1The Council of States is composed of 46 representatives of the Cantons.
2The Cantons of Obwalden, Nidwalden, Basel-Stadt, Basel-Landschaft, Appenzell Ausserrhoden and Appenzell Innerrhoden each elect one representative; the other Cantons each elect two representatives.
3The Cantons determine the rules for the election of their representatives to the Council of States.
Article 150 BV governs the composition and election of the Council of States. The Council of States is the smaller chamber of the Federal Assembly with 46 members.
The seats are unequally distributed among the 26 cantons. The six smaller cantons of Obwalden, Nidwalden, Basel-City, Basel-Country, Appenzell Outer Rhodes and Appenzell Inner Rhodes each elect one member. The remaining 20 cantons each elect two members. This arrangement leads to major disparities: A member of the Council of States from Appenzell Inner Rhodes represents approximately 16,000 inhabitants, one from Zurich over 1.5 million.
Each canton determines for itself how it elects its members of the Council of States. Most use the majoritarian system (majority voting), where the candidate with the most votes wins. Only Jura and Neuchâtel use the proportional system (proportional representation according to party strength). The cantons may also establish their own eligibility requirements, such as a residence requirement in the canton.
Despite their designation as "representatives of the cantons", members of the Council of States are not bound by instructions from their cantons. They decide freely according to their conscience and often according to party affiliation. The Federal Supreme Court has confirmed that the unequal representation of the cantons is constitutionally permissible because it corresponds to the federalist structure of the state.
A practical example: In the 2023 Council of States election in Schaffhausen, a candidate was elected who did not reside in the canton. The Federal Supreme Court declared the election invalid because the cantonal constitution prescribes a residence requirement. A by-election had to be conducted.
N. 1 The current composition of the Council of States dates back to the Federal Constitution of 1848, which established the bicameral system as a compromise between unitarians and federalists. The cantons received two representatives each regardless of their size, with the exception of the half-cantons with one representative each (BBl 1997 I 1, 390). The totally revised Federal Constitution of 1999 adopted this structure unchanged, but deliberately avoided the term "half-cantons" in favour of the neutral enumeration in para. 2 (BBl 1997 I 391).
N. 2 The explicit anchoring of cantonal electoral competence in para. 3 was intended to clarify the federalist nature of Council of States elections. Despite its function as a federal body, the Council of States should derive its legitimacy directly from the cantons (BBl 1997 I 391). This "dual nature" — federal body with cantonal anchoring — continues to shape its constitutional position today.
N. 3 Art. 150 BV is located in Chapter 5 on the federal authorities and gives concrete form to the division of the Federal Assembly into two chambers established in Art. 148 para. 2 BV. The provision is closely linked to → Art. 149 BV (National Council), whereby both chambers have equal rights despite their different legitimacy bases (Art. 148 para. 2 BV).
N. 4 The cantonal electoral competence (para. 3) is an expression of the federalist state structure anchored in → Art. 3 BV. It stands in tension with the federal law requirements for political rights (→ Art. 34, → Art. 39 BV), leading to a complex normative structure: The cantons design the electoral procedure, but must observe superior law (Thurnherr, BSK BV, Art. 150 N. 7).
N. 5 The prohibition of instructions (→ Art. 161 BV) relativises the cantonal connection: Council of States members are independent of instructions despite their designation as "deputies of the cantons" (para. 1). This systematic tension is also evident empirically — Wiesli/Linder (2000, 45) demonstrate that the decision-making patterns of both chambers differ only marginally (Thurnherr, BSK BV, Art. 150 N. 7).
#3. Elements of the Legal Provision / Normative Content
N. 6Deputies of the cantons (para. 1): The term is primarily to be understood in a historical-symbolic sense. No material representative function in the sense of an imperative mandate exists. Biaggini (Komm. BV, Art. 150 N. 2) considers additional cantonal connections with regard to the prohibition of instructions as hardly permissible anymore (Thurnherr, BSK BV, Art. 150 N. 3).
N. 7Distribution of seats (para. 2): The equal representation of all cantons with two seats (or one seat for the cantons mentioned in para. 2) is constitutionally fixed. The Federal Supreme Court recognises the resulting "massive distortion of democratic equality" as a system-related, federalistically justified deviation from the principle "one person, one vote" (BGE 151 I 354 E. 3.1; Thurnherr, BSK BV, Art. 150 N. 12).
N. 8Cantonal regulatory competence (para. 3): The cantons determine autonomously:
Eligibility requirements within the framework of Art. 34 BV
Term of office (within the four-year legislative period)
Election dates
This competence is subject to the limits of superior law (→ Art. 49 BV), particularly fundamental rights and the prohibition of discrimination (Thurnherr, BSK BV, Art. 150 N. 6-7).
N. 9 Election to the Council of States takes place according to cantonal law with cantonal legal remedies. The Federal Supreme Court examines within the framework of appeals in public law matters only compliance with superior law, but not the application of cantonal electoral law as such (BGE 151 I 354 E. 1.2).
N. 10 The different representation strength has the consequence that a Council of States member from Appenzell Innerrhoden represents approximately 40 times more voting power per voter than one from Zurich. This disproportionality is constitutionally intended and can only be changed through constitutional revision (Caroni, ZSR 2013 II, 45).
N. 11 In case of invalidity of an election, cantonal law regulates the legal consequences. In the absence of express regulation, the principle of by-election applies; the runner-up does not automatically move up (BGE 151 I 354 E. 7).
N. 12Age limits: The permissibility of the upper age limit of 65 years in Canton Glarus is disputed. Biaggini (Komm. BV, Art. 150 N. 6) doubts constitutional conformity with reference to the prohibition of discrimination. Aubert (Bundesstaatsrecht II, 1013) considers it permissible. The Federal Council (BBl 2001 6080) already considered a minimum age of 30 years as no longer constitutionally compliant (Thurnherr, BSK BV, Art. 150 N. 15).
N. 13Swiss abroad voting rights: The obligation of cantons to grant Swiss abroad voting rights in Council of States elections is controversial. The Federal Supreme Court denied such an obligation in 2014 with reference to the cantonal nature of the election (Verwaltungspraxis der Bundesbehörden 78.54). Legal doctrine is divided between federalist and fundamental rights arguments.
N. 14Electoral procedure: While most cantons apply the majority system, Jura and Neuchâtel use proportional representation. The compatibility of the proportional system with the character of the Council of States as a cantonal chamber is sometimes questioned (Jaag 1976, 145), but is established practice.
N. 15 When designing cantonal electoral law, the following federal law minimum standards are mandatory:
Universal suffrage (Art. 34 para. 2 BV)
Equality of elections within the canton
Secret ballot
Authenticity of the voters' will
Prohibition of extraneous eligibility requirements
N. 16 Cantonal sanctions (e.g., for violations of voting obligations) may according to Sägesser only affect the cantonal office, but not membership in the Council of States as a federal body (Thurnherr, BSK BV, Art. 150 N. 16).
N. 17 Practice shows that despite formal cantonal affiliation, Council of States members vote primarily according to party affiliation and less according to cantonal interests. For cantonal electoral legislation, this means that party political aspects (lists, electoral recommendations) are permissible and practically relevant.
BGE 151 I 354 E. 3.1 of 24 March 2025
Council of States elections are cantonal elections despite their anchoring in federal law. The cantons regulate the electoral process largely autonomously within the framework of Art. 34 BV.
«In Council of States elections, the cantons determine their representatives to the Council of States (cf. Art. 150 para. 1 BV). Although the Council of States is an organ of the Confederation, Council of States elections are cantonal elections (Art. 150 para. 3 BV). The cantons are largely free in the design of their political system and electoral procedure.»
Judgment 1C_243/2011 E. 1.2 of 15 September 2011
Confirmation of the cantonal character of Council of States elections despite being a federal organ. This entitles to a voting rights complaint under cantonal law.
«Although the Council of States is an organ of the Confederation, Council of States elections are cantonal elections (Art. 150 para. 3 BV; Art. 56 para. 1 lit. d of the Constitution of the Canton of Bern of 6 June 1993 [KV/BE; SR 131.212]).»
BGE 151 I 354 E. 3.2 of 24 March 2025
Cantonal residence requirement as permissible eligibility requirement. The residence must already be fulfilled at the time of election, not only upon taking office.
«According to Art. 40 para. 1 in conjunction with Art. 23 para. 1 of the Constitution of the Canton of Schaffhausen of 17 June 2002 (KV/SH; SR 131.223), all mature or adult Swiss citizens resident in the Canton of Schaffhausen are eligible for election to the Council of States.»
BGE 151 I 354 E. 5.8 of 24 March 2025
Strict application of the residence requirement corresponds to the constitutional intent. Exceptions due to special connection are inadmissible.
«The unconditional residence requirement is also not objectively untenable or simply not justifiable; rather, it serves the idea of the democratic territorial principle, as it concerns the fact that the respective person should exercise their right in that territorial community in which they have their centre of life when considered as a whole.»
Judgment 1C_243/2011 E. 2 of 15 September 2011
Cantonal discretion in design also encompasses special regulations for Swiss citizens abroad in Council of States elections. Restrictions are permissible within the framework of proportionality.
«The cantons are basically free in the design of their political system and electoral procedure. Art. 39 para. 1 BV expressly leaves to them, with regard to their organisational autonomy, the regulation of the exercise of political rights in cantonal and communal matters.»
BGE 98 IA 602 of 29 November 1972
Fundamental procedural principles for Council of States elections: Protection of the secrecy of the ballot and official duty to provide information are guaranteed.
«Voting rights. Council of States election in the Canton of Basel-Stadt. Official duty to provide information and secrecy of the ballot. [...] Scope of the authority's duty to provide information about the submitted electoral proposals (consid. 9). Violation of the secrecy of the ballot by inadequately arranged polling stations (consid. 10 a and b).»
BGE 151 I 354 E. 6 of 24 March 2025
Invalid election is annulled ex nunc. Official acts of the invalidly elected councillor remain valid for reasons of legal certainty.
«Contrary to views partially held in legal doctrine, it is justified for reasons of proportionality, legal certainty, and trust (Art. 5 para. 2 and Art. 9 BV) to annul the election of Simon Stocker ex nunc and not ex tunc.»
BGE 151 I 354 E. 7 of 24 March 2025
In case of invalid election, a by-election must be scheduled. The candidate with the second-most votes is not automatically declared elected.
«Cantonal law does not regulate what should happen if a candidate is elected in a Council of States election whose election must be declared invalid for lack of eligibility. [...] In the absence of legal regulation, it is justified to fall back on the principle that in majority elections, by-elections are normally held for departing members.»