The error in the Federal Council’s voting explanations for “Lex Netflix” does not weigh heavily enough for the Federal Supreme Court to cancel the ballot.
In May, a whopping majority of a good 58 percent of voters voted in favor of the film law.
The SRF voting “arena” on the film law this April was a tedious affair for Federal Councilor Alain Berset. Anger was written all over the culture minister’s face when the TV presenter confronted him with a wrong card in the voting booklet. The map gave the impression that many European countries had far-reaching rules in favor of domestic filmmaking. But this representation was not true. “How can that be, Mr. Berset?” the moderator wanted to know. Mr. Berset did not know.
Displeasure from Lausanne
The public exposure of the voting booklet was a through ball for the young parties that had launched the referendum against the so-called “Lex Netflix”. They immediately filed voting complaints in several cantons and criticized the fact that the Federal Council was violating the right to an undistorted vote by providing incorrect information. The Federal Chancellery also did not remain inactive and published a new version of the overview map on the federal website, supplemented with details on how to understand it. The voting booklet, on the other hand, had already been printed and delivered and could no longer be corrected.
In mid-May, a whopping majority of a good 58 percent of those voting voted in favor of the film law. Politically, that was the end of the matter and Switzerland was one regulation richer. However, the legal final stroke was only now, in Lausanne. As can be seen from its judgment published on Friday, the Federal Supreme Court rejects the first appeal against the film law. The Federal Supreme Court determined that the explanations provided by the Federal Council cannot be directly challenged, nor can the statements of individual Federal Councilors if they correspond to the content of the ballot booklet. The highest court does not like the fact that the voting booklet has nothing to say. There is a “significant gap in legal protection”, but as long as the legislature does not close it, such complaints cannot be acted upon, it sounds displeased from Lausanne.
At the same time, the Federal Supreme Court lets it be known that it does not consider the matter at hand to be materially serious. According to the verdict, the card in question in the voting booklet was the subject of public discussions and prompted the Federal Chancellery to make clarifications. In fact, the revised document was also reported in the media; anyone who was interested could find out more.
Creative handling of information
The case shows once again that criticism of the voting booklet can be politically useful, but legally never leads to anything. The Federal Council has a great deal of freedom as to how it wants to get those entitled to vote on its side. To a certain extent, he can also deal creatively with statements or facts and only correct his explanations if mistakes are proven. This scratches his political credibility, but there are no procedural consequences. Only if the Federal Council provides blatantly unobjective or incomplete information and the bill at the ballot box only achieves a narrow result does it have to expect the Federal Supreme Court to intervene retrospectively and cancel the referendum – citing the constitution – because of irregularities.
That was the case with the 2016 marriage penalty initiative, which narrowly failed, when the information presented by the Federal Council on the number of married couples affected subsequently turned out to be dead wrong. The Federal Supreme Court overturned the ballot in 2019 following an appeal. The Lausanne judges also later intervened in Corporate Tax Reform II, which was only approved by a wafer-thin majority in 2008, and found that the referendum had serious shortcomings, partly because the voting booklet on tax shortfalls was incomplete and irrelevant. However, the vote was not declared invalid, namely because the tax reform had already been implemented.