The Popular Initiative and the Double Majority

Article 142(3). The result of a popular vote in a Canton determines the vote of the Canton.

Article 142(4). The Cantons of Obwalden, Nidwalden, Basel-Stadt, Basel-Landschaft, Appenzell Ausserrhoden and Appenzell Innerrhoden each have half a cantonal vote.

So the count is twenty three: twenty full cantons and six half-cantons.

The arithmetic, and why it matters

The population of the cantons is very unequal. The largest, Zurich, has well over a million people; the smallest, Appenzell Innerrhoden, has about sixteen thousand and half a vote.

The consequence is that a proposal can command a clear majority of voters and fail on the cantonal count, and it has happened. The double majority therefore functions as a federal veto exercised by the smaller and more rural cantons, which is the same function the American three-quarters ratification rule performs and the Indian half-the-States rule performs for the proviso matters.

The comparative point is that Switzerland achieves federal protection at the same moment as popular approval, in one vote, whereas the United States separates the two stages and India requires State ratification only for some subjects.

A worked example

An initiative proposes to insert a new article requiring a minimum wage.

Step one. A hundred thousand signatures within eighteen months of publication, in the form of a specific draft.

Step two. The Federal Assembly examines it under article 139(3) for unity of form, unity of subject matter and consistency with mandatory international law.

Step three. The Assembly recommends acceptance or rejection and may put a counter-proposal.

Step four. The vote. It passes only if a majority of those voting and a majority of the twenty three cantonal votes approve.

Step five. Article 195: it comes into force on approval by the People and the Cantons.

The cases

There is no Swiss case in this book and the reason is given in FINDINGS: the Federal Supreme Court publishes only in German, French and Italian, so no Swiss judgment has been read in the original and none is cited as authority. Article 190 in any event prevents that Court from setting aside a federal act.

Two decisions of other courts frame the comparison.

Facts. Coleman v. Miller, 307 U.S. 433 (1939), concerned who decides questions arising in the American amending process.

Held. Political questions, with the ultimate authority in Congress.

Why it matters here. Switzerland gives the equivalent decision to the Federal Assembly under article 139(3), so both systems allocate the question to a political body, but Switzerland then gives the substantive decision to the electorate.

Facts. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, concerned whether an amendment may destroy the basic structure.

Held, by seven to six. It may not.

Why it matters here. A Swiss initiative faces no such limit. What restrains it is the double majority and the Assembly's counter-proposal, which are political rather than judicial safeguards.

Distinctions

What beginners get wrong

"A hundred thousand signatures amends the Constitution." They put a proposal to a vote. The vote decides.

"The double majority means two thirds." It means two separate majorities, of voters and of cantons, each a simple majority.

"There are twenty six cantonal votes." There are twenty three: twenty cantons with one vote and six half-cantons with half a vote each, under article 142(4).

Limits and criticism

The double majority over-weights small rural cantons, so a proposal supported by a clear majority of Swiss voters can fail.

Initiatives can be used against minorities, and article 139(3)'s only substantive filter is mandatory international law.

The eighteen-month window and the signature threshold favour organised groups, so the mechanism is more accessible to well-funded campaigns than to individuals.

Quick revision

1. Article 136: political rights, including launching and signing initiatives and referendum requests.
2. Article 138: a hundred thousand voters, eighteen months, total revision.
3. Article 139: the same for partial revision, in general terms or as a specific draft, with the different procedures for each.
4. Article 139(3): the Federal Assembly declares an initiative invalid for breach of unity of form, unity of subject matter, or mandatory international law.
5. The Assembly may recommend and may put a counter-proposal.
6. Article 142(2): a majority of those voting and a majority of the Cantons.
7. Article 142(4): six half-cantons, so twenty three cantonal votes in all.

Test yourself

1. Describe the popular initiative for a partial revision. Under article 139, a hundred thousand persons eligible to vote may, within eighteen months of the official publication of their initiative, request a partial revision, in the form either of a general proposal or of a specific draft. A general proposal, if approved by the Federal Assembly, is drafted by it and put to the People and the Cantons; if rejected, the People decide whether it should be implemented. A specific draft goes directly to the People and the Cantons, with the Assembly recommending acceptance or rejection and able to put a counter-proposal.

2. Explain the double majority and its arithmetic. Article 142(2) provides that proposals submitted to the vote of the People and the Cantons are accepted when a majority of those voting and a majority of the Cantons approve them; article 142(3) provides that the result of the popular vote in a canton determines that canton's vote; and article 142(4) gives Obwalden, Nidwalden, Basel-Stadt, Basel-Landschaft, Appenzell Ausserrhoden and Appenzell Innerrhoden half a vote each, so the cantonal count is twenty three.

3. What is the counter-proposal and why does it matter? It is the Federal Assembly's power to put an alternative alongside a popular initiative, the voter being asked whether he accepts the initiative, whether he accepts the counter-proposal, and, if both, which he prefers. It matters because it allows the legislature to respond to a popular demand with a moderated version rather than merely opposing it, and initiatives are often withdrawn when a satisfactory counter-proposal is offered.

4. Compare the Swiss federal safeguard with the American and Indian. Switzerland secures federal protection and popular approval in the same vote, by requiring a majority of the cantons alongside a majority of voters under article 142(2). The United States separates the stages: Congress proposes and three quarters of the States ratify, and there is no popular vote at all. India requires ratification by half the State legislatures only for the matters listed in the proviso to article 368(2), and again there is no popular vote.