1The Confederation shall regulate the exercise of political rights in federal matters, and the Cantons shall regulate their exercise at cantonal and communal matters.
2Political rights are exercised in the commune in which a citizen resides, although the Confederation and the Cantons may provide for exceptions.
3No person may exercise their political rights contemporaneously in more than one Canton.
4A Canton may provide that a person newly registered as a resident may exercise the right to vote in cantonal and communal matters only after a waiting period of a maximum of three months of permanent settlement.
Art. 39 — Exercise of political rights
#Overview
Art. 39 Federal Constitution governs who is responsible for political rights (voting and electoral rights) and where they may be exercised. The provision divides competences between the Confederation and the cantons: the Confederation regulates federal elections and votes, while the cantons are responsible for cantonal and municipal matters (Tschannen, BSK BV, Art. 39 N. 5).
Political rights are exercised in principle at the place of residence (residence principle). This means: anyone who lives in Basel may vote there, but not simultaneously in Zurich (Tschannen, BSK BV, Art. 39 N. 12). This «democratic territoriality principle» ensures that persons participate in decision-making where they live and are affected by the political decisions (Hangartner/Kley, Die demokratischen Rechte in Bund und Kantonen, 2. Aufl. 2022, N 215).
The cantons have great freedom in designing their electoral procedures. They may choose between majority voting and proportional representation, as long as fundamental rights are respected (BGE 131 I 74 E. 3.2). This cantonal autonomy finds its limit where procedures contrary to federal constitutional law are to be maintained (BGE 139 I 195 E. 1.3).
No one may exercise political rights in more than one canton. Anyone who moves from Bern to Geneva automatically loses voting rights in Bern and obtains them in Geneva. However, it is disputed whether this prohibition also applies to municipalities within a canton (Tschannen vs. Biaggini, BSK BV, Art. 39 N. 21-22; Biaggini, Komm. BV, Art. 39 N. 10 Fn. 26).
The cantons may introduce a waiting period of at most three months for newcomers. However, this applies only to cantonal and municipal elections and votes, not to federal ones (BBl 1997 I 238). An example: anyone who moves from Germany to Switzerland in January and registers in Lucerne may already participate in federal votes in February, but must wait until April before being able to vote in cantonal or municipal elections.
These regulations ensure orderly democratic participation and avoid double voting, while respecting cantonal diversity in Swiss democracy (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10. Aufl. 2020, N 1412).
Art. 39 FC — Exercise of Political Rights
#Doctrine
#1. Legislative History
N. 1 Art. 39 FC, in its four-paragraph structure, codifies principles that were already partly recognised as unwritten constitutional law under the Federal Constitution of 1874. The explanatory report on the preliminary draft of 1995 (pp. 144, 200 f.) stated that the provision was conceived as a positive enactment of the established constitutional law on the exercise of voting and electoral rights. The right to vote and stand for election in cantonal and municipal matters was to remain expressly reserved to cantonal law; at the same time, uniform federal regulation was to be provided for federal matters.
N. 2 The Federal Council's message of 20 November 1996 (BBl 1997 I 598) describes the regulatory objective as the uniform codification of the exercise of voting and electoral rights in federal, cantonal, and communal matters. The message identifies the following as fundamental principles: exercise at the place of domicile, the prohibition on casting votes in more than one canton, and a permissible waiting period of at most three months for newly arrived residents. The message expressly emphasises that the new Constitution did not entail any substantive changes compared to the 1874 Constitution, particularly with regard to freedom of voting and elections (BBl 1997 I 191 on Art. 30 of the preliminary draft); the Federal Supreme Court confirmed this in BGE 131 I 85 E. 2.4.
N. 3 In the Council of States (1998), Councillor of States Aeby (S, FR) reported on the editorial adjustments; the committee deleted the second sentence of para. 4 of the preliminary draft as superfluous and introduced a gender-neutral formulation of para. 2 in the French text. The substantively contested issues in the deliberations concerned primarily paras. 3 and 4 of what later became Art. 40 FC (Swiss citizens abroad), not Art. 39 FC itself. The final votes in both chambers took place on 18 December 1998.
#2. Systematic Classification
N. 4 Art. 39 FC is both a competence provision and an organisational provision. It determines the regulatory jurisdiction for the exercise of political rights (para. 1), establishes the domicile principle (para. 2), prohibits multiple exercise (para. 3), and authorises the cantons to impose a limited waiting period for newly arrived residents (para. 4). The provision does not confer a subjective fundamental right; that right derives from → Art. 34 FC (guarantee of political rights), whose procedural protection (free formation of opinion and unaltered expression of the will of the electorate) limits the cantonal latitude afforded by Art. 39 para. 1 FC. Since BGE 129 I 185 E. 3.1, the Federal Supreme Court has consistently described this relationship as follows: Art. 39 para. 1 FC merely obliges the cantons to ensure the exercise of political rights according to republican forms; Art. 34 FC and → Art. 8 para. 1 FC, by contrast, impose substantive limits.
N. 5 Within the system of the third chapter («Confederation, Cantons and Communes»), Art. 39 FC complements the general presumption of cantonal competence in → Art. 3 FC. The Confederation is granted exclusive jurisdiction limited to federal matters; the cantons retain regulatory competence over their own political systems (BGE 139 I 195 E. 2). ↔ Art. 51 FC (cantonal constitutions) sets the minimum requirements that are decisive for the Federal Assembly when guaranteeing cantonal constitutions; Art. 39 para. 1 FC is to be read within this framework of guarantee. The primacy of federal law under → Art. 49 FC also applies to the design of cantonal electoral procedures (BGE 139 I 195 E. 4).
#3. Normative Content (Paragraph by Paragraph)
3.1 Paragraph 1: Regulatory Jurisdiction
N. 6 Para. 1 contains a two-part allocation of competence. The Confederation regulates the exercise of political rights in federal matters; the relevant enactments are the Federal Act of 17 December 1976 on Political Rights (APR, SR 161.1) and the associated Ordinance (OPR, SR 161.11). For cantonal and communal matters, the cantons are responsible; they enact cantonal constitutions and laws on political rights. This dual competence is of a declaratory nature, since the cantons would in any case be responsible by virtue of their organisational autonomy (→ Art. 3 FC) (BGE 140 I 58 E. 3.3).
N. 7 According to consistent case law, Art. 39 para. 1 FC obliges the cantons merely to ensure the exercise of political rights according to «republican (representative or democratic) forms». Both the majoritarian and the proportional electoral system satisfy these requirements (BGE 131 I 74 E. 3.2; BGE 131 I 85 E. 2.2; BGE 129 I 185 E. 3.1). The cantons therefore enjoy broad latitude in designing their political systems. Constraints arise from Art. 34 FC (freedom of voting and elections) and Art. 8 para. 1 FC (equality before the law, in particular equal suffrage). The election of judges by the people also falls within the cantonal organisational autonomy under para. 1 (BGE 143 I 211 E. 3.1).
N. 8 Elections to the Council of States fall under cantonal jurisdiction pursuant to para. 1, despite the federal function of the Council of States, since Council of States elections are cantonal elections (→ Art. 150 para. 3 FC; BGE 151 I 354 E. 3.1). The specific content of the right to vote and to stand for election is determined not by the Federal Constitution, but in the first instance by the specific organisational law of the Confederation or the cantons (BGE 143 I 211 E. 3.1).
3.2 Paragraph 2: Domicile Principle
N. 9 Para. 2 first sentence enshrines the domicile principle (democratic principle of territoriality): political rights are exercised at the place of domicile. The concept of «domicile» in Art. 39 para. 2 FC denotes the political domicile within the meaning of Art. 3 para. 1 APR, i.e. the commune in which the eligible voter resides and is registered. The Federal Supreme Court recently clarified in BGE 151 I 354 E. 3.1 that political domicile is a concept of federal law that is in principle binding on the Confederation and the cantons (thus already BGE 109 Ia 41 E. 5b; Tschannen, BSK BV, Art. 39 N. 14; Gutzwiller, CR Cst., Art. 39 N. 18).
N. 10 Political domicile requires two cumulatively satisfied elements: first, a civil law domicile under Art. 23 para. 1 CC (substantive requirement — residence with the intention of permanent settlement as the principal place of life) and second, entry in the electoral register of the relevant commune (formal requirement; BGE 151 I 354 E. 3.1 with reference to BBl 1975 I 1329). The close connection between civil law and political domicile is based on the idea of self-governance by the people: those whose principal place of life is in a commune should exercise their political rights there (BGE 151 I 354 E. 5.7).
N. 11 Para. 2 second sentence permits the Confederation and the cantons to provide for exceptions to the domicile principle. The Confederation has made use of this authorisation in Art. 1 OPR (e.g. weekly commuters, persons under guardianship, spouses maintaining separate households). Exceptions to the civil law domicile principle require qualified justification and are to be interpreted narrowly; the legislature considered a «free choice» of political domicile between several places of residence to be «impermissible» (BBl 1975 I 1329; BGE 151 I 354 E. 5.7). For Swiss citizens abroad who have no possibility of establishing domicile in Switzerland, → Art. 40 FC in conjunction with the Swiss Abroad Act (SAA, SR 195.1, in force since 1 November 2015) governs the details.
3.3 Paragraph 3: Single-Exercise Rule
N. 12 Para. 3 prohibits any person from exercising political rights in more than one canton. The single-exercise rule flows directly from the principle of equality before the law (→ Art. 8 FC) and the equal weight of votes: every vote should count only once. Since, under para. 2, there can only ever be one political domicile — there is no «dual» political domicile in two cantons — para. 3 is in practice of primary significance as a clarifying provision and as a benchmark for exceptions under para. 2 second sentence. The unity of political domicile also derives from the civil law principle of the uniqueness of domicile (Art. 23 para. 2 CC; BGE 151 I 354 E. 4.2).
3.4 Paragraph 4: Waiting Period for Newly Arrived Residents
N. 13 Para. 4 authorises the cantons (discretionary provision) to provide for a waiting period of at most three months after taking up residence for newly arrived residents. The waiting period applies only to the right to vote (not to the right to stand for election as a passive right) in cantonal and communal matters; there is no latitude for federal matters. A person who establishes domicile in the Canton of Zurich participates in federal referendums and elections from the date of taking up residence, but may, if applicable, be excluded from the cantonal right to vote for up to three months. The constitutional maximum of three months is exhaustive; a longer period directly violates federal constitutional law and must not be applied in any specific case (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 749; Kley, SGK BV, 4th ed. 2023, Art. 39 N. 14).
#4. Legal Consequences
N. 14 Art. 39 para. 1 FC does not confer subjective rights. It is a competence provision that allocates jurisdiction. Indirectly, however, it strengthens the democratic legitimacy of cantonal electoral procedures. Cantonal electoral laws that fail to satisfy the federal constitutional requirements of Art. 34 in conjunction with Art. 8 para. 1 FC may be challenged by way of a voting rights complaint (Art. 82 lit. c BGG); para. 1 is the connecting provision for the Federal Supreme Court's power of review.
N. 15 A violation of the domicile principle (para. 2) or the single-exercise rule (para. 3) may render an election invalid. In BGE 151 I 354 E. 5.9 and E. 6, the Federal Supreme Court annulled the election of a Council of States member because the elected person had no civil law domicile in the canton on election day, thereby violating the passive right to vote and stand for election flowing from Art. 34 para. 1 FC; it ordered annulment ex nunc while preserving the official acts performed prior to the judgment (Art. 5 para. 2 and Art. 9 FC).
N. 16 A waiting period under para. 4 that exceeds the three-month maximum must not be applied in any specific case. The Federal Supreme Court reviews cantonal electoral laws for their compatibility with Art. 39 FC; a finding of unconstitutionality leads to the annulment of the contested enactment or — where possible — to a directive judgment (BGE 131 I 74 E. 6.1).
#5. Contested Issues
N. 17 Scope of cantonal latitude under para. 1. The Federal Supreme Court established in BGE 131 I 74 E. 3.2 and BGE 131 I 85 E. 2.2 the formula that Art. 39 para. 1 FC obliges the cantons only to ensure «republican forms». Tschannen (BSK BV, Art. 39 N. 5 ff.) considers this broad formulation to be correct: the Federal Constitution requires neither proportional representation nor any specific form of direct democracy at cantonal level. Kley (SGK BV, Art. 39 N. 4) agrees in principle, but points out that the constraints arising from Art. 34 and Art. 8 para. 1 FC have considerable binding effect in practice, so that the «broad latitude» has in fact been curtailed by the case law on equal suffrage and the equal weight of votes. Häfelin/Haller/Keller/Thurnherr (Bundesstaatsrecht, 10th ed. 2020, N 749) share this assessment. Rhinow/Schefer/Uebersax (Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1862) emphasise that Art. 39 para. 1 FC — unlike Art. 34 FC — is not a fundamental right but a competence provision, which correspondingly influences the intensity of judicial review.
N. 18 Voting rights of Swiss citizens abroad as an exception to the domicile principle. The greatest practical controversy surrounding Art. 39 para. 2 FC concerns Swiss citizens abroad. Since the introduction of voting rights for Swiss citizens abroad in federal referendums and elections (now regulated by the SAA, SR 195.1, in force since 1 November 2015, which replaced the earlier Swiss Abroad Voting Rights Act of 1975), it has been disputed whether they should also be entitled to vote in Council of States elections. Council of States elections are cantonal elections (→ Art. 150 para. 3 FC); the cantons regulate eligibility requirements themselves, and the domicile requirement for candidates applies without exception under the Constitution of the Canton of Schaffhausen (BGE 151 I 354 E. 3.2). Kley (SGK BV, Art. 39 N. 9) considers a relaxation of the domicile requirement for Council of States candidacies to be debatable de lege ferenda; Tschannen (BSK BV, Art. 39 N. 12), by contrast, emphasises that the democratic principle of territoriality requires that the principal place of life of candidates and voters must be in the canton. The Federal Council addressed the political rights of Swiss citizens abroad in the report on Swiss abroad law of 2014 (BBl 2014 2617) and identified a need for action with respect to the SAA, without, however, calling into question the domicile requirement for Council of States elections.
N. 19 Relationship between para. 2 and Art. 23 CC. It was long disputed whether the concept of political domicile in Art. 39 para. 2 FC is coextensive with civil law domicile under Art. 23 ff. CC. BGE 151 I 354 E. 3.1, 5.7 has authoritatively settled this question: the federal law concept of political domicile always presupposes a civil law domicile; a determination of political domicile that deviates from the principal place of life under Art. 23 CC is impermissible. Tschannen (BSK BV, Art. 39 N. 13 f.) had already advocated the same close connection before that decision. An alternative concept («sufficient connection» instead of domicile) was expressly rejected by the Federal Supreme Court in BGE 151 I 354 E. 5.3.
N. 20 E-voting and the domicile principle. The gradual reintroduction of e-voting (after the pilot programme of 2004–2019, now on the basis of the revised APR and the associated ordinance from 2021 onwards) does not call the principle of territoriality into question technically: voting by internet continues to require entry in the electoral register at the place of domicile (Art. 3 para. 1 APR). The challenge lies at the level of control: reliable technical systems must ensure that no person casts an electronic vote in more than one canton in the same ballot, as required by Art. 39 para. 3 FC. Müller/Schefer (Grundrechte in der Schweiz, 4th ed. 2008, p. 729) point out that technical voting modalities must be measured against the principle of free and secret suffrage; Art. 39 para. 2 FC remains the decisive competence provision for the question of where exercise takes place.
#6. Practical Notes
N. 21 Cantonal electoral laws and the 10% threshold. The Federal Supreme Court has derived from Art. 34 para. 2 in conjunction with Art. 8 para. 1 FC — invoking Art. 39 para. 1 FC as the competence provision — a maximum of 10% for direct quorums (threshold clauses) and as a target value for natural quorums in proportional elections (BGE 131 I 74 E. 5.3 f.; BGE 131 I 85 E. 2.2). For cantons that constitutionally mandate proportional representation, this threshold is absolute for threshold clauses and serves as a target value for natural quorums in new regulations. Cantonal legislators must observe the requirement of the equal weight of votes when reforming electoral law and may, where necessary, create electoral district associations (BGE 139 I 195 E. 3.1).
N. 22 Examination of political domicile. In voter registration proceedings, electoral district disputes, and — in particular — in proceedings relating to eligibility requirements for Council of States elections, political domicile is to be determined according to the principal place of life criterion under Art. 23 para. 1 CC. The relevant circumstances are those on election day (BGE 151 I 354 E. 4.1; Art. 4 para. 2 APR). Entry in the electoral register is a necessary but not sufficient condition; civil law domicile must actually exist. Authorities may not rely solely on the entry in the electoral register (BGE 151 I 354 E. 4.1).
N. 23 Waiting period under para. 4. Cantons that make use of the authorisation under para. 4 may not exceed the three-month waiting period. They may restrict the waiting period exclusively to cantonal and communal voting matters, not to federal matters. For reasons of proportionality, an express statutory basis at cantonal level is advisable; a merely practice-based approach does not suffice. Since para. 4 is a discretionary provision, cantons may also dispense entirely with a waiting period, which is the case in many cantons.
N. 24 Intensity of review by the Federal Supreme Court. Complaints against cantonal electoral laws and election results are to be lodged as public law complaints in the form of a voting rights complaint (Art. 82 lit. c BGG). The Federal Supreme Court reviews the interpretation and application of federal law and cantonal law that governs the substance of the right to vote and to stand for election with full cognition (BGE 151 I 354 E. 2.1). In the case of cantonal constitutional provisions that have already been guaranteed, the power of review is limited (→ Art. 51 para. 2 FC; BGE 131 I 85 E. 2.4), unless the superior law has changed substantially since the guarantee was granted.
#Case law
The case law on Art. 39 Federal Constitution has been developed primarily in the context of electoral equality and cantonal organisational autonomy. The Federal Supreme Court has interpreted the provision primarily in connection with Art. 34 Federal Constitution (political rights).
#Cantonal organisational autonomy and electoral procedures
BGE 131 I 74 E. 3.2 (2004)
27 October 2004
The Federal Supreme Court specifies cantonal competence to regulate the exercise of political rights.
Art. 39 para. 1 Federal Constitution grants the cantons extensive discretion in organising their political systems.
«The cantons are largely free in organising their political systems. Art. 39 para. 1 Federal Constitution merely obliges them to ensure the exercise of political rights according to republican (representative or democratic) forms. Both the majority voting system and the proportional representation system basically satisfy these constitutional requirements.»
BGE 139 I 195 E. 1.3 (2013)
10 July 2013
Limits of cantonal organisational autonomy in case of electoral procedures that violate federal constitutional law.
Cantonal autonomy finds its limit where procedures that violate federal constitutional law are to be maintained.
«The disputed voting proposal is inadmissible because it is aimed at preventing the introduction of an electoral procedure that conforms to federal constitutional law.»
BGE 143 I 211 E. 3.1 (2017)
30 March 2017
Cantonal discretion in judicial elections in light of Art. 39 para. 1 Federal Constitution.
As part of their organisational autonomy, the cantons also regulate the election of judges.
«The cantons are largely free in organising their political system and electoral procedures. Art. 39 para. 1 Federal Constitution states that the cantons - in accordance with their organisational autonomy - regulate the exercise of political rights in cantonal and municipal matters. This competence is exercised within the framework of the federal constitutional guarantee of Art. 34 Federal Constitution.»
#Municipal referendum rights
BGE 140 I 58 E. 3.3 (2013)
13 December 2013
Organisation of municipal referendum rights as part of cantonal competence.
Art. 39 para. 1 Federal Constitution guarantees the cantons competence to regulate municipal political rights.
«According to Art. 39 para. 1 Federal Constitution, the Confederation regulates the exercise of political rights in federal matters, the cantons determine them in cantonal and municipal matters. This competence of the cantons is declaratory in nature, since it already applies in any case on the basis of cantonal organisational autonomy, and is substantively governed by the minimum requirements according to Art. 51 Federal Constitution.»
#Electoral district division and equal value of votes
BGE 129 I 185 E. 3.1 (2002)
18 December 2002
Fundamental decision on electoral equality and cantonal discretion.
Cantonal autonomy in electoral procedures is subject to the limits of equality before the law.
«The cantons are largely free in organising their political systems. Art. 39 para. 1 Federal Constitution (formerly Art. 6 para. 2 lit. b of the former Federal Constitution) merely obliges them to ensure the exercise of political rights according to republican (representative or democratic) forms. Both the majority voting system and the proportional representation system basically satisfy these constitutional requirements. Art. 8 para. 1 Federal Constitution (formerly Art. 4 para. 1 of the former Federal Constitution), which in connection with Art. 34 Federal Constitution guarantees (also) the political equality of citizens, forms a limit for the organisation of electoral procedures.»
#Relationship to fundamental rights
BGE 131 I 85 E. 3.2 (2004)
27 October 2004
The competence under Art. 39 para. 1 Federal Constitution is subject to the reservation of fundamental rights guarantees.
Cantonal electoral procedures must respect federal constitutional fundamental rights guarantees.
«The cantons are largely free in organising their political systems. Art. 39 para. 1 Federal Constitution merely obliges them to ensure the exercise of political rights according to republican (representative or democratic) forms.»