1Die Stimmberechtigten stimmen gleichzeitig über die Initiative und den Gegenentwurf ab.
2Sie können beiden Vorlagen zustimmen. In der Stichfrage können sie angeben, welcher Vorlage sie den Vorrang geben, falls beide angenommen werden.
3Erzielt bei angenommenen Verfassungsänderungen in der Stichfrage die eine Vorlage mehr Volks- und die andere mehr Standesstimmen, so tritt die Vorlage in Kraft, bei welcher der prozentuale Anteil der Volksstimmen und der prozentuale Anteil der Standesstimmen in der Stichfrage die grössere Summe ergeben.
Art. 139b BV
#Legal basis
Federal Constitution (SR 101): https://www.fedlex.admin.ch/eli/cc/1999/404/en#art_139b
#Overview
Art. 139b BV regulates the procedure for simultaneous voting on a popular initiative and a direct counter-proposal (Epiney/Diezig, BSK BV, Art. 139b N. 6). The provision applies to all Swiss citizens entitled to vote in federal votes on constitutional amendments.
Simultaneous voting: When the Federal Assembly puts forward a direct counter-proposal to a popular initiative, both proposals are put to the vote on the same voting Sunday. This ensures transparency and prevents tactical delays (Epiney/Diezig, BSK BV, Art. 139b N. 7).
Double yes possible: Citizens entitled to vote may approve both the initiative and the counter-proposal. This system enables differentiated expression of opinion - for instance when someone supports reforms but considers the counter-proposal better than the initiative (Kley, ZBl 2011, 2, 15).
Tie-breaker question decides: If citizens entitled to vote accept both proposals, the tie-breaker question decides. The proposal with more popular votes enters into force. The majority of the cantons plays no role in the tie-breaker question (Epiney/Diezig, BSK BV, Art. 139b N. 8-11).
Legislative history: The current regulation arose after controversial debates between 1979 and 1987. Originally, the Federal Council wanted a different collision rule: in case of double acceptance, the proposal should win that obtained more popular votes and cantonal votes combined. The Federal Assembly however decided that in this case no proposal should enter into force at all (Epiney/Diezig, BSK BV, Art. 139b N. 2-4).
Practical example: In the vote of 9 February 2003 on the Asylum Act, the Swiss approved both the popular initiative «against asylum abuse» and the counter-proposal of the Federal Assembly. In the tie-breaker question, the counter-proposal won with more popular votes and entered into force.
The regulation strengthens democracy by avoiding forced choices for reform-minded citizens entitled to vote and allowing the popular will to be expressed in a differentiated manner.
Art. 139b FC — Procedure for Initiative and Counter-Proposal
#Doctrine
#1. Legislative History
N. 1 Art. 139b FC codifies at the constitutional level the voting procedure for the simultaneous popular vote on a formulated popular initiative for the partial revision of the Federal Constitution and a direct counter-proposal by the Federal Assembly. The provision entered into force on 27 September 2009, having been adopted in the popular vote held on the same day (Federal Decree of 19 December 2008, AS 2009 6409; BBl 2008 2891, 2907; BBl 2009 13 and 8719).
N. 2 The current procedure replaced an earlier «contingency voting procedure». Until the statutory revision of 1987, when a vote was held simultaneously on an initiative and a counter-proposal, eligible voters were required to indicate on the ballot paper which proposal they wished to give precedence to in the event that both were adopted; simultaneous approval of both proposals («double yes») was not possible. The statutory basis for this earlier procedure was found in Art. 27 of the Federal Act of 23 March 1962 on the Procedure of the Federal Assembly (PFA, SR 171.11 former version; cf. JAAC 53.37 [1988]). The system was considered democratically unsatisfactory because it forced eligible voters to choose between the two proposals without being able to give unconditional approval to either (Motion Muheim, AB 1983 N 506; parliamentary initiative Spoerry, AB 1985 N 2128).
N. 3 The «double yes» with a deciding question was introduced at the federal level in 1987, first at the statutory level, through an amendment to the PFA on the basis of the parliamentary initiative Spoerry (83.226, AB 1987 N 580). It henceforth enabled eligible voters to approve both the initiative and the counter-proposal and to indicate in the deciding question their preference in the event that both were adopted.
N. 4 Although the total revision of the Federal Constitution of 1999 elevated the principal instruments of direct democracy to the constitutional level, the double yes was not included. In the course of the popular rights reform of 2009, the procedure that had been practised at the statutory level since 1987 was finally enshrined in Art. 139b FC. The Federal Council justified the constitutional entrenchment as a means of permanently and transparently setting out the procedure for democratic will-formation in respect of popular initiatives and direct counter-proposals (BBl 2008 2891, 2907 ff.).
N. 5 The Federal Assembly adopted the Federal Council's draft essentially unchanged. Parliamentary deliberations focused on the tie-breaking rule for the case of diverging majorities in the deciding question. Para. 3 provides the constitutional answer: in this exceptional case, the proposal that comes into force is the one for which the difference between the proportions of votes cast in the deciding question — calculated separately for the People and the Cantons — is the greater in favour of that proposal (BBl 2008 2907).
N. 6 Note on article numbering: the former Art. 139a FC (general popular initiative) was repealed by the Federal Decree of 27 September 2009, simultaneously with the introduction of Art. 139b FC (AS 2009 6409). Art. 139a FC never entered into force; Art. 139b FC therefore bears a number that alludes to its repealed predecessor without continuing its content.
#2. Systematic Classification
N. 7 Art. 139b FC is a procedural norm (organisational norm) of federal popular rights. It is systematically related to:
- ↔ Art. 139 FC (popular initiative for partial revision; governs treatment by the Federal Assembly and the possibility of a direct counter-proposal)
- → Art. 139a FC (repealed; governed the general popular initiative, which never entered into force)
- → Art. 140 FC (mandatory referendum; applies to whichever proposal prevails in the deciding question)
- ↔ Art. 34 FC (guarantee of political rights; in particular protection of free formation of opinion and unfalsified expression of the vote)
- → Art. 195 FC (entry into force of adopted constitutional amendments)
N. 8 At the statutory level, the procedure is given concrete form by the Federal Act on Political Rights (APR, SR 161.1), in particular Art. 73 APR (withdrawal of the initiative), Art. 75 APR (popular vote), and Arts. 75b–77a APR (voting procedure and deciding question). Art. 139b FC is an organisational norm without direct subjective-rights content; it nonetheless flanks the subjective right to free formation of opinion and unfalsified expression of the vote under Art. 34 para. 2 FC (Epiney/Diezig, BSK BV, Art. 139b N. 6 ff.).
N. 9 At the cantonal level, analogous rules apply under cantonal constitutions and popular rights legislation. The Federal Supreme Court has recognised their permissibility even in the absence of an explicit statutory basis (BGE 91 I 189 consid. 2; BGE 104 Ia 240 consid. 3b). The principles laid down in Art. 139b FC also apply at the cantonal level by virtue of Art. 34 para. 2 FC (BGE 150 I 17 consid. 4.2).
#3. Normative Content
3.1 Simultaneous Vote (Para. 1)
N. 10 Para. 1 establishes the obligation to hold a simultaneous vote on the initiative and the direct counter-proposal. Both proposals are submitted to eligible voters on the same voting Sunday. The simultaneity is intended to ensure that all eligible voters can express their preferences in full knowledge of both alternatives. A prior vote on the counter-proposal alone would be incompatible with Art. 34 para. 2 FC, since it would structurally disadvantage the initiative (Epiney/Diezig, BSK BV, Art. 139b N. 7; BGE 113 Ia 46 consid. 5a; BGE 150 I 17 consid. 4.4.3). The Federal Supreme Court has held in the cantonal context that, under certain circumstances, there may even be a constitutional obligation to submit a substantive alternative proposal as a formal counter-proposal (→ N. 20–21 below).
N. 11 A «direct counter-proposal» is a proposal of the Federal Assembly at the constitutional level that addresses the same subject matter as the popular initiative and constitutes a genuine alternative to it (→ Art. 139 para. 5 FC). The counter-proposal must concern the «same constitutional subject matter»; it may not raise a different question but may only propose different answers to the same question (JAAC 53.37 [1988]; BGE 113 Ia 46 consid. 5a; Hangartner/Kley/Braun Binder/Glaser, Die demokratischen Rechte in Bund und Kantonen der Schweizerischen Eidgenossenschaft, 2nd ed. 2023, para. 846). An indirect counter-proposal at the statutory level is not covered by Art. 139b FC.
3.2 Double Yes and Deciding Question (Para. 2)
N. 12 Para. 2 provides that eligible voters may approve both proposals («double yes»). In addition, the deciding question allows voters to indicate which proposal is to take precedence in the event that both are adopted. The double yes releases eligible voters from a dilemma: anyone who prefers both proposals over the status quo can fully express that preference (Epiney/Diezig, BSK BV, Art. 139b N. 8; Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 369).
N. 13 The deciding question is framed as a contingent question: it only takes effect if both proposals are accepted by the majority of voters. If only one proposal is adopted, that proposal enters into force without the deciding question becoming relevant. Eligible voters are not obliged to answer the deciding question; they may confine themselves to approving or rejecting the proposals in the main vote (Kley, ZBl 2011, 2, 15). A vote cast only in the deciding question but not in the main vote has no legal effect; the formal requirements for ballot paper design are governed by Arts. 75b–77a APR and the practice of the Federal Chancellery.
3.3 Tie-Breaking Rule in the Event of Diverging Majorities (Para. 3)
N. 14 Para. 3 contains the tie-breaking rule for the exceptional case in which both proposals are adopted in the main vote but achieve diverging majorities in the deciding question: one proposal obtains the higher proportion of popular votes and the other obtains the higher proportion of cantonal votes in the deciding question. In that case, the proposal that comes into force is the one for which the difference between the proportion of deciding-question popular votes and the proportion of deciding-question cantonal votes is greater. This rule is a compromise between the democratic majority principle (majority of the People) and the federal principle (majority of the Cantons); it is designed to prevent marginal, procedurally conditioned deviations from determining the outcome arbitrarily (BBl 2008 2907; Epiney/Diezig, BSK BV, Art. 139b N. 9–11).
N. 15 The constitutional text expressly refers to «the proportion of votes» («la part des voix», «la parte dei voti») in the deciding question. What is decisive is therefore not the absolute number of yes votes but the respective percentage of deciding-question yes votes for each proposal, calculated separately for the People and the Cantons. Art. 77a APR gives concrete form to the procedure: for each of the two proposals, the proportion of deciding-question votes that give it precedence is calculated — both for the People (proportion of all validly completed deciding-question ballots) and for the Cantons (proportion of cantons in which that proposal prevails in the deciding question). The proposal for which the difference «proportion of popular votes minus proportion of cantonal votes» (in percentage points) is greater wins the deciding question. This difference formula is difficult for eligible voters and authorities to follow (Kley, ZBl 2011, 2, 17 f.), and therefore requires explanatory notes in practice.
#4. Legal Consequences
N. 16 If neither the initiative nor the counter-proposal is adopted, the status quo is maintained. The popular initiative is deemed to have failed.
N. 17 If only one of the two proposals is adopted — whether because only that proposal reaches the popular quorum or because the deciding question clearly favours one of them (concurrent majorities of the People and the Cantons) — that proposal alone enters into force as a constitutional amendment. The unsuccessful proposal becomes legally moot; a popular initiative that loses the deciding question is deemed to have been rejected (cf. Art. 75b para. 5 APR).
N. 18 The adopted proposal becomes part of the Federal Constitution pursuant to Art. 195 FC. The unsuccessful proposal does not enter into force, even if it received more votes in absolute terms in the main vote than the winning proposal.
N. 19 If eligible voters reject both proposals, the initiative petition has failed. The Federal Assembly retains the freedom to address the subject matter in a later ordinary procedure.
#5. Contested Issues
5.1 Legitimacy of the Tie-Breaking Rule (Para. 3)
N. 20 The democratic-theoretical legitimacy of the difference formula under Para. 3 is contested. Epiney/Diezig (BSK BV, Art. 139b N. 10) emphasise that the rule achieves an appropriate balance between the democratic majority principle and the federal interests of the cantons and prevents marginal deviations from being decisive on their own. Kley (ZBl 2011, 2, 17), by contrast, raises concerns: the difference formula is difficult for eligible voters and authorities to follow and could influence the outcome of the vote in a manner that is not foreseeable by voters.
N. 21 Rhinow/Schefer/Uebersax (Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1831 f.) regard the difference rule as a pragmatic solution, but one which, in a special case, dilutes the democratic-theoretical principle of «one person, one vote» in favour of federal weighting. Since Para. 3 governs only a very unlikely exceptional case (double adoption plus diverging deciding-question majorities), the democratic-theoretical problem is of secondary practical importance.
5.2 Scope of Application: Direct Counter-Proposals at Constitutional Level Only
N. 22 Art. 139b FC applies exclusively to formulated popular initiatives for the partial revision of the Federal Constitution with a direct counter-proposal at the constitutional level (→ Art. 139 para. 5 FC). Whether the procedure should be applied by analogy to an indirect counter-proposal at the statutory level is contested. The prevailing doctrine answers in the negative: Art. 139b FC is a lex specialis for the case of two substantively competing constitutional amendments; in the case of an indirect counter-proposal at the statutory level, there is no parallel constitutional vote (Epiney/Diezig, BSK BV, Art. 139b N. 6; Hangartner/Kley/Braun Binder/Glaser, op. cit., para. 2073 f.).
5.3 Simultaneity as a Constitutional Requirement
N. 23 Recent case law has raised a contested question: whether the simultaneity of the vote on substantively competing proposals constitutes not merely a statutory procedural rule but a constitutional obligation flowing from Art. 34 para. 2 FC. The Federal Supreme Court held in BGE 150 I 17 consid. 4.4.3 in the cantonal context that, in the circumstances of that case, the cantonal parliament would have been obliged to submit its substantive alternative proposal to the popular initiative as a formal counter-proposal. This applies in particular where the preparation of the parliamentary decision had dragged on to such an extent that parallel treatment would have been possible without any additional expenditure of time. Albrecht (Gegenvorschläge zu Volksinitiativen, 2003, p. 169 ff.) and Seferovic (Volksinitiative zwischen Recht und Politik, 2018, para. 121 ff.) draw a distinction: parliamentary procedures independently initiated prior to the submission of the initiative do not in principle need to be reclassified as a counter-proposal; an exception applies where the procedure drags on to such an extent that parallel treatment without loss of time would have been possible. The Federal Supreme Court in BGE 150 I 17 consid. 4.4.2 adopted this distinction in principle. Although developed in the context of cantonal law, these principles are applicable to the federal procedure under Art. 139b FC, because Art. 34 para. 2 FC applies at both the federal and the cantonal level.
#6. Practical Notes
N. 24 The procedure under Art. 139b FC has been applied at the federal level on several occasions since 1987. A prominent example is the vote of 9 February 2003 on the popular initiative «against abuse of asylum» and the direct counter-proposal of the Federal Assembly, in which the counter-proposal prevailed through the deciding question. Despite this practical relevance, Art. 139b FC has to date given rise to no Federal Supreme Court case law directly addressing its normative content, since federal voting results are rarely successfully challenged before the Federal Supreme Court (cf. Art. 80 APR; BGE 137 II 177 consid. 2 ff.).
N. 25 For the practice of the federal authorities, the design of the ballot paper is central. The deciding question must be formulated clearly and comprehensibly, and the relationship between the main question and the contingent question must be traceable for eligible voters. In particular, the difference formula under Para. 3 requires an accessible explanation in the voting explanatory booklet (→ Art. 34 para. 2 FC; Art. 11 APR; Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 633 f.). The technical requirements for ballot paper design and counting are governed by Arts. 75b–77a APR and the associated practice of the Federal Chancellery.
N. 26 Practitioners should be aware that Art. 139b FC and the repealed Art. 139a FC (general popular initiative) are easily confused. Art. 139a FC never entered into force and has generated no independent body of applied practice. Disputes concerning the withdrawal of a federal popular initiative are governed by Art. 73 APR and are to be based on Art. 34 para. 1 in conjunction with Art. 139 FC, not on Art. 139b FC (cf. BGE 147 I 206 consid. 3 ff.).
Cross-references: ↔ Art. 139 FC (popular initiative for partial revision; governs the possibility of a direct counter-proposal) ↔ Art. 34 FC (guarantee of political rights; voting freedom) → Art. 140 FC (mandatory referendum; applies to the proposal that prevails in the deciding question) → Art. 195 FC (entry into force of constitutional amendments) → Arts. 73, 75b–77a APR (statutory implementing rules)
Art. 139b Cst.
#Case Law
Art. 139b Cst. never entered into force. The provision was part of the revision of popular rights of 2002 and would have regulated the procedure for the general popular initiative (initiative populaire générale). However, with the Federal Decree of 29 April 2008, the general popular initiative was abolished before Art. 139b Cst. could ever be applied.
#Legislative History and Repeal
The constitutional foundations for the withdrawal of popular initiatives are now regulated exclusively in Art. 73 PPA. The Federal Supreme Court has developed the corresponding case law in BGE 147 I 206:
BGE 147 I 206 of 7 October 2020
Withdrawal of a federal popular initiative after annulment of a vote by the Federal Supreme Court
The case law does not concern Art. 139b Cst., but rather the statutory regulation under Art. 73 PPA and its constitutional foundation in Art. 139 Cst.
«The withdrawal of a federal popular initiative is possible under the conditions of Art. 73 PPA even after the annulment of a vote by the Federal Supreme Court. [...] Art. 73 para. 2 PPA is thus applicable according to its wording even after the annulment of a popular vote and until the Federal Council sets a new voting date.»
#Legal Situation under Current Constitutional Law
Since Art. 139b Cst. never entered into force, no specific case law exists on this provision. The right of withdrawal for popular initiatives is now handled exclusively through Art. 73 PPA, whose constitutional foundation derives from Art. 34 para. 1 in conjunction with Art. 139 Cst.
The practical significance of this provision that never entered into force is limited to its constitutional-historical role as part of the failed reform of popular rights of 2002-2008.