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- Art. 96 para. 2 lit. a FC
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- Art. 734f CO
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- 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
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- Art. 32a PRA
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- Art. 45 PRA
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- Art. 55 PRA
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- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
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- Art. 75 PRA
- Art. 75a PRA
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- 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
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- Art. 19 FADP
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- Art. 25 FADP
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- 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
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- Art. 42 FADP
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- 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
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- Art. 57 FADP
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- Art. 69 FADP
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- 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. Significance
- III. Silent National Council elections in proportional representation cantons
- Bibliography and materials
I. History of origins
1 As is often the case in federal legislation, the introduction of the silent ballot also followed a cantonal model. In 1916, the canton of Neuchâtel had introduced the possibility of a silent election for supplementary elections in which fewer or the same number of persons stood as there were seats to be filled. Subsequently, the concept of the silent election was also introduced as part of the revision work in 1918/1919 for the new National Council election law, which was organised according to the principle of proportional representation. However, its inclusion in the proportional representation law was controversial. The new system of proportional representation provided that only those who were officially nominated as candidates on an electoral list could be elected. Proponents of the silent ballot were of the opinion that under these conditions, holding a ballot would no longer make sense and would degenerate into a mere formality if fewer or as many candidates were nominated as there were vacant seats to be filled. On the side of the critics, the main issues raised were the possibility of secret agreements between the parties, a feared lack of understanding on the part of the population towards an election declaration without a prior ballot, and the lack of solemnity of such an election declaration compared to a ballot. After the introduction of the silent ballot for constituencies with proportional representation was adopted in the National Council, the Council of States decided to delete the article by 17 votes to 9. Although opposition to the introduction of the silent ballot then also began to arise in the National Council, the draft was upheld by 60 votes to 23, whereupon the Council of States also unanimously followed the Commission's motion to approve the National Council's decision in order to eliminate this only remaining difference. Thus, the silent ballot found its way into Art. 22 paras. 1 and 2 of the Federal Act on the Election of the National Council.
2 Serious efforts to abolish the silent ballot were made in the context of the draft constitution of 1977. The draft of the Commission of Experts, for example, provided for an explicit ban on silent National Council elections. In the consultation process, however, this proposal met with criticism, in particular the constitutional exclusion of silent elections in single-member constituencies, as well as an encroachment on cantonal decision-making sovereignty, so that the model study of the FDJP of 1985 already dispensed with the ban.
3 The new Federal Act on Political Rights, adopted in a referendum on 4 December 1977, then adopted the provision on the silent ballot in a redrafted but materially unchanged form. Previously, there had only been a minority motion in the Council of States to delete the article. The proposer found it objectionable that in some cantons a ballot could take place in the renewal election for the National Council, while in others the silent ballot procedure would be applied. Similarly, with the silent ballot, there was a risk that the strongest political parties could exert pressure on potential candidates to prevent a ballot from being held. Moreover, the result of a ballot, regardless of who is elected, has a certain value, especially with regard to voter turnout. A silent ballot would also be unsatisfactory for the candidates themselves. Furthermore, fears were expressed that silent elections could reduce the interest of eligible voters in ordinary ballots. However, the objections were not heard and the motion was rejected by 18 votes to 8.
II. Significance
A. General
1. Subject matter
4 Art. 45 PRA regulates the conduct of silent elections in the context of National Council elections. A silent election is the procedure whereby the proposed candidates are declared elected by an authority without a ballot because the number of candidates does not exceed the number of seats to be filled.
5 It follows from the systematics of the law that the norm is only applicable to elections held by proportional representation. This is the case in all cantons that are entitled to more than one National Council seat according to the distribution of seats applicable to the corresponding election (Art. 149 para. 2 FC and Art. 47 para. 1 PRA e contrario). The distribution of seats among the cantons is based on Art. 16 and Art. 17 PRA. Cantons that elect only one member of the National Council and therefore by majority vote may also provide for the silent election in cantonal law, but are not obliged to do so (Art. 47 para. 2 PRA). Furthermore, the provision only regulates the general renewal elections of the National Council; for changes during the term of office, the special procedural provisions pursuant to Art. 54 ff. PRA apply to changes during the term of office.
2. Practical relevance
6 Since the introduction of the silent election in the proportional representation cantons, there has been no silent election in 13 of 27 general renewal elections of the National Council in any of the proportional representation cantons. In the remaining 14 general elections there was a silent election in at least one of the proportional representation cantons. The canton of Appenzell Ausserrhoden, which was still entitled to several National Council seats until the 2003 elections and was thus also one of the cantons with proportional representation, had the most silent elections (eleven).
7 What is striking about the statistics on the silent National Council elections is that they generally took place in small proportional representation cantons with only two or three National Council seats. The year 1939 was an extraordinary election year in several respects. On the one hand, silent elections were held simultaneously in nine cantons; on the other hand, six of the nine cantons were larger proportional representation cantons with a number of seats between 6 and 15. This statistical discrepancy can be explained by the uncertain political situation resulting from the outbreak of the Second World War.
8 It is also striking that silent elections occurred frequently until the 1980s, but have since lost much of their practical significance, at least in the proportional representation cantons. Since 1987, there have been no silent National Council elections in any proportional representation canton. This is probably related to the fact that elections have become more contested due to the increasing number of political groupings.
B. Legal comparison
9 Silent elections have also found their way into electoral legislation in many cantons. Although the first codified form of the silent ballot came from the canton of Neuchâtel, its inclusion in federal law in the other cantonal electoral laws probably helped it to achieve a breakthrough. Following the enactment of the National Council Election Act of 1919, the silent ballot was included in more and more cantonal electoral laws. Today, half of the cantons have silent elections for their parliamentary elections. Rarely are these elections limited to the confirmation of incumbents, but in most cantons first-time candidates can also be elected by silent ballot. The cantonal regulations on silent elections are largely based on federal law with regard to the requirements and the procedure, with a few exceptions.
10 The number of signatures required to submit an election proposal in those cantons in which a silent election of parliament is possible varies. It ranges from 3 signatures as a minimum to 50 signatures as a maximum requirement. The decisive factor is that the signature quorums are in reasonable proportion to the number of eligible voters in the corresponding constituency, so that the respective quorum does not have a prohibitive effect on the exercise of political rights with regard to Article 34 para. 1 FC. The fact that the Federal Supreme Court considered a signature quorum that corresponded to a share of more than nine per cent of the eligible voters in the constituency in question to be legitimate and proportionate, merely in order to make it more difficult for candidates who were not serious to stand for election, can certainly be criticised from this point of view. In principle, however, even according to federal court jurisprudence, no excessive effort should be required to submit an election proposal. Therefore, the signature quorums for the submission of election proposals should tend to be kept as low as possible.
11 Until 1954, the canton of Zug still had a right of veto whereby voters had the possibility to veto a proposal after the proposal procedure had expired and thus prevent the holding of a silent election. Like the submission of election proposals, a right of veto offers those entitled to vote the possibility of preventing a silent election, but precisely without having to submit their own election proposals for this purpose. In this respect, it forms the lower hurdle to bring about a ballot. In the case of Zug, however, the fact that the signatures of a quarter of all eligible voters in the canton would have been necessary to make use of the right of veto was problematic. The size of the quorum had a prohibitive effect and effectively made the veto a useless instrument, so it was decided to abolish it.
12 On the whole, silent elections in the cantons are more often provided for popular elections in the majority voting system than for those in the proportional voting system. This may be surprising insofar as the silent election had its origins in the proposal procedure, which was inevitably linked to the introduction of proportional representation, and was only later adapted for the majority election procedure as well. However, from the point of view of the constitutionally required democratic legitimacy of cantonal parliaments (Art. 51 FC), this development is to be welcomed.
III. Silent National Council elections in proportional representation cantons
13 According to the wording of the provision, a silent election takes place if there are no more candidates on all lists together than there are mandates to be allocated. This wording gives rise to two possible cases of application: The number of candidates can be the same as the number of mandates to be awarded or lower. The first variant is called an exhaustive silent election. The latter is referred to as a supplementary silent election, since it entails a supplementary election in addition to the declaration of election pursuant to Art. 45 para. 1 PRA (Art. 45 para. 2 PRA).
A. Silent ballot in general (para. 1)
1. Election proposals (first subpart)
14 A silent election is only possible if a closed number of electable persons has already been determined before election day, since only in this way is it possible to quantify the number of candidates at all in comparison with the number of vacant mandates. A preliminary procedure with the legal effect that in the ballot a valid vote can only be cast in favour of those candidates who have been registered for the election in due time and in a legally valid manner (so-called compulsory nomination) is therefore indispensable (cf. Art. 38 para. 1 lit. a PRA). In the proportional representation system, these candidatures automatically result from the electoral lists that are formed from the submitted election proposals within the framework of the proposal procedure (Art. 21-33 PRA). The situation is different in the majoritarian election procedure. Compared to the proportional representation procedure, the latter only requires the formation of binding electoral lists if the possibility of a silent election is to exist.
15 The election procedure is initiated by the official election order of the competent authority, which is published in the official organ of publication. According to the Federal Supreme Court, this must already make sufficient reference to the possibility of a silent election, the right of voters to submit election proposals, and the other rules governing the conduct of the election. However, the Federal Supreme Court's open wording does not allow any detailed conclusions to be drawn regarding the requirements for the content of the election order. So far, it has only been specified that a general reference to the legal provisions is not sufficient, but rather that an explicit reference is required. That those entitled to vote are sufficiently informed is essential to ensure a comprehensive opinion-forming process (Art. 34 para. 2 FC). Likewise, it forms the basis for the legal fiction of consent, because the presumption of tacit consent by those entitled to vote without a legal duty to inform would be untenable from the perspective of the rule of law. It is questionable, however, whether publication in the official organs of publication, in view of its rather modest reach as experience shows, is actually able to ensure this degree of information. More active information to voters, similar to the postal delivery of voting and election documents, would mean an additional financial and logistical effort, but could remedy the situation.
16 In the next step, the voters submit their election proposals. The requirements for the election proposals are based on the provisions of Art. 21 ff. PRA. In order for those entitled to vote to bring about a surplus of election proposals by submitting an additional candidature and thus prevent a silent election or force the holding of the popular election, no excessive effort must be required of those entitled to vote to provide their signature.
17 Finally, the competent authority of the canton examines and cleans up the election proposals and, under certain circumstances, sets the signatories a period of grace to remedy formal deficiencies (Art. 29 PRA). After the expiry of the one or two-week period for correction (Art. 29 para. 4 sentence 1 and sentence 3 PRA), the nominations are called lists (Art. 30 para. 1 PRA) and, with the exception of the official declaration of invalidity of subsequently discovered multiple candidatures (Art. 29 para. 4 PRA), can no longer be amended.
2. Declaration of election (second subpart)
a. Procedure and mechanism
18 Since in the proportional representation procedure, valid votes can only be cast for the candidates on the electoral lists (Art. 38 para. 1 lit. a PRA), the number of candidates to fill the vacancies is determined at the end of the preliminary procedure. If the number of nominations is higher than the number of vacant mandates, the ballot shall take place as announced. If, on the other hand, the number of nominations does not exceed the number of vacancies, the ballot shall be dispensed with by law. Accordingly, the ballot shall be cancelled by the competent authority and the result shall be published in the official organ of publication. The cantonal government shall declare all candidates elected. Legally, this is a purely declaratory ruling; only the signatures of the voters on the election proposals have a constitutive effect.
19 A silent election therefore leads to the fact that the actual act of expressing the will of those entitled to vote in the context of the ballot is omitted. It is replaced by the silence of the electorate, which is interpreted by the law as consent, based on the legal fiction of Art. 45 PRA. This states that the refraining from submitting additional election proposals, which would generate a surplus of candidatures and thus trigger the ballot, is to be understood as approval of the already existing election proposals.
b. Constitutionality, in particular relationship to political rights
20 The procedure for a silent election contradicts the guarantee of political rights (Art. 34 FC) in several respects. Incidentally, this has also been recognised by the Federal Supreme Court. It even went so far as to describe the silent election as a departure from the actual popular election. However, the fundamental question of the constitutionality of silent elections has so far been left open. In individual cases, the Federal Supreme Court has always considered silent elections to be justifiable, usually for economic and electoral policy considerations.
21 The requirement of a popular election of the National Council is enshrined in Art. 149 para. 2 FC and is given a protective status under fundamental law via Art. 34 para. 1 FC. In a direct popular election, the state body is appointed as a result of a plurality of expressions of will by those entitled to vote. Analogous to the understanding of the term in private law, an expression of will in public law also basically includes the active articulation of one's own point of view. Not contesting election proposals by refraining from submitting one's own electoral list, on the other hand, is merely passive behaviour in which those entitled to vote neither explicitly express themselves for nor against the election proposals, but abstain - perhaps even consciously and intentionally - from expressing an opinion. Even the possibility of submitting election proposals does not change the fact that the popular vote is absent in the silent election; after all, not every form of participation fulfils the requirements of a popular vote. Moreover, it is precisely the purpose of the silent election to be able to dispense with a popular election for reasons of procedural economy. Silent voting thus contradicts the principle of popular election and constitutes a restriction of a constitutionally guaranteed political right (Art. 140 para. 2 FC in conjunction with Art. 34 FC).
22 The legal basis required under Art. 5 para. 1 FC for such a restriction of Art. 149 para. 2 FC would have to be enshrined in the Federal Constitution due to the hierarchical supremacy of the Constitution over the laws. A legal basis for silent National Council elections does exist in Art. 45 PRA, but this is only found at the level of federal law. The same applies to cantonal parliamentary elections. The Federal Constitution requires direct popular election (Art. 51 FC), but again does not provide for any restriction in the case of silent elections. For their part, the relevant cantonal legal bases are not able to justify the encroachment on the Federal Constitution (Art. 49 para. 1 FC). The silent election of both the members of the National Council and the cantonal members of parliament must therefore be described as unconstitutional under the federal constitution. Although this fact remains without actual or legal consequences due to the application requirement for federal laws (Art. 190 FC), the creation of a legal basis at constitutional level would be desirable in view of legal certainty as well as the postulate of the freedom from contradiction of the legal order.
23 According to settled case law of the Federal Supreme Court, Art. 34 para. 2 FC guarantees, among other things, that no election result is recognised that does not reliably and undistortedly express the free will of those entitled to vote. Furthermore, those entitled to vote must be able to make their decision on the basis of a process of opinion-forming that is as free and comprehensive as possible and to express this with their vote. Silent voting is based on the legal hypothesis that those eligible voters who do not themselves submit a nomination vote in favour of the candidates already proposed. However, in all cases where those entitled to vote do not submit a nomination for reasons other than their approval of the previous candidacies, this assumption leads to a distortion of the will of the voters. Just as, according to the prevailing doctrine, a tacit approval of the parliamentary proposal cannot be inferred from the non-invocation of an optional referendum, the fact that someone refrains from submitting additional election proposals does not correctly imply either approval or rejection of the previous election proposals. Whereas in the case of an optional referendum at least the text of the law under discussion has been definitively determined and published (cf. Art. 13 para. 1 lit. e PublG), in the case of elections this is only the case after expiry of the proposal period. Although it is possible to inspect the election proposals during the preliminary procedure (Art. 26 PRA), these are not published and may also be subject to ongoing changes, for example by election proposals being resubmitted during the remaining period or being declared invalid during or after the purification procedure (Art. 29 para. 3 PRA, Art. 32a PRA). De facto, therefore, voters do not yet have the opportunity to express their opinion for or against all candidatures in the preliminary procedure. This would rather be the purpose of the ballot to be held later. Conclusions on the content of a waiver of the right to submit nominations are thus a pure legal fiction, the purpose of which is to democratically legitimise the candidates' declaration of election by means of a legal artifice. Due to the variability of the pool of candidates during the nomination period, those entitled to vote cannot know whether they would prevent a silent election by submitting a nomination or whether they would just bring about one, as they lack a reliable basis for their decision. Silent voting therefore affects both the free opinion-forming process and the undistorted expression of the voters' will in the election result and is thus in tension with Article 34 para. 2 FC.
24 A right of veto for eligible voters could mitigate the distortion of the election result as a result of the fiction of consent. Similar to the optional referendum, a certain number of eligible voters could exercise this right by submitting their signature and thus force a ballot, regardless of the number of election proposals submitted. In this way, those entitled to vote could directly refute the fiction of consent without having to submit an election proposal for it. This would also prevent election proposals that are not seriously meant from being submitted just to avert a silent election. However, it would be decisive that the use of the right of veto with regard to the signature quorum does not represent a greater procedural hurdle than the submission of an election proposal. In order to prevent sham elections from occurring as a result of a veto right, either the eligible voters would have to submit new election proposals before the ballot, or they would have to be able to cast their vote for any eligible person, or a legally defined quorum would have to apply for participation in the allocation of seats.
25 A possibility for improvement with regard to the opinion-forming process is offered by the two-stage preliminary procedure practised in some cantons for majority elections. Here, after the expiry of the initial deadline and an initial adjustment, the election proposals submitted up to that point are published and a second deadline is set during which further election proposals can be submitted. This additional period creates a more transparent basis for voters to decide whether they must or want to force the ballot to be held by submitting further election proposals. However, this presupposes that during the additional period the withdrawal of election proposals already submitted during the first period is inadmissible. Otherwise, the number of election proposals would remain just as unclear as during the first deadline and the second deadline would not lead to any improvement of the information situation. If the number of election proposals already exceeds the number of mandates to be allocated after the first deadline, a second deadline can also be dispensed with for reasons of procedural economy, since in such cases a silent election and the associated restriction of political rights are out of the question.
c. Effects on democratic legitimacy
26 The Federal Supreme Court has identified (lack of) democratic legitimacy as one of the main problems of silent elections. In a democracy, the legitimacy of elected persons derives from the will of the majority of the electorate - or, in the proportional representation procedure, of a significant proportion of the same. This will of the electorate is usually explicitly reflected in the election result. In the case of a silent election, on the other hand, democratic legitimacy is based solely on the legal fiction of consent. Thus, the democratic legitimacy conveyed by silent elections is not comparable to that of an ordinary election, especially in the case of single-stage preliminary procedures. The reason for this lies not least in the fact that in fact only the signatories of the existing election proposals have expressed their explicit consent, while the behaviour of the rest of the electorate correctly does not indicate consent or rejection. For silent National Council elections, this means that, depending on the size of the constituency, the explicit democratic legitimacy is only fed by the 100 to 400 signatories of the electoral list (cf. Art. 24 para. 1 lit. a-c PRA).
27 This restriction of democratic legitimacy is particularly questionable since it concerns a parliamentary election, i.e. the election of the primary representative body of the electorate. By its very nature, this body is dependent on the broadest possible democratic legitimacy. For the election of the legislature - both at national and cantonal level - silent elections should therefore be avoided. Numerous cantons already take account of the increased requirement for democratic legitimacy in parliamentary elections by excluding silent elections for the legislature altogether, although these are not fundamentally alien to their electoral regulations. The canton of Zurich, for example, allows silent elections for certain "non-political offices", but not for filling the cantonal council or the Council of States seats.
28 The silent election is primarily justified by considerations of procedural economy. Due to the compulsory nomination and the fact that there is no legal quorum for the election to the National Council, the outcome of the election is already determined in advance if there are the same number of candidates or fewer candidates than vacant seats, which is why holding the ballot in these cases is seen as unnecessarily causing costs. However, this is somewhat at odds with the fundamental decision in favour of a direct popular election of the National Council, according to which the constitutional legislator obviously accepted the costs caused by ballots (Art. 149 para. 2 FC). However, it should be noted in favour of this argumentation that the ballot in these constellations lacks its material purpose, namely to determine the outcome of the election, and thus leads to an actual sham election. However, it must also be taken into account that not only the outcome of the election, but also the concrete election result has an independent significance.
29 It is also argued in favour of the silent ballot that an election in which eligible voters can no longer influence the outcome of the election could promote voting fatigue among eligible voters and have a negative effect on voter turnout for other, disputed election matters. However, this connection cannot be proven. It is also conceivable, however, that silent elections could affect the self-perception of eligible voters as an indispensable part of representative democracy and thus their motivation to participate in elections and votes. In any case, no fundamental added value of silent elections can be derived from this argumentation from a democratic-theoretical perspective, because such an effect would merely lead to a shift of the low voter turnout to another election or voting subject. The criticism that voter turnout is notoriously low in uncontested elections and that the resulting election results are therefore unworthy of consideration must also at least be questioned. The possibility of narrow majorities and thus "bad" election results is inherent in a democratic electoral system and therefore precisely not an expression of a specific lack of quality that would speak in favour of holding silent elections.
B. Silent elections in need of supplementation in particular (para. 2)
30 If all electoral lists together list fewer candidates than there are mandates to be allocated, this is a silent election in need of supplementation. While the other procedural steps in this case are also governed by Art. 45 para. 1 PRA, a supplementary election is held for the seats that remain vacant in accordance with Art. 56 para. 3 PRA. In the case of several vacancies, the proportional representation procedure shall be applied, otherwise the majority voting procedure. If the number of candidates proposed in a by-election corresponds to the number of vacant mandates, this can also be carried out in the form of a silent election.
31 The system of supplementary silent election has the consequence that the elected National Councillors of a constituency do not all have to fulfil the same requirements in order to win a seat, even in an overall renewal election. While some are elevated to office only by the signature of the signatories of their electoral list and the subsequent declaration of election, others must achieve a natural quorum, usually higher than the signature quorum for election proposals, to be elected in the supplementary election. Moreover, because the number of vacant seats is reduced accordingly after the declaration of election, the natural quorum in the supplementary election is higher than would be the case if all mandates were filled in an ordinary ballot. Although the democratic legitimacy of those explicitly elected in a ballot is greater than that of those elected silently, the National Council members elected by silent ballot thus experience a privilege compared to those elected in the supplementary ballot in that they do not have to reach this natural quorum in order to win a seat.
32 Since a ballot must be held anyway following the declaration of election to fill the mandates that remain vacant, the usual procedural economic advantages of the silent election are not applicable in the case of supplementary silent elections. The argumentation that a ballot only fulfils its formal purpose, but has no material influence on the election result, is also not applicable in constellations of a silent election that needs to be supplemented, since at least for some of the mandates the filling is only determined after the ballot and not already at the end of the preliminary procedure. Thus, the silent election in the constellations requiring supplementation loses its two most important grounds for justification. Certain cantonal electoral laws take this into account by permitting an exhaustive silent ballot for their parliamentary elections, but not a supplementary one. In view of the constitutional and democratic concerns, the holding of a silent ballot in constellations requiring supplementary ballots in the election of the National Council would have to be dispensed with a fortiori, and instead a ballot would have to be held for all seats up for election.
Bibliography and materials
Biaggini Giovanni, Bundesverfassung der schweizerischen Eidgenossenschaft, Kommentar, 2. Aufl., Zürich 2017.
Bisaz Corsin, Direktdemokratische Instrumente als «Anträge aus dem Volk an das Volk», Eine Systematik des direktdemokratischen Verfahrensrechts in der Schweiz, Zürich 2020.
Botschaft des Regierungsrates des Kantons Aargau an den Grossen Rat vom 25. März 1999, 99.105, Gesetz über die politischen Rechte (Teilrevision), Bericht und Entwurf zur 1. Beratung (zit. Botschaft 1999).
Botschaft über die Gewährleistung der geänderten Verfassungen der Kantone Obwalden, Zug, Schaffhausen, Graubünden, Wallis und Genf vom 25. November 1996, BBl 1997 I S. 1393 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/1997/1_1393__/de, besucht am 10.10.2022 (zit. Botschaft 1996).
Botschaft zu einem Bundesgesetz über die politischen Rechte vom 9. April 1975, BBl 1975 I 1317 ff., abrufbar unter https://fedlex.data.admin.ch/eli/fga/1975/1_1317_1337_1313, besucht am 10.10.2022 (zit. Botschaft 1975).
Bundesamt für Justiz, Totalrevision der Bundesverfassung, Vernehmlassung zum Verfassungsentwurf von 1977, Zusammenfassung sämtlicher Vernehmlassungen, Band 4, Art. 57–118, Bern 1980 (zit. BJ, Vernehmlassung 1977).
Bundesamt für Statistik, Nationalratswahlen: Mandatsverteilung nach Parteien und Kanton, abrufbar unter https://dam-api.bfs.admin.ch/hub/api/dam/assets/11048424/master, besucht am 10.10.2022 (zit. BFS, Mandatsverteilung).
Burckhardt Walter, Kommentar der schweizerischen Bundesverfassung vom 29. Mai 1874, 3. Aufl., Bern 1931.
Ehrenzeller Bernhard/Nobs Roger, Kommentierung zu Art. 141 BV, in: Ehrenzeller Bernhard/Schindler Benjamin/Schweizer Rainer J./Vallender Klaus A. (Hrsg.), St. Galler Kommentar, Die Schweizerische Bundesverfassung, 3. Aufl., Zürich et al. 2014.
Eichenberger Kurt, Die oberste Gewalt im Bunde, Über die verfassungsrechtliche Verteilung und die tatsächliche Ausübung der Rechtsetzungs- und Regierungsfunktionen im schweizerischen Bundesstaat, Zürich 1949.
Eidgenössisches Justiz- und Polizeidepartement, So könnte die neue Bundesverfassung aussehen, Modell-Studie vom 6. November 1985, abrufbar unter https://www.bj.admin.ch/dam/bj/de/data/staat/gesetzgebung/archiv/bundesverfassung/bv-modellstudie-d.pdf.download.pdf/bv-modellstudie-d.pdf, besucht am 10.10.2022 (zit. EJPD, Modell-Studie 1985).
Epiney Astrid/Diezig Stefan, Kommentierung zu Art. 141 BV, in: Waldmann Bernhard/Belser Eva Maria/Epiney Astrid (Hrsg.) Basler Kommentar, Bundesverfassung, Basel 2015.
Expertenkommission für die Vorbereitung einer Totalrevision der Bundesverfassung, Verfassungsentwurf 1977, abrufbar unter https://www.bj.admin.ch/dam/bj/de/data/staat/gesetzgebung/archiv/bundesverfassung/entw-expkomm-d.pdf.download.pdf/entw-expkomm-d.pdf, besucht am 10.10.2022 (zit. EK-BV, Verfassungsentwurf 1977).
Fehr Gerold, Die Wahl der Regierung in Bund und Kantonen, Zürich 1945.
Felder Urs, Wahl aller Kantonsregierungen unter besonderer Berücksichtigung des Wahlsystems, Zürich 1993.
Fleiner Fritz/Giacometti Zaccaria, Schweizerisches Bundesstaatsrecht, Zürich 1949.
Garrone Pierre, L’élection populaire en Suisse, Etude des systèmes électoraux et de leur mise en oeuvre sur le plan fédéral et dans les cantons, Basel 1991.
Griffel Alain, Allgemeines Verwaltungsrecht im Spiegel der Rechtsprechung, 2. Aufl., Zürich et al. 2022.
Grisel Etienne, Kommentierung zu Art. 89 Abs. 2 BV, in: Aubert Jean-François/Eichenberger Kurt/Müller Jörg Paul/Rhinow René/Schindler Dietrich (Hrsg.), Kommentar zur Bundesverfassung der Schweizerischen Eidgenossenschaft vom 29. Mai 1874, Basel 1987–1996 (zit. BVK 1874).
Häfelin Ulrich/Müller Georg/Uhlmann Felix, Allgemeines Verwaltungsrecht, 8. Aufl., Zürich 2020.
Haller Walter/Kölz Alfred/Gächter Thomas, Allgemeines Staatsrecht, 6. Aufl., Zürich et al. 2020.
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Imboden Max, Politische Systeme, Staatsformen, Basel et al. 1964.
Jaag Tobias/Rüssli Markus, Staats- und Verwaltungsrecht des Kantons Zürich, 5. Aufl., Zürich et al. 2019.
Kägi Werner, An den Grenzen der direkten Demokratie?, Zu einem Grundproblem unserer Verfassungspolitik, in: Neue Helvetische Gesellschaft (Hrsg.), Die Schweiz, Ein nationales Jahrbuch 1951, Zweiundzwanzigster Jahrgang, Brugg 1951.
Kälin Walter/Künzli Jörg/Lienhard Andreas/Tschannen Pierre/Tschentscher Axel, Die staatsrechtliche Rechtsprechung des Bundesgerichts in den Jahren 2010 und 2011, ZBJV 2011, S. 747 ff. (zit. Kälin et al.).
Kaufmann Christine, Der moderne Verfassungsstaat, Begriff des Staates, Elemente des Staates, in: Biaggini Giovanni/Gächter Thomas/Kiener Regina (Hrsg.), Staatsrecht, 3. Aufl., Zürich et al. 2021, S. 8 ff.
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Maag Bernhard, Urnenwahl von Behörden im Majorzsystem, Ausgehend vom Recht des Kantons Zürich, Zürich 2004.
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Martenet Vincent, Kommentierung zu Art. 51 BV, in: Martenet Vincent/Dubey Jacques (Hrsg.), Commentaire romand, Constitution fédérale, Basel 2021.
Müller Christoph, Berner Kommentar, Obligationenrecht, Allgemeine Bestimmungen: Art. 1–18 OR mit allgemeiner Einleitung in das Schweizerische Obligationenrecht, Bern 2018.
Müller Peter Felix, Das Wahlsystem, Neue Wege der Grundlegung und Gestaltung, Zürich 1959.
Nohlen Dieter, Wahlrecht und Parteiensystem, Zur Theorie und Empirie der Wahlsysteme, 7. Aufl., Opladen et al. 2014.
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Poledna Tomas, Wahlrechtsgrundsätze und kantonale Parlamentswahlen, Zürich 1988.
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Rhinow René, Grundprobleme der schweizerischen Demokratie, ZSR 1984 II, S. 111 ff.
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Schefer Markus, Die Beeinträchtigung von Grundrechten, Zur Dogmatik von Art. 36 BV, Bern 2006.
Schnewlin Bliss Meinrad, Das Verfahren zur Wahl des schweizerischen Nationalrates, Nach dem Bundesgesetz vom 14. Januar 1919, Bern 1946.
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Steinmann Gerold, Die Gewährleistung der politischen Rechte durch die neue Bundesverfassung (Artikel 34 BV), ZBJV 2003, S. 481 ff. (zit. Steinmann, Gewährleistung).
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Tschannen Pierre/Müller Markus/Kern Markus, Allgemeines Verwaltungsrecht, 5. Aufl., Bern 2022.
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Tschannen Pierre, Stimmrecht und politische Verständigung, Beiträge zu einem erneuerten Verständnis von direkter Demokratie, Basel 1995.
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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 et al. 2016.
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