appunti esame public law, Prof Lupo

AN ELECTORAL LAW NEVER APPLIED : ITALICUM

a new two-round system with a majority bonus was approved by the centre-left

parliamentary majority (Renzi) for the election of the Chamber of Deputies, the so-

called ‘Italicum’: law no. 52/2015. The majority bonus was awarded to the list

obtaining 40% of the votes or – in case no list reached this threshold – to the winner of

a run-off held between the top two lists after a second electoral ballot.

in strict coordination with the constitutional reform 2016 on the Italian perfect

bicameralism, indeed, not applicable till 1 july 2016 (deending on the result of the

referendum)

Judgment No. 35/2017

The Constitutional Court heard the case even if the law no. 52/2015 had never been

applied. Italicum

two points of the have been annulled: the majority bonus, assigned after the

second ballot, and the possibility for a candidate to compete in several constituencies

and to subsequently choose the constituency where to be elected

Core point of the judgement, on the run-off vote:

A list can access the second round on the basis of a very limited consensus obtained in

the first round, getting more than double the seats it would have obtained on the basis

of the votes of the first round. the same effects already censured by the Court

in the judgment no. 1/2014.

Need to balance between the necessity of stability and the right to representation.

Final statement:

Court cannot avoid to underline that the outcome of the referendum of the 4th

December 2016 confirmed a constitutional arrangement based on the parity of

place and functions of the two elective Houses.

-not requiring to introduce the same electoral systems for the two branches of the

Parliament, but requires, that the systems adopted, although different, do not

impede, at the outcome of the elections, the formation of homogeneous

parliamentary majorities (for the well functioning of the gov.)

Law no. 165/2017 (law actually in force : rosatellum)

Mixed system, 63 mj/ 37 pr

• Coalitions (for single-member constituencies) or single lists

• Electoral thresholds: 10% for coalitions; 3% for lists (but 1% to have their votes

• useful for the coalition)

Up to 5 (plus 1) pluricandidatures

• Max 60% candidates of the same sex

•

Regional and local electoral systems

- since 2001 each region may approve its own electoral law respecting some constitutional

principles (if the president is directly elected, simul stabunt simul cadent)

- state competence to regulate local election, differentiation between:

1. Municipalities with more than 15,000 inhabitants 2.smaller municipalities , Provinces’

bodies are no longer elected –

- Both in regional election and in bigger municipalities there is a majority bonus: an

Italian model?

REFERENDA

Referendums: types and effects

At State level, two different hypothesis:

 CONSTITUTIONAL REFERENDUM : within the procedure for

 constitutional amendment. Three cases: 2001, 2006 and 2016

Nature of the Constitutional Referendum : Oppositional or confirmative

(proponents/quorums…)

Held on a law that is NOT in froce

It Const. Art. 138

Laws amending the Constitution shall be adopted by each House after two successive

debates at intervals of not less than three months, and shall be approved by an

absolute majority of the members of each House in the second voting.

Said laws are submitted to a popular referendum when, within three months of

their publication, such request is made by one-fifth of the members of a

House or five hundred thousand voters or five Regional Councils. The law

submitted to referendum shall not be promulgated if not approved by a majority of valid

votes.

A referendum shall not be held if the law has been approved in the second voting by

each of the Houses by a majority of two-thirds of the members.

ABROGATIVE REFERENDUM

 (Art. 75 Const.): to repeal a piece of legislation (or a part)

Many cases since 1970 (Divorce, Abortion, Electoral Laws, Water management…)

Held on a law that IS in force

It. Const. Art. 75

A general referendum may be held to repeal, in whole or in part, a law or a measure having the force of law, when so

requested by five hundred thousand voters or five Regional Councils.

No referendum may be held on a law regulating taxes, the budget, amnesty or pardon, or a law ratifying an international

treaty.

Any citizen entitled to vote for the Chamber of deputies has the right to vote in a referendum. The referendum shall be

considered to have been carried if the majority of those eligible has voted and a majority of valid votes has been

achieved.

IMPORTANT DIFFERENCE : presence of the QUORUM (no quorum in constitutional ref.)

ABROGATIVE REFERENDUM PROCEDURE

- Referendum proposals filed by (either):

500.000 voters: i.e. Committee of Promoters 10 citizens registered on electoral laws of the Chamber of Deputies +

500.000 signatures collected in 3 months

5 Regions: deliberation of 5 Regional Councils

- LEGALITY review by the Central office for Referendum of the Court of Cassation :

• Yardstick: L. 352/1970

• Procedural regolarity:

– Authenticity and number of signatures

– Validity of Regional Assemblies deliberations

– Object of the request

– Unification of request on same or similar matter

–

-ADMISSIBILITY review by the Constitutional Court :

• Limitations provided by Art. 75.2 It. Const.

– Law on taxes, budget, amnesty or pardon, or ratifying international treaties

• Wider interpretation of Art. 75.2 limitations

Further limits

– the question asked to the voters has to be homogeneous, clear and univocal: it cannot address

different matters at the same time.

“It is clear that a blocked vote, on a multiple group of issues, impossible to unify, infringes the democratic principle, de

facto limiting the same right to vote (and violating articles 1 and 48 Const.)” (judgment no. 16/1978).

– Ordinary laws, but constitutionally essential, etc.

- “Manipulative” referendums: repeal of mere words with the aim of radically change the meaning of the

law

Then : call for referendum (decree of the President of the Republic Art. 87 Const.)

• Outcomes:

 more “yes”/positive outcome: law repealed

 more “no”/negative outcome: referendum rejected (no similar proposal for 5 years)

 less of 50%+1 of the voters going to the polls: referendum not valid (rejected)

CONCLUSION: role of case law 1970

The case-law of the Constitutional Court, issued since the 1970s in order to find admissibility, established a series of

principles and guidelines that a proposal for an abrogative referendum needs to follow.

The basic assumption is that the referendum is an instrument of direct democracy which cannot be used in a

representative democracy to obtain a popular vote of confidence on the general political choices of the promoters of the

referendum.

Although not being logically impeccable, these implicit limitations managed to avoid a misuse of the abrogative

referendum, preventing its natural plebiscitarian degeneration and keeping the primacy of representative

democracy.

A SINGOLAR CASE



European Integration Advisory Referendum (only case of CONSULTATIVE

ref.) ad-hoc referendum on a European Constitution-making mandate for the

• European Parliament

Not legally binding (overwhelming YES)

• REGIONAL AND LOCAL REFERENDA

 THE PRESIDENT OF THE REPUBLIC

INTRO :

-The Italian Constitution dedicates Title II to the President of the Republic, immediately following

Title I concerning Parliament (t the first constitutional organ to be dealt with is the Parliament and

not the President)

-it was clear that the new Head of State (after Monarchy) had to fall outside of the legislative and

judicial powers and which remained outside of the political power circuit (kind of detachment from

the policy but NOT so much as the queen).

-the constitutional position of the President of the Republic does not clearly emerge from a reading

of the Constitution

ELECTION OF THE POTR :

• The PoR is elected by the two Houses in joint session, plus the Regional delegates

not elected by the people, but by the Parliament (not direct elections in order to avoid the

seeds of a dangerous pluralism)

• Each Regional Council elects 3 delegates (Valle D’Aosta only 1),the overall number

of the votes is 1,003 + senators for life (region involved in order to create a sense of

national unity and to reinforce the SUPER PARTES position of the PotR)

• In the first three rounds, a 2/3 majority is needed, after the third round, it is sufficient

the absolute majority (50%+1)

REQUIREMENTS (ART. 84 )

• Italian citizenship

• 50 years old

• Full enjoyment of civil and political rights

• Not necessarily a member of Parliament

-Until 2002 ban for the members or descendants of the House of Savoy

-After the election: incompatibility with any other public office

TIMING OF THE ELECTION (ART. 85 )

• Length of the office: 7 years

• No provisions about the ban/possibility for renewal (higly debite issue till 2013,

when Napolitano was elected)

- No formal candidates, only a blank ballot

CALLING FOR NEW ELECTIONS

ART.86

if the President of the Republic is unable to carry out his duties, such duties shall be fulfilled by the

Speaker of the Senate and, if the impediment becomes permanent, within 15 days the Speaker of

the Chamber of Deputies should call for the election of the new President of the Republic

-other causes of calling new elections are death, resignation and the loss of mandate (due to loss

of italian citizenship or civil or political rights or after being convicted for high treason or

overthrowing the Constitution)

-a longer period may be provided if the Chambers have been dissolved or because their term is to

end within three months

THE “WHITE SEMESTER”

• In order to prevent any possible influence of the incumbent President to the election

of his successor, in the last six months of the term, the PotR can NOT dissolve

the Parliament (the power to dissolve parliament is one of the most important

powers of the PotR)(at the end of its mandate- so far from it’s election,that’s his

legitimating element- PotR is less powerfull)

amendment introduced in 1991…

constitutional Even when you have a full

• legislative term, five years, in order to have the elections properly placed you

need to have a dissolution of the chambers. So, dissolution is not possible in the

unless it coincide totally or partially with the last six

last semester of the mandate ,

months of the parliamentary term.

Distinction between a “procedural” dissolution (at the end of the mandate) and

a dissolution produced by : conflict between the two Chambers, between the

Chambers and p