1All Swiss citizens over the age of eighteen, unless they lack legal capacity due to mental illness or mental incapacity, have political rights in federal matters. All citizens have the same political rights and duties.
2They may participate in elections to the National Council and in federal popular votes, and launch or sign popular initiatives and requests for referendums in federal matters.
Art. 136 Federal Constitution regulates in two paragraphs who may vote and elect in federal matters in Switzerland. The first paragraph establishes that all Swiss citizens aged 18 and above are entitled to vote. Only persons under comprehensive deputyship (formerly: disenfranchisement due to mental illness or mental weakness) are excluded. According to the case law of the Federal Supreme Court, these requirements are exhaustively regulated (BGE 135 I 302). The legislature may neither add new conditions nor change existing ones, as the BSK commentary states (Tschannen, BSK BV, Art. 136 N. 7).
The second paragraph lists the specific rights: participation in National Council elections and federal votes as well as the right to sign or launch popular initiatives and referendums. The equality of all political rights means that every vote counts equally (equality of counting value).
All Swiss nationals aged 18 and above are affected. About 5.4 million persons can exercise their political rights today. Swiss citizens abroad are also entitled to vote in principle.
The most important legal consequence is the active voting right in federal elections and votes. Violations of the equality of political rights can lead to electoral challenges, as the case law on constituency division shows (BGE 129 I 185).
A practical example: A 17-year-old Swiss citizen may not yet vote, even if she is already working. On the day of her 18th birthday, she automatically becomes entitled to vote. A Swiss citizen under comprehensive deputyship loses his political rights, but can regain them if the measure is lifted.
N. 1 The current provision of Art. 136 Cst. dates back to the total revision of the Federal Constitution of 1999 and continues the tradition of political rights from Art. 43 old Cst. The reduction of the voting age from 20 to 18 years already took place in 1991 through popular vote (BBl 1991 I 1201). The formulation of the grounds for disqualification was modernised, whereby the reference to «mental illness or mental deficiency» was maintained despite contemporary criticism (BBl 1997 I 1, 390). The constituent power deliberately decided against a gender-neutral formulation and maintained the explicit mention of «Swiss women and men» in order to constitutionally anchor the political equality of women that was only achieved in 1971.
N. 2 Art. 136 Cst. forms the foundation of political rights at the federal level and systematically stands at the beginning of the chapter on political rights (Art. 136–142 Cst.). The provision concretises the political rights guaranteed in Art. 34 Cst. as a fundamental right for the federal level. It is closely related to:
→ Art. 2 para. 1 Cst. (principle of democracy)
→ Art. 8 Cst. (equality before the law)
→ Art. 34 Cst. (political rights as fundamental right)
↔ Art. 39 Cst. (exercise of political rights)
→ Art. 143 Cst. (voting rights)
→ Art. 149 para. 2 Cst. (eligibility for the National Council)
N. 3 The norm is conceived as a conclusive regulation of the voting requirements at the federal level. The legislature may neither add new requirements nor modify the stated requirements (Tschannen, BSK BV, Art. 136 N. 7).
N. 4Nationality: Voting rights require Swiss nationality. Dual citizens are entitled to vote provided they meet the other requirements. The voting right for Swiss abroad is guaranteed by Art. 40 Cst.
N. 5Majority: The 18th year of age must be completed. The day of the 18th birthday is decisive, not the calendar year. The discussion about a further reduction of the voting age or a children's voting right through legal representatives was rejected by the constituent power. Tschannen (BSK BV, Art. 136 N. 10) rejects the children's voting right because it «de facto amounts to a double voting right of the legal representative and [...] contradicts not only equality before the law, but even more the organ function of the voting right».
N. 6Deprivation of civil rights: The exclusion due to «mental illness or mental deficiency» has been obsolete since the revision of adult protection law in 2013. Art. 136 Cst. must be interpreted in light of Art. 14 CC: Only comprehensive deputyship leads to the loss of political rights. The outdated terminology of the Constitution is regrettable, but does not change the restrictive interpretation.
N. 7Equality of political rights: Paragraph 1 sentence 2 guarantees the equality of political rights. This includes equality of counting value (each vote counts equally), but not equality of success value (each vote has equal influence on the result). Tschannen (BSK BV, Art. 136 N. 13) criticises that «sentence 2 of Art. 136 para. 1 hangs in the air and [...] would have been better not written», since equality already follows from Art. 8 Cst.
N. 8Active voting right: Those entitled to vote may participate in National Council elections and federal votes (para. 2). The right to vote includes the right to elect, but not to be elected (passive eligibility, → Art. 143 Cst.).
N. 9Right of initiative and referendum: Those entitled to vote may sign and launch popular initiatives (→ Art. 138, 139 Cst.) and referendums (→ Art. 140, 141 Cst.). The collection of signatures on public ground is protected as an exercise of political rights (BGE 135 I 302).
N. 10Obligation to participate: The «duties» mentioned in para. 1 refer to the compulsory voting that exists in individual cantons. At the federal level there is no obligation to participate.
N. 11Voting age: The demand for a reduction of the voting age to 16 years is controversially discussed. Supporters like Caroni (Herausforderung Demokratie, ZSR 2013 II 5, 45 ff.) argue with the political maturity of young people and demographic development. Critics like Hangartner/Kley (Die demokratischen Rechte in Bund und Kantonen, 2nd ed. 2022, N. 862) refer to the necessary correspondence between voting rights and civil law majority.
N. 12Swiss abroad: The equal treatment of Swiss abroad regarding political rights is disputed. While Aubert/Mahon (Petit commentaire, 2003, Art. 136 N. 4) support complete equal treatment, Biaggini (Komm. BV, 2nd ed. 2017, Art. 136 N. 7) argues for restrictions on cantonal and communal matters due to the lack of connection.
N. 13Electoral register: The cantons maintain the electoral registers and are responsible for their accuracy (→ Art. 39 para. 2 Cst.). Objections to entries or non-entries are to be directed to the cantonal authorities.
N. 14Double counting: In case of dual citizenship within Switzerland, it must be ensured that voting takes place only in one municipality. The electronic networking of electoral registers is gaining importance.
N. 15Recusal rules: Despite the equality of political rights, cantonal recusal rules for parliamentarians in cases of personal conflicts of interest may be permissible, but may not generally exclude entire groups of persons (BGE 125 I 289, BGE 123 I 97).
BGE 135 I 302 (19 August 2009)
Collection of signatures for popular initiatives on public property as exercise of political rights.
Collecting signatures for a popular initiative constitutes an exercise of political rights.
«There exists neither with regard to the exercise of political rights nor for the protection of other fundamental rights exercise a sufficient constitutional interest to subject the disputed signature collections to an authorization requirement.»
BGE 147 I 194 (30 June 2021)
Corporate Responsibility Initiative - Violation of equality of political rights by cantonal majority.
The decision defines the limits of equality of political rights in popular votes.
«According to Federal Supreme Court case law, defects in the preparation of elections and votes must be challenged immediately and before the ballot is conducted, otherwise the voter forfeits his right to appeal in principle. [...] The restriction of voting power equality is constitutionally intended and binding for the Federal Supreme Court.»
#Recusal of Parliamentarians with Conflicts of Interest
BGE 125 I 289 (28 April 1999)
Exclusion of cantonal employees in parliament from personnel-related votes.
The decision clarifies the limits of voting rights in cases of conflicts of interest.
«The general exclusion of parliamentarians in the service of the canton from votes on certain personnel-related enactments is (at least in the form to be assessed here) incompatible with voting rights.»
BGE 123 I 97 (28 May 1997)
Fundamental decision on the recusal obligation of cantonal parliamentarians.
The judgment establishes when cantonal employees can be excluded from votes.
«If the election of cantonal employees to the Grand Council is permissible, such Grand Councillors cannot be generally declared subject to recusal obligations in parliamentary votes on personnel-related enactments and decisions.»
#Electoral District Division and Electoral Equality
BGE 129 I 185 (18 December 2002)
Unconstitutionality of electoral district division for the Zurich city parliament.
The fundamental decision on the legally equal design of electoral districts.
«The appellants are entitled to vote and stand for election in the city of Zurich. Therefore they have standing to file a voting rights appeal concerning the municipal council elections of the city of Zurich.»
#Residence Requirement as Eligibility Prerequisite
BGE 128 I 34 (12 September 2001)
Violation of voting rights through disregard of residence obligation for district governors.
The judgment confirms the residence requirement as a constitutional eligibility prerequisite.
«The residence obligation counts, like the classical incompatibility provisions, among the scope of protection of political rights covered by Art. 85 lit. a OG. [...] According to Federal Supreme Court case law, voting rights include the claim that authorities elected by the people are not staffed with persons who may not assume a certain office due to an incompatibility or a missing eligibility prerequisite.»