Cantonal majority: an obstacle that could scupper the Swiss-EU deal

Andrea Caroni, a member of the Senate, wants the EU treaties to become a constitutional issue. Keystone / Alessandro Della Valle

A cantonal majority requirement would significantly raise the bar for a ‘yes’ vote on a referendum on the EU-Swiss Bilateral Agreements III. The Swiss government rejects it and the ball is now in the Senate's court.

What is the cantonal majority? 

Referendums in Switzerland require one or two majorities to be successful. A “popular majority” is always required. This is a majority of all votes cast.  In some cases, a “cantonal majority” is also required. This broadly means securing the support of a majority of the cantons. Strictly speaking, however, Switzerland has 26 cantons but only 23 cantonal constituencies. The former half-cantons of Obwalden, Nidwalden, Basel City, Basel Country, Appenzell Inner Rhodes and Outer Rhodes each have only half a cantonal vote. 

When it comes to voting on constitutional amendments, urgent federal decrees or accession to international organisations, a referendum requires both majorities – popular and cantonal.

Why does the cantonal majority exist?

The majority of the cantons was enshrined in the Swiss constitution in 1848 to integrate the rural, Catholic cantons into the then newly founded federal state. These cantons had been the losers of the last Swiss Civil War in 1847, in which they were defeated by the large liberal cantons.  

To ensure that the Swiss state was organised as federally as possible, a bicameral parliamentary system was established alongside the cantonal majority: the House of Representatives (the people’s chamber) and the Senate as the parliamentary representation of the cantons. 

Both the majority of the cantons and the Senate are therefore mechanisms for balancing power. They grant a political minority a right of veto and thus greater influence.  

What are the criticisms of the cantonal majority system? 

As a result of this shift in weighting, the vote of someone from Appenzell today carries fifty times more weight than that of a citizen from Zurich. “The cantonal majority system is not about democracy – that is, the popular majority – but about federalism, about protecting the small, rather conservative cantons,” says Adrian Vatter, a professor of politics at the University of Bern.  

On the other hand, the cantonal majority undermines democratic equality. Cities and urban cantons are structurally at a disadvantage because of the cantonal majority. According to various democracy researchers, women, young people and French- and Italian-speaking minorities are also disadvantaged in terms of their voting power.

More power to the little cantons: a selection of Swiss cantonal coats of arms. Keystone / Peter Klaunzer

What difference does the cantonal majority make? 

As the cantonal majority gives greater weight to votes from the smaller cantons, it generally gives an advantage to conservative forces in referendums, as they tend to hold the upper hand in these cantons. 

This pattern was most recently evident when Switzerland voted on the Responsible Business InitiativeExternal link in 2020. Although the popular vote was in favour, with just under 51% voting ‘yes’, the majority of the cantons rejected it. The initiative therefore failed.  

However, the number of constitutional provisions that have failed due to the cantonal majority is small. Of 702 referendum proposals since 1848, only ten have failedExternal link solely because of this hurdle. 

Nevertheless, the cantonal majority carries particular weight, particularly when it comes to issues concerning Switzerland’s international commitments. For instance, while the landmark 1992 referendum on the European Economic Area (EEA) proposal was rejected by both the people and the cantons, the rejection by the cantons was far more decisive. While the popular majority was extremely narrow at 50.3% at the time, 18 cantons voted against it and only five in favour. 

Political scientists Rahel Freiburghaus and Adrian Vatter recently calculated what a majority of the people would have been required to clear the cantonal majority hurdle in that historic EEA referendum. 

“Assuming realistically that the ‘yes’ vote would have increased by the same proportion in all cantons, a popular majority of 59.6% would have been necessary in the 1992 EEA referendum,” they write in an analysisExternal link. 

With regard to the Bilateral Agreements III, they conclude: “A qualified majority of around 55% would be required to secure a majority of the cantons.” 

Why is the cantonal majority clause in the Bilateral Agreements III so controversial? 

The cantonal majority clause would thus raise the threshold for the new set of agreements with the EU by around five percentage points. Given the numerous referendums decided by extremely narrow margins in recent times, that is a world of difference.  

This also explains why the issue of the cantonal majority in the Bilateral Agreements III has turned into a proxy battle. If the cantonal majority is added as a hurdle, the Bilateral Agreements III face a rather challenging starting position at the ballot box. Consequently, opponents of the agreements insist on the cantonal majority.  

However, if only a majority of the people is required, the opposing side will have an easier time at the ballot box – which is why this is the preferred option for the ‘yes’ camp.  

Alongside these strategic considerations, there are also concrete democratic arguments being put forward by both supporters and opponents in the debate.

Why is the Swiss government against a cantonal majority?

The governing Federal Council wants to subject the Bilateral Agreements III to an optional referendum – that is, a simple majority of the people – and dispense with the requirement for a majority of the cantons. “We cannot deny that there is also a tactical element to these considerations,” said Foreign Minister Ignazio Cassis when presenting this policy decision. The Federal Council therefore wants to help ensure the agreements are approved at the ballot box.  

The government bases its argument on the Bilateral Agreements I and II. These agreements were not subject to a mandatory referendum either. However, it is also clear that, for example, the Bilateral Agreements II – the Schengen and Dublin Agreements – would not have cleared the cantonal majority hurdle in 2005. 

From a legal standpoint, the Federal CouncilExternal link maintains that the new agreements “do not lead to any profound change in our system of government and therefore do not affect the constitutional order.” 

What are the arguments in favour of a majority of the cantons for Bilateral Agreements III? 

Even though the Swiss constitution does not require it, in practice an international treaty may be subject to a mandatory referendum if it has a “constitutional character”. This is referred to as a mandatory “sui generis” referendum on international treaties.  

This type of referendum was, for example, applied to Switzerland’s accession to the EEA in 1992. This special provision was introduced in 1920, when Switzerland had to decide on joining the League of Nations.  

With regard to the new EU treaties, some constitutional law experts now argue that these would substantially alter Switzerland’s constitutional structure. It is therefore justified, they say, to regard the treaties as a dynamic intervention in the Swiss constitution. Since this essentially amounts to a constitutional amendment, the treaties warrant the double majority of the people and the cantons.

What is parliament deciding on?

In principle, parliament can either accept or reject the Federal Council’s proposal by a simple majority of the people.  

However, in a first – and rather surprising – move, parliament is not currently debating this issue. Instead, it is discussing a specific motion tabled by Radical Party senator Andrea Caroni.External link 

The lawyer from the canton of Appenzell Inner Rhodes, a constitutional law expert, wishes to incorporate a transitional provision into the constitution to remove “ambiguities regarding the constitutionality” of individual elements.  

Ultimately, 46 members of the Senate will decide how high the threshold will be set for the EU treaties in the referendum. Keystone / Anthony Anex

Caroni refers in particular to the area of the free movement of persons. Specifically, the issue is whether the adoption of the EU Citizens’ Rights Directive could conflict with the immigration article that Switzerland incorporated into its constitution as a result of the 2014 vote to limit immigration. 

As Switzerland has no constitutional court, such issues must regularly be resolved at a political level. In this case, the matter is not only highly complex but also heavily laden with ideological implications.  Ultimately, Caroni’s motion has a single, key effect: by linking it to a constitutional amendment – however that may be justified or framed – the entire set of agreements would have to be approved by the people and the cantons.  The two chambers of parliament are therefore considering a complex motion that raises two simple questions: Firstly, do the Bilateral Agreements III merit the high hurdle of a majority of the cantons and secondly, do the agreements with the EU stand a realistic chance at the ballot box.

Edited by Samuel Jaberg. Translated from German by Patrick Huwyler/ac