Della Cananaea: “The left is wrong to stake everything on the unconstitutionality of the electoral law”

“The left is wrong to base its entire election campaign on the supposed certainty that this electoral law will be declared unconstitutional by the Constitutional Court.” Giacinto Della Cananea, a legal scholar and professor of administrative law at Bocconi University, sums up the situation in an interview with Il Foglio the day after the Chamber of Deputies approved the new electoral law. He urges the centre-left – “campo largo is a dreadful expression!” – not to turn their opposition to the new bill into a political gamble on the Constitutional Court’s ruling. A mistake, he explains, that risks backfiring: “You must always allow for the possibility that the Court may not rule in your favour, or may not rule in your favour this time. And perhaps, with the elections imminent, it might not do so.” At that point, he warns, the majority could claim further legitimacy: “The Constitutional Court has endorsed our decision.”

According to Della Cananea, “it is not a law that completely overturns the Constitution”, observes the legal expert. This does not mean that the text is free from issues, some of which are significant. However, he insists, “we must distinguish between doubts regarding constitutional legitimacy and the portrayal of a law as a radical attack on the democratic order. It cannot be said that it is a subversive law that overturns our democracy’. However, from a legal perspective, there are some contentious points.

According to the professor, there are essentially two main concerns. The first is the absence of a mechanism capable of safeguarding fair gender representation: “They have reintroduced preferential voting with fixed list leaders. But without a mechanism that is truly capable of ensuring alternation. In short, no one will guarantee that the list leaders will be alternated, so we will have to rely on the common sense of the individual parties.” Whilst the second issue, which is more technical and “less trivial”, concerns the Senate: “The majority bonus is allocated on a national basis, whilst the Senate is, by the Constitution, elected on a regional basis. This is a knot that will have to be untangled,” he says.

Among the other criticisms levelled by the opposition against the new bill – and which are set to spark a flurry of objections from committees and associations – is the one concerning the majority bonus. This bonus is awarded if one of the two coalitions secures 42 per cent of the vote, granting an additional 70 MPs and 35 senators (bringing the total to around 56 per cent). On this issue, Della Cananea brings up the ‘Italicum’, the law promoted by Matteo Renzi. “In the previous ruling on the Italicum – which set a similar threshold – the Constitutional Court had found it not unreasonable,” says the professor. 

Criticism of the law, however, goes beyond its potential constitutional flaws. Della Cananea also takes issue with the method by which the voting rules are being amended. “It would be better not to change the electoral legislation immediately before the vote,” she says. “This,” she continues, “is a principle of good governance that applies to both the right and the left. And this is because the mistake of passing a law that changes the rules of the game, thereby confusing voters, has been made by everyone, on both the right and the left.”

“Then there is a missed opportunity,” Della Cananea goes on to explain. To make the electoral system more stable, according to the legal expert, “a run-off vote could have been introduced”, at least “as a fallback solution, as a mechanism to be triggered if no coalition reaches the 42 per cent threshold”. At the time, FdI Senator Marcello Pera and – with less enthusiasm, at least outwardly – Senate President Ignazio La Russa were open to this solution. The run-off was in fact rejected by the centre-right, but “it could have been a good way to finally establish a fair mechanism within a new electoral system”, says the professor.

“It isn’t the best law in the world, but neither is it as disastrous as some make out,” the legal expert concludes. The appeal to the broad coalition – now renamed the “appeal coalition” – is one for caution: “It is by no means certain that the Court will rule in favour of the committees or the parties. And if things were to go wrong, it would be a political mistake.”