Facts

Subject matter: Popular vote of 13 June 2021 on the Federal Act of 25 September 2020 on police measures to combat terrorism (PCTA). The Act was adopted with 56.58% of votes in favour.

Parties to the proceedings: Several voters and parties lodged voting rights appeals against decisions of cantonal government councils not to enter into the matter (Obwalden, Lucerne, Bern, Aargau, Uri, Basel-Stadt), and directly against the Federal Chancellery. Proceedings 1C_308/2021, 1C_339/2021, 1C_352/2021, 1C_359/2021, 1C_360/2021, 1C_369/2021 and 1C_419/2021 were joined.

Complaints: The appellants alleged a violation of freedom of voting under Art. 34 para. 2 Cst. They criticised inaccurate statements by the Federal Council in the voting explanations (federal voting booklet) and on the website of the Federal Chancellery, as well as statements by members of the Federal Council. They further complained of insufficient general information. Some requested the cancellation, annulment or repetition of the vote, the Federal Supreme Court filling an alleged gap in the law in the voting procedure, the introduction of impeachment proceedings against Federal Councillors, and findings that individual PCTA provisions were contrary to the ECHR.

Procedural history: The cantonal governments did not enter into the voting appeals for lack of cantonal competence over cross-cantonal matters. The appellant in proceeding 1C_308/2021 applied directly to the Federal Supreme Court, as did Gilbert Hottinger in proceeding 1C_360/2021 concerning an appeal against the Federal Chancellery (previously declared inadmissible by judgment 1C_334/2021). The Federal Chancellery requested non-entry, alternatively dismissal. The cantonal governments waived their observations.

Considerations

Admissibility and appellate route: Decisions on voting appeals under Art. 77 para. 1 let. b PRA may be challenged before the Federal Supreme Court by way of an appeal for violation of political rights (Art. 80 para. 1 PRA in conjunction with Art. 82 let. c and Art. 88 para. 1 let. b FSCA). Cross-cantonal matters do not fall within the competence of the cantonal governments, so their formal decisions not to enter into the matter were admissible. Questions already raised at cantonal level may be submitted to the Federal Supreme Court.

Direct application to the Federal Supreme Court: According to published case law (BGE 137 II 177), the appellate route under Art. 77 para. 1 PRA must be observed, so appeals filed directly with the Federal Supreme Court are not to be entered into under Art. 88 para. 1 let. b FSCA. Despite known shortcomings of the legal remedy via the cantonal governments, the Federal Supreme Court maintained this practice, as remedying the situation is a matter for the legislator (BGE 136 II 132). Judge-made filling of the gap was rejected. Referral to the cantonal governments was unnecessary, as the appellants concerned had already exhausted the legal remedy.

Inadmissibility of complaints against statements by the Federal Council: Under Art. 189 para. 4 Cst., acts of the Federal Assembly and the Federal Council cannot be challenged before the Federal Supreme Court unless the law provides otherwise; this also applies to voting rights appeals (BGE 138 I 61). The Federal Council's voting explanations are therefore not directly challengeable. The same applies to statements by individual members of the Federal Council and third parties, insofar as they essentially reproduce the content of the voting explanations (BGE 145 I 207; 145 I 1; 138 I 61; 137 II 177). No statutory exception was invoked or is apparent. The corresponding appeals are therefore not to be entered into.

Insufficient information: The general information available in the run-up to a popular vote may only be challenged in exceptional cases through subsequent, reconsideration-based legal protection. Within voting appeals under Art. 77 para. 1 let. b PRA this is not permissible. Also in this…