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- Art. 5a FC
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- Art. 55 FC
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- Art. 75b FC
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- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
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- Art. 11 CO
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- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
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- 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
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- Art. 13 PRA
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- Art. 32a PRA
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- Art. 48 PRA
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- Art. 50 PRA
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- Art. 56 PRA
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- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a 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
- 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
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- Art. 60 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 of the provision
- III. Commentary on the text of the norm
- Materials
- Bibliography
I. History of origins
A. Majority voting in single-member constituencies
1 Until 1918, all members of the National Council were elected by majority vote - with an absolute majority in initially up to three ballots. After two attempts to introduce proportional representation in National Council elections in 1900 and 1910 had failed, the third proportional representation initiative was accepted by the people and the cantons on 13 October 1918 and thus the principle of electing the National Council according to the proportional representation system was anchored in the constitution.
2 However, the Federal Act on the Election of the National Council of 1919, which implemented the new constitutional provision, already provided that in constituencies that only had to elect one representative, the election would take place by a relative majority. This special regulation for single-member constituencies, which deviated from the constitutional principle, corresponded to the proposal of the Federal Council, was continued with the enactment of Art. 47 PRA in 1976 and in principle still applies today. The new, mixed National Council election procedure was first applied in the (early) general renewal elections of 1919, when the cantons of Uri, Obwalden, Nidwalden, Zug and Appenzell Innerrhoden were single-member constituencies. In the canton of Zug, two National Council seats have been up for grabs since 1922 and three since 1995. The canton of Glarus has been a single electoral district since 1971, and the canton of Appenzell Ausserrhoden since 2003.
3 In addition to proportional representation, the adoption of the proportional representation initiative in 1918 also enshrined in constitutional law the division of electoral districts that still applies today and corresponds to the cantonal borders: each canton and each half-canton forms an electoral district in the National Council elections. Before 1918, the determination of electoral constituencies was the responsibility of parliament and many cantons consisted of several electoral constituencies.
4 The system of distributing the National Council seats among the constituencies according to a fixed distribution number, which was introduced when the federal state was founded, initially remained unaffected by the introduction of the proportional representation system. Until 1963, one member of the National Council was elected for every 20,000 souls (22,000 from 1931 and 24,000 from 1950) of the total population, although each canton and half-canton had been entitled to at least one National Council seat since 1850 (so-called seat guarantee). Until 1963, the size of parliament was determined by the total population and the total number of National Council members to be elected varied from general renewal election to general renewal election. Only since the National Council elections in 1963 has the fixed number of 200 National Council seats applied, which are distributed among the cantons in proportion to the resident population, whereby each canton and half-canton is still entitled to at least one seat.
5 The majority cantons as single-member constituencies are, in summary, a result of the seat guarantee for each canton and half-canton that has existed since 1850, as well as the definition of the cantonal boundaries as constituency boundaries in the National Council elections.
B. Silent elections
6 The possibility of silent elections, i.e. elections without holding a ballot if no more candidatures are received in the proposal procedure (also registration or preliminary procedure) than there are seats to be allocated, was already provided for in federal law for the proportional representation cantons when proportional representation was introduced, but was initially still excluded in the single-member constituencies. Art. 47 para. 2 PRA, which today allows the major-majority cantons to provide for the possibility of a silent election in cantonal law, was only inserted into the PRA in 1994 and goes back to the commission motion "Silent elections in single-member constituencies". Today, each major canton can provide for silent elections in cantonal law according to its experience and needs, or prohibit such elections. It was decided to cantonalise the decision on the possibility of a silent election after the possibility of a silent election under federal law was vehemently rejected in the consultation procedure by three (UR, GL, AI) of the then five (UR, OW, NW, GL, AI) majority cantons.
7 The proposal procedure, which makes a silent election possible in the first place, initially had to last until the 30th day before the election by federal law. For better coordination with cantonal referendums that sometimes take place at the same time, the deadline for registering to vote was brought forward to the 48th day (7th Monday) before the election as of 1 January 2008 at the request of the majority cantons.
8 Since 1995 and until today, only the two majorities cantons Obwalden and Nidwalden have known the possibility of a silent election to the National Council. However, this has only been done once since 1995, namely in the 1999 general renewal elections in the canton of Obwalden.
9 The canton of Appenzell Ausserrhoden, which has been a single electoral district since 2003, was a small proportional representation canton with two to three seats from 1919 to 2003. During this time, silent elections occurred in about half of the total renewal elections and thus with above-average frequency. This is politically undesirable, particularly because of feared repercussions on internal cantonal elections, which is why in the Canton of Appenzell Ausserrhoden it has been refrained from providing for the possibility of silent National Council elections in cantonal law until today.
C. Voluntary registration procedure
10 On 26 September 2014, Art. 47 para. 1bis PRA was enacted, which allows majoritarian cantons without a legal basis for a silent election to introduce a voluntary registration procedure. The amendment to the law goes back to the interpellation no. 12.3291 "Simplification of National Council elections in major cantons" by the then Appenzell Ausserrhoden National Councillor Andrea Caroni. According to the interpellant, there was considerable uncertainty among voters about the personal details of the candidates when filling in the blank ballot papers. For the candidates, the widespread dissemination of information about themselves then meant a large financial outlay. Furthermore, the Swiss abroad are not sufficiently informed in the current system and are therefore at a disadvantage. The Federal Council recognised the need for action, particularly with regard to the Swiss abroad and their need for electronically retrievable information on National Council candidates.
II. Significance of the provision
A. Scope of application of the majority voting procedure
11 Art. 47 ff. PRA are applied in cantons which, due to their population size, can only delegate one person to the National Council. Of the 26 cantons, six (UR, OW, NW, GL, AR, AI) are currently so-called single-member constituencies in which the National Council is elected by majority vote in accordance with Art. 47 et seq. PRA.
12 The scope of application of the provisions on majority voting, however, extends beyond the election of the National Council in the majority cantons. In particular, majority voting can also occur in supplementary elections in proportional representation cantons in accordance with Art. 47 et seq. PRA. According to Art. 56 para. 3 PRA, this is the case if a member of the National Council retires during the term of office and 1) the seat cannot be filled by succession, 2) the right of nomination provided for in Art. 56 paras. 1 and 2 PRA is not used, and 3) only one seat is to be filled. In view of this cascade, it is hardly surprising that in the only three supplementary elections held since 1919 there has never been a majority election.
13 Furthermore, the election of members of the National Council in proportional cantons takes place according to the majorities system if no lists are available or if all lists together list one person less than the number of mandates to be allocated. Against the background of the growing number of candidates, the practical relevance of majority voting in proportional representation cantons is likely to remain low in the future.
B. Majority despite constitutional proportional representation
14 According to Art. 149 para. 2 sentence 1 FC, the members of the National Council are elected by the people in direct elections according to the principle of proportional representation. The National Council seats are distributed among the cantons according to population, with each canton having at least one seat.
15 Contrary to Art. 149 para. 2 sentence 1 FC, Art. 47 para. 1 PRA provides for the election of the deputy or deputies by majority vote with a relative majority for those cantons that have to fill only one National Council seat due to their small population. Majority voting in single-member constituencies is thus a legally provided exception to the constitutional principle of electing National Council members by proportional representation. However, since the single-member constituencies as such are, on the one hand, a consequence of the constitutionally provided division of electoral districts (each canton forms an electoral district, cf. Art. 149 para. 3 FC) and the constitutionally enshrined seat guarantee (each canton has at least one seat, cf. Art. 149 para. 4 sentence 2 FC) and, on the other hand, proportional representation cannot be meaningfully carried out in single-member constituencies - at least within the constituency - the majority voting provided for by law in single-member constituencies can also be regarded as laid down in the constitution. Moreover, Art. 47 et seq. PRA are authoritative for the authorities applying the law in accordance with Art. 190 FC. It should be noted at this point, however, that if the biproportional allocation procedure ("double Pukelsheim") were applied across constituencies, the election of all National Council members by proportional representation would in principle be possible. Against this background, Weber advocates a clarification of Art. 149 para. 2 sentence 1 FC or a changeover to the double Pukelsheim procedure.
16 In Switzerland as a whole, the elections to the National Council take place in a mixed electoral procedure, which contains elements of both the majority and proportional representation principles. The proportion of National Council members elected by majority vote is currently 3% (six out of 200 MPs), while the proportion elected by majority vote is 23% (six out of 26 cantons).
17 In the majoritarian election, the votes cast are allocated directly to specific persons and are not first distributed to lists. In this respect, the majority election procedure can be described as a personality election (also personal election), which promotes the selection of MPs according to personal criteria and favours the election of strong personalities. Party affiliation does not play the same role in majoritarian elections as it does in proportional representation, as can be seen from the fact that all members of the National Council in today's single-member constituencies do not currently belong to the strongest parliamentary group in the cantonal parliament. Nevertheless, for many voters, affiliation to a particular party is likely to be a decisive electoral criterion in the majoritarian election procedure as well.
C. Electoral equality and majority voting
18 Electoral procedures must be designed in such a way that the equality of electoral rights required by Article 34 FC is ensured with its three components, equality of counting, equality of voting strength and equality of success. The equality of counting values requires that all votes are formally treated equally during the counting. Equality of voting strength or voting weight guarantees that every voter not only has his or her vote counted, but that it is used in the same way as all other votes. Finally, equality of success value is intended to ensure that all votes have the same success, i.e. that they contribute materially and equally to the election result and are taken into account in the distribution of mandates. It requires the number of weightless votes to be limited to a minimum and is in principle of a constituency-wide nature. According to the Federal Supreme Court, electoral procedures must comply with the principle of electoral equality, regardless of whether they are based on proportional representation, majoritarian elections or a mixed system. According to the Federal Supreme Court, all three elements of electoral equality must be guaranteed as far as possible, regardless of the electoral procedure. While the equality of counting values has an absolute character, certain restrictions on the equality of voting strength and success values can be justified on factual grounds.
19 In majority voting, which is applied in National Council elections in single-member constituencies, the person who receives the most votes is elected. All votes that go to persons who cannot gather the majority of votes are not taken into account in the distribution of mandates and remain weightless. In the case of majoritarian elections, votes for defeated candidates cannot be taken into account due to the system, which means that the equality of success values is impaired. However, the fact that votes for defeated candidates are not taken into account is an essential feature of the majoritarian system, which is why the Federal Supreme Court's application of equality of success values to majoritarian and mixed procedures has been criticised by scholars.
20 In addition to the equality of results, the equality of voting power cannot be guaranteed across all constituencies in the National Council elections. The latter is distorted by the seat guarantee of each canton enshrined in Art. 149 para. 4 sentence 2 FC. The voting power of voters in the sparsely populated single-member constituencies is considerably greater than that of voters in the most populous cantons. The seat guarantee and thus also the distortion of the equality of voting power resulting from it is - like the division of electoral districts as such - federally motivated and inherent in the constitution itself. It is therefore to be judged as constitutional.
21 Even though the Federal Supreme Court has already referred to the National Council elections on various occasions when assessing cantonal electoral systems, it has not ruled on the constitutionality of the mixed National Council election system provided for in Art. 16 ff. PRA and, in particular, its compatibility with the requirements of electoral equality. However, it has clarified that the case law on the constitutionality of cantonal parliamentary election systems cannot be transferred to the federal level without further ado, since the election of a cantonal member of parliament differs in various respects from that of a member of the National Council. The Federal Supreme Court has also pointed out that the election procedure for the National Council is constitutionally regulated in its main features by Art. 149 FC and has raised the question of whether Art. 149 FC, in the sense of a lex specialis, would also constitutionally justify a restriction of Art. 34 FC for elections to the National Council. The doctrine is unanimously in favour of the special nature of Art. 149 FC compared to Art. 34 FC and thus the constitutionality of the restrictions on electoral equality resulting from Art. 149 FC. Irrespective of the assessment of constitutionality, the authorities applying the law are bound by the federal regulation on the basis of Art. 190 FC. How the National Council election procedure, which is constitutionally regulated in its main features, is to be designed in concrete terms, is consequently to be decided by the federal legislature and thus ultimately a political question.
D. Reform efforts
22 Against the background of the impairments of electoral equality resulting from the current division of electoral districts and the current National Council electoral system, there have been several calls in politics for a change to the nationwide election of National Council deputies according to the double Pukelsheim. The double Pukelsheim would also work in single-member constituencies due to the two-stage allocation procedure (upper allocation: nationwide distribution of seats among the parties; lower allocation: distribution of mandates among the cantons in proportion to the strength of the parties participating in the election), but there would be a transfer of votes across the constituency or cantonal borders. So far, all parliamentary motions have been rejected by the first Council to deal with them - in each case with reference to the historically and federally determined special position of the cantons as constituencies.
E. Legal comparison
23 Since 2003, the cantons of Uri, Obwalden, Nidwalden, Glarus, Appenzell Ausserrhoden and Appenzell Innerrhoden have been single-member constituencies. In the overall renewal elections of 2023, only one member of the National Council will also be elected in these cantons.
24 In the cantons of Uri and Appenzell Innerrhoden, voters are in principle obliged to vote in the election of the National Council member. Such a statutory voting obligation is compatible with the postulate of the free right to vote. However, there is no provision for compulsory voting, i.e. an obligation to vote under penalty of law.
25 In principle, the current major-majority cantons can be divided into a group without (UR, GL, AR, AI) and a group with (OW and NW) the possibility of a silent vote, based on the cantonal legal bases that specify the election procedure for the National Council.
1. Majority cantons without silent elections
26 The basic features of the National Council election procedure in cantons that do not have a legal basis for silent National Council elections are derived from federal law. The additional applicable cantonal provisions (cf. Art. 83 PRA) primarily concern matters of organisational law such as the composition and duties of the electoral offices as well as the procedure for early and postal voting (polling stations, polling locations and monitoring, voting material, voting, grounds for invalidity, determination and announcement of the results), which the cantons are obliged to regulate in accordance with Art. 7 para. 4 and Art. 8 para. 1 PRA.
2. Majority cantons with silent elections
27 The above-mentioned provisions are also to be taken from cantonal law in cantons with silent elections. In contrast to the cantons without the possibility of a silent election, in the cantons with the possibility of a silent election there is a compulsory registration procedure (proposal procedure), which by federal law lasts until 12.00 noon on the 48th day before the election, but is otherwise to be regulated by cantonal law. The cantonal provisions on the registration procedure in the two cantons of Obwalden and Nidwalden largely coincide with Art. 21 et seq. of the Federal Constitutional Court. PRA, which regulate the election proposal procedure in the proportional representation cantons.
a. Canton Obwalden
28 Obwalden law regulates the election proposal procedure and the silent election for the National Council in Art. 53a AG/OW. Accordingly, the cantonal government calls on voters eight weeks before the election Sunday to submit election proposals, which can be submitted until 12.00 noon on the 48th day before the election in accordance with Art. 47 para. 2 PRA.
29 Each election proposal must be signed by at least five voters resident in the canton. The wording of this cantonal regulation raises the question of whether the Swiss abroad who do not reside in the canton but abroad are also entitled to sign election proposals in the National Council election in the canton of Obwalden. In the opinion of the author and also the legal service of the State Chancellery of the Canton of Obwalden, this is to be affirmed with regard to higher-level law. According to Art. 40 para. 2 FC, the Confederation is responsible for issuing regulations on the rights and obligations of the Swiss abroad, including with regard to the exercise of political rights in the Confederation. According to Art. 16 para. 1 ASG, Swiss abroad who have reached the age of 18 may vote in federal elections and referenda. The exclusion of the Swiss abroad from the right to vote and stand for election is also conclusively regulated by federal law in Art. 17 ASG. Accordingly, the law of the canton of Obwalden is to be interpreted in conformity with federal law in such a way that Obwalden citizens residing abroad are in principle also entitled to sign election proposals for the election to the National Council. The right of Swiss citizens living abroad to vote, which is granted by federal law, cannot be restricted by the cantonal regulation of the registration procedure. This interpretation of cantonal law is also supported by the fact that the Swiss abroad are also entitled to sign election proposals in cantons with proportional representation. No factual reasons are apparent for a different approach to the entitlement of the Swiss abroad to sign in cantons with a majority and a silent vote.
30 Candidates must be listed on the nomination form with their surname, first name, occupation and home address; if necessary, their year of birth must be indicated. Each candidate must confirm in writing that he/she accepts the nomination. In the absence of such confirmation, the name of the candidate shall be deleted. If only one valid nomination is submitted by the closing date for nominations on the 48th day before the election, the cantonal government shall declare the nominated person elected.
b. Canton Nidwalden
31 In the canton of Nidwalden, the silent election to the National Council is regulated in Art. 2 EG PRA/NW. For the validity requirements of a candidature and thus the requirements for an election proposal, Art. 2 para. 3 EG PRA/NW refers to Art. 60 WAG/NW. Accordingly, an election proposal must be signed by at least five active citizens, stating their own name, first name, year of birth and residential address. Each active citizen may only co-sign one election proposal per election.
32 According to the cantonal constitution, active citizenship includes all persons who have Swiss citizenship, are legally established in the canton, have reached the age of 18 and have not been deprived of active citizenship by legislation. As in the canton of Obwalden, the cantonal regulation on the election proposal procedure could, according to its wording, be understood as excluding the Swiss abroad who are not legally established in the canton from the right to sign election proposals in the National Council elections. In the sense of the author's view already expressed with regard to the Obwalden regulation, and also in the view of the Nidwalden District Administrator, such a cantonal regulation would not, however, be compatible with higher-level federal law, which grants the Swiss abroad the right to vote in National Council elections. The Nidwalden District Administrator then emphasised that the cantonal constitution and the cantonal election and voting law fundamentally regulated cantonal elections (and votes). It had not been the intention of the cantonal legislature to restrict the right of the Swiss abroad to vote in the National Council elections with the reference in Art. 2 para. 3 EG PRA. As in the canton of Obwalden, in the canton of Nidwalden Swiss abroad are therefore also entitled to sign election proposals.
33 The candidates must be designated on the election proposal with their surname, first name, occupation, year of birth and residential address. Each proposed person must confirm in writing on the election proposal that he or she accepts a possible election. The Cantonal Voting Office shall check the eligibility of the applicants and the eligibility of the proposed persons to stand for election. Nominations submitted by ineligible persons shall be eliminated; the names of nominated persons who do not have the capacity to stand for election shall be deleted. If only one valid candidature is registered by 12.00 noon on the 48th day before the election, the cantonal government shall declare that person elected.
3. Voluntary registration procedure
34 A voluntary registration procedure and the announcement of candidatures within the meaning of Art. 47 para. 1bis PRA is currently only known in the canton of Glarus. Candidates for office in the canton of Glarus may register their candidature for the National Council with the State Chancellery of the canton of Glarus no later than the eighth Monday before the day of the vote. In addition to the office sought, the State Chancellery must also be informed of the candidate's surname, first name, sex, date of birth, place of origin (including cantonal affiliation), occupation and place of residence (including postcode). The candidature must then be confirmed by signature. The State Chancellery then ensures that the electorate is appropriately informed of the candidacies notified within the deadline, as a rule by posting them on the canton's website. However, despite the voluntary registration procedure, all eligible persons may be elected at the ballot.
III. Commentary on the text of the norm
A. Majority voting procedure (para. 1)
1. Constituencies in which only one member of the National Council is to be elected (single-member constituencies; majoritarian cantons)
35 Constituencies in National Council elections are the cantons. The term cantons also includes the former half-cantons. The 200 National Council seats are distributed among the cantons according to population, with each canton having at least one seat. The decisive factor is the share of the cantons in the permanent resident population of Switzerland, i.e. including foreign residents who are not entitled to vote and also minors. However, the number of Swiss abroad entitled to vote in the respective canton is not taken into account. Based on the permanent resident population figures and taking into account the seat guarantee of each canton, the Federal Council shall determine with binding effect how many seats the individual cantons will be allocated in the following overall renewal election of the National Council.
36 Cantons with comparatively low numbers of permanent residents are only entitled to at least one National Council seat, which must be filled by a majority vote in accordance with Art. 47 para. 1 PRA, because of the seat guarantee. Such single-member constituencies or majoritarian cantons will be the cantons of Uri, Obwalden, Nidwalden, Glarus, Appenzell Ausserrhoden and Appenzell Innerrhoden in the overall renewal elections of 2023. The permanent resident population figures of the cantons of Uri, Obwalden, Glarus and Appenzell Innerrhoden are lower than the distribution figure, which means, on the one hand, that these cantons would be left empty-handed without a seat guarantee and, on the other hand, that the resident population of these cantons would be over-represented in the National Council, which would impair the equality of voting power.
2. Every eligible person
37 Unlike in the proportional representation cantons, there are no (party) lists in the majority election. In principle, votes can be cast for any eligible person. According to Art. 143 FC, all persons eligible to vote are eligible to be elected to the National Council. Pursuant to Art. 136 para. 1 FC, all Swiss citizens who have reached the age of 18 and who are not incapacitated due to mental illness or mental incapacity are entitled to vote. Persons who are excluded from the right to vote and to stand for election are persons who are under comprehensive guardianship due to permanent incapacity to judge or who are represented by a person authorised to make provisions. Swiss citizens abroad who have reached the age of 18 and who are not excluded from the right to vote are also eligible to vote in the National Council elections. Registration with the Swiss representation abroad within the meaning of Art. 19 para. 1 ASG is not required for this purpose. Only the exercise of the right to vote by Swiss citizens abroad, but not eligibility, requires registration.
38 The right to vote and to be elected in federal matters, and to that extent also eligibility to vote in National Council elections, is regulated conclusively by federal law. The cantons are not permitted to provide for further eligibility requirements - such as an age limit or a residence requirement in Switzerland or in the canton - or to otherwise deviate from the requirements under federal law.
39 For those majorities cantons that provide for the possibility of a silent election in cantonal law (currently NW and OW), it should be specified with regard to eligibility that any eligible person can be nominated for election. However, if several persons are nominated validly and in due time and silent election is therefore excluded, only persons whose names are pre-printed on the ballot paper and who have been nominated in due form and in due time may be voted for (so-called numerus clausus). Votes cast for candidates whose names are not pre-printed are invalid. In this respect, there is an alignment with the proportional representation system.
40 Not to be confused with eligibility is incompatibility. Incompatibility means that a person may not simultaneously exercise two official functions or an official function and a certain private activity. A person who performs a function incompatible with a particular office may well be eligible for that office. However, after election to office, he or she must give up one of the incompatible functions.
3. Relative majority
41 In majoritarian cantons, the person who receives the most votes is elected. Consequently, the election takes place with the relative majority of the votes in a ballot. In contrast to the majority election customary in Switzerland with an absolute majority in the first ballot and a relative majority in the second ballot, the election to the National Council in single-member constituencies does not require a majority of votes, but "merely" the most valid votes in the first and also only ballot.
42 This atypical majority voting with a relative majority in one ballot is explained by the federal government's endeavour to hold the National Council elections nationwide on a single date.
4. Decision by lot in the event of a tie
43 If two eligible persons have obtained the same number of votes, the election or non-election is decided by lot. Even if the National Council elections are federal elections, the lot is to be drawn in the canton concerned by order of the cantonal government and not by order of the Federal Council. The cantonal law determines which cantonal authority draws the lot on the order of the cantonal government. The drawing of lots must effectively guarantee both candidates the same probability (50%-50%) of being elected and must in principle be carried out manually. The use of technical means in the drawing of lots requires the prior approval of the Federal Council.
44 The random element inherent in the drawing of lots may appear as a "foreign body" within the otherwise strictly formal National Council election procedure. However, by drawing lots, a separate casting of lots by the eligible voters and the associated delay of the election process can be avoided. The drawing of lots as such is also unobjectionable from the point of view of the principle of democracy and equality of electoral rights.
45 In connection with the general renewal election of 23 October 2011 and the equality of votes of two candidates for the National Council in the canton of Ticino, the Federal Supreme Court had to rule on the right to a recount in the event of a tied vote in National Council elections. The Federal Supreme Court came to the conclusion that the recount in federal elections and votes is conclusively regulated by Art. 11 VPR, which is why a close result or a tie cannot in itself justify a claim for a recount. Consequently, in addition to the close result or the tie, concrete indications of an incorrect count or unlawful conduct on the part of the responsible bodies must be presented. If there are no such grounds for suspicion, there will be no recount, but - in the event of a tie - a direct decision by lot.
B. Publication of candidatures (para. 1bis)
1. Voluntary election registration and publication procedure
46 In contrast to proportional elections, which require the prior registration of candidates in order to determine the lists, major elections may in principle be held without a prior election registration procedure and without prior formal notification of election proposals. The group of candidates is open and any (eligible) person may be entered on the ballot paper during the ballot - subject to the obligatory registration procedure in the case of the possibility of a silent election. For practical reasons, however, a non-formal announcement of candidates by individual parties and groups usually takes place in the run-up to the ballot, even in majority elections. Already in BGE 113 Ia 291 E. 3a, the Federal Supreme Court stated that "ideally, the citizen should be able to express, disseminate and discuss all information about all possible candidates with full equality of opportunity among them, to consider the advantages and disadvantages and only decide on the basis of this information".
47 Art. 47 para. 1bis PRA allows cantons without a legal basis for silent elections and thus without a compulsory registration procedure to introduce a voluntary, formal registration procedure. In contrast to the silent election, this does not necessarily require a cantonal legal basis and can be introduced directly on the basis of federal law. If the possibility of formal registration exists, candidates for office may register their candidature with the cantonal electoral authority up to the 48th day before election day, whereupon the cantonal electoral authority shall publish at least the information mentioned in letters a-g on the candidatures received electronically and in the cantonal official gazette. Cantons that have a voluntary registration procedure are requested by the Federal Chancellery - as are cantons with a silent ballot - to notify the joint registration office of the Federal Chancellery and the Federal Statistical Office of the candidatures in electronic form and also to send it the associated official gazette publication.
48 The registration procedure provided for in Art. 47 para. 1bis PRA is voluntary in two respects: On the one hand, the majority cantons without a silent election are free to introduce a registration procedure. They are not obliged to do so. If a major canton provides for the possibility of registration, candidates for office are also free to register their candidature in advance. On the occasion of the ballot, irrespective of a voluntary registration procedure, it is still possible to vote for every eligible person and not only for registered persons. A compulsory registration procedure, as takes place in the majority cantons with the possibility of a silent ballot, would not be compatible in the majority cantons without a silent ballot with the requirement under federal law that, in principle, all persons eligible to vote are eligible to vote.
49 Art. 47 para. 1bis PRA was introduced into the CPD due to the growing need of voters - especially those residing abroad - for information on candidates for office. In the proportional representation cantons, the electorate's need for information is easily met by the right to inspect and publish the lists, and in the majority cantons with a silent election, the candidacies are also made public. In contrast, before the enactment of Art. 47 para. 1bis PRA, the authorities in majoritarian cantons without a silent ballot were prohibited from preparing information on existing candidacies due to the state's duty of neutrality in elections. The conflict of objectives between state neutrality and a minimum of electronically retrievable information on candidacies for the purpose of forming the political will should be addressed by Art. 47 para. 1bis PRA.
50 The Federal Council agrees when it states in its dispatch on Art. 47 para. 1bis PRA that the use of pre-printed ballot papers with all registered candidatures and blank lines for the handwritten listing of any other eligible person would be "problematic" due to the strict neutrality required in the run-up to elections. The use of pre-printed ballot papers in a voluntary registration procedure is not provided for by law, and such official influence on the election would not be objectively justifiable - unlike in cantons that know the possibility of a silent election with a compulsory registration procedure. The use of unofficial (pre-printed) ballot papers, which is permissible in elections to the Council of States depending on cantonal law, is excluded in elections to the National Council due to the mandatory use of official ballot papers.
2. Personal data to be published
51 If a major canton has a voluntary registration procedure, at least the official surname and first name (subparagraph a), the name by which the person is known politically or in everyday life (subparagraph b), the sex (subparagraph c), the home address including postcode (subparagraph d), the home towns including their cantonal affiliation (subparagraph e), affiliation to a party or a political grouping (subparagraph f) and the occupation (subparagraph g) must be disclosed electronically and in the cantonal official gazette.
52 This list largely corresponds to that of Art. 22 para. 2 PRA concerning the information on the nominees required on election proposals in proportional representation cantons. However, the provisions pursue different purposes: while the disclosure of personal data in majoritarian cantons is primarily for the purpose of informing voters about candidates for office, the personal data in proportional representation cantons primarily serves to verify the eligibility of the nominees and to prevent multiple candidacies. These different purposes are probably also the reason why in majoritarian cantons at least, i.e. all, the personal data listed must be published, whereas in proportional representation cantons only the cleansed election proposals (i.e. the lists) with the official name and first name, year of birth, home towns and place of residence of the candidates may be published.
C. Possibility of a silent ballot (para. 2)
1. Silent election
53 According to Art. 47 para. 2 PRA, cantonal law may provide for a silent election. A silent election means that candidates for an office are declared elected by an authority in an administrative act if in the election registration procedure preceding the election no more persons are proposed for election than there are seats to be allocated. The persons nominated by the electorate by means of election proposals in the registration procedure shall be declared elected without the electorate voting at the ballot box or by postal vote. If silent elections occur, there are regularly agreements between the political parties behind them.
54 Silent elections are judged differently in the doctrine. They are not accorded the same democratic legitimacy as actual popular elections, which is why they are sometimes viewed critically, especially in the election of parliaments. Weber is in favour of abolishing the possibility of silent elections in National Council elections in general, but at least in majoritarian cantons. If the possibility of silent elections to the National Council is retained, a corresponding legal basis should be included in Art. 149 para. 2 FC. In general, however, silent elections are tolerated for reasons of practicability and procedural economy, because no ballot should be held if there are no more candidates available than there are seats to be allocated. The Federal Supreme Court also assumes the admissibility of silent elections, provided that the voters are sufficiently informed in advance of the possibility of such an election and of the necessity of submitting election proposals in due time (obligatory registration procedure).
55 While the silent election of National Council members in proportional representation cantons has been provided for by federal law since the introduction of the proportional representation system, it was initially excluded in the majority cantons "because the entire proposal procedure applicable and developed in proportional representation does not play a role in majority elections". It was not until the enactment of Art. 47 para. 2 PRA in 1994 that the conditions for a silent election in majoritarian cantons were created. Unlike in the case of proportional representation, however, the decision as to whether a silent election should be possible was not taken by the federal legislature, but left to the major cantons (so-called cantonalisation). A silent election is therefore only possible in majoritarian cantons if this is expressly provided for by cantonal law. It is preferable to have a cantonal regulation at the legislative level, especially since it concerns the exercise of political rights. However, in connection with the elections to the cantonal government in the canton of Bern, the Federal Supreme Court also considered a regulation at ordinance level to be permissible.
56 The last time there was a silent election to the National Council was in the 2007 general election in the canton of Nidwalden.
2. Election proposal procedure
57 In order for a silent election to take place, an election proposal procedure must precede the election. Only in this way is it possible to determine the number of candidatures, to declare a single valid candidature, if any, as elected by silent ballot or otherwise to schedule a ballot. On the other hand, the fact that an election registration procedure has a mandatory character and - in the case of several candidatures - leads to a numerus clausus of valid candidatures is not mandatory and was not provided for when Art. 47 para. 2 PRA was introduced in 1994. It is only since 2008 that there has been a binding requirement for several valid candidatures to be listed on the ballot paper, especially since according to Art. 50 para. 1 and para. 3 lit. a PRA all candidates nominated in due time are to be listed in pre-printed form on the ballot paper and votes are invalid which are cast for candidatures which are not pre-printed.
58 The advantages of a registration procedure lie primarily in the early transparency for those entitled to vote about the candidates standing for election as well as the avoidance of uncertainties in the counting (of names that are not known in detail). Also, the certainty can be created that successful candidates would actually accept the election.
59 The nomination procedure is regulated in detail for proportional representation at federal level. For the majoritarian cantons with a silent election, on the other hand, federal law only stipulates the closing date for nominations on the 48th day (7th Monday) before the election, at 12.00 noon. Otherwise, the PRA does not contain any provisions on the nomination procedure in single-member constituencies or a reference to the relevant provisions on proportional representation. In principle, the majority councils, which permit the silent election, must enact the necessary procedural regulations in a formal law. In doing so, they must observe the requirements for the nomination procedure already arising from Article 34 FC and ensure, for example, that voters are given sufficient time to submit nominations. If the nomination procedure is not conclusively regulated in cantonal law, in view of the harmonisation of the majoritarian election procedure with a silent ballot with the proportional representation procedure, the analogous application of Art. 21 et seq. PRA and Art. 8a ff. VPR on the proposal procedure in proportional representation cantons.
60 At this point, reference is made only to a few "majorz peculiarities" resulting from federal law concerning the proposal procedure:
61 While the deadline for registering to vote in the proportional representation cantons is to be determined in cantonal law in accordance with Art. 21 para. 1 PRA, the 48th day (7th Monday) before the election, 12.00 noon, is the deadline for registering to vote in the majoritarian cantons by federal law. One could conclude from Art. 8a para. 2 PRA that it is open to the major cantons with the possibility of silent elections to provide for an earlier election registration deadline that deviates from Art. 47 para. 2 PRA. In the author's view, however, setting an earlier deadline for registering to vote would not be compatible with Art. 47 para. 2 PRA. In view of the comparatively small number of election proposals to be examined in majoritarian cantons, there is also no reason to bring forward the deadline for registering for elections for organisational reasons. The deadline for registering to vote in major-majority cantons with a silent ballot is therefore prescribed by federal law and - unlike in the proportional representation cantons - cannot be brought forward.
62 No later than the day after the deadline for registering to vote, the major cantons with a silent vote must each send the Federal Chancellery a copy of all election proposals. This is the only way the Federal Chancellery can recognise prohibited multiple candidacies in different cantons and delete multiple candidates from a list or an election proposal. In fact, as a rule, the candidature in the majority canton is to be deleted, especially since the deadline for registering for elections in proportional representation cantons is regularly brought forward and the name proposed more than once is already on a list.
63 Nominations in single-member constituencies may only contain the name of one eligible person, especially since only one seat is to be filled. The sample election proposal shown in Appendix 3a of the VPR therefore appears to be unsuitable for majoritarian cantons. It is advisable to provide election proposal forms that only allow the nomination of one person. A specific designation of the election proposal for differentiation purposes can be dispensed with in single-member constituencies.
64 The cantonal legislature must regulate the quorum of signatures in majoritarian cantons with a silent election. These should be set in such a way that they do not excessively restrict the freedom of choice of candidates and voters, but are nevertheless suitable to prevent or at least impede non-serious election proposals. In the cantons of Nidwalden and Obwalden, which permit the silent election, an election proposal must be signed by at least five voters, which satisfies these requirements. Finally, voters in majoritarian cantons, like those in proportional representation cantons, have the right to inspect the election proposals. Voters should not only be able to see who is standing for election, but also to know who has signed the nomination. According to the Federal Supreme Court, this is a suitable means of obtaining clarity about the political intentions of the nominee.
Materials
Botschaft betreffend die Wahl des Nationalrates nach dem Grundsatze der Proportionalität vom 26.11.1918, BBl 1918 V S. 121 ff. (zit. Botschaft 1918).
Botschaft des Bundesrates an die Bundesversammlung zu einem Bundesgesetz über die politischen Rechte vom 9.4.1975, BBl 1975 I S. 1317 ff. (zit. Botschaft BPR).
Botschaft über eine Teiländerung der Bundesgesetzgebung über die politischen Rechte vom 1.9.1993, BBl 1993 III S. 445 ff. (zit. Botschaft 1993).
Botschaft über die Einführung der allgemeinen Volksinitiative und über weitere Änderungen der Bundesgesetzgebung über die politischen Rechte vom 31.5.2006, BBl 2006 S. 5261 ff. (zit. Botschaft 2006).
Botschaft zur Änderung des Bundesgesetzes über die politischen Rechte vom 29.11.2013, BBl 2013 S. 9217 ff. (zit. Botschaft 2013).
Bericht der Bundeskanzlei vom 21.8.2013, Proporzwahlsysteme im Vergleich (zit. Bericht BK 2013).
Bericht der Staatspolitischen Kommission vom 15.10.2021 zur Parlamentarischen Initiative 20.453 (zit. Bericht SPK-N 2021).
Kreisschreiben des Bundesrates an die Kantonsregierungen vom 19.10.2022 über die Gesamterneuerungswahl des Nationalrates vom 22.10.2023, BBl 2022 S. 2547 ff. (zit. Kreisschreiben 2022).
Kreisschreiben des Regierungsrats des Kantons Obwalden zur Erneuerungswahl des Nationalrats und des Ständerats für die Amtsdauer 2019 bis 2023 vom 20.10.2019, Amtsblatt Nr. 18, 2.5.2019 (zit. Kreisschreiben Kanton Obwalden 2019).
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