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New publication: On-line voting assistance tools and democracy

January 2008: Publication by Dr. iur. Bernhard Rütsche, in: Bibliothek zur Zeitschrift für Schweizerisches Recht, Beiheft 47, Verlag Helbing & Lichtenhahn, Basel 2008.
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On-line voting-assistance tools like smartvote.ch or politarena.ch are becoming an important factor in political elections. Using such tools, voters can obtain individual voting recommendations based on their personal political convictions. For democracy, the increasing use of these tools might strengthen the electorate’s political awareness and improve the process of opinion formation.
However, from a constitutional point of view, some delicate questions need to be posed. The use of on-line voting-assistance tools should be reviewed in the light of the right to free and unadulterated opinion formation, guaranteed in Switzerland by Article 34 (Section 2) of the Federal Constitution. In principle, this right does not prohibit private propaganda or even false information in the run-up to elections. These constitutional limits are only exceeded if private actors propagate patently false information that is able to one-sidedly influence electoral opinion formation. Following from this, two requirements for on-line voting-assistance tools can be derived: first, they must be transparent regarding sponsoring, financing and methodology; and second, they should satisfy minimal standards in terms of quality and operation.
The constitutional assessment turns out otherwise when voting-assistance tools are associated with the State in some way. Of particular concern is the association of such tools with e-Voting, as seen during the Bernese student council elections in 2005. According to Federal Supreme Court case law, the State must remain strictly neutral in elections and must treat all candidates and parties equally. It is therefore permitted to associate itself with voting-assistance tools only under restrictive conditions, which include: the organizational, personal and financial independence of officially promoted voting-assistance tools from political parties and interest groups; and high standards regarding a tool’s quality and operation. Given such conditions, the official promotion of specific voting-assistance tools would lead to regulatory complications; and in order to avoid these, the deregulation of the ballot system might be proposed so as to facilitate the use of voting-assistance tools by the electorate. This would enable the users of such tools to print their individual electoral recommendations and send them directly as valid ballots.
Apart from the right to free and unadulterated opinion formation, on-line voting assistance tools have to be examined in the light of the institutional provisions of the Constitution. In Switzerland, the Constitution contains a range of guarantees that accord the political parties a special role in the electoral process and in the working of the Federal Assembly. Among these guarantees is Article 137, according to which parties are to participate in public opinion formation. Further, Article 149 (Section 2) allows for proportional representation in National Council elections. If a large number of voters use on-line voting-assistance tools, the proportional representation system could be undermined. The individual electoral recommendations of candidates compete with the party lists. As IP-16’s empirical research shows, voting-assistance tools give a strong impetus to ticket splitting. While ticket splitting is not illegal, it could be in conflict with the constitutional principle of proportional representation, which presupposes that voters make an initial choice between party lists. Consequently, the State should not promote voting-assistance tools unless they are also offering voting by party lists as an option.
Moreover, it needs to be asked whether voting-assistance tools lead to greater responsiveness of representative bodies to the voters. Prima facie responsiveness can be strengthened. However, there are no institutional safeguards to ensure that politicians once elected actually support the positions that they declared through the voting-assistance tools. Under this arrangement, reference back to the will of the electorate is limited to the act of voting. Possibilities are thereby opened for politicians to strategically use voting-assistance tools for their own purposes. From a constitutional perspective, this is why it is desirable for such tools to involve a monitoring of the voting behaviour of politicians while in office.
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