–Giacomo Delledonne (PhD in Constitutional Law, Scuola Superiore Sant’Anna, Pisa) and Giovanni Boggero (PhD in Public Law, Università del Piemonte Orientale “Amedeo Avogadro”, Alessandria)
On January 25, 2017 the Italian Constitutional Court issued a press release, announcing the key points of its decision concerning the electoral law passed by Parliament in 2015 (the so-called Italicum). In its judgment, which is due to be published by mid-February, the Court strikes down some of the defining features of the Italicum law. Before discussing the judgment in greater detail, it is appropriate to situate it in the wider context of the Italian constitutional politics of electoral reform.
For at least a decade, electoral reforms have been one of the most salient topics in Italian constitutional debates. This reflects the flaws of the unfinished political and institutional transition after 1992-1993, the years in which a major criminal investigation (Tangentopoli) swept away the old political class and a popular referendum brought about a majoritarian electoral system. In this regard, electoral reforms have been no less important than constitutional reforms.
The Constitutional Court, previously a reluctant actor in electoral issues – in which the legislature is expected to enjoy wide discretion – has been increasingly involved in these discussions. In this respect, an earlier judgment of the Court (Judgment No. 1/2014) ought to be regarded as a milestone of Italian constitutional case law: a group of voters challenged before ordinary courts the constitutionality of the electoral law then in place (the so-called Porcellum), which finally took the case before the Constitutional Court. Surprisingly, the Court decided to hear the case in spite of its longstanding case law, pursuant to which such complaints would probably have been declared inadmissible. According to the Judgment, however, ‘the review power of [the] Court – which “must cover the legal system as fully as possible” … – must also apply to laws, such as those relating to elections to the Chamber of Deputies and to the Senate, “which would be more difficult to subject to [the Court’s scrutiny] in any other manner”.
Matteo Renzi’s government took office shortly after this important Judgment No. 1/2014 was released. The government immediately embraced a strategy of constitutional and legislative reforms aiming at repealing Italy’s equal bicameral system (by curtailing the powers of the upper house–the Senate–and making it an indirectly elected body) and strengthening the position of the executive in relation to the lower house, the Chamber of Deputies. To do so, the government proposed a new electoral law (the Italicum) – which should have applied to the lower house only – based on a two-round proportional voting system. Under that system, the party list (and not the coalition of parties, as had been the case with the previous Porcellum system) getting at least 40 percent on the first ballot or 50 percent on the second ballot would automatically get 340 out of 630 seats in the lower house.
As they had done a couple of years before, activists and groups of voters successfully asked ordinary courts to challenge this law before the Constitutional Court. Unlike in 2014, however, the Italicum system had never been applied. These repeated attempts at challenging electoral laws before the Constitutional Court are possibly a signal of growing disconnection between established political parties and the general public.
On December 4, 2016, the Renzi-Boschi constitutional amendments were massively rejected by the people in a popular referendum. The Italicum system looked doomed not only because of the case pending before the Constitutional Court but also for political reasons. In fact, after the apparent failure of Matteo Renzi’s reform attempts, even the Italicum electoral law seemed to have been deprived of political support. Furthermore, the alleged virtues of a two-round, majority-assuring voting system were overtly put into question. In the end, political elites decided not to change it and instead to wait for a judgment of the Court, as if it was an oracle to be listened to.
On January 25, the Constitutional Court issued a press release announcing the key points of its decision. We summarize these below.
First, the Court explained that it had decided to hear the case even if the law had never before been applied, basically exercising a priori or abstract judicial review on electoral laws. In practical terms, this is not so different from the innovative review mechanism which had to be enshrined into the Constitution by means of the constitutional amendment rejected in the popular referendum: under that clause, parliamentary minorities would have been entitled to challenge national electoral laws before the Constitutional Court prior to their entry into force. Under this procedure, individual citizens may ask ordinary civil courts to acknowledge their right to vote according to a law which needs to be in conformity with the Constitution.
Second, the Court upheld the provisions concerning the constitutionality of a 340-seat bonus for the party getting 40 percent at the first ballot, but it struck down the provisions concerning the run-off voting mechanism. One can understand the repeal of the run-off, otherwise it will result in the two houses being elected in different times and in particular the result of the run-off in the lower house will be largely dependent upon the earlier vote in the upper house. On the other hand, however, one cannot really understand whether the winner’s bonus will still fulfill its objective to ensure political stability, being limited to the lower house, while the upper house will be elected pursuant to another mechanism. So, with the only other major exception being Australia, Italy will be the only bicameral parliamentary system in which the Chamber of Deputies is elected according to a (partially) majoritarian voting system and the Senate pursuant to a proportional voting system. How this combination of electoral systems ensures stability remains unsettled.
Third, top candidates standing for election in multiple constituencies were prevented from choosing themselves the constituency in which to be elected, by resorting to an old provision enshrined in a 1957 Parliamentary Act, according to which the choice should be made by a drawing. In fact, the Court had to make virtue out of necessity; on the other hand, it is interesting to consider this part of its judgment in the light of current debates about drawing as a method for selecting public officials (see in this respect the interesting essay by D. Van Reybrouck, Against Elections: The Case for Democracy, London, 2016).
As the Court took care of specifying in its final statement, the law, as reviewed by the judgment, is immediately applicable. Much remains unclear, however, though it may be clarified in the Court’s judgment when it is released. The question whether and if so to what extent electoral laws should always be applicable (the Italian constitutional order differentiates itself from the German in this respect), links to the very role of the Court in electoral matters. It appears that the Court felt compelled to act in the face of Parliament’s unwillingness or inability to pass a new law. On the other hand, with this judgment the Court did not only show its unexpectedly activist approach, but also expanded its substantialist approach, since it affirmed its apparently unconditioned jurisdiction in electoral matters so as not to exclude any part of the law from its judicial review, thus ensuring protection for all fundamental rights.
Suggested Citation: Giacomo Delledonne and Giovanni Boggero, The Italian Constitutional Court Rules on Electoral System, Int’l J. Const. L. Blog, Feb. 8, 2017, at: http://www.iconnectblog.com/2017/02/the-italian-constitutional-court-rules-on-electoral-system