Art. 34 FC — Political Rights

#Doctrine

#1. Legislative History

N. 1 Art. 34 FC codifies a fundamental right that the Federal Supreme Court had already recognised under the old Federal Constitution of 1874 as an unwritten constitutional right. The explanatory report on the preliminary draft of 1995 (PD 1995, p. 141 f.) provided for an express entrenchment of political rights at the constitutional level, including the conditions governing the right to vote and stand for election at the federal level. The Federal Council's dispatch of 20 November 1996 (BBl 1997 I 189 ff.) confirmed that Art. 34 was intended to entrench, as an explicit fundamental right, the freedom to vote and participate in elections that had hitherto been recognised only through judicial law. The sole novelty compared with the Federal Constitution of 1874 was its positive enactment: the provision created no new rights, but elevated existing case law to the constitutional level.

N. 2 The Federal Council deliberately decided against including a principle of transparency in the financing of electoral campaigns, even though this had been discussed in the context of the reform of popular rights (BBl 1997 I 189 f.). Likewise, the exception for cantons with a Landsgemeinde that had been envisaged in PD 1995 was not adopted. The two-paragraph structure — a general guarantee in para. 1, the specific protective content in para. 2 — reflects a deliberate design choice: the free formation of opinion and the unimpaired expression of the vote are expressly named as distinct protected interests (BBl 1997 I 563, 594).

N. 3 In the Council of States, rapporteur Marty Dick (R, TI) explained that Art. 30 of the draft (later Art. 34 FC) codified the freedom to vote already recognised by the Federal Supreme Court as unwritten constitutional law: «L'article 30 codifie la liberté de vote aujourd'hui déjà reconnue par le Tribunal fédéral comme droit constitutionnel non écrit.» In the National Council, the question of voting rights for foreign nationals was controversial: National Councillor Rennwald (S, JU) moved to extend the right to vote to EU citizens resident in Switzerland. National Councillor Leuba (L, VD) objected, arguing that such a motion exceeded the scope of the updating exercise and jeopardised the entire constitutional project. Federal Councillor Koller warned that legal-policy innovations in the updating package would undermine the majority prospects of the draft. The Rennwald motion was rejected: at the federal level, the right to vote remains reserved to Swiss citizens (→ Art. 136 FC).

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#2. Systematic Classification

N. 4 Art. 34 FC is situated within the fundamental rights chapter of the Federal Constitution (Arts. 7–36 FC) and is at the same time an institutional fundamental right: it protects not only the subjective positions of individual eligible voters, but also serves the integrity of the democratic process as such. As a fundamental right, Art. 34 FC is directly applicable and justiciable. Unlike the social goals (→ Art. 41 FC), it establishes subjective rights that can be enforced before the Federal Supreme Court.

N. 5 Art. 34 para. 1 FC is a guarantee provision with a dual function: it guarantees political rights as a federal fundamental right and simultaneously recognises cantonal popular rights to the extent that the cantons have conferred them. The Federal Supreme Court has clarified this: Art. 34 para. 1 FC «also recognises cantonal popular rights as federal fundamental rights, to the extent they have been conferred by the canton» (BGE 129 I 232 E. 5). In relation to Art. 34 para. 2 FC, para. 1 serves as the general basis; para. 2 gives concrete expression to the substantive protective content.

N. 6 Art. 34 FC is closely connected with several other constitutional provisions: ↔ Art. 39 FC (exercise of political rights), ↔ Art. 136 FC (political rights at the federal level), ↔ Art. 51 FC (cantonal constitutions and popular rights). The proportionality standard for restrictions is governed by → Art. 36 FC. Procedural guarantees in the exercise of political rights are complemented by → Art. 29 FC and → Art. 29a FC (right to judicial access). The principle of equality in the design of electoral law follows from ↔ Art. 8 FC. For federal requirements concerning cantonal elections, → Art. 51 para. 1 FC is determinative. The Federal Act on Political Rights (APR, SR 161.1) gives concrete expression to Art. 34 FC at the statutory level, notably in Art. 10a APR (Federal Council information obligations).

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#3. Elements of the Provision / Normative Content

N. 7 Political rights within the meaning of Art. 34 para. 1 FC encompass, at the federal level, the active and passive right to vote in National Council elections, the right to vote in popular referendums, as well as the popular initiative and the referendum (→ Art. 136 FC). The guarantee also covers cantonal and communal political rights to the extent that the cantons have conferred them; in that respect, they become federal fundamental rights. Not covered are political activities outside formal voting and electoral procedures (e.g. political expression of opinion, which is protected by → Art. 16 FC).

N. 8 Free formation of opinion (Art. 34 para. 2 FC, first component) refers to the undisturbed process by which eligible voters form a political opinion. It protects the right not to be subjected to pressure or to be improperly influenced, either in the formation or in the expression of one's political will (BGE 130 I 290 E. 3.1; BGE 143 I 78 E. 4.3). Eligible voters must be able to reach their political decision on the basis of a legally compliant process of opinion formation that is as free and comprehensive as possible. Freedom to vote «guarantees the openness of debate that is required for the democratic process and the legitimacy of direct-democratic decisions» (BGE 143 I 78 E. 4.3).

N. 9 Unimpaired expression of the vote (Art. 34 para. 2 FC, second component) concerns the right that the result of a vote or election reliably and faithfully reflects the free will of the eligible voters. No result may be recognised that does not meet these requirements (BGE 135 I 19 E. 2.1; BGE 129 I 185 E. 7.2; BGE 129 I 232 E. 4.2). In proportional representation elections this means: the will of the electorate must be reflected as faithfully as possible in the composition of the parliament (BGE 135 I 19 E. 2.1).

N. 10 Official information obligations and limits: Art. 34 para. 2 FC gives rise to an obligation on the part of the authorities to provide accurate and restrained information in the lead-up to votes (BGE 130 I 290 E. 3.2). Explanatory statements on votes are in principle permissible; they must be objective, balanced, and factual. It is impermissible to suppress elements that are important for the decision of the eligible voters. In individual cases, Art. 34 para. 2 FC may even give rise to an affirmative duty on the part of the authorities to provide information (BGE 129 I 232 E. 4.2.1). Members of authorities may participate personally in a referendum campaign, provided they do not disseminate misinformation that appears to carry official authority (BGE 130 I 290 E. 3.3).

N. 11 Electoral equality: Proportional representation requires that the will of the electorate be reflected as precisely as possible in the election result. Art. 34 FC establishes minimum federal-law requirements for the design of cantonal electoral procedures, in particular regarding constituency delimitation for proportional elections (BGE 131 I 74 E. 3; BGE 136 I 352). In this context, the Federal Supreme Court has progressively refined the requirements derived from Art. 34 FC, including with respect to cantonal constitutions guaranteed by the Federal Assembly (BGE 140 I 394).

N. 12 Restrictions: As a fundamental right, Art. 34 FC may be restricted in accordance with → Art. 36 FC. Since Art. 34 FC primarily protects a right of political participation, restrictions must be examined for proportionality and objective justification. The withdrawal of voting rights is permissible under the explanatory report PD 1995 (p. 141 f.) only in cases of incapacity due to mental illness or mental disability.

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#4. Legal Consequences

N. 13 Where Art. 34 FC is violated in connection with votes or elections, the annulment of the vote is a possible remedy. The Federal Supreme Court will annul a vote or election only if the irregularities complained of are material and could have influenced the result. Appellants need not demonstrate that the defect had a decisive effect; it suffices that such an effect falls within the realm of possibility (BGE 130 I 290 E. 3.4; BGE 143 I 78 E. 7.1; BGE 145 I 1 E. 4.2). If the possibility of a different outcome appears so remote that it cannot seriously be considered, annulment is foregone.

N. 14 As a matter of procedural law, defects in the preparation of votes and elections must in principle be challenged immediately and before the vote takes place. Anyone who raises a preparatory defect only after the vote risks the Federal Supreme Court dismissing the complaint as out of time (BGE 147 I 194). Complaints in voting rights matters are brought pursuant to Art. 82 lit. c FSCA; standing also extends to legal entities (associations) representing members who are entitled to vote and stand for election (BGE 130 I 290 E. 1.3).

N. 15 The information obligation under Art. 34 para. 2 FC has no punitive effect vis-à-vis members of the authorities; it gives rise to a claim for the repetition of the vote if the misinformation was material and could have influenced the result. Only serious official misinformation justifies the annulment of a popular vote that has been duly held (BGE 130 I 290 E. 4.1).

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#5. Disputed Questions

N. 16 Scope of freedom to vote and limits of direct democracy: It was and remains disputed how far Art. 34 para. 2 FC constrains direct democracy. The Federal Supreme Court held in BGE 129 I 232 that rule-of-law deficiencies in an initiative — specifically the systemic absence of a duty to give reasons in votes at the ballot box on naturalisation applications — cannot be justified even by the democratic principle. Hangartner had still argued that ex post reasoning by a municipal authority could remedy this deficiency (YVO HANGARTNER, Grundsätzliche Fragen des Einbürgerungsrechts, AJP 2001, p. 960 f.); the Federal Supreme Court expressly rejected this position. Auer and von Arx had, by contrast, already argued at an earlier stage that naturalisation applications must not be submitted to a popular vote at the ballot box (ANDREAS AUER/NICOLAS VON ARX, Direkte Demokratie ohne Grenzen?, AJP 2000, p. 930 f.). The Federal Supreme Court followed this stricter approach.

N. 17 Official interventions in third-party referendum campaigns: There is intensive debate about the conditions under which cantons and communes may intervene in federal referendum campaigns. In the older literature, Widmer was opposed to cantonal interventions, on the ground that cantons already have other means of participation at the federal level (STEPHAN WIDMER, Wahl- und Abstimmungsfreiheit, 1989, p. 191 f.). Müller/Schefer and Tschannen, however, regard interventions as permissible where there is particular concern (MÜLLER/SCHEFER, Grundrechte in der Schweiz, 4th ed. 2008, p. 629 f.; PIERRE TSCHANNEN, Staatsrecht der Schweizerischen Eidgenossenschaft, 3rd ed. 2016, p. 689). The Federal Supreme Court confirmed in BGE 143 I 78 E. 4.6 the criterion of «direct and particular concern» as determinative, and in BGE 145 I 1 E. 6.5.2 made a further development: where the outcome of a vote significantly concerns several or all cantons, the Conference of Cantonal Governments (CCG) may intervene on the basis of the principles of objectivity, proportionality, and transparency, without it being necessary to demonstrate relative particular concern compared with other cantons. Langer had suggested replacing the concern criterion entirely with those three criteria (LORENZ LANGER, Kantonale Interventionen bei eidgenössischen Abstimmungskämpfen, ZBl 118/2017, p. 211 ff.); Christoph Auer and Andreas Glaser welcomed this approach (ZBl 118/2017, p. 227 ff. and p. 436). The Federal Supreme Court did not follow that step in full, but substantially relaxed the concern criterion.

N. 18 Free mandate vs. will of the electorate: It is disputed whether and to what extent proportional representation imposes on candidates a binding commitment to the party list after the election. Poledna had argued in favour of extending the protection against loss of mandate to a change of party prior to taking office (TOMAS POLEDNA, Wahlrechtsgrundsätze und kantonale Parlamentswahlen, 1988, p. 283). The Federal Supreme Court held in BGE 135 I 19 E. 5.6, by contrast, that no higher requirements regarding admission to take office can be derived from the constitutional political rights than those applicable during the term of office; the free mandate applies also to the period between election and taking office. Saladin had, for his part, advocated a «responsiveness» obligation on parliamentarians towards the electorate (PETER SALADIN, Verantwortung als Staatsprinzip, 1984, p. 174 f.); the Court did not adopt this position.

N. 19 Right to a recount: Whether Art. 34 para. 2 FC gives rise to a constitutional right to a recount in the case of very close electoral or voting results was contested. The Federal Supreme Court clarified in BGE 141 II 297: a close result alone does not give rise to a right to a recount. No such obligation flows directly from Art. 34 para. 2 FC. Only where a recount is impossible due to the destruction of ballot papers may a repetition of the vote be required (BGE 138 I 171).

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#6. Practical Notes

N. 20 Voting rights complaint: Violations of Art. 34 FC are brought before the Federal Supreme Court by way of a complaint in voting rights matters (Art. 82 lit. c FSCA). Defects in the preparation of votes and elections must be challenged without delay — anyone who waits until after the vote risks forfeiture (BGE 147 I 194). Complaints against acts of the Federal Council and the Federal Assembly in connection with votes are only possible to a limited extent pursuant to → Art. 189 para. 4 FC; the Federal Council's explanatory statements on votes cannot in principle be challenged directly (BGE 145 I 1 E. 5.1.1).

N. 21 Official explanatory statements on votes: Authorities may issue a voting recommendation, but are not obliged to remain neutral — although they are obliged to be objective (BGE 143 I 78 E. 4.4). Explanatory statements on votes must be comprehensible to legal laypersons and may not suppress important elements that are relevant to the decision (BGE 130 I 290 E. 4.1). An evaluative position by the authority on legal-policy discretionary questions is permissible, provided it is objectively defensible (BGE 130 I 290 E. 4.1). The requirement of objectivity, transparency, and proportionality also applies to new information formats such as voting videos (BGE 145 I 1 E. 5.2.1 f.).

N. 22 Proportional representation and constituency delimitation: Cantons that use proportional representation must design their constituency delimitation in a manner compatible with the principle of equal suffrage. The Federal Supreme Court reviews cantonal constitutional provisions in this area even where they have been guaranteed by the Federal Assembly, provided that constitutional law has developed since the guarantee was given (BGE 140 I 394). Determinative in this regard is the principle of electoral equality flowing from Art. 34 FC.

N. 23 Limits of direct-democratic instruments: Popular initiatives and referendums may not hollow out the minimum rule-of-law guarantees. Art. 34 para. 2 FC may result in certain matters being withdrawn from a popular vote where the free formation of opinion by eligible voters cannot be guaranteed as a matter of systemic design (e.g. for lack of a possible duty to give reasons, → BGE 129 I 232 E. 3.5 ff.) or where the fundamental rights of third parties are violated by the procedure (→ Art. 29 para. 2 FC, Art. 8 para. 2 FC). The democratic principle does not justify such rule-of-law deficiencies.

Case Law

#Foundations of Case Law on Political Rights

#Right to Unimpaired Voting

BGE 129 I 185 of 18 December 2002 The Federal Supreme Court clarified the federal law requirements for equal suffrage in the division of electoral districts for proportional representation elections. Violation of constitutionally guaranteed freedom of election in case of disproportionately unequal representation of eligible voters in different electoral districts.

«The guarantee means that no voting or election result may be recognised that does not reliably and authentically express the free will of the citizens. The voters' will should be reflected as accurately as possible in the election result.»

BGE 135 I 19 of 17 December 2008 Validity of the election of a candidate despite party change between election date and constitution of parliament. Confirmation of the principle of the free mandate and the boundary between free formation of opinion and unimpaired voting.

«Art. 34 para. 2 Cst. protects the free formation of opinion and unimpaired voting. The guarantee means that no voting or election result may be recognised that does not reliably and authentically express the free will of the citizens.»

#Information Duty of Authorities

BGE 130 I 290 of 28 July 2004 Obligation of authorities to provide factual and balanced information in voting documents; admissibility of public statements by individual members of authorities in voting campaigns. Specification of case law on the information duty of authorities in cantonal votes.

«The guarantee of political rights enshrined in the Federal Constitution (Art. 34 para. 1 Cst.) protects the free formation of opinion and unimpaired voting (Art. 34 para. 2 Cst.).»

BGE 143 I 78 of 14 December 2016 Permissible official intervention in voting campaigns in case of special interests; duty to objectivity and factuality. A canton may intervene in a federal voting campaign if it has an immediate and special interest in the outcome.

«From Art. 34 para. 2 Cst., an obligation of the authorities to provide correct and restrained information in advance of votes is notably derived.»

#Initiatives and Referendums

#Invalidity of Initiatives

BGE 129 I 232 of 9 July 2003 Invalidity of an initiative to introduce ballot voting on naturalisation applications due to conflict with the constitutional obligation to give reasons. Fundamental decision on the constitutional limits of direct democratic instruments.

«Negative naturalisation decisions are subject to the obligation to give reasons according to Art. 29 para. 2 Cst. (right to be heard) in conjunction with Art. 8 para. 2 Cst. (prohibition of discrimination). In ballot voting, reasoning that meets constitutional requirements is not possible.»

BGE 134 I 172 of 5 March 2008 Declaration of invalidity of a municipal popular initiative; requirements for partial declaration of invalidity. A partial declaration of invalidity is only possible if the part remaining valid retains a meaning that corresponds to the will of the initiators.

«A partial declaration of invalidity is only possible if the part remaining valid retains a meaning that corresponds to the will of the initiators and signatories.»

#Implementation of Popular Initiatives

BGE 141 I 186 of 27 May 2015 Implementation of a cantonal popular initiative formulated as a general suggestion; limits of official implementation competence. A substantively correct implementation requires legislative activity corresponding to the initiative's intent.

«An implementation of the cultural landscape initiative accepted by the eligible voters of the Canton of Zurich directly through a revision of the cantonal structure plan is inadmissible under cantonal constitutional law and incompatible with the political rights of the citizens.»

BGE 139 I 2 of 7 November 2012 Voting rights complaint regarding the implementation of a planning initiative and the corresponding explanations of the municipal council. In implementing an accepted planning initiative, a proposal must be drafted that corresponds to the result sought by the initiative.

«In implementing an accepted planning initiative, a proposal for a planning decree or planning adjustments must be drafted that corresponds to the planning result sought by the initiative and appears fundamentally compatible with higher-ranking law.»

#Voting Procedures

#Recount and Vote Repetition

BGE 138 I 171 of 25 April 2012 Repetition of a popular vote due to impossibility of recounting a very narrow result. Procedural rights in deciding on ordering a vote repetition; competence of the cantonal government.

«The ordering of a recount in case of a very narrow result is justified by the possibility of its erroneousness and a different result when controlling the evaluation. If the recount proves to be excluded because a significant portion of the ballots was destroyed, the vote must be repeated to determine the true will of the people.»

BGE 141 II 297 of 20 March 2015 A very narrow result of a federal vote does not by itself provide a right to a recount. No obligation to recount very narrow voting results flowing directly from Art. 34 para. 2 Cst.

«A very narrow result of a federal vote does not by itself provide a right to a recount. There is no obligation to recount very narrow election or voting results flowing directly from Art. 34 para. 2 Cst.»

#Procedural Law in Voting Rights Complaints

BGE 147 I 194 of 23 March 2021 Federal popular vote on the corporate responsibility initiative; criticism of the requirement for a majority of cantons; procedural law clarifications. Defects in the preparation of votes must be challenged immediately and before conducting the ballot.

«Defects in the preparation of elections and votes must be challenged immediately and before conducting the ballot. If the requirement for a majority of cantons is to be questioned, the voting order must be contested. The restriction of voting power equality is constitutionally intended and binding for the Federal Supreme Court.»

#Electoral Procedures

#Proportional Representation and Electoral District Division

BGE 136 I 352 of 7 July 2010 Procedure for the election of the cantonal parliament; proportional representation and electoral district division; constitutional requirements. The cantonal electoral procedure was incompatible with the principles of proportional representation and could not be justified by reasons of traditional territorial organisation.

«The cantonal electoral procedure is incompatible with the principles of proportional representation, cannot be justified by any reasons of traditional territorial organisation and is therefore unconstitutional.»

BGE 140 I 394 of 26 September 2014 Authority of the Federal Supreme Court to review cantonal constitutional provisions in the case of application; development of case law on electoral equality. The principle of electoral equality has been developed since the guarantee of the cantonal constitution.

«The principle of electoral equality flowing from Art. 34 Cst. has been developed since the guarantee of the Constitution of the Canton of Appenzell A.Rh. by the Federal Assembly in 1996. This development must be taken into account.»

#Freedom of Voting

#Violation of Freedom of Voting

BGE 135 I 292 of 10 February 2009 Violation of freedom of voting at a municipal assembly; impairment from official or private side. The incorrect presentation of an essential fact can violate freedom of voting.

«The incorrect presentation of an essential fact made known only at the municipal assembly can violate freedom of voting if it is likely to move the citizens to a different decision.»

#Prohibition of Discrimination in Initiatives

BGE 129 I 392 of 12 February 2003 City of Zurich initiative «Swiss Citizens First!»; legal equality and prohibition of discrimination. Initiative aimed at favouring Swiss citizens and thus disadvantaging foreigners without factual grounds.

«The initiative aims at favouring Swiss citizens and thus disadvantaging foreigners even without factual grounds that could justify unequal treatment.»