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Election Law @ Moritz

Election Law @ Moritz


Commentary

The Swiss Initiative on Minarets

On November 30th, the citizens of Switzerland voted their approval of a constitutional amendment that bans all future construction of Islamic minarets. The results were a shock on several levels. 

First the history of the initiative: Six percent of the Swiss population, 400,000 of 5.6 million citizens, are Muslim. Active Muslims had built four small minarets and proposed to build two more. The largest party in the Swiss Parliament, the Swiss People’s Party, had unsuccessfully proposed a law in the Swiss lower house to legislate a building ban on minarets.

The People’s Party argued that a ban on minarets was for political not religious reasons. Minarets were not necessary to Islamic worship but they were a threat to the Swiss government’s secular philosophy and origins. The minarets were a symbol of the Islamic belief that the state should be a theocracy.

After the defeat in the Parliament, the Party gathered the necessary 100,000 signatures on a petition for a popular initiative. The initiative was to put the ban in the federal Swiss constitution.

Pre-election polling found consistently that Swiss voters would reject the amendment. But it passed. That was the first shock, that the pre-election polling was so inaccurate.

The second shock was the result on the merits. The Swiss have long been considered one of the more open minded societies in Europe. In 2005, for example, the Swiss people voted in favor of equal rights for same-sex couples, the first such proposal adopted in Europe. What had happened to turn tolerance into intolerance? Turn to the pundits for their many theories on the matter. 

The third shock was the odd political coalitions that formed on the issue.  The right People’s Party allied with liberal women’s rights groups, for example, to lobby for the ban.

The fourth shock, and the one most pertinent to this site, is the initiative procedure that produced the result.   Switzerland has one of the world’s oldest and most carefully thought out referendum and initiative procedures. The Swiss use of direct democracy dates back to the fourth century. The Swiss have long had a robust combination of mandatory and optional referenda and popular initiatives. The Federal Constitution of 1891 contains provisions for the popular initiative procedure the People’s Party used in this case. 

Proponents of direct democracy usually start their arguments with a glorification of the Swiss experience, often correlating the health of the Swiss economy and population and its tolerant society to the procedure.

An important part of the Swiss initiative procedure is an effort to guarantee that majority populations do not use the procedure to discriminate against a minority population. The safeguards failed.

There are four safeguards in the Swiss system. First there is a double vote majority procedure. A majority of the voting population and a majority of the population in each Canton (State) must approve. On the minaret ban initiative, 57.5% of the citizens voting voted in the affirmative and a majority of the citizens in 22 of the 26 Cantons (States) approved. 

Second, the government has to take an official position on the initiative. The Swiss Parliament recommended, with wide publication of its reasons, in favor of a no vote.

Third, the Swiss government is empowered to put a counter-proposal on the ballot; an option it did not exercise. 

And fourth, the Swiss government is entitled to declare the proposition a violation of treaty obligations or other international law. It did not do so. The Swiss Green Party is now attempting to take the minaret ban to the European Court of Human Rights in Strasbourg to have it declared a violation of EU law.

The use of the initiative process to ban building minarets in Switzerland is sobering. A carefully crafted, 150 year-old, widely-hailed initiative procedure, never before used to discriminate against a distinct religious sub-group of citizens, will not stand in the way of a majority population determined to exert authority over an Islamic sub-group. Conflict is in the wind, folks.

Commentary

Edward B. Foley

Of Bouncing Balls and a Big Blue Shift

Edward B. Foley

It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

Read full post here.

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Info & Analysis

Daniel P. Tokaji

Tokaji Testimony for Senate DISCLOSE Hearing

Professor Tokaji has submitted the following writing testimony for today's hearing before the U.S. Senate Rules and Administration Committee on the proposed DISCLOSE Act.

 

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