are likely to remain hidden from most voters. From a legal policy perspective, there is a considerable transparency problem.
11 In terms of constitutional law, the regulation is justifiable overall. Art. 37 PRA defines the list designation or ordinal number indicated on the ballot paper in question as the decisive criterion for attributing empty lines to certain lists (para. 1, para. 2bis sentence 1). In the event of a contradiction, the list designation applies (para. 4). In the logic of a proportional electoral system that is naturally characterized by parties, this link is understandable. A voter who uses a party list provided with a corresponding form will - at least from a generalized point of view that is considered permissible - generally agree that votes not awarded to specific candidates ultimately go to the chosen party. This can also be assumed if the attribution is mediated by the instrument of the master list (Art. 23 PRA). The justification is particularly unproblematic in cases where the list has fewer candidates than seats to be allocated from the outset - despite possible pre-cumulation. It is also possible to cast blank and therefore non-counting votes by deleting the list designation or using a ballot paper without a form and not affixing a designation. Finally, in the event of an error regarding the list number of the elected party, it is quite understandable to declare the party designations that are much more familiar to voters as decisive (para. 4) and not to give priority to the presumably randomly used ordinal number.
12 The attribution of empty lines to a particular regional list of a party (para. 2) also requires an additional fiction. The provision is not only based on the presumption that the voter wishes to allocate blank lines to the designated list. Furthermore, the law has the effect that the additional votes are allocated to the regional list of a party, even if the ballot paper is not marked with the region. The additional vote is allocated to the list in whose region the ballot paper was cast. The law therefore assumes that the voter not only wants to vote for the party indicated on the ballot paper with a blank line, but also for its regional list. Apart from delimitation difficulties, if the regional list does not refer to clearly identifiable territorial subdivisions of a canton, it is questionable why - as in the case of other, non-regional partial lists (cf. para. 2bis) - a core list to be determined should not also be the beneficiary of the additional votes in this respect.
13 Finally, the use of votes for non-eligible persons as additional votes for the designated list (para. 3) is the furthest removed from the presumed will of the voter. The constitutional limits flowing from the freedom to elect and vote are exhausted with this regulation. The election of an ineligible person is likely to be closer to a panache vote than the election of an unchanged list. There is also a significant difference to the situation of surplus cumulation and multiple candidacies that are subsequently declared invalid (see Art. 38 para. 2 PRA). In these cases, the voter at least expresses the intention to vote for the candidate on the list in question. In view of the freedom of choice, it would therefore be appropriate to treat a vote for a non-candidate as a blank vote and therefore as invalid.
14 The practical significance of additional votes varies greatly between the parties on the one hand and the constituencies on the other. In the main lists of the major parties, it is marginal, whereas in the lists of smaller parties and groups, the additional votes account for a certain proportion. There are also more additional votes in the more populous cantons with a higher number of seats to be allocated than in constituencies with fewer seats. The political relevance of the additional votes would require more detailed research on a comprehensive empirical basis. However, a rough review of the results of the 2019 National Council elections suggests that the additional votes primarily benefit lists with fewer candidates than seats to be allocated. This corresponds to the main regulatory purpose, at least as far as the basic allocation of empty lines is concerned.
B. Comparison of laws
15 The instrument of additional votes exists in numerous cantons, analogous to the structure in the Confederation. This applies both to cantons with isolated elections in the individual constituencies and to cantons with double proportional representation. In the canton of St. Gallen, there is a provision that is largely identical to that of the Confederation. The cantons of Bern and Solothurn also have comparable provisions. Due to the lack of list and sub-list connections in the context of double proportional representation, the respective regulations on additional votes in the cantons concerned are much more streamlined than in the Confederation. It is limited to allocating the blank lines to the party listed on the ballot paper as additional votes.
III. Commentary on the text of the standard
A. Para. 1 (attribution of blank lines)
16 In the system of individual vote competition, the sum of the votes for the candidates on a list is the relevant factor for the allocation of seats to the various lists. These votes are referred to as candidate votes (cf. Art. 39 lit. c PRA). If a voter allocates all votes in accordance with the number of seats to be allocated in the constituency, he or she utilizes the entire voting potential.
17 As there is no obligation to cast all votes, voters may leave blank lines on the ballot paper. Art. 37 para. 1 PRA covers this constellation, in which a ballot paper contains fewer valid candidate votes than there are members of the National Council to be elected in the constituency. This may be due to various reasons. A ballot paper with a pre-printed form may contain fewer candidates than seats to be allocated and the voter may refrain from completing the ballot paper. The voter may also cross out names on a ballot paper with a pre-printed form or not complete a ballot paper without a pre-printed form. In these cases, not all of the potential votes are used.
18 Without further regulation, the blank lines would not count as blank votes, as no votes other than the candidate votes would be taken into account. Art. 37 para. 1 PRA stipulates differentiated legal consequences for the constellation with blank lines. If the blank lines can be allocated to a specific list on the basis of specific indications, they are attributed to this list (sentence 1). Only if there is insufficient evidence on the ballot paper do the blank lines not count as blank votes (sentence 2).
19 Pursuant to Art. 37 para. 1 sentence 1 PRA, the blank lines count as additional votes for the list whose name or serial number is indicated on the ballot paper. This may be the case if a ballot paper without a pre-printed form is provided with a list designation but is not filled in completely. In the case of a ballot paper with a pre-printed form, it can occur if fewer candidates are listed than there are seats to be allocated or if candidates are deleted. The law assumes that the voter wants to exhaust the entire potential of votes in favor of the chosen party. In many cases, this will reflect the will of the voter, for example if a list has too few candidates from the outset. The assumption also seems obvious when a list designation is added by hand. However, it is doubtful whether this is also true for the deletion of candidates. After all, the blank vote is indirectly returned to the deleted person as an additional vote in the form of a party vote.
20 According to Art. 37 para. 1 sentence 2 PRA, blank lines do not count only in exceptional cases. They are only treated as blank votes if no relationship to a specific list can be established, i.e. if there are no indications of the presumed will of the voter. This is the case if the name and serial number are completely missing or if the ballot paper contains more than one of the submitted list names or serial numbers.
B. Para. 2 (additional votes for regional sub-lists)
21 Para. 2 refers to a constellation of list or sub-list combinations regulated in Art. 31 para. 1bis PRA and Art. 8c para. 2 VPR. The special provision covers list and sub-list combinations between lists with the same name that differ only by an addition to indicate the region. The problem could be solved with the help of core lists pursuant to Art. 23 sentence 2 PRA, as stipulated for the other constellations in Art. 37 para. 2bis PRA. However, Art. 8 para. 3 VPR states that the grouping designates an election proposal as a core list, unless the distinguishing feature relates to the regional delimitation of the lists.
22 Para. 2 concerns, in the context of list and sub-list combinations between lists with a regional addition, the case in which the voter provides a blank ballot paper with a list designation that cannot be clearly assigned to a specific list within the list or sub-list combination. If, however, the designation of the sub-list is clear, Art. 37 para. 1 sentence 1 already applies and the blank votes are counted as additional votes for the clearly designated list. If the ballot paper is completed in full, the fact that the list is not clearly designated is also irrelevant, as all votes can be allocated to a list via the candidate votes. The regulation only comes into play if there are empty lines on the list in question and the name of the regionally circumscribed list is not clear. In this case, it is not immediately clear to which list the potential additional votes should be allocated as part of the list or sub-list combination.
23 The decisive criterion for the attribution of additional votes is the place of voting, i.e. the voter's political domicile. The list in whose region the ballot paper was cast benefits. The provision establishes the irrefutable presumption that the voter wishes to have blank lines counted as additional votes for the regional sub-list of the chosen party. The regional reference of the sub-lists will often be based on subdivisions of the cantonal territory such as districts, municipalities or language regions. A classification is then relatively easy. However, delimitation difficulties can arise with designations such as east/west or urban/rural.
24 The provision makes it easier for parties to draw up regional lists based on districts or urban and rural areas in large cantons and in this way "to ensure an appropriately equal representation of the various regions and to guarantee a closer personal relationship between the candidate and his electorate". Otherwise, depending on the interpretation by the electoral office, there would be a risk that the blank lines would not count as blank votes due to a lack of designation pursuant to Art. 37 para. 1 sentence 2 PRA. If, as in the other cases, they had to designate a core list, this would also not be attractive for the parties, as they would have to grant a region preferential rights to the additional votes.
25 With the steady increase in regional sub-lists (1971: 22; 2003: 12; 2015: 41; 2019: 64; 2023: 72), practical delimitation issues could increasingly arise. The allocation is unproblematic if the lists are linked to definable territorial units, such as in 2023 for the centrist lists in the canton of Aargau with the additions "For the district of Baden", "For Brugg and the Zurzibiet", "For the district of Zofingen" etc. or the lists of the Green Liberals in the canton of Thurgau with the additions "District of Arbon", "District of Münchwilen" etc. and the lists of the Center in the canton of Solothurn with additions such as "Dorneck-Thierstein" or "Thal-Gäu".
26 However, designations such as "Die Mitte - Region Frauenfeld-Untersee" in the canton of Thurgau or "MitteFT.Miteinander.Für das Fricktal." in the canton of Aargau, "Die Mitte Unteres Baselbiet" in the canton of Basel-Landschaft or "SVP - Für einen dynamischen Ennetsee!" and "Alternative - die Grünen - Berg" in the canton of Zug, as these are not legally established units. It must first be determined which districts or municipalities are behind them.
27 Even more difficult to classify are lists such as "Die Mitte, Hauptliste Nord-West", "Die Mitte, Hauptliste Süd-Ost", "EVP Kanton St.Gallen, Liste St.Gallen-Wil", "EVP Kanton St.Gallen, Liste Süd" in the canton of St. Gallen or "FDP.Die Liberalen West" and "FDP.Die Liberalen Ost" as well as "Sozialdemokratische Partei (SP) Liste West" and "Sozialdemokratische Partei (SP) Liste Ost" in the canton of Solothurn. In many cases, the practice will arrive at justifiable allocations of additional votes based on everyday language usage. From the voters' perspective, however, the attribution of empty lines due to the legal fiction with regard to the freedom to vote and to be elected (Art. 34 para. 2 FC) harbors some potential for surprises. It is doubtful whether many voters in the canton of Zurich are aware of whether they are casting their vote in the region of the list "Die Mitte - Die Junge Mitte Süd-West" or the list "Die Mitte - Die Junge Mitte Nord-Ost". These are not common geographical designations. The canton of Zurich also has areas that could be described as south-east or north-west, meaning that the classification cannot be made using the exclusion method. It remains unclear, for example, where the districts of Dietikon, Hinwil, Meilen or Uster can be assigned.
C. Para. 2bis (additional votes for other partial lists)
28 Para. 2bis covers the constellations of list and sub-list combinations between lists with an addition to indicate gender, wing of a grouping or age. Para. 2bis sentence 1 repeats the principle from para. 1, according to which the additional votes go to the list designated on the ballot paper.
29 The actual meaning of the provision is derived from para. 2bis sentence 2. The additional votes on insufficiently designated ballot papers are attributed to the list that the grouping has designated as the core list. In the cases covered by this provision, pursuant to Art. 23 sentence 2 PRA in conjunction with Art. 8c para. 3 VV. Art. 8c para. 3 VPR, an election proposal must be designated as a core list. In contrast to para. 2, the obligation to designate a core list, to which all additional votes are allocated in case of doubt, always allows for a clear attribution. The Federal Council thus correctly stated: "The system of designating the core list (Art. 23 and 37 para. 2bis) allows the precise allocation of all votes, so that the enormously time-consuming survey of the number of candidate votes and additional votes of each list within a sub-list combination and, if applicable, within a list combination of lists with the same designation has become superfluous".
D. Para. 3 (deletion of names of non-candidates)
30 Para. 3 appears at first glance to merely clarify the legal consequence of the fact that only eligible candidates may receive votes. In the case of ballot papers with a pre-printed form, this is ensured with official ballot papers (cf. Art. 33 para. 1 PRA), as all candidates have previously undergone a verification procedure. With regard to ballot papers without a pre-printed form, Art. 35 para. 1 PRA confirms that only names of eligible persons may be entered. Accordingly, ballot papers are invalid if they do not contain the name of a candidate from the constituency (Art. 38 para. 1 lit. a PRA). By analogy with names of ineligible persons, excess repetitions are deleted from the ballot paper if the name of a candidate appears more than twice on a ballot paper, as well as all names of persons whose candidacy has been declared invalid due to multiple candidacies after the nominations have been cleared (Art. 38 para. 2 PRA).
31 However, the significance of para. 3 goes beyond the mere deletion of names of non-candidates. The deletion has the effect of creating empty lines, which are converted into additional votes in accordance with the rules of paras. 1, 2 and 2bis. What is only indirectly apparent from the text of the law was put in a nutshell by the rapporteurs of the responsible committee of the National Council during the deliberations on the NWG 1919 in plenary. In German, the National Council stated: "If any other name is placed on the ballot paper, it will be crossed out and the line will be counted as an additional vote". In French, the explanation was as follows: "Cependant, les suffrages nominatifs ainsi annulés valent comme [...] suffrages complémentaires, lorsque le bulletin de vote porte la dénomination d'une liste".
32 Although sentences 2 and 3, which were deleted in 2008 in the course of the "formal streamlining of federal law", formally represented a dispensable repetition of Art. 37 para. 1 PRA, they clarified the full scope of the provision. In view of the complexity of the regulatory framework and the resulting legal effects as well as the associated political component, it would be helpful if the law were to continue to stipulate: "...the votes cast for them shall, however, be counted as additional votes if the ballot paper bears a list designation or ordinal number; [only] if such a designation [is missing] shall these votes not count (blank votes)".
E. Para. 4 (rule of interpretation in the event of inconsistency)
33 Para. 4 primarily applies to ballot papers without a form. A contradiction between the list designation and the ordinal number may arise if a voter affixes the list designation and the ordinal number of a list in accordance with Art. 35 para. 1 PRA. This is because the voter may not enter the correct combination of list name and serial number. A contradiction between the list designation and the ordinal number can also occur on ballot papers with a pre-printed form if the voter deletes the pre-printed ordinal number and list designation and replaces it with another one (Art. 35 para. 2 sentence 2 PRA). This means that the voter may inadvertently replace only the list designation without correcting the serial number.
34 In both cases, a contradiction may arise if the voter uses the correct list designation and an order number that does not belong to it. Conversely, it could also be the case that the voter uses the correct ordinal number but an incorrect party designation. In such cases, the law stipulates that the list designation is decisive. There is no evidence of the purpose of the regulation in the materials. However, the reason for the interpretation rule is probably that voters are much more familiar with the list names corresponding to the party names than the ordinal numbers of the lists. In addition, numbers are more prone to error than combinations of letters.
Bibliography
Wyler Stefan, Kommentierung zu Art. 31 BPR, in: Glaser Andreas/Braun Binder Nadja/Bisaz Corsin/Tornay Schaller Bénédicte (Hrsg.), Onlinekommentar zum Bundesgesetz über die politischen Rechte, abrufbar unter https://onlinekommentar.ch/de/kommentare/bpr31, besucht am 20.10.2023.
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 20.10.2023 (zit. Botschaft 1918).
Botschaft des Bundesrates an die Bundesversammlung zu einem Bundesgesetz über die politischen Rechte vom 9.4.1975, BBl 1975 I S. 1317 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/1975/1_1317_1337_1313/de, besucht am 20.10.2023 (zit. Botschaft 1975).
Botschaft über eine Änderung des Bundesgesetzes über die politischen Rechte vom 30.11.2001, BBl 2001 6401 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/2001/1111/de, besucht am 20.10.2023 (zit. Botschaft 2001).
Botschaft zur formellen Bereinigung des Bundesrechts vom 22.8.2007, BBl 2007 6121 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/2007/885/de, besucht am 20.10.2023 (zit. Botschaft 2007).