Facts

On 19 March 2021 the Federal Assembly adopted amendments to the Covid-19 Act (SR 818.102). The amendment was declared urgent, entered into force on 20 March 2021 and was brought to a federal popular vote on 28 November 2021 by way of referendum.

Several eligible voters lodged complaints with the cantonal governments (Thurgau, Graubünden, Basel-Stadt, St. Gallen, Zürich) in the run-up to the vote. They complained in particular of misleading wording on the ballot paper and of inaccurate statements in the Federal Council's voting explanations. They requested that the vote be cancelled or postponed, alternatively that the result be annulled, and subsidiarily that a violation of voting freedom under Art. 34 para. 2 Cst. be found. The governments declined to enter into the complaints by decisions of 9, 11, 12, 16 and 17 November 2021.

The complainants then appealed to the Federal Supreme Court in voting rights matters (proceedings 1C_684/2021, 1C_685/2021, 1C_689/2021, 1C_706/2021, 1C_713/2021, 1C_728/2021, 1C_742/2021). The presiding judges rejected the requests for suspensive effect or provisional postponement of the vote. The proposal was accepted with 62.01% yes votes at a turnout of 65.72%.

The Federal Chancellery requested that appeal 1C_713/2021 be dismissed insofar as it was admissible and that the remaining appeals not be entered into. The appellant in proceedings 1C_713/2021 additionally complained that the voting video published by the Federal Chancellery on the federal homepage was misleading. In proceedings 1C_728/2021, abstract judicial review of the Covid-19 Act was requested.

Considerations

The proceedings concern the same popular vote and are joined pursuant to Art. 24 FSCA. The appeal in voting rights matters is available under Art. 77 para. 1 lit. b and Art. 80 para. 1 PRA in conjunction with Art. 82 lit. c and Art. 88 para. 1 lit. b FSCA; there is no room for a subsidiary constitutional appeal (Art. 113 FSCA). Irregularities extending across cantons justify formal decisions by the cantonal governments not to enter into the complaints, so the Federal Supreme Court may also examine questions that the cantons were not permitted to address, provided they were raised at cantonal level. Fundamental rights complaints are examined only subject to the qualified duty to state grounds (Art. 106 para. 2 FSCA in conjunction with Art. 42 para. 2 FSCA).

Abstract judicial review of federal legislation is excluded (Art. 82 FSCA in conjunction with Art. 190 Cst.); the appeal 1C_728/2021 is therefore not entered into. The Federal Council's voting explanations, the voting question and the wording of the ballot paper form a unit and, as acts of the Federal Council under Art. 189 para. 4 Cst., are not subject to challenge. A right under Art. 10 or 13 ECHR to correct official information does not constitute an exception. General criticism of the media and authorities without concrete irregularities does not satisfy the qualified duty to state grounds; the information situation may be complained of within voting appeals under Art. 77 para. 1 lit. b PRA only exceptionally, by way of reconsideration (BGE 147 I 194 E. 4.1). The remaining complaints, which were unsubstantiated or went beyond the subject matter of the dispute, likewise lead to non-entry.

The Federal Chancellery's voting video is a permissible object of challenge, insofar as it is not merely the content of the Federal Council's explanations that is criticised (BGE 145 I 1 E. 5.1). Under Art. 34 para. 2 Cst., the authorities are under a duty of accurate and restrained information. A vote may be annulled only if the irregularities are significant and may have affected the result, or if an effect on the outcome is within the…