Whilst awaiting the final vote in the Chamber of Deputies, constitutional experts have already prepared their appeal against the electoral law

The Senate has voted, the electoral law has been passed; all that remains is the third reading in the Chamber of Deputies to bring to a close a process that has been dragging on for months. But even with final approval, the game is not over: a large group of constitutional experts – the same ones who signed the ‘Torniamo alla Costituzione’ appeal in May – already have an appeal to the Constitutional Court ready.  Ugo De Siervo, a legal scholar and former president of the Constitutional Court between 2010 and 2011, and Mauro Volpi, a former lay member of the High Council of the Judiciary and lecturer at the University of Perugia, are among the first signatories.

The route for legal action has already been set out, given that in Italy there is no direct appeal against an electoral law: as was the case with the Calderoli law in 2005 and against the Italicum in 2015, the matter must go through the courts. “We are turning to the courts in the capitals of the courts of appeal districts – twenty-nine in total across the country,” explains Volpi, who calls on “representative citizens to challenge the law on the grounds that it infringes the right to vote. In order to reach a decision, the court will have to refer the matter to the Constitutional Court.” The aim is to act swiftly: “We would like to file the appeal as early as November, in the hope that the Court will be encouraged to act quickly.” The spectre, should the Court’s legal proceedings be prolonged, would be that of “voting under a law that is sub judice”. 

The main target of the appeal is, of course, the majority bonus. “The Court has reserved the right to assess when the bonus does not undermine the principles of representativeness and equality of the vote, which in theory could exist,” admits Volpi, but “I do not believe that just any bonus is acceptable. I regard it as an artificial addition of seats, and in this case the quota is unreasonably excessive”. This would amount to seventy deputies and thirty-five senators awarded as a bonus, equivalent to eighteen per cent of parliamentarians; adding the seats obtained from overseas, the minimum threshold rises to 220 deputies and 113 senators, equal to fifty-five per cent in the Chamber of Deputies and fifty-six point five per cent in the Senate. The threshold, Volpi continues, is close to allowing “the election of the President of the Republic – a possibility the Prime Minister has highlighted – as well as the lay members of the High Council of the Judiciary and the constitutional judges”.

The disparity is even more striking when looking at turnout: “The 42 per cent threshold required for the bonus, given that more than a third of voters no longer vote, corresponds to less than 25 per cent of those eligible to vote: a quarter of voters decide more than half of the seats”. There is also a structural issue: “Article 57 of the Constitution states that the Senate is elected on a regional basis; I find a national bonus seat system questionable. Under the Calderoli proposal, seats were allocated region by region; here, the thirty-five bonus seats would be distributed regardless of the outcome in individual regions”.

A look from the individual mechanism to the overall structure of the text approved by the Senate, which came about after months of consultations, rejected amendments and compromises. “This law,” explains Ugo De Siervo, “takes to the nth degree a series of mechanisms that alienate voters from the electoral process: compulsory candidacies, a reduction in presidential powers, and a reduction in the scope for new electoral lists. It seems the ultimate in constitutional overreach, introduced just a few months before the vote.” This is not an isolated incident, he observes, referring to the fact that the two amendments to previous electoral laws were also approved in the run-up to elections: “Over time, there has been a succession of increasingly poor reform attempts, all in the run-up to the vote.”

Then, regarding the latest amendment to be approved – the so-called ‘anti-splinter party’ measure, which requires parties outside Parliament to collect 6,000 signatures per electoral constituency (450,000 in total) in order to stand for election – the two constitutional experts agree that this figure is ‘abnormal’ and ‘paradoxical’. Moreover, the increase in the number of signatures required to submit new lists – around 450,000 between the Chamber of Deputies and the Senate – would be “close to one per cent of the voters,” continues Volpi, “who took part in the last general election: it is not a threshold that prevents parties from winning seats; it is a preventive barrier”. He warns that this would exclude not only new movements such as Progetto Civico, but also long-established parties such as Rifondazione Comunista or the PSI. “At a time when voter apathy is said to be a problem, discouraging precisely the organised participation of citizens,” comments De Siervo.

The most political issue, however – which has gone largely unnoticed – concerns the requirement to name a candidate for Prime Minister, on pain of the list being excluded. “It strikes me as a clever ploy: introducing a de facto prime ministerial system via ordinary legislation,” says Volpi, “whilst the actual constitutional reform remains deadlocked in the Chamber of Deputies and would require a referendum, as with the justice system.” De Siervo is even more direct: “I find it offensive to Parliament, which did not have the courage to propose that amendment through the constitutional process and has instead resorted to an ordinary law that clearly alludes to it. It amounts to circumventing the hierarchy of sources of law.”

Both are keen to emphasise that the appeal does not stem from a biased interpretation. “We may have a political and cultural sensibility linked to our role as constitutionalists,” Volpi concludes, “but we do not take sides for or against a coalition: we insist on the rules of the game, which must respect constitutional principles.” It remains to be seen whether, between the bill’s passage through the Chamber of Deputies and the appeal in November, anything will happen – a scenario that De Siervo hopes for: “I hope they think twice before forcing the issue again.”