Appeal inadmissible against a municipal vote: six-day time limit from discovery of the irregularities (merger of Neuchâtel municipalities)

Facts

By ballot of 5 June 2016, the electors of the municipality of Peseux rejected the merger agreements between the municipalities of Corcelles-Cormondrèche, Neuchâtel, Peseux and Valangin. The Federal Supreme Court annulled that vote on 7 May 2018 (judgment 1C_610/2017). A new ballot took place on 25 November 2018, and the merger was accepted by 54.56% of voters.

On 30 November 2018, three active citizens of Peseux (the appellants) lodged an appeal and a complaint with the State Chancellery of the canton of Neuchâtel. They relied in particular on: (i) a local newspaper article of 29 October 2018 wrongly announcing that the social services counter would remain in Peseux in the event of a merger, information repeated in a householder leaflet distributed until the vote; (ii) a householder leaflet wrongly stating that the General Council of Peseux recommended accepting the merger; (iii) a cantonal communiqué of 6 November 2018 announcing financial support of CHF 8.2 million, which in their view constituted pressure on the electorate.

By decision of 6 February 2019, the State Chancellery declared the appeal and complaint principally inadmissible as out of time, and in the alternative unfounded. Under Art. 136 para. 1 PRA/NE, the appeal must be lodged within six days of discovering the grounds, but at the latest six days after publication of the results. The facts were known well before the vote, the householder leaflets at issue having been distributed no later than 14 November 2018, the date of the denial by the Communal Council of Peseux.

By judgment of 5 June 2019, the Public Law Division of the Neuchâtel Cantonal Court upheld that decision. It held that the six-day time limit applies even where it is no longer possible to remedy the irregularities before the vote. Some irregularities had been remedied (denial concerning the General Council), and the others were known on 9 November 2018.

The appellants lodge a public law appeal with the Federal Supreme Court, seeking principally a finding that the ballot is void, the annulment of the cantonal judgment and of the result of the vote, and in the alternative remittal of the case to the lower authority. The cantonal court, the State Chancellery and the Communal Council of Neuchâtel conclude that the appeal be dismissed. The Communal Council of Peseux waived the submission of observations.

Considerations

The Federal Supreme Court first examines its jurisdiction under Art. 82 let. c FSCA, which allows it to hear appeals concerning the right to vote and popular votes, including preparatory acts, the voting process and the result. The appellants, active citizens of Peseux, have standing to appeal (Art. 89 para. 3 FSCA). The appeal, directed against a final decision of the last cantonal instance, is admissible.

The Federal Supreme Court freely reviews the interpretation of federal law and cantonal constitutional law closely linked to the right to vote, but reviews only for arbitrariness the application of procedural and organisational rules that do not touch the substance of political rights (ATF 141 I 221 consid. 3.1). Art. 136 para. 1 PRA falls within this second category. The appellants merely set out their own interpretation in an appellate manner, which does not meet the heightened requirements for reasoning under Art. 106 para. 2 FSCA (ATF 145 I 26 consid. 1.3). In any event, the cantonal court's interpretation is not arbitrary: irregularities discovered before the ballot must be raised immediately so that they can be remedied and a new vote avoided (ATF 140 I 338 consid. 4.4). The first sentence of Art. 136 para. 1 PRA, which is identical to federal law (Art. 77 para. 2 PRA), would lose all meaning if an additional time limit were admitted after the proclamation of results.

The appellants do not dispute the date on which the irregularities were discovered, which predates the ballot: the publication at the end of October 2018, the cantonal communiqué of 6 November 2018, and the householder leaflet distributed before the denial of 14 November 2018. The continued distribution of householder leaflets up to the ballot, or the fact that postal or electronic voting had already begun, changes nothing…