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!
