Judgment No. 35 of 2017
Paolo GROSSI, President - Nicolò ZANON, Author of the Judgment
In this complex case, the Court jointly considered five referral orders challenging various provisions of Electoral Law no. 52 of 2015, pertaining to the election procedures for both the Chamber of Deputies and the Senate.
The Court ruled that five of the questions raised were inadmissible and considered seven questions on the merits. Citing broad legislative discretion in this area, the Court limited its scrutiny to the test of reasonableness and proportionality and to verifying the compatibility of the challenged provisions with the right to vote and the right to proportional representation of the citizenry.
It held that five of the questions were unfounded.
First, it held that assigning a majority bonus in the interests of stability and governability, conditioned upon a list?s achievement of a fixed percentage of validly cast votes on a national basis, was not manifestly unreasonable and fell within the discretion of the legislator, and that the minimum threshold of 40 per cent of validly cast votes stipulated by the provisions did not effect a disproportionate distortion of the constitutionally mandated representativeness of the elected body.
The fact that basing the minimum threshold for the bonus on validly cast votes (rather than total number of voters) could hypothetically distort representativeness dramatically in cases of high voter abstention did not make the legislator?s choice on this delicate matter manifestly unreasonable.
The Court added that the combination of two mechanisms (a minimum threshold for access to seats and the majority bonus), taken together, were neither manifestly unreasonable nor disproportionate means of pursuing legitimate aims.
Second, the Court rejected the argument that, where two lists obtain more than 40 per cent of validly cast votes, the assignment of the bonus to the list that took the highest number of votes would unreasonably reduce the number of seats assigned to the list that took second place. The Court held that this was not an unreasonable way of assigning the bonus, and that in a proportional electoral system which envisages such a bonus, all minority lists would see a reduction ? not inconsistent with constitutional requirements ? in the number of seats compared to those that they would have obtained under a purely proportional system.
Third, with reference to the system to elect the Chamber of Deputies, the Court rejected arguments that the last-resort method for assigning seats, which allowed seats to be removed in some electoral districts and assigned in others, violated constitutional principles, finding that the legislator had provided adequate safeguards and had reasonably pursued constitutionally protected interests.
Fourth, the Court rejected a challenge to the system of regulating fixed and preference-based candidates within lists. In particular, the Court rejected the submission that, within this system, minority parties would only be able to return ?closed? candidates. In holding that such a system does not violate the right to vote, the Court compares the electoral system currently under review with the previous one, noting that the new law contained safeguards including shorter lists, fewer and knowable fixed candidates, and the ability for voters to express two preferences for candidates of different genders.
The Court also held two questions to be well-founded. The Court struck down provisions establishing that, in cases in which no single list had reached the forty percent minimum threshold necessary to receive the majority bonus, there would be a run-off round of voting between the two lists winning the most votes. The Court held that this way of artificially creating a winning list excessively compromised the constitutional principles of the equality of the vote and representativeness of the elected body by radically reducing voter options in the second round of voting through overly strict requirements. The Court pointed out that annulling these provisions nevertheless left a system in place capable of governing new elections.
Second, the Court struck down provisions allowing head of list candidates elected in more than one multi-member constituency to arbitrarily choose the one in which to be elected, without any stipulation of objective criteria, holding that this allowed for a distortion that compromised the freedom and equality of the vote. The Court pointed out that the annulment of this provision would require legislative intervention, but that it nevertheless left the residual mechanism of drawing lots, making possible the enforcement of the electoral systems.