Reasons to be wary of fake constitutional experts who dream of a proportional system achieved through the courts

In the debate on electoral law, political preferences are being conflated with assessments of constitutionality. Giuliano Amato highlighted this at Il Foglio’s annual gathering, recalling an old reflex of the Italian Communist Party (PCI). The legal challenges against the new law seek to present a highly respectable political concept as the only one permitted by the Constitution. But electoral justice cannot become a means of achieving in court what cannot be won through political debate. Some argue that the Constitution mandates an assembly-based parliamentary system, in which ‘stability’ and ‘governability’ are prohibited. But the parliamentary form of government does not require the preservation of a historical structure, nor does it preclude laws that favour stable majorities. In short: preferring proportional representation is undoubtedly legitimate; seeking to enforce it through the courts is far less so.

Judgments Nos. 1/2014 and 35/2017, concerning the ‘Porcellum’ and ‘Italicum’ electoral laws, recognise that the legislature has broad discretion, provided that this does not result in manifestly unreasonable distortions. In other words, stability may justify an adjustment to representation, provided it is not excessive. In the case of the ‘Italicum’, the Court allowed a majority bonus for the list securing 40 per cent of valid votes. Today, the appellants would like to calculate the threshold based on those eligible to vote, due to voter abstention. However, the Constitutional Court has already ruled that this is a ‘delicate political choice’, not a constitutionally mandated solution. It is true that the minimum threshold for awarding the bonus is a necessary, but not sufficient, element, since the overall distortion must still be assessed.

However, the Stabilicum imposes a cap of 220 members of the Chamber of Deputies and 113 senators, excluding those elected abroad, who may still partially increase the majority. We are above the absolute majority envisaged in the past, but still below the qualified majorities of two-thirds and three-fifths required for the election of oversight bodies. The Court might require a bonus limited to an absolute majority (which would pose some operational problems in the Senate, given the presence of life senators) or an incremental rather than a block mechanism, as in many regions, but it would be difficult not to perceive the move as a restriction on the legislature’s discretion.

In the Senate, moreover, the regional bonuses under the Porcellum were struck down because they could lead to divergent majorities in the two Houses. This does not legitimise every national bonus, but it should still allow, in the light of Article 57 of the Constitution, a distinction to be made between the regional allocation of seats and the national decision as to who benefits from the bonus. Even regarding ‘fixed’ list leaders, we must resist the temptation to treat this as a matter of personal preference: the Court permitted them under the Italicum, taking into account the small size of the constituencies, the recognisability of the candidates and gender preferences for the other names on the list. These factors remain relevant today, apart from the possible issue of gender parity amongst the list leaders.

As can be seen, it is possible that the Court may make minor amendments to the Stabilicum, but the overall structure of the law appears difficult to dismantle. Two fundamental concerns remain. The first, shared by Amato, concerns the number of signatures required: the minimum rises from 1,500 to 6,000 per constituency, whilst it remains lower for those with a parliamentary group. It is understandable to require proof of numerical strength from those outside Parliament, but quadrupling the threshold seems excessive. The second concern relates to timing. The Venice Commission recommends that the fundamental elements of the system should not be altered in the year preceding an election. While this is not a general constitutional prohibition, it is a principle of stability that would be worth observing for a more prosaic reason too: reforms built on last-minute power dynamics risk being based on short-sighted calculations that the ballot box ultimately proves wrong. Every now and then, keeping things as they are is a form of institutional prudence.