05 March 2013

Canon Law & Voting

As we await the Cardinals’ decision on when the voting for a new Pope will start, it might be opportune to look forward to some of the legal issues involved in the voting process.  The first thing to realize is that when the Cardinals come together to begin the Conclave, they will not start voting right away.  In fact, on the first day there will likely by only one ballot in the afternoon. But, we’re getting ahead of things a bit.  I want to take this blog post to talk about elections in the church generally, and a little bit about the Papal election specifically.  In another post, I will talk about the procedure of a Papal election with more detail.

In the history of the Church, there have been a variety of ways to select a Bishop, the most common being acclamation (or inspiration), compromise, and scrutiny.  For example, there is the famous story of the election of St. Ambrose as Bishop of Milan.  It is said that during the discussion of who should be the next Bishop, a child cried out, “Ambrose, Bishop!” and the crown immediately elected him by acclamation.  This was especially unusual given that Ambrose was not even baptized at the time, he was still just a catechumen!  Election by acclamation remained a legally permissible method of election for centuries.  Under the current law, however, it is no longer permitted and it was explicitly excluded by Pope John Paul II in Universi domenici gregis.  

Another method of election of election is by compromise.  Many people might be thinking, ‘well, every election involves some compromise.’ While true, this refers to a specific legal method of election.  Election by compromise usually arises when a body is unable to come to an agreement on the choice of a candidate.  So, what they do is agree to choose another person or body to make the decision.  (see CIC 174)  This decision must be unanimous.  Its effect is to cede the right to vote to this other person or body.  Needless to say, this method is fairly rare and I know of no actual instance if it, although I am sure there are some.  However, with regard to the election of the Pope, this is explicitly excluded in Universi domenici gregis.  The Cardinals may not delegate their right to vote to any other person or body.

That leaves election by scrutiny, or what we might call election by ballot.  This is by far the most popular and common method of election in the Church today, and the Code has a rather lengthy section on the conduct of elections.  A group may choose to vary from this scheme in various ways and, as we will see, the Papal election has some important variances from the usual law of elections.

The first thing to note is that at the heart of election by scrutiny is the vote itself.  For a vote to be validly made in the law is must be, above all, freely made by a valid elector.  That is, it must be made without any compulsion or grave fear.  This is part of the reason for all of the seclusion of the Cardinal electors, so that even the mere possibility of undue outside in kept to a minimum.  In addition, each individual vote must be secret, certain, absolute, and determined. (CIC 172 §1)

First, it must be secret.  This is something we understand as Americans.  When we vote in elections for President or in local election, we fully expect that our vote will be kept confidential.  The reason for this is so that people can feel as free as possible in casting their ballot.  Second, it must be certain, that is there must be no doubt as to the person for whom one is voting.  This would exclude ballots that were illegible or that were ambiguous.  For example if two people named Robert were running for an office and I write, “I vote for Bob”, my vote is invalid because it is uncertain which ‘Bob’ I’m voting for.  Next, it must be absolute, which means it must be without any conditions.  That is one could not say, “I vote for Bob, unless Pete has more votes, then I vote for him.”  This is a bit different from pre-election conditions to a vote, which I discussed in an earlier post.  Finally, it must be determined.  That means is must be voting for a particular person.  One may not vote for a group or an unspecified person a group.  Thus, the following ballot would be invalid: “I vote for the Italian Cardinal who gets the most votes.”  The ballot must specific a person, which generally means by name.

Generally speaking, the rule of voting is a majority – that is 50% + 1.  (CIC 119)  Of course, as most know, the rules for the Papal election differ.  To be elected Pope, one needs at least 2/3 of the votes of those voters present at the election.  We expect that at the Conclave there will be 115 electors, two thirds of this is 76 2/3.  This means that to elect a Pope will likely require at least 77 votes of the Cardinals. 

The rules for voting also have a procedure when the voters cannot come to agreement.  In canon law, if there have been two ballots without any one being properly elected, the next ballot is limited to the highest vote-getters.  That is, if after two ballots the votes are distributed among 5 candidates, none of whom have received a majority, then the two that have received the highest number of votes are the only ones that may be validly voted for in the next ballot.  Any ballot for another candidate is considered a null vote.  And what happens when the vote is still tied?  Interestingly, canon law breaks the tie by by looking to age—the older candidate is elected.

Papal elections differ substantially from this.  First, there are far more than 2 ballots before the rules begin to change.  Universi Domenici gregis requires at least three days of inconclusive voting before a break may be taken, which can be no longer than a day.  After this break, voting continues for a maximum of seven more ballots (i.e., two days of voting).  If the voting is still inconclusive there is another pause for, “prayer, discussion and an exhortation” by one of the Cardinals.  After this, voting is resumed.  If the votes are still inconclusive after seven more ballots (i.e., two more days), another break is taken wherein, “the Cardinal electors shall be invited by the Camerlengo to express an opinion about the manner of proceeding.”

After this they go back to voting, but with an important change.  As in the basic procedure set out in canon law, after this point only the two top vote-getters are valid candidates (the only two with “passive voice”, to use the canonical term).  But here, Pope Benedict XVI made an important change in the law.  Originally, Bl. Pope John Paul II decreed that the voting threshold would drop to a majority vote. But the current law now requires that the voting remains at 2/3, although the top two candidates are no longer permitted to vote (they no longer have “active voice”, according to canonical terminology).  So, assuming the vote goes this long, with the same number of cardinals (115), one of the two candidates would need at least 76 votes of the remaining voters (113).  The voting will continue with these two candidates until one is elected with a 2/3 majority, however long that might take.

This is just to give some background a bit of procedure with regards to voting.  In later posts I will talk about the actual procedure of a pontifical election itself.  I will also talk about what happens after an election—just because someone is elected does not mean he’s Pope just yet!