I. History of origins

1 Art. 47 para. 2 PRA, which allows majoritarian cantons to provide for the possibility of a silent election in cantonal law, was inserted into the PRA in 1994. In proportional representation cantons, however, silent elections have been possible since the introduction of proportional representation in 1918.

2 Art. 50 PRA, which supplements the (federal) regulation of silent elections in Art. 47 para. 2 PRA and essentially provides for a restriction of eligibility to the persons proposed in the application procedure (so-called numerus clausus), was only inserted with the partial revision of 23 March 2007. From 1994 to 2007, it was still possible to vote for all eligible persons (and not only those proposed in the application procedure) in the majority cantons with the possibility of a silent ballot in the event of more than a single valid application on the occasion of the ballot.

II. Significance of the provision

A. General

3 The cantonal law of the majority cantons may provide for a silent election if only one valid candidature has been received by the competent cantonal authority by the closing date for registration. If a canton has created the necessary legal basis for a silent election and only one valid candidature has been received during the registration procedure, no ballot shall take place. Instead, the single candidate is declared elected by the competent cantonal authority in an administrative act.

4 Art. 50 PRA regulates the procedure for cantons with the possibility of a silent election if several valid candidatures are received during the registration procedure, a silent election is therefore out of the question and a ballot is held. In such a case, according to Art. 50 para. 1 PRA, all candidates nominated in due time must be listed on the ballot paper in pre-printed form. In the ballot, only the pre-printed candidates are eligible for election. Votes cast for candidates who are not pre-printed are invalid. The registration procedure therefore leads to a numerus clausus of electable persons - in deviation from the principle according to Art. 47 Para. 1 PRA, according to which every electable person can be voted for.

5 The election procedure in majority cantons with the possibility of a silent election was aligned with that in proportional representation cantons by Art. 50 PRA. Thus, also in proportional representation cantons, there is a compulsory election registration procedure and only the candidates of the electoral district can be elected on the occasion of the ballot. Only if no election proposals are submitted and consequently no lists are available can every eligible person be voted for during the ballot in proportional representation cantons as well.

B. Legal comparison

6 Of the current six cantons (GL, UR, AR, AI, OW, NW), only in the cantons of Obwalden and Nidwalden is it possible to hold silent elections to the National Council.

7 In the canton of Obwalden, if more than one valid candidature is received by the State Chancellery by the end of the registration period on the 48th day before the election (12.00 noon), the State Chancellery shall have the proposed candidates for the National Council printed on an official ballot paper (for voting by ticking) in random order with surname, first name, year of birth, occupation and address. The addition of "previously" or "new" after the name of the candidate is permissible.

8 In the canton of Nidwalden, if there are several valid candidatures, the cantonal electoral office shall produce the ballot paper with the pre-printed candidatures immediately after the election proposals have been cleared. If, in the case of renewal elections, previous members are proposed, they shall be placed at the top of the ballot paper in the order of their voting age; otherwise, the names of the proposed persons shall be listed in alphabetical order. If the nomination has been submitted on behalf of a political interest group, the affiliation of the proposed person to this interest group shall be indicated in brackets; also, if applicable, the addition "previously" shall be added.

III. Commentary on the text of the standard

A. Pre-printed ballot papers (para. 1)

9 If cantonal law provides for the possibility of a silent ballot, all candidates proposed in due time shall be listed on the ballot paper in pre-printed form. The cantons (and communes) are responsible for the production of pre-printed ballot papers and their distribution to voters. Only official ballot papers may be used.

10 While majorities without the possibility of silent elections are prohibited from distributing pre-printed ballot papers, majorities with the possibility of silent elections are obliged to produce pre-printed ballot papers in accordance with Art. 50 para. 1 PRA. The details of the candidates to be printed and the additions ("previous", "new", party affiliation) required or permitted are determined by cantonal law.

11 Art. 7 VPR, according to which pre-printed ballot papers must leave sufficient space to allow the electorate to make their selections and cumulations legible, is not applicable in majoritarian cantons with a silent ballot, especially since only one person is to be elected.

B. Handwritten ticking (para. 2)

12 In order to cast a vote, the voter shall tick the box next to the candidate's name with his or her own hand. The requirement for handwritten ticking also results from Art. 49 para. 1 lit. c PRA, according to which ballot papers are invalid if they are filled in other than by hand.

13 It can then be concluded from Art. 50 para. 2 PRA that in cantons with the possibility of a silent election only the ticking off of candidates proposed in due time is permissible. On the other hand, it is not permissible to write down the names of other persons who are theoretically eligible under Art. 136 para. 1 FC, which is made clear by the ground for invalidity under Art. 50 para. 3 lit. a PRA.

C. Grounds for invalidity (para. 3)

14 Art. 50 para. 3 PRA adds two grounds for invalidity under federal law to the catalogue of grounds for invalidity under Art. 49 para. 1 PRA for cantons with the possibility of a silent ballot. In cantons in which a registration procedure is carried out to enable a silent ballot, the assessment of ballot papers on the occasion of a ballot must take into account, in addition to the grounds for invalidity pursuant to Art. 49 para. 1 PRA, those pursuant to Art. 50 para. 3 PRA as well as the grounds for invalidity associated with the cantonal procedure.

15 Pursuant to Art. 50 para. 3 lit. a PRA, votes are invalid if they are cast for candidatures that are not pre-printed. This ground for invalidity has the effect of binding the candidate to the persons proposed in the application procedure. In the absence of a silent election as a result of several valid nominations, only the candidates proposed in the registration procedure and pre-printed on the ballot paper are eligible to be elected on the occasion of the ballot - in contrast to Art. 47 para. 1 PRA. The numerus clausus of electable persons resulting from this obligation is sometimes criticised by the doctrine. According to Weber, in order to better preserve the electorate's freedom of choice, it should be possible to write down the name of each eligible person on a blank line in addition to ticking off pre-printed candidatures.

16 Majority cantons can only elect one person to the National Council due to their comparatively small population. Accordingly, Art. 50 para. 3 lit. b PRA provides that (pre-printed) ballot papers on which more than one candidature is marked are invalid. This ground for invalidity is the counterpart to Art. 49 para. 1 lit. a PRA, according to which (blank) ballot papers (in majoritarian cantons without the possibility of a silent election) are invalid if they contain the names of different persons. The provision - like Art. 49 para. 1 lit. a PRA - is intended to ensure that the will of the electorate is clearly expressed.

17 Invalid ballot papers are not taken into account when determining the election result.

Materials

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).

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).

Bibliography

Weber Anina, Schweizerisches Wahlrecht und die Garantie der politischen Rechte, Zürich 2016.