Facts
On 2 August 2016 the Aarau City Council found that the popular initiative 'Debt brake to secure a balanced financial budget of the City of Aarau' had been formally and substantively validly submitted. The initiative took the form of a general proposal. On 23 January 2017 the Municipal Parliament approved the initiative and granted a credit for drafting a proposal.
On 25 March 2019 the Municipal Parliament resolved to supplement the Municipal Code with a new § 10f, the content of which deviated from the City Council's proposal. The resolution was subject to mandatory referendum and was published in the Official Gazette of the Canton of Aargau on Friday, 29 March 2019. The referendum vote took place on 19 May 2019. The publication contained neither a notice that the resolution was an implementing proposal for a popular initiative nor the text of the initiative.
On 3 April 2019, five days after publication, the complainants, one eligible voter and one member of the Municipal Parliament, lodged a voting-rights appeal with the Cantonal Government, which referred the matter to the Department of Economy and Interior (DVI). They requested annulment of the Municipal Parliament's resolution, an instruction to the Municipal Parliament to draft a proposal conforming to the initiative, and suspensive effect. On 9 April 2019 the Department rejected the request for suspensive effect. On 19 May 2019 the voters adopted the initiative with 3'177 yes votes to 2'903 no votes.
On 21 May 2019 the DVI declined to hear the appeal as untimely, without levying costs. The Administrative Court of the Canton of Aargau, 2nd Chamber, dismissed the administrative court appeal by judgment WBE.2019.178 of 12 September 2019. The complainants then filed a public law appeal with the Federal Supreme Court, requesting that the cantonal judgment be set aside and the matter be remanded to the DVI for substantive examination. The City Council requested dismissal, as did the Administrative Court; the DVI waived a statement of position.
The subject matter before the Federal Supreme Court is solely whether the three-day appeal period under § 68 para. 1 GPR/AG was observed (Art. 34 Cst.). A parallel proceeding 1C_556/2019 concerns the same Municipal Parliament resolution.
Considerations
The appeal in voting-rights matters under Art. 82 lit. c FSCA is admissible, as the complainants assert a violation of political rights. The complainants, as eligible voters of the City of Aarau, have standing under Art. 89 para. 3 FSCA; the judgment is final at cantonal level (Art. 88 FSCA). The Federal Supreme Court examines freely the interpretation of federal law and the interpretation of cantonal provisions on voting and electoral rights (Art. 95 lit. d FSCA), but reviews other cantonal and municipal law only for arbitrariness.
A general proposal is a mandate to Parliament to draft an implementing proposal. The implementing proposal may be challenged under Art. 34 para. 1 Cst. (insufficient implementation of the initiative) and, where it is subject to referendum, under Art. 34 para. 2 Cst. (falsification of the voting result). The challenged Municipal Parliament resolution, as an implementing proposal, concludes one phase of the multi-stage procedure; only at this point can conformity with the general proposal be reviewed by a court.
Under § 65 para. 1 GPR/AG, a three-day forfeiture period applies to the voting-rights appeal (§ 68 para. 1 GPR/AG). Such a period is not unconstitutional in itself, but because of its brevity it must be applied generously: it must not practically prevent the voter from lodging an appeal; defects must be recognisable in good time; and no strict requirements may be placed on the reasoning. The three-day period is primarily tailored to electoral and voting appeals. Whether it is admissible for the special form of an implementation appeal is left open by the Federal Supreme Court, since difficulties exist under the present circumstances.
According to § 38 para. 3 GO, the publication date (29 March 2019) is decisive for the commencement of the period. For the assessment, the complainants' knowledge is not decisive, in particular not the fact that one of them was a member of the Municipal Parliament; rather, the average eligible voter is decisive, and the question is whether the voters as a whole were adequately informed.
The official publication did reproduce the resolution verbatim and referred to the referendum requirement and the voting date. However, it did not reveal that the resolution was an…