Withdrawal of a federal popular initiative permissible after the vote was annulled; appeal by the association inadmissible

Facts

On 28 February 2016, the federal popular vote was held on the popular initiative 'For Marriage and Family - Against the Marriage Penalty'. By decision confirming the results of 19 April 2016, the Federal Council determined that the initiative had been rejected by the people with 50.8% of the votes, but accepted by the cantons, so that the proposal was rejected.

By two judgments of 10 April 2019 (BGE 145 I 207 and judgment 1C_315/2018), the Federal Supreme Court annulled the vote for violation of freedom of voting (Art. 34 para. 2 Cst.), because the electorate had been inadequately informed by the authorities about the number of couples affected. The Federal Council thereupon annulled the decision confirming the results to that extent by decision of 21 June 2019. Subsequently, on 14 August 2019, it submitted a supplementary message on business 18.034; the Council of States and the National Council referred this business back to the Federal Council in September and December 2019 respectively.

The initiative committee withdrew the popular initiative on 4 February 2020. The Federal Chancellery published the withdrawal declaration in the Federal Gazette on 18 February 2020 (notice of 11 February 2020) and dispensed with the popular vote.

On 26 February 2020, the Government Council of the Canton of Bern declined to entertain the appeal of the association 'Human Life International - Schweiz' and further persons (Eilinger, Schmid, Zwicky), because the requests exceeded its competence. The association and the private individuals thereupon lodged public law appeals (proceedings 1C_129/2020). John Graf challenged the Federal Chancellery's order of 11 February 2020 (proceedings 1C_105/2020). Both proceedings were joined.

The appellants argued that an annulled vote must necessarily be repeated, that the right to withdraw had lapsed, and that a withdrawal contravened good faith as well as Art. 34 para. 1 in conjunction with Art. 139 Cst.

Considerations

On admissibility: the Federal Act on Political Rights (PRA) provides neither a complaint concerning voting rights (Art. 77 PRA) nor an express right of appeal (Art. 80 PRA) against the withdrawal of a popular initiative. On the basis of the guarantee of access to the courts (Art. 29a Cst.) in conjunction with Art. 34 Cst. and Art. 189 para. 1 let. f Cst., however, subsequent legal protection must be granted. The appeal is admitted directly to the Federal Supreme Court by analogy to Art. 80 paras. 2 and 3 PRA, since a cantonal government would not be competent for the withdrawal of federal initiatives and a bifurcation of the legal route is to be avoided.

On standing: complaints concerning voting rights are open, under Art. 89 para. 3 FSCA, to every person entitled to vote. Natural persons have standing. The association Human Life International - Schweiz is neither a political party nor a political association in the narrower sense; the broader practice (BGE 130 I 290) has been abandoned. Its appeal is not entered upon.

On the interpretation of Art. 73 PRA: withdrawal is permissible under Art. 73 para. 2 PRA until the Federal Council sets the popular vote. The annulment of the vote by the Federal Supreme Court did not affect the federal decree on the initiative, so the Federal Council had to set a new vote and the initiative committee's right of withdrawal was thereby available again. The wording is not unambiguous; the systematic position of Art. 73 PRA is not conclusive. Nor do purpose and object speak against restoring the…