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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 origins
- II. Legal Comparison
- III. Commentary on the Text of the Norm
- Materials
- Bibliography
I. History of origins
1 The person who has received the most candidate votes shall win a mandate to which the list is entitled. This principle has not changed since the introduction of proportional representation in the Confederation. The same applies to the substitutes, who move up in the order of the votes obtained if the actually elected members of the National Council do not accept the election or resign during the legislative period.
2 Two less central issues, on the other hand, were more controversial and underwent various changes. First, it had to be regulated who would be awarded the mandate if several candidates had exactly the same number of votes. The Federal Council's draft of the NWG of 1918 provided for drawing lots in the event of a tie. The National Council commission still followed this proposal. A member of the National Council, on the other hand, proposed that the order on the list should determine who was considered elected in the event of a tie. This procedure was also known in some cantons, seemed simpler and - probably centrally - "respected" the party will better. It was countered that this could lead to injustice if the parties formed the lists according to alphabetical order. In the end, party will was prioritized over concerns of fairness, and in the 1919 NWG the rule was introduced that of two persons with the same vote, the one who received the top place on the list was considered elected. When the PRA was introduced in 1976, the issue was discussed again at the request of the Council of States. After some delay, the argument that had already been put forward in 1919, that the procedure according to the order of the list in an alphabetical order put the later candidates at an excessive disadvantage, became convincing after all. Moreover, the decision by lot was easy to carry out and equal votes rarely occurred anyway. Since 1976, the rule has remained unchanged that in the event of a tie, the lot decides which of the candidates is elected.
3 Second, a voting quorum for candidates was included in the National Council Election Act in 1919. Only candidates who had received at least half of the average votes of the candidates on the list could receive a mandate. The rationale behind this was that candidates should be able to garner at least a "minimum number of votes" in order to become members of the National Council. Although the quorum for candidates was criticized as arbitrary and complicated, the National Council and the Council of States included it in the National Council Election Law in 1919. When the PRA was introduced in 1976, the quorum of candidates was cut short: following an uncontroversial proposal by the Federal Council, the "unnecessary and dispensable" quorum was abolished.
II. Legal Comparison
4 All cantons with proportional representation determine in the same way as the PRA which candidates are normally considered elected: The mandates of the list are given to those candidates who have received the most votes.
5 For the determination of the substitutes, there are two different possibilities in the cantons with proportional representation. In the cantons of Jura, Neuchâtel and Valais, substitutes are explicitly elected in this function. As a rule, however, no distinction is made in the election itself as to who runs as an ordinary member and who as a substitute; substitutes are those who are not elected. The vast majority of cantons explicitly provide - as does the Confederation - that the non-elected persons serve as substitute members in the order of the number of votes received.
6 The procedure in the event of a tie between two candidates on the same list differs even more in the cantonal parliamentary election law of the proportional representation cantons, where two different camps can be discerned. Some favor the intervention of chance, others the creative power of the parties.
7 The first group is the larger one. Most cantons provide exclusively for a drawing of lots, the same as today's PRA. However, there are also variations: The cantons of Bern and Fribourg allow the candidates to agree on the order, and the lot is used subsidiarily; the canton of Thurgau explicitly refers to the possibility of renunciation in addition to the lottery procedure.
8 In the other group of cantons, on the other hand, it is usually the case, as under the former National Council election law in the Confederation, that the order of the candidates on the list determines who is considered elected in the event of a tie. In the canton of Jura, the person who received more votes from his or her own list, i.e. fewer panashic votes, is considered elected - popularity with the electorate of one's own party is thus rewarded. Overall, therefore, in the cantonal parliamentary election law, too, preference is given to the lot, so that the lists (formed by the parties) do not acquire any further significance beyond the act of election.
III. Commentary on the Text of the Norm
A. Para. 1: Determination of the elected persons
1. "according to the mandates obtained"
9 The votes of the electors shall be counted according to the system of single-vote competition: Each list receives as many votes as the total number of votes received by the persons running on it, regardless of which list number the ballot in question bore. A vote to a person running for office thus counts first and foremost for that person's list, and only secondarily for the person himself. In the electoral system of the National Council, it is therefore first calculated which list receives how many mandates according to the principle of proportional representation (cf. Art. 40 to 42 PRA). Subsequently, as many mandates per list are distributed to the candidates as the list has won. Art. 43 para. 1 PRA standardizes the distribution rule within the list.
2. "who have received the most votes"
10 Within the lists, those candidates are declared elected who have received the most votes, until all mandates due to the list are filled. Thus, a majority rule (Majorz) applies here.
11 The rule of the PRA is as clear as it is central. Even small differences in votes can make the difference between election and non-election. Moreover, the PRA also regulates the case where two candidates have the same claim to a (final) vacant mandate due to a tie (Art. 43 para. 3 PRA). Therefore, it is not intended to automatically proceed to a recount in the case of a close vote; this is only ordered if there is a suspicion that a count result could be incorrect (cf. Art. 11 CPD).
12 Examples of extremely close results in National Council elections are regularly found. For example, in the 2015 National Council elections in the canton of Zurich, a difference of 20 votes per person over 125,000 votes tipped the scales as to which of two persons became a member of the National Council.
B. Para. 2: Determination of the substitutes
13 It is not automatically necessary to hold by-elections when seats become vacant in the National Council. The PRA provides that substitutes from the same list in the same constituency may succeed to the National Council. The composition of the National Council in terms of parties remains the same.
14 Substitutes come into play in two cases: if a person declared elected does not want to or cannot take office (cf. Art. 55 para. 2 PRA, if a substitute does not take office) or if a National Council member resigns during the legislative term or leaves the Council for other reasons (Art. 55 para. 1 PRA). No further act of election is required; the substitute person is immediately declared elected by the cantonal government (Art. 55 para. 1 PRA).
15 The majority rule also applies to the determination of the substitutes: the persons not elected become substitutes in the order of their number of votes. The person who has received the most votes without having obtained a mandate is thus the first substitute, and so on.
C. Para. 3: Procedure in the event of a tie
16 An election must have a result. In the PRA, this is guaranteed by the catch-all provision of Art. 43 para. 3 PRA. If several candidates have both received the same number of votes, but only one of them can obtain a seat, a lot is drawn to decide who is to be declared elected.
17 A recount is ordered if there are indications of inaccuracies in the municipal results (Art. 11 CPD). Together with the detailed statutory provision of interest here, the Federal Supreme Court has concluded from this provision of the ordinance that in the event of a tie - i.e. if there are no such indications - the lot is drawn directly without a recount. In this respect, the law and the ordinances are conclusive according to the Federal Supreme Court.
18 The drawing of lots must be ordered by the competent authority, which in the case of a cantonal drawing of lots, as in this case, is the cantonal government (cf. Art. 20 PRA). According to the Federal Supreme Court, the lottery procedure as a whole must satisfy the principles of transparency and equal treatment of the candidates. Therefore, in BGE 138 II 13, it annulled the semi-automatic drawing of lots by computer program that had taken place between two candidates with equal votes in the 2011 National Council elections in the canton of Ticino. This is the only case of a tie in the National Council elections in which a drawing of lots was necessary, since only (but still) one person could obtain a National Council mandate.
Materials
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).
Bericht des Bundesrats an den Nationalrat über die Nationalratswahlen für die 41. Legislaturperiode, BBl 1979 III S. 867 ff. (zit. Bericht Nationalratswahlen 1979).
Bericht des Bundesrats an den Nationalrat über die Nationalratswahlen für die 50. Legislaturperiode, BBl 2015 S. 7927 ff. (zit. Bericht Nationalratswahlen 2015).
Bibliography
Aubert Jean-François, Die schweizerische Bundesversammlung von 1848–1998, Basel 1998.
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.
Häfelin Ulrich/Haller Walter/Keller Helen/Thurnherr Daniela, Schweizerisches Bundesstaatsrecht, 10. Aufl., Zürich et al. 2020.
Hangartner Yvo/Kley Andreas/Braun Binder Nadja/Glaser Andreas, Die demokratischen Rechte in Bund und Kantonen der Schweizerischen Eidgenossenschaft, 2. Aufl., Zürich 2023.
Markić Luka, Kommentierung zu Art. 20 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/bpr20, besucht am 20.6.2023.
Poledna Tomas, Wahlrecht im Bund, in: Thürer Daniel/Aubert Jean-François/Müller Jörg Paul (Hrsg.), Verfassungsrecht der Schweiz, Zürich 2001, S. 363–371.
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.