“The crux of the matter lies in the majority bonus,” says Mirabelli (formerly of the Court)

In a few hours’ time, the final vote on the new electoral law (today) will set the so-called ‘Stabilicum’ on its course, barring any surprises now considered unlikely. A course that may not be without obstacles. Within the opposition, in fact, as hopes fade that some ‘helping hand’ might intervene in the secrecy of the ballot box, there is a growing sense of urgency to be ready for the aftermath, to lodge a series of appeals with the Constitutional Court simultaneously. But what are the ‘constitutional’ doubts that might, if anything, arise? We sought clarification from Cesare Mirabelli, former president of the Constitutional Court from February to November 2000. “The main issue,” he says, “is the majority bonus.” But one must start “with the fundamental principles that touch upon a particularly sensitive matter”: “First and foremost, the principle of the vote which, as the Constitution states, must be free, equal, personal and secret. You see, the equality of the vote can be distorted by electoral systems’. The second constitutional principle at stake is representation: ‘In elected assemblies’, says Mirabelli, ‘and in particular in Parliament, where the sovereignty belonging to the people is exercised, representation would be best ensured by purely proportional systems. However, corrective measures may be introduced to promote the stability of governments, such as majority bonuses. These bonuses, however, must not alter representation any more than is necessary: that would mean making the vote unequal.”

When are they permissible, from this point of view? “When they are limited in scope and do not significantly distort the facts. In short, it is a question of reasonableness: there would perhaps be no need to discuss a majority bonus if the majority of those entitled to vote had already cast their ballots and the aim were simply to increase that majority; but if the party, political group or coalition of parties were to fall short of that threshold of support, the matter would become delicate, and the exercise of the right to vote might appear restricted. In the by-elections in Calabria, for example, 22–23 per cent of those eligible to vote cast their ballots. With such low turnout, in short, granting a ‘macro-majority’ to those who have not even secured a majority would mean failing to fully represent the will of the electorate.” Not to mention the scenario, says Mirabelli, “where one of the two coalitions secured 42 per cent and the other 41.8 per cent. In that case, the distinction between a majority and a near-majority would not be clear”. Indeed: “That neck-and-neck race could be resolved more fairly through a run-off, so as to give the electorate a say once again”. Vote equality, says Mirabelli, also concerns “equality amongst candidates”. These have been referred to as quasi-gender quotas: present on the lists but not in relation to the list leaders. “Equality amongst those elected would not be guaranteed,” says Mirabelli. As for fixed-order lists, “the Court has accepted the existence of fixed-order lists provided they are short, and in cases where no preferences are expressed. In this case, a doubt might arise – though it strikes me as a highly sophisticated and remote scenario – regarding equality in relation to the vote being ‘locked’ for the lead candidates but not for the other candidates: this could constitute a restriction on the freedom of choice; in other words, the vote attributed to an individual candidate and the preference vote would not be equal to that attributed to the lead candidate. But I repeat: this is a remote scenario.”

As for the signatures, Mirabelli suggests that “the issue of whether the threshold is reasonable or not may arise: the fact that there are lists or parties already represented in Parliament implies that they have a legitimate support base. Six thousand signatures per constituency is four times the figure currently required. The concern might relate to the fact that a list intending to stand at national level – and which must secure 6,000 signatures in every constituency – would need to obtain a number of signatures very close to the minimum representation threshold for the country”. What is the ideal option for Mirabelli? “Small single-member constituencies that allow citizens to get to know the person they are voting for and the political party they represent. This would strengthen the relationship between the electorate and the elected representative and reduce the disconnect compared with systems that effectively grant significant power to those who have the authority to put forward candidates.” Is no one considering this? “No one has wanted it.” But could the Court essentially strike down the new law? “I believe it might move towards introducing some corrective measures; but I don’t think it would overturn the whole thing.”