Protection of free will formation in direct democracy

Federal Supreme Court repeals a federal vote for the first time

by Dr iur. Marianne WŁthrich

Many citizens rightfully complain about the Federal Council’s voting information on some of the bills: unobjective, one-sided, false statements, concealment of important facts, discrediting of opponents’ arguments, up to deliberate influencing of the voters – all these methods have already been used by Federal Councilors to get the majority of the voting population to make the “right” decision. In the case of particularly important bills, the Federal Council resp. its administrative team begins “laying a carpet of opinion” long time before a vote, a clearly manipulative procedure. For example, the Federal Council’s “Explanations on the Swiss-EU institutional framework agreement” of 16 January 20191 already contain the entire construct of disinformation that we are very likely to find in the voting booklet before the referendum (unless the whole thing is stopped by politics!).
    With such controversial information, the executive violates a fundamental right of the citizen, which is indispensable in the direct democratic state: the free formation of opinion. This fundamental right is enshrined in Article 34, par. 2, of the Federal Constitution: “The guarantee of political rights protects the freedom of the citizen to form an opinion and to give genuine expression to his or her will.”
    How can we demand the protection of this fundamental right? In the case of cantonal and municipal votes with voting complaints, which, if justified, are protected by the competent cantonal authorities, sometimes also by the Federal Supreme Court of last instance. This is more difficult against state disinformation at the federal level because the Federal Court has only limited powers here.
    Nevertheless, on 10 April the Federal Supreme Court, for the first time in its history, declared a federal referendum void, the voting on the initiative “For marriage and family – against the marriage penalty”. Thus, the supreme court has demonstrated, as it were, that the citizens should have a claim on protection of their free formation of will even in federal votes. Yes, of course – but how and by which institution?

First, a few words on the plebiscite involved: What the initiative was about, why an appeal was lodged against the result of the vote and on what preliminary grounds (the written reasons for the ruling are still pending) the Federal Supreme Court overturned the vote.

Cancellation of the vote because of massive wrong number in the voting booklet

The federal popular initiative “For marriage and family – against the marriage penalty” was launched by the CVP (Christian democratic people’s party). It argued that married couples vs. unmarried couples should not be penalised by the state, for example by double taxpayers paying more taxes or by giving retired married couples less Old-age and survival’s insurance (OASI)) than two individuals. In the referendum of February 28, 2016, the initiative was narrowly rejected, with around 55,000 more no-votes (50.8% against 49.2% yes); 16 1/2 against 6 1/2 cantons voted for it.2
Two and a half years later, it turned out that one number in the voting booklet was not correct: While some 80,000 affected double-earner couples were mentioned here, the Federal Council informed in the summer of 2018 that it was actually around 454,000, i.e. over five times more. Individual citizens in several cantons then complained to the respective government council and demanded that the vote be repealed. After refusing their complaints, they appealed to the Federal Court.
The Federal Court endorsed the complaints and justified the cancellation of the vote in its press release of 10 April as follows: “The incomplete and non-transparent information of the Federal Council has violated the voting rights of the voters. Given the tight rejection of the bill and the gravity of the irregularities, it is possible that the result of the vote could have been different.”
The Federal Supreme Court relied on Article 34, par. 2 of the Federal Constitution, which protects freedom of formation of will and unalterated voting.

Position of the Federal Court in the Swiss state framework

Unlike in most states, we have no constitutional jurisdiction at the federal level. In direct democratic Switzerland, the highest authority is not the Federal Court, but the sovereign (people and estates). Federal referendums are in principle not legally voidable except in the case of clear procedural errors. Anyone who does not agree with this must continue to try politically to assert his or her opinion.
Thus, Article 189, par. 4 of the Federal Constitution states: “Acts of the Federal Assembly or the Federal Council may not be challenged in the Federal Supreme Court. Exceptions may be provided for by law.” According to the “Federal Law on the Federal Supreme Court (BGG)”, the Federal Supreme Court can judge complaints concerning the political voting rights of citizens as well as popular elections and votes (Article 82 c.). However, this only applies “in cantonal matters”, while at the federal level, voting rights complaints are only made against “decrees of the Federal Chancellery” (Article 88, par.1 BGG).
However, the example of the popular initiative against the marriage penalty shows once again that this lack of protection can be very scandalous. Rainer Schweizer, professor on constitutional law, justifies in the interview on page 6 his legal opinion that the protection of fundamental rights of Art. 34 Federal Constitution against false voting information must also apply at the federal level, because it is not about rights of the Federal Council and Parliament, but about the protection of citizens.     •

1    https://www.eda.admin.ch/dam/dea/de/documents/abkommen/InstA-Erlaeuterungen_de.pdf
2    Federal Chancellery. Referenda. Template No. 596. https://www.bk.admin.ch/ch/d/pore/va/20160228/det596.html