Mandatory and Optional Referendums

In one line

Some Swiss votes are compulsory and some happen only if fifty thousand voters ask for them, and the second is the substitute for judicial review.

In the wording a student can write in an exam: a mandatory referendum is one the constitution requires for a defined class of measures, so that the measure cannot take effect without popular approval; an optional referendum is one held only if a specified number of voters or units request it, so that the measure takes effect unless it is challenged.

The mandatory referendum: article 140

The following must be submitted to the vote of the People and the Cantons:

amendments to the Federal Constitution;

accession to organisations for collective security or to supranational communities;

emergency federal acts which are not based on a provision of the Constitution and whose validity exceeds one year, which must be submitted to the vote within one year of being passed by the Federal Assembly.

The following must be submitted to the vote of the People alone:

popular initiatives for a total revision of the Constitution;

popular initiatives for a partial revision in the form of a general proposal that have been rejected by the Federal Assembly;

the question whether a total revision should be carried out, if there is disagreement between the two Councils.

Notice the distinction. Where the substance of the Constitution is at stake, the Cantons vote as well; where the question is procedural, the People vote alone.

The optional referendum: article 141

The following are submitted to a vote of the People if fifty thousand persons eligible to vote or eight Cantons request it within one hundred days of the official publication of the enactment:

federal acts;

emergency federal acts whose validity exceeds one year;

federal decrees, to the extent that the Constitution or an act so provides;

international treaties that are of unlimited duration and may not be terminated, that provide for accession to an international organisation, or that contain important legislative provisions or whose implementation requires the enactment of federal legislation.

Three features matter.

The threshold is half the initiative threshold. Fifty thousand, against a hundred thousand for an initiative, which reflects that a referendum stops something rather than starting it.

Eight cantons may request it instead. The cantonal referendum has been used, most notably against a federal tax package.

A hundred days from publication. So every federal act is provisionally law and finally law only when the period passes without a request.

Why article 141 is the substitute for judicial review

Article 190 provides that federal acts and international law are binding on the Federal Supreme Court and the other authorities applying the law. So no Swiss court can set a federal act aside for unconstitutionality.