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.
#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. 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.
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 both proposals are adopted, the deciding question settles the matter. The proposal that obtains both more popular and more cantonal votes there comes into force. If one proposal obtains more popular votes and the other more cantonal votes, the two percentages are added together for each proposal; the proposal with the higher sum comes into force (para. 3).
Legislative history: the procedure was placed in Art. 139b FC by the reform of popular rights approved by the People and the Cantons on 9 February 2003. The rule for diverging majorities (para. 3) has applied since 1 August 2003; para. 1 received its current wording in 2009.
Example (simplified): the People and the Cantons adopt both an initiative and the counter-proposal. In the deciding question, the initiative obtains 52 % of the popular votes but only 40 % of the cantonal votes; the counter-proposal obtains 48 % of the popular votes and 60 % of the cantonal votes. The sum is 92 for the initiative and 108 for the counter-proposal. The counter-proposal comes 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.
#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 was introduced by the reform of popular rights approved by the People and the Cantons on 9 February 2003; paras. 2 and 3 have been in force since 1 August 2003 (Federal Decrees of 4 October 2002 and 19 June 2003; AS 2003 1949). Para. 1 received its current wording through the Federal Decree of 19 December 2008, approved in the popular vote of 27 September 2009 and in force from that day (AS 2009 6409; BBl 2008 2891, 2907; BBl 2009 13 and 8719). Para. 1 in its 2002 version never entered into force.
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 The procedure was given constitutional rank in an article of its own by the reform of popular rights approved by the People and the Cantons on 9 February 2003 (AS 2003 1949). That reform introduced in para. 3 the current tie-breaking rule for diverging majorities in the deciding question (N. 5). The Federal Decree of 19 December 2008, which abandoned the general popular initiative, amended only para. 1 (AS 2009 6409; BBl 2008 2891, 2907).
N. 5 Para. 3 governs the case in which both proposals are adopted and, in the deciding question, one obtains more popular votes and the other more cantonal votes. The proposal that comes into force is the one for which the percentage of popular votes and the percentage of cantonal votes in the deciding question add up to the higher sum (sum rule). Even where the majorities diverge, one of the two proposals therefore always comes into force.
N. 6 Note on article numbering: Arts. 139a and 139b FC were both introduced by the reform of popular rights (AS 2003 1949). Art. 139a FC (general popular initiative) never entered into force and was repealed by the Federal Decree of 19 December 2008, approved on 27 September 2009 (AS 2009 6409). There is no predecessor-successor relationship between the two provisions (→ Art. 139a FC).
#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 (review of validity) and Art. 76 APR (direct counter-proposal; three questions on the same ballot paper). 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.
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 (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 (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). The absolute majority is determined separately for each question; unanswered questions are disregarded (Art. 76 para. 2 APR).
#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 obtains more popular votes, the other more cantonal votes. In that case, the proposal that comes into force is the one for which the percentage of popular votes and the percentage of cantonal votes in the deciding question add up to the higher sum. The rule gives equal weight to the popular and the cantonal majority and ensures that, even where the majorities diverge, one of the two proposals comes into force.
N. 15 What counts is not absolute numbers of votes but percentages, calculated separately for the People and the Cantons. For each proposal, its share of the popular votes and its share of the cantonal votes in the deciding question are added together; the proposal with the higher sum comes into force. A simplified example: if proposal A obtains 52 % of the popular votes and 40 % of the cantonal votes (sum 92), and proposal B 48 % of the popular votes and 60 % of the cantonal votes (sum 108), proposal B comes into force. Art. 76 para. 3 APR, under which the proposal that obtains more popular and more cantonal votes in the deciding question comes into force, covers only the case of concurring majorities; where the majorities diverge, Art. 139b para. 3 FC applies.
#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. 76 para. 3 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 sum rule in para. 3 means that, where the majorities diverge, neither the popular nor the cantonal majority decides on its own; both enter the result with equal weight. For voters the rule is less intuitive than a simple majority.
N. 21 Since para. 3 governs only a rare exceptional case (adoption of both proposals and diverging majorities in the deciding question), its practical significance is limited.
#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 (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 double-yes procedure with a deciding question has been applied at the federal level on several occasions. 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 three questions under Art. 76 para. 1 APR must be formulated clearly and comprehensibly, and their relationship must be traceable for voters. The sum rule in para. 3 in particular requires an accessible explanation (→ Art. 34 para. 2 FC).
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, 75 and 76 APR (statutory implementing rules)
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.