#1. Legislative History
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.
#2. Systematic Classification
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.
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.
#3. Elements of the Legal Provision / Normative Content
N. 6 Deputies 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.
N. 7 Distribution 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).
N. 8 Cantonal regulatory competence (para. 3): The cantons determine autonomously:
- Electoral procedure (majority/proportional system)
- Electoral district division
- 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.
#4. Legal Consequences
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).
#5. Controversial Issues
N. 12 Age 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.
N. 13 Swiss 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. 14 Electoral 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.
#6. Practical Guidelines
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.
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.