-
- 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
-
- 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
-
- 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
-
- 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
-
- 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 origins
- II. Proportional representation and distribution of mandates
- III. Initial Allocation of the National Council Mandates to the Lists
- Materials
- Bibliography
I. History of origins
1 Until 1919, the members of the National Council were elected - constitutionally 'unspoken' - according to the majority voting system (Majorz). In 1919, the changeover to the National Council election "according to the principle of proportionality" was carried out. Already during the preparatory work for the first total revision of the Federal Constitution, the proposal of proportional representation was raised for the first time, but a corresponding proposal by a deputy of the Catholic-Conservative Party was rejected. Various other parliamentary proposals followed, which also failed. The introduction of the popular initiative for a partial revision of the constitution in 1891 paved the way for the change from the major to the proportional electoral system. Popular initiatives calling for a change in the National Council electoral system were put to the vote in 1900 and 1910, but were rejected. In 1918, in the run-up to the national general strike, a third initiative with the same content was finally approved by the people and the cantons with a large majority.
2 Under the impression of the clear popular vote and the national general strike, the National Council (still elected according to the old electoral law) very quickly created the implementing legislation for the new constitutional norm. After the popular initiative had been accepted on October 13, 1918, the Federal Council submitted a draft law on November 26, 1918, the deliberations of which the Councils had already concluded on February 14, 1919. On October 26, 1919, the first - early - elections were held under the new National Council Election Law. The expected major shifts occurred: The Free Democrats lost their previous absolute majority, while the Social Democrats and cantonal peasant parties (forerunners of the BGB) recorded significant successes.
3 At that time, as today, the constitutional provision only regulated the election of the National Council according to the principle of proportional representation. The further design of the electoral system was thus left to the legislature. Although this is a "technical regulation", it nevertheless represents a "doctrine that is very complex in its details". The Federal Council draft of November 1918 already provided for the distribution of mandates among the lists according to the Hagenbach-Bischoff method of calculation. Parliament retained this provision unchanged. The principle of how mandates are distributed among the lists has not changed to this day, neither when the National Council Election Law was transferred to the new Federal Law on Political Rights in 1976 nor when it was revised.
II. Proportional representation and distribution of mandates
A. Modes of proportional representation
1. Basic Differences in Calculation Methods
4 There are various mathematical methods for calculating the distribution of mandates, which consist of the same two steps. First, the proportion of the votes obtained by each list group in the total number of votes must be calculated, resulting in a proportional ideal. This usually results in decimal fractions. However, since only whole mandates can be allocated, the second step requires rounding to obtain the final allocation of mandates.
5 Rounding can have a significant impact on election results. The various calculation methods differ essentially in how they perform the rounding. Two main groups can be distinguished. In quota methods, a divisor for the calculation of the ideal claim is fixed in the first step, but the applicable rounding rule for the second step is not fixed from the outset. In divisor methods, the second step is always rounded using the same rule, but the divisor is specified flexibly in the first step.
6 There are two rounding rules that are applied in mandate distribution: Rounding up and Standard rounding. In standard rounding, the number of fractions is rounded up if the fraction is greater than one-half and rounded down if the fraction is less than one-half. Problems can arise if two parties receive exactly half a seat entitlement, but there is just one seat left to be allocated, so that it is not possible for both parties to receive a seat or for neither party to receive this seat. In this case, a decision must be made by drawing lots.
2. Concrete calculation methods for the distribution of mandates
7 In the Confederation and the cantons there are four different calculation methods for the distribution of mandates in the proportional representation system. The calculation methods are often referred to by the name of a person who was important for their development or spread. These names are also used here because of their prevalence, although other names might be more mathematically descriptive.
a. Hare/Niemeyer
8 The Hare/Niemeyer mandate allocation method is a quota method. It consists of two components, the quota and the majority clause, which are used in the same order for the electoral system. The quota according to Hare is determined first: The number of all votes cast is divided by the number of seats to be allocated. The achieved votes of each list are divided by this quota, which is the ideal claim of this list. This ideal entitlement is rounded down to the whole number; this is how many mandates the list in question receives in the first distribution step in the strict sense. Subsequently, the remaining mandates are distributed - in the sense of the flexible rounding step - according to the largest remainder (the 'number after the decimal point'). Niemeyer's majority clause ensures that a party with an absolute majority of the votes obtained also receives an absolute majority of mandates.
b. Hagenbach-Bischoff
9 The Hagenbach-Bischoff mandate distribution method is a divisor method with rounding. This mandate distribution method is based on the idea of a "mandate price" that should be as high as possible: Behind each mandate distributed there should be as many votes cast as possible.
10 The divisor is calculated in such a way that already in the first distribution step as many mandates as possible can be distributed. The number of all votes cast is divided by the number of seats to be allocated plus one; the result thus determined is increased to the next whole number (= divisor). The votes obtained by each list are divided by this divisor and each list receives as many mandates "as the distribution number is contained in its number of votes" (Art. 40 para. 2 PRA). This means that the mandate entitlement for the initial distribution is rounded down. In the second distribution step, the remaining mandates are distributed individually by dividing the number of votes of each list by the number of mandates already allocated to it plus one. Thus, it is hypothetically calculated what mandate price each list would pay for the additional mandate. The mandate is allocated in the second distribution step to the list that can 'offer' the highest mandate price. This distribution step is repeated individually for each remaining mandate.
c. Sainte-Laguë
11 The calculation method according to Sainte-Laguë is a divisor method with standard rounding. The method is similar to the Hagenbach-Bischoff method. The decisive differences lie in the method for the computation of the divisor as well as in the rounding. First, the number of all votes cast is divided by the number of seats to be allocated - the increase in the number of seats to be allocated by one, which is necessary with Hagenbach-Bischoff, is omitted. The result thus determined is increased to the next whole number and thus the divisor is determined. The votes obtained by each list are divided by this divisor and the result is rounded using standard rounding. In contrast to rounding down (Hagenbach-Bischoff), standard rounding does not favor larger parties; it is neutral.
d. Pukelsheim
12 The Pukelsheim mandate distribution method is a double-proportional divisor method with standard rounding (simplified also called "double proportional representation" or "double Pukelsheim"). The eponymous double proportionality finds its origin in the two-part procedure: Upper and lower apportionment. In the upper allocation, the mandate claim per list is calculated on the entire electoral territory. The votes cast in each constituency are weighted (according to the number of seats allocated to that constituency), the weighted votes for the whole electoral area are added up and distributed among the lists of the whole electoral area according to the Sainte-Laguë method. The sub-allocation determines in which constituencies each list receives the mandates it is entitled to. This is done by an iterative algorithm in which the distribution of mandates is determined in repetitive calculation steps by means of approximations.
13 Proportionality, in the sense of the greatest possible equality of success values, is thus realized in the overall allocation across the entire electoral area. Within the electoral districts, it may happen that one list receives a seat to which another list would be entitled according to the proportionality within the electoral district (so-called reverse allocation of seats).
3. constitutional and international legal framework
a. Requirements of Art. 149 FC
14 Constitutional law provides in Art. 149 para. 2 FC that the National Council shall be elected by the people according to the principle of proportional representation. For the precise design of the electoral system within the framework of the implementation legislation, this provision leaves significant leeway.
15 The distribution of mandates, as standardized in Articles 40 to 44 PRA, is one of the foundations of any proportional representation electoral system. The method of allocating mandates to lists is not merely of mathematical interest, but of eminent importance for the actual composition of parliament. Other fundamental decisions in the design of electoral law also influence the way in which the constitutional "principle of proportional representation" is reflected in election results. These include, in particular, the admissibility of list combinations (cf. Art. 31 PRA), the size of the electoral districts (cf. Art. 149 para. 3 FC) and the possible establishment of quorums.
16 The principle of proportional representation can be concretized in different ways, and the concept of proportional representation per se can have two different meanings. On the one hand, proportional representation can represent a principle of representation that must be realized in the entire electoral area taken together (cross-electoral district proportional representation). On the other hand, proportional representation can be understood as a mere decision-making rule that is applied only within constituencies (constituency-based proportional representation). The principle of proportional representation gives high weight to the equality of success values. Depending on the conceptual understanding of proportional representation, however, equality of success value must be realized as well as possible in a different place: either across constituencies or (only) within constituencies.
17 Art. 40 and 41 PRA stipulate that the mandates are distributed among the lists according to the Hagenbach-Bischoff calculation method, but without explicitly naming it. Other mandate allocation procedures would also be possible within the framework of the applicable constitutional law, for example a change to the divisor method with standard rounding according to Sainte-Laguë.
18 Art. 149 para. 3 FC stipulates that the cantons form the electoral districts. Today, according to the Hagenbach-Bischoff mandate allocation system, the principle of proportional representation is implemented only within these constituencies, i.e. at the level of the cantons. In the doctrine it is disputed whether a change to a proportional representation across the constituencies would be constitutional. The doctrine predominantly denies this, since in this case the cantons would no longer form the electoral districts in accordance with Art. 149 para. 3 FC. A minority, on the other hand, is of the opinion that proportional representation systems across constituencies could also be constitutional, namely the double-proportional mandate allocation procedure according to Pukelsheim. Some doctrine affirms its constitutionality, since this procedure allows the electoral districts to be retained as subdivisions of the electoral area. In principle, this can be agreed with, but the significance of the constituencies is significantly diminished by the transfer of votes between the constituencies in the case of double proportional representation.
b. Requirements of international law
19 Art. 25 of the UN Covenant II protects certain basic elements of political rights. According to federal court case law, UN Covenant II guarantees a "lowest common denominator" of political rights. Thus, the UN Covenant II prescribes neither a majoritarian nor a proportional representation electoral system; according to the Federal Supreme Court, it protects the equality of counting values, but not the equality of success values. Thus, the provisions of the UN Covenant II under international law do not contain any relevant requirements for the precise design of the National Council election law.
c. Change in the Method of Mandate Allocation?
20 In the context of legislative revisions, a fundamental change in the mandate distribution method in the National Council electoral law has been repeatedly discussed. When the PRA was created, a National Councilor of the Evangelical People's Party submitted a motion for the introduction of the fraction method instead of the divisor method, since the previous mandate distribution system favored the large parties to a considerable extent. However, the proposer realized that the proposal currently had no political chance and withdrew it before the vote in the Council. When the PRA was revised in 1993, the Federal Council considered a change in the mandate distribution system, but rejected it. The mandate distribution according to Hagenbach-Bischoff pursued an obvious goal: that "even behind the last mandate distributed there must be the greater number of voters than behind any conceivable last mandate distributed in a different way."
21 Even outside of major revision projects in the area of political rights, the federal parliament regularly receives requests for adjustments to the National Council's electoral law. Since the beginning of the cantonal development towards proportional representation across constituencies through the Pukelsheim mandate allocation method, the petitions have also focused on mandate allocation at the federal level. The first postulate concerning the introduction of the double-proportional divisor method according to Pukelsheim was submitted as early as 2003. However, with the same regularity with which they are submitted, these postulates also fail. Most recently, a parliamentary initiative of the Green-Liberal group in the National Council at the end of 2021 was not followed up.
B. Procedure for the Allocation of Mandates
1. procedure of the entire mandate distribution according to the PRA
22 The distribution of mandates for the National Council is carried out in a multi-stage procedure, which is defined in more detail in Art. 40 to 44 PRA. In each constituency, the seats there are distributed separately; this is a proportional representation system at the level of the individual constituencies. First, the number of mandates to which each list (association) is entitled is determined (Art. 40 and 41 PRA). Then, in the case of list combinations (Art. 31 para. 1 PRA), the mandates are distributed among the individual lists within the list groups (Art. 42 PRA). If sub-list connections have also been entered into (cf. Art. 31 para. 1 and 1bis PRA), the mandates of the list group must first be distributed to the sub-list groups, then to the individual lists within the sub-list groups. The final step is to determine which candidates from each list are elected (Art. 43 and 44 PRA).
23 The distribution of the mandates to the lists or list groups (first step) is again divided into two sub-steps. First, the so-called "initial distribution" is carried out: A divisor is determined and the mandates are distributed among the lists according to this number (Art. 40 PRA). As a rule, however, undistributed mandates remain. These mandates are distributed to the lists in the second sub-step, the so-called residual distribution, according to further rules (Art. 41 PRA).
2. Example of initial distribution
24 The initial distribution is illustrated by the example of the National Council election results in the electoral district (canton) of Lucerne in 2019. The canton (= electoral district) had nine seats in the National Council to be distributed among the lists, and a total of 35 lists competed. Of these 35 lists, two contested individually, the others were combined in a total of three different list groups, with "mother parties" and their smaller offshoots additionally combined in sub-list groups. (Sub)list groups of the same party are each marked with a plus sign.
25 The votes were distributed as follows:
List / list group | Number of party votes |
CVP+/FDP+ | 487’102 |
Grüne+/SP+/GLP+/IP | 395’687 |
SVP+ | 293’650 |
EVP | 8’451 |
SD | 1’766 |
Total | 1’186’656 |
The divisor is calculated: Number of party votes cast divided by (the number of mandates to be awarded plus one), rounded up to the next higher integer.
1'186'656 / (9+1) = 118'665.6 à divisor: 118'666 (= "mandate price")
The quotient of each list group is calculated by dividing the number of party votes of the list combination by the divisor. The number before the decimal point indicates how many mandates the list combination receives after the initial distribution.
E.g. for the SVP+: 293'650 / 118'66 = 2.47459255389075 à entitlement of the SVP+ according to the first distribution: 2 mandates
List / list group | Number of party votes | Quotient (rounded) | Mandates |
CVP+/FDP+ | 487’102 | 4.10 | 4 |
Grüne+/SP+/GLP+/IP | 395’687 | 3.33 | 3 |
SVP+ | 293’650 | 2.47 | 2 |
EVP | 8’451 | 0.07 | 0 |
SD | 1’766 | 0.01 | 0 |
Total |
|
| 9 |
|
|
|
|
26 In the 2019 National Council elections, the list group with CVP+ and FDP+ received four mandates, the list group Greens+/SP+/GLP+/IP three seats, and the SVP+ two. The EVP and SD, which ran without a list group, came away empty-handed. All nine seats of the constituency in the National Council could thus already be allocated in the initial allocation. Furthermore, according to Art. 42 PRA, it would have to be calculated how the mandates of the list group are to be distributed to the individual lists (or sub-list groups) which are combined in it.
C. Legal comparison
27 The vast majority of cantons elect their parliament according to a proportional representation system: Eleven cantons according to Hagenbach-Bischoff, eight according to double proportional representation, two according to Sainte-Laguë, two according to Hare/Niemeyer. Appenzell-Innerrhoden is the only canton with a pure majoritarian electoral system. The cantons of Appenzell-Ausserrhoden and Uri have a mixed system: in the canton of Appenzell-Ausserrhoden, the cantonal council members are elected according to the major system, with the exception of the (largest) electoral district of Herisau, where the mandates are allocated according to Hagenbach-Bischoff. In the canton of Uri, in the constituencies with more than five Landrat seats, elections are held according to the Pukelsheim proportional representation system, and in the smaller constituencies according to the majoritarian system.
28 In the cantons with Hagenbach-Bischoff, the distribution of mandates is almost or quite the same as at the federal level. Differences arise in the canton of Basel-Landschaft, which, in contrast to the federal level, forms constituency associations for all constituencies and therefore does not allocate mandates per constituency but separately in each of the four regions. The calculations of the distribution figure in all cantons with Hagenbach-Bischoff hardly differ from the federal level.
29 The cantons have always enjoyed a great deal of freedom in designing their electoral systems; major, proportional and mixed systems can all be in conformity with the federal constitution, provided that they comply with the electoral equality of Article 34 FC. When proportional representation was introduced at the federal level in 1919, ten cantons had already introduced proportional representation. The experience gained in the cantons was important for the design of the National Council electoral system at the federal level. The proportional National Council electoral law in turn influenced other cantons in revising their parliamentary electoral law: after the elaboration of the proportional representation electoral law at the federal level, various cantons switched from the previously widespread system of simple quotients to Hagenbach-Bischoff.
30 With respect to cantonal proportional representation systems, the Federal Supreme Court has recently imposed increasingly stringent requirements for the realization of equality of success values: If cantonal constitutional law provides for a proportional representation electoral system, the equality of success values must be realized as well as possible across electoral districts, not merely within them. As a result of this case law, the above-mentioned eight cantons have switched to a double-proportional electoral system since 2002.
31 The National Council election law would possibly not stand up to the Federal Supreme Court case law on cantonal parliamentary election law. The principle of proportional representation is not implemented nationwide, but merely within constituencies (i.e. at the cantonal level), and the constituencies in the form of cantons are often far too small. Whether the understanding of proportional representation as a (mere) constituency-related distribution rule can already be derived from Art. 149 para. 3 FC was left open by the Federal Supreme Court. The court pointed out that the cantons, as sovereign members of the federal state, had a different position than mere intra-cantonal constituencies, precisely with regard to their participation in the formation of the will of the federal government. In any case, the Federal Court is bound by the regulation in the PRA according to Art. 190 FC. It will have to be observed whether the adjustments of the cantonal electoral systems at the federal level will have consequences of a political nature. It may seem objectionable that federal law places rather high demands on the cantons with regard to the parliamentary election system, but hardly fulfills these demands itself. However, the fact that in the federal parliament all attempts to change the mandate allocation procedure have so far failed, even in recent times, speaks against too high expectations of rapid changes in the election system at the federal level. At the same time, the dynamics at the cantonal level have slowed down, after the canton of Graubünden last held the first elections to the cantonal parliament with the new mandate allocation system of double proportional representation on May 15, 2022. With Obwalden, there remains one canton in which the parliamentary mandates are distributed according to the Hagenbach-Bischoff system, but the natural quorum in the majority of the electoral districts is too large, so that the electoral system could be declared unconstitutional by the Federal Supreme Court should an appeal be filed against it.
III. Initial Allocation of the National Council Mandates to the Lists
A. Distribution figure (para. 1)
1. Calculation of the distribution number
32 In the distribution method according to Hagenbach-Bischoff, the first step is to calculate a divisor, which is referred to in the PRA as the distribution number. For this purpose, the number of all validly cast votes (party votes pursuant to Art. 39 lit. e PRA, validity pursuant to Art. 38 PRA) is divided by the number of mandates to be allocated plus one and increased to the next whole number.
33 The calculation method according to Hagenbach-Bischoff dates back to a time when arithmetic operations were carried out without the aid of computer programs. One goal was therefore to have as few calculation steps as possible. The method of calculating the distribution figure standardized in Art. 40 Para. 1 PRA aims to be able to distribute as many mandates as possible in the initial distribution. The smaller the distribution number, the larger the number that results from the division by the distribution number, so that the more mandates can be distributed in the initial distribution in the sense of Art. 40 para. 2 PRA. Therefore, according to Art. 40 para. 1 PRA, the valid votes are divided by the available mandates plus one; the result of this calculation is a smaller distribution number. This reduces the number of additional arithmetical operations required in the course of the remaining distribution pursuant to Art. 41 PRA.
34 At the same time, never more mandates may be distributed than there are seats in the constituency concerned. This is ensured by this method of calculating the distribution number by rounding up to the next higher whole number.
2. Amendments to the wording
35 The wording of the current Art. 40 para. 1 PRA underwent various changes. According to the National Council Election Act, the distribution number was already calculated by dividing the number of all valid votes by the number of mandates to be allocated increased by one and rounding up to the next higher whole number. When the PRA was introduced, this wording was adjusted. This "rewording without material change" was not supposed to actually change anything in the principle. In fact, however, the rewording had legal consequences. The quotient was now to be "rounded up" to the nearest whole number. If the result of the division was already a whole number before rounding up, this number could no longer be rounded up and therefore became the quotient directly. As a result, there was a risk that more than 200 National Council seats should have been allocated in the further calculation, as the quotient would have been too low. The provision in question was therefore reworded in the partial revision of the PRA in 1993/1994 to conform to the constitution and to be mathematically more precise, thus eliminating the risk.
36 When the wording was adapted, it would also have been conceivable for a new method of calculation to be introduced. The so-called "Prokop method" would have resulted in exactly the same distribution of mandates as the calculation using the Hagenbach-Bischoff method, but with the aid of a computer. However, the computerized method met with so many "psychological reservations" in the consultation process that the Federal Council refrained from proposing a change in the draft. The "manual" calculation method according to Hagenbach-Bischoff was retained.
B. Initial distribution of mandates among the lists (para. 2)
1. Calculation of the initial distribution of mandates in the narrow sense.
37 After the calculation of the distribution number has been specified in Art. 40 para. 1 PRA, para. 2 briefly describes the mechanism of the initial distribution of National Council mandates in the narrow sense. The number of votes of each list is divided by the distribution number. This results in a number, usually with some decimal places. If necessary, this result is reduced to a whole number, and the list in question is awarded this number of mandates in the initial allocation.
38 The mandate distribution method according to Hagenbach-Bischoff is also called the divisor method with rounding. The rounding down is hidden in the last step just described above. The "shortening" means a rounding off of the mandate claims of all lists. This is not obvious from the text of Art. 40 para. 2 PRA, but it is an essential part of the initial distribution.
39 With the initial allocation according to Art. 40 para. 2 PRA, the allocation of mandates is not yet completed. As a rule, not all mandates to be allocated can be distributed to the lists during the initial distribution. Therefore, the procedure of the remainder distribution according to Art. 41 PRA is of great importance. In addition, in the case of list groups which are entitled to a mandate according to the initial distribution, the mandates must still be distributed to the individual lists (Art. 42 PRA). In any case, it must be determined which candidates on the lists will receive the mandates to which they are entitled (Art. 43 PRA).
2. Preference for large parties
40 Certain distortions of proportional representation must always be accepted in elections due to rounding, since only whole seats can be allocated. However, the Hagenbach-Bischoff method of calculation systematically favors larger parties, albeit only to a small extent, i.e. they tend to receive more seats than other allocation methods. This finding is undisputed in the literature today. In the evaluation, however, there are differences. Parts of the literature regard this preferential treatment as constitutionally permissible. This effect has been known since the introduction of such mandate allocation procedures in the 18th/19th centuries. Other voices in the literature criticize this preference as an unconstitutional systematic distortion of proportionality.
41 The calculation method according to Hagenbach-Bischoff leads to a certain systematic preference of the larger parties for various reasons. Both the initial allocation according to Art. 40 PRA and the (usually necessary) residual allocation according to Art. 41 contribute somewhat to this. In the case of the initial allocation, the question arises as to the rounding of the parties' mandate entitlement, i.e. the result of dividing the number of votes obtained by the list in question by the divisor. According to Hagenbach-Bischoff, the parties' seat claims are rounded down, as is only implicit in the text of Art. 40 para. 2 PRA. This favors the large parties. By comparison, the mandate allocation method according to Sainte-Laguë uses standard rounding. Thus, the larger parties are not favored and the smaller parties are not disadvantaged. However, the residual distribution also has a great influence on distortion effects of mandate distribution methods.
I would like to thank Elias Studer (MLaw), Joey Jüstrich and Matthias Zinniker, assistant professors at the Center for Democracy Aarau, for their stimulating comments, assistance in researching the material and reviewing the text.
Materials
Botschaft des Bundesrates an die Bundesversammlung betreffend die Wahl des Nationalrates nach dem Grundsatze der Proportionalität vom 26.11.1918, BBl 1918 V S. 121 ff. (zit. Botschaft NWG).
Botschaft des Bundesrates an die Bundesversammlung zu einem Bundesgesetz über die politischen Rechte vom 9.4.1975, BBl 1975 I S. 1317 ff. (zit. Botschaft BPR 1975).
Botschaft über eine Teiländerung der Bundesgesetzgebung über die politischen Rechte vom 1.9.1993, BBl 1993 III S. 445 ff. (zit. Botschaft BPR-Revision 1993).
Bericht über Proporzwahlsysteme im Vergleich vom 21. August 2013, abrufbar unter https://www.bk.admin.ch/dam/bk/de/dokumente/pore/proporzwahlsystemeimvergleichberichtderbkandenbrvom21082013.pdf.download.pdf/proporzwahlsystemeimvergleichberichtderbkandenbrvom21082013.pdf, besucht am 26.4.2023 (zit. Bericht Proporzwahlsysteme).
Bibliography
Achermann Alberto/Caroni Martina/Kälin Walter, Die Bedeutung des UNO-Paktes über bürgerliche und politische Rechte für das schweizerische Recht, in: Kälin Walter/Malinverni Giorgio/Nowak Manfred (Hrsg.), Die Schweiz und die UNO-Menschenrechtspakte, 2. Aufl., Basel 1997, S. 155–232.
Aubert Jean-François, Die schweizerische Bundesversammlung von 1848–1998, Basel 1998.
Biaggini Giovanni, Majorz und majorzgeprägte Mischsysteme: Parlamentswahlverfahren mit Verfalldatum?, ZBl 117 (2016), S. 409–429 (zit. Majorz).
Biaggini Giovanni, Bundesverfassung der Schweizerischen Eidgenossenschaft, Kommentar, 2. Aufl., Zürich 2017 (zit. BV-Kommentar).
Biaggini Giovanni, Von Proporzglück und Doppelproporzpech, ZBl 120 (2019), S. 473–474 (zit. Proporzglück).
Fuhrer Corina, Kantone mit Proporzwahlverfahren nach Hagenbach-Bischoff, in: Glaser Andreas (Hrsg.), Das Parlamentswahlrecht der Kantone, Zürich et al. 2018, S. 57–108.
Garrone Pierre, L’élection populaire en Suisse : étude des systèmes électoraux et de leur mise en oeuvre sur le plan fédéral et dans les cantons, Basel et al. 1991.
Glaser Andreas, Kantonales Wahlrecht zwischen Proporz und Spielräumen, in: Glaser Andreas (Hrsg.), Das Parlamentswahlrecht der Kantone, Zürich et al. 2018, S. 287–304 (zit. Wahlrecht).
Glaser Andreas, Kommentierung zu Art. 149 BV, in: Ehrenzeller Bernhard et al. (Hrsg.), St. Galler Kommentar, Die schweizerische Bundesverfassung, 4. Aufl., Zürich 2023.
Hagenbach-Bischoff Eduard, Die Frage der Einführung einer Proportionalvertretung statt des absoluten Mehres, Basel 1888 (zit. Einführung).
Hagenbach-Bischoff Eduard, Die Anwendung der Proportionalvertretung bei den Schweizerischen Nationalratswahlen, Gutachten aus Auftrag des leitenden Comités des schweiz. Wahlreformvereins, Basel 1892 (zit. Anwendung).
Haller Walter/Kölz Alfred/Gächter Thomas, Allgemeines Staatsrecht, 6. Aufl., Zürich 2020.
Hangartner Yvo/Kley Andreas/Braun Binder Nadja/Glaser Andreas, Die demokratischen Rechte in Bund und Kantonen der Schweizerischen Eidgenossenschaft, 2. Aufl., Zürich 2023.
Kley Andreas, Verfassungsgeschichte der Neuzeit – Grossbritannien, die USA, Frankreich und die Schweiz, 4. Aufl., Bern 2020 (zit. Verfassungsgeschichte).
Kley Andreas, Politische Rechte, in: Biaggini Giovanni/Gächter Thomas/Kiener Regina (Hrsg.), Staatsrecht, 3. Aufl., Zürich 2021 (zit. Politische Rechte).
Kölz Alfred, Probleme des kantonalen Wahlrechts – Darstellung und kritische Betrachtung der Gesetzgebung und der bundesgerichtlichen Rechtsprechung, ZBl 88 (1987), S. 1–48.
Lehner Irina, Kommentierung zu Art. 41 und 42 BPR, in: Andreas Glaser/Nadja Braun Binder/Corsin Bisaz/Bénédicte Tornay Schaller (Hrsg.), Onlinekommentar zum Bundesgesetz über die politischen Rechte, abrufbar unter https://onlinekommentar.ch/de/kommentare/bpr41, besucht am 20.6.2023.
Musliu Nagihan, Die verfassungsrechtlichen Anforderungen an die Wahlsysteme der Kantone, in: Glaser Andreas (Hrsg.), Das Parlamentswahlrecht der Kantone, Zürich/St. Gallen 2018, S. 1–32.
Pukelsheim Friedrich, Sitzzuteilungsmethoden – Ein Kompaktkurs über Stimmenverrechnungsverfahren in Verhältniswahlsystemen, Heidelberg 2016.
Pukelsheim Friedrich/Schuhmacher Christian, Das neue Zürcher Zuteilungsverfahren für Parlamentswahlen, AJP 2004, S. 505–522 (zit. Zürcher Zuteilungsverfahren).
Pukelsheim Friedrich/Schuhmacher Christian, Doppelproporz bei Parlamentswahlen – ein Rück- und Ausblick, AJP 2011, S. 1581–1599 (zit. Doppelproporz).
Schabas William A., U.N. International Convenant on Civil and Political Rights – Nowak's CCPR Commentary, 3. Aufl., Kehl 2019 (zit. CCPR Commentary).
Schmid Stefan G., Entstehung und Entwicklung der Demokratie in der Schweiz, in: Diggelmann Oliver/Hertig Randall Maya/Schindler Benjamin (Hrsg.), Verfassungsrecht der Schweiz, Band I, Zürich 2020, S. 285–316.
Schuhmacher Christian, Die Leitidee bei der Verteilung der Nationalratsmandate, ZBl 100 (1999), S. 522–526.
Steinmann Gerold/Besson Michel, Kommentierung zu Art. 34 BV, in: Ehrenzeller Bernhard et al. (Hrsg.), St. Galler Kommentar, Die schweizerische Bundesverfassung, 4. Aufl., Zürich 2023.
Thurnherr Daniela, Kommentierung zu Art. 149 BV, in: Waldmann Bernhard/Belser Eva Maria/Epiney Astrid (Hrsg.), Basler Kommentar, Bundesverfassung, Basel 2015.
Vatter Adrian, Kleine Parteien sind Verlierer des föderalen Wahlsystems, Die Volkswirtschaft 2015, S. 34–39.
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 2016.