Facts
On June 13, 2008, the Federal Assembly approved and implemented the exchange of notes between Switzerland and the European Community regarding the adoption of Regulation (EC) No 2252/2004 on biometric passports and travel documents. A referendum was called against this Federal Resolution. In the popular vote on May 17, 2009, the Federal Resolution was approved with 953,136 yes votes (50.14%) against 947,632 no votes (49.86%).
With partly identical submissions, Rudolf Güntert, Sonja Sorg, André Besson and other persons filed voting appeals with the Cantonal Government of the Canton of Zurich in accordance with Art. 77 para. 1 lit. b of the Federal Act on Political Rights (BPR). By order of June 3, 2009, the President of the Cantonal Government dismissed the total of 96 appeals, insofar as she entered into them.
By appeal in public law matters to the Federal Court of June 15, 2009, Rudolf Güntert, Sonja Sorg and André Besson essentially requested that the vote be declared invalid nationwide and that a new vote be ordered.
Considerations
The Federal Court first points out that the admissibility of the request to declare the vote "nationwide" invalid or to order a nationwide recount depends on whether there is a federal law claim to a recount in the event of a close federal voting result and how such a claim can be enforced within the existing system of legal remedies of the Confederation.
The Federal Court states that under Art. 77 para. 1 lit. b BPR, an appeal can be filed with the Cantonal Government due to irregularities. The Cantonal Government dismisses the appeal in accordance with Art. 79 para. 2bis BPR without further examination if the alleged irregularities were neither in their nature nor in their extent capable of substantially influencing the main result of the vote. A close result alone is not to be a reason for annulment or recount.
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