#1. Legislative History
N. 1 The regulation of majority requirements for federal votes has a long tradition in Swiss constitutional law. The Federal Constitution of 1848 already provided for the double majority requirement for constitutional amendments. The current version of Art. 142 BV largely corresponds to Art. 123 old BV.
N. 2 According to the Message on a new Federal Constitution of 20 November 1996 (BBl 1997 I 1, 461 f.), the proven majority requirements were to be adopted unchanged. The cantonal majority was described as an «indispensable component of Swiss federalism» that ensures the protection of smaller cantons from the dominance of population-heavy centres.
N. 3 The provision on half cantonal votes (para. 4) historically stems from cantonal divisions: Basel (1833), Unterwalden (historically conditioned) and Appenzell (1597). According to BBl 1997 I 462, this regulation was retained despite democratic-theoretical concerns in order to preserve constitutional continuity.
#2. Systematic Classification
N. 4 Art. 142 BV, together with Art. 138–141 BV, forms the core of direct democratic instruments at the federal level. The provision concretises the political rights guaranteed in Art. 136 BV for the specific case of federal votes.
N. 5 Systematically, Art. 142 BV is closely connected with:
- → Art. 34 BV (political rights), which guarantees the fundamental right protection of voting freedom
- → Art. 138–141 BV, which define the various ballot measures
- → Art. 150 para. 2 BV, which mirrors the cantonal majority in the Council of States
- → Art. 195 BV for the total revision of the Federal Constitution
#3. Elements of the Offence / Normative Content
N. 6 Simple popular majority (para. 1): For federal acts and generally binding federal decrees according to Art. 140 para. 1 BV, the majority of valid votes cast suffices. Voter turnout is irrelevant; there is no quorum.
N. 7 Double majority (para. 2): Constitutional amendments and the measures mentioned in Art. 140 para. 2 BV require cumulatively:
- the majority of voters (popular majority)
- the majority of cantons (cantonal majority)
Both requirements must be fulfilled. Failure to meet only one requirement leads to rejection of the measure.
N. 8 Cantonal vote (para. 3): The voting result in the canton determines its cantonal vote according to the «winner takes all» principle. A narrow cantonal majority of 50.1% has the same effect as a clear majority of 80%.
N. 9 Half cantonal votes (para. 4): The six mentioned (half-)cantons each have half a cantonal vote. With 20 full cantons and 6 half-cantons, this results in a total of 23 cantonal votes. The cantonal majority lies at 12 cantonal votes (11½ cantonal votes means rejection).
#4. Legal Consequences
N. 10 Upon acceptance of a measure, the corresponding legal changes enter into force. The timing is determined by the transitional provisions or, in the absence of such provisions, by Art. 15 of the Publication Act (SR 170.512).
N. 11 Failure at the cantonal majority despite a popular majority has the same legal consequence as rejection by the people: the measure has failed. The Federal Supreme Court clarified in BGE 147 I 194 that this «restriction of voting power equality is constitutionally intended and binding for the Federal Supreme Court».
#5. Controversial Issues
N. 12 Recount in case of close results: A central point of contention concerns the prerequisites for a recount:
- The Federal Supreme Court has maintained since BGE 136 II 132 the view that a very close result should be treated like an «irregularity» within the meaning of Art. 77 para. 1 lit. b BPR and establishes a right to a recount
- Some commentators doubt whether the narrow formulation of the requirements in Art. 34 para. 3 BPR (making credible irregularities) is compatible with Art. 34 para. 2 BV
- In BGE 141 II 297, the Federal Supreme Court specified that a recount must only occur when there are concrete indications of errors
N. 13 Democratic-theoretical criticism of the cantonal majority: The different voting power of citizens from different cantons is controversially discussed:
- Critics like Auer/Malinverni/Hottelier (Droit constitutionnel II, N. 1074) see a violation of voting equality
- The prevailing doctrine (Hangartner/Kley, Demokratische Rechte, N. 2890; Rhinow/Schefer/Uebersax, Verfassungsrecht, N. 3456) emphasises federalist minority protection as justification
- Kley (SG Komm. BV, Art. 142 N. 8) points to the historical legitimation and the protective function for small cantons
N. 14 Status of half-cantons: Jaag (ZBl 1979, 145 ff.) discussed after the founding of the Canton Jura the question of whether the half-cantons should become full cantons. Parliamentary initiative 92.444 to upgrade Basel-Landschaft to a full canton failed in 1995. The discussion remains academic, as a change would require the double majority.
#6. Practice Guidelines
N. 15 For the practice of voting authorities, the following consequences arise:
- In case of close cantonal results (difference < 1%), increased care is required in the counting
- According to BGE 147 I 194, complaints against the cantonal majority must be raised immediately against the voting arrangement, not only after the vote
- The rare constellation of failure at the cantonal majority despite a popular majority (most recently in 2020 with the Corporate Responsibility Initiative) requires particular sensitivity in communication
N. 16 For initiators of constitutional initiatives, it should be noted: The «double hurdle» deliberately makes constitutional amendments difficult. Since 1891, only ten measures failed at the cantonal majority despite a popular majority, of which only two were popular initiatives (1955 and 2020). This underscores the importance of broad geographical support for constitutional initiatives.