I. History of origin

1 With the introduction of proportional representation for the appointment of the National Council in 1919, a provision on succession was also established. Article 24 of the Federal Act on the Election of the National Council of February 14, 1919 provided that, in the event of a vacancy in the National Council occurring during the term of office, the cantonal government shall declare elected from the list on which the retiring member was elected the unelected candidate who received the most votes; in the event of an equal number of votes, the order of the candidates on the electoral list shall be decisive. If the substitute had already died in the meantime or was unable to vote, the successor on the list took his place.

2 The model of succession in the event of premature retirement from the National Council was undisputed in principle in the Federal Assembly. The rapporteur of the Council of States committee at the time, Councillor of States Gottfried Kunz (FDP/BE), justified the need for succession as follows: "The [...] proportional representation is based on the principle that the parties should receive the number of mandates corresponding to their numerical strength and that the mandates obtained in this way should remain the property of the parties during a term of office." Therefore, mandates that expire during a term of office must be filled by candidates from the list on which the retiring member was elected.

3 In the National Council, the discussion did not revolve around the uncontested introduction of the principle of succession, but rather around the question of which substitute may take over if two candidates on the list have the same number of votes. A motion by National Councillor Robert Schmid (FDP/ZH), according to which the lot should decide in such cases, was rejected. This weakened the influence of voters and strengthened that of party officials.

4 With the introduction of the PRA in 1975, the system of succession on leaving office during the legislative term was adopted. However, the Federal Assembly decided - contrary to the previous rule of 1919 and contrary to the proposal of the Federal Council - that if the number of votes of the replacements was equal, it should not be the order of the candidates on the electoral list but rather the drawing of lots that decided who would be elected to the National Council (see Art. 43 para. 3 PRA). Art. 55 of the PRA has remained unchanged since its entry into force.

II. Comparison of laws

5 See in detail OK-Lehner, Art. 43 N. 5-8.

III. Significance of the provision and content of the provision

A. Para. 1: First replacement person moves up (standard case)

6 If a member of the National Council resigns from the National Council before the end of the legislative term, a by-election is not automatically required. Rather, the vacant seat in the National Council is replaced by means of the succession procedure. In a by-election, the person who moves up ("substitute" according to the wording of the law) is determined on the basis of the election results of the general election of the National Council. The retiring member is replaced by a substitute from his or her original list. Substitutes are candidates who were not elected in the election (Art. 43 para. 2 PRA). The procedure for replacements maintains the balance of power between the parties at the time of the overall renewal of the National Council.

7 No further act of election is required for succession to the National Council. The replacement is declared elected by the relevant cantonal government.

8 The reason for succession without any further election procedure is that a mandate is "owned" for the entire legislative period by the list that won it in the overall renewal of the National Council. However, the fact that the replacements are declared elected without any further act of election does not diminish their legitimacy. This is because the mandates that are obtained as a result of succession in accordance with Art. 55 PRA derive their legitimacy directly from the will of the voters who (co-)elected the replacements in the overall renewal election. The legitimacy of the successor members of the National Council therefore does not differ from the legitimacy of those who enter the National Council directly after their election.

9 The succession procedure is only applied in cantons (constituencies) in which two or more National Council seats are up for grabs, i.e. in those cantons in which the members of the National Council are elected according to the principle of proportional representation. In constituencies in which only one member of the National Council is to be elected and thus the system of majority voting is applied, a by-election is ordered in accordance with Art. 51 PRA in the event of early retirement from the National Council.

B. Para. 2: Further substitutes

10 para. 2 of Art. 53 PRA governs the case in which the first substitute on the list does not wish to or is unable to take up office as a National Councillor. In this case, the person in the next position on the list moves up to the National Council as a substitute. The order is determined by the number of personal votes they received in the general election (Art. 43 para. 2 PRA). In the event of a tie, the election is decided by drawing lots (Art. 43 para. 3 PRA).

11 If a seat cannot be filled using the succession procedure, a supplement by the persons responsible for the electoral list or a supplementary election shall take place in accordance with the procedure set out in Art. 56 PRA.

C. Excursus: Change of party by substitutes before moving up

12 As stated above, the procedure for replacements basically makes it possible to maintain the balance of power in Parliament for the entire legislative term. In particular, this principle can no longer be adhered to if a substitute leaves the political party or its "list support" before moving up. This circumstance is assessed differently in the doctrine: For Anina Weber, a resignation from the party or "list sponsorship", regardless of the moment of resignation, is contrary to proportional representation and violates various constitutional provisions. Tomas Poledna, on the other hand, does not see a breach of the duty of loyalty to the electorate and therefore no violation of political rights in resigning from the party or "list sponsorship".

13 In a case concerning the canton of St. Gallen, in which the elected Barbara Keller-Inhelder switched from the CVP to the SVP between her election and the constitution of the cantonal council, the Federal Supreme Court held that a change of party, regardless of whether it is made between the election and taking office or during the exercise of office, does not violate constitutional political rights. However, the Federal Supreme Court added that such party changes are certainly "questionable" and are accompanied by a "loss of political credibility".

14 Even though the Federal Supreme Court did not comment on the issue of substitutes changing parties in the aforementioned ruling, it can be assumed on the basis of its reasoning that a change of party by substitutes prior to moving up does not violate political rights either. This is because the Federal Supreme Court stated in general terms that no requirements for admission to office can be derived from constitutional political rights.

15 In the light of this Federal Supreme Court case law, a change of party always has no consequences for the elected person or the person succeeding them, regardless of the time. If the legislator considers this circumstance to be objectionable, it is of course free to make provision for the consequences of a change of party.

I would like to thank Benjamin Böhler, BLaw, assistant at the Center for Democracy Aarau, for his help in researching the material and his valuable comments, and Janis Denzler, BLaw, assistant at the Center for Democracy Aarau, for his critical review of the text and his valuable comments.

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