Facts
{ "title": \"Party change of a cantonal councillor between election and constituent session as a possible violation of the electoral and voting freedom", \"facts": \"Parties and authorities:
The complainants are six voting-eligible persons of the Canton of Zurich, including three incumbent members of the Zurich Cantonal Council. The respondent is Isabel Garcia, an elected cantonal councillor of the Green Liberal Party (GLP) for electoral district II of the City of Zurich. The Cantonal Council of the Canton of Zurich and its Directorate of Justice and the Interior are further involved authorities. The proceedings concern the renewal election of the Zurich Cantonal Council on 12 February 2023 for the term of office 2023 to 2027.
Legal remedies and procedure:
The cantonal council election took place on 12 February 2023. Isabel Garcia ran on list 04 of the GLP and received 3,083 votes, securing one of the 12 seats of electoral district II. The election results were published in the cantonal official gazette on 17 February 2023 with legal remedy instructions. The 15-day cantonal appeal period expired unused on 22 February 2023. On 23 February 2023, the media reported that Isabel Garcia had announced her party switch to the FDP.The Liberals (FDP) on the same day.
On 8 May 2023, the constituent session of the Cantonal Council took place. It decided by 107 to 52 votes (with 11 abstentions) to confirm the results of the renewal election. A minority motion to exclude Isabel Garcia’s election from the confirmation was rejected. The confirmation resolution was published in the official gazette on 12 May 2023. Also at its session on 8 May 2023, the Cantonal Council reallocated its committees and elected Isabel Garcia to the Committee for State and Municipalities.
The complainants filed an appeal in public law matters, and possibly subsidiarily a constitutional appeal, with the FSCA on 14 May 2023. They essentially requested that the Cantonal Council’s confirmation resolution regarding Isabel Garcia be set aside and a violation of political rights be established. Furthermore, Isabel Garcia’s election to a committee should be declared invalid and the matter referred back to the Cantonal Council for a new decision.
Core issue:
The complainants argued that Isabel Garcia had already firmly decided to switch parties at the time of the election and had concealed this from the voters. This had misled the voting-eligible persons about a fact central to the election. This constituted a serious deception of the electorate and violated Art. 34 para. 2 Cst. as well as the principle of free mandate exercise (Art. 161 para. 1 Cst. and Art. 52 para. 1 Cst./ZH).
Legal remedy and standing to appeal:
The FSCA first examined the admissibility of the appeal. It found that although the complainants did not have to be directly voting-eligible in the affected electoral district II, all voting-eligible persons of the Canton of Zurich in cantonal council elections had the right to appeal under Art. 89 para. 3 FSCA. Since several complainants were members of the Cantonal Council, their standing to appeal was given without them having to separately prove their voting eligibility.
It then examined whether the confirmation resolution and the committee elections were contestable. It found that the committee elections did not constitute suitable objects of appeal, as they were indirect elections by parliament (Art. 82 lit. c FSCA). With regard to the confirmation resolution, it was unclear whether a legal remedy was still available after the expiry of the cantonal appeal period if new facts only became known subsequently. However, the FSCA concluded that it could exceptionally entertain the appeal, in particular to safeguard the principle of good faith (Art. 5 para. 3 Cst. and Art. 9 Cst.).
Party switch and free mandate:
The FSCA recalled that candidates, based on the freedom of opinion (Art. 16 Cst.), freedom of association (Art. 23 Cst.) and the protection of political rights (Art. 34 para. 1 Cst.) as well as the principle of the free mandate (Art. 161 para. 1 Cst. and Art. 52 para. 1 Cst./ZH), are fundamentally free to switch parties. This also applied to the period between the election and the constituent session of the parliament.
However, this freedom was limited by the electoral and voting freedom of the voting-eligible persons under Art. 34 para. 2 Cst. Candidates who had already firmly decided to switch parties at the time of the election and had concealed this from the voters would mislead the voting-eligible persons about a fact central to the election. The information about such a decision was essential for the voting-eligible persons. If there were corresponding indications, there was a right to judicial investigation (Art. 34 para. 2 and Art. 29a Cst.).
Electoral system and importance of party affiliation:
The FSCA explained that the double Pukelsheim electoral system (proportional representation system) applied in the Canton of Zurich gave party affiliation a decisive role. The seats were distributed proportionally to the strength of the parties at cantonal level and then allocated to the electoral districts (§§ 103-104 GPR). This underscored the importance of the lists and the party affiliation of the candidates.
Although the Zurich electoral system also featured elements of personality voting, as individual votes for candidates were significant (so-called individual vote competition), the vote for the list was ultimately decisive, as successful candidates owed their mandate to a significant extent to the allocation of additional list votes (§ 108 para. 1 GPR).
Serious deception of the electorate and violation of Art. 34 para. 2 Cst.:
The FSCA clarified its previous jurisprudence (in particular ATF 135 I 19) and found that there was serious deception of the electorate if a candidate for the Cantonal Council presented herself to the electorate as a member of a specific list/party but this subsequently proved to be incorrect information. Such incorrect information was a new, objectively verifiable fact that was essential for the election and decisive for the election of the person concerned.
Conversely, a candidate for the Zurich Cantonal Council who concealed their true list/party affiliation from the voting-eligible persons would mislead the electorate about a fact central to the election. This violated Art. 34 para. 2 Cst., as it could no longer be ensured that the will of the voting-eligible persons was reliably and unaltered reflected in the election result.
Art. 34 para. 2 in conjunction with Art. 29a Cst. guaranteed the voting-eligible persons that a suspected serious deception of the voting-eligible persons would be judicially investigated if corresponding indications were credibly substantiated. This was precisely what the complainants alleged against Isabel Garcia: she had already firmly decided to switch parties at the time of the election and had kept the voting-eligible persons in the dark about it. The party switch one day after the expiry of the appeal period and without apparent reason did indeed give cause for such an investigation by the competent authorities.
Legal remedy and referral to cantonal authority:
The FSCA found that it was not the task of the supreme court to conduct evidentiary proceedings as the court of first instance. Instead, the matter should be referred to a cantonal authority for this purpose. It was for that authority to establish the facts based on the necessary evidence (cf. § 60 VRG).
In compliance with the legal remedy path set out above, the Cantonal Council would in principle first have had to deal with the complainants’ motions and objections in the context of an electoral rights appeal procedure. However, the Cantonal Council had already examined the issue of the confirmation of Isabel Garcia’s election in connection with its confirmation resolution on the basis of a minority motion from its preparatory committee and had it heard beforehand by its management for this purpose. In light of this and given the urgency of the matter, a referral back to the Cantonal Council did not appear expedient. The matter should instead be referred to the Zurich Administrative Court for further handling.
", \"reasoning": \"The FSCA first examined the admissibility of the appeal against the confirmation resolution and the committee elections. With regard to the committee elections, it found that these did not constitute suitable objects of appeal, as they were indirect elections by parliament (Art. 82 lit. c FSCA). Although the complainants had argued that the committee elections affected the political voting rights of citizens, this argument was incorrect, as the FSCA, in accordance with federal court practice, did not recognise indirect elections by parliament as objects of appeal (cf. ATF 147 I 1 para. 3.1).
It then examined whether the confirmation resolution was contestable. This constituted a stand-alone organisational sovereign act within the framework of political rights, by which the election result was numerically established and formally announced (cf. ATF 145 I 207 para. 4.2). The confirmation resolution thus had limited scope and essentially notarial function. Its sole purpose was to record the election result and thus the decision of the electorate. Although a substantive review of the election result within the framework of the confirmation resolution was not excluded, such review had been significantly restricted by federal court jurisprudence.
The FSCA recalled that candidates are fundamentally free to switch parties, even between the election date and the constituent session of the parliament. This followed from the freedom of opinion (Art. 16 Cst.), freedom of association (Art. 23 Cst.) and the protection of political rights (Art. 34 para. 1 Cst.) as well as the principle of the free mandate (Art. 161 para. 1 Cst. and Art. 52 para. 1 Cst./ZH). A party switch between the election and the constituent session of the parliament was thus fundamentally constitutional, as the FSCA had already held in ATF 135 I 19.
However, this freedom was limited by the electoral and voting freedom of the voting-eligible persons under Art. 34 para. 2 Cst. Candidates who had already firmly decided to switch parties at the time of the election and had concealed this from the voters would mislead the voting-eligible persons. The information about such a decision was essential for the voting-eligible persons. If there were corresponding indications, there was a right to judicial investigation (Art. 34 para. 2 and Art. 29a Cst.).
In the present case, the complainants argued that Isabel Garcia had already firmly decided to switch parties at the time of the election and had kept the voting-eligible persons in the dark about it. The party switch one day after the expiry of the appeal period and without apparent reason did indeed give cause for such an investigation by the competent authorities. Such an investigation had not yet taken place. The FSCA found that it was not the task of the supreme court to conduct evidentiary…