No, 133 Cardinals Cannot Participate in the Conclave

During times of sede vacante, the Code of Canon Law states that “nothing is to be altered in the governance of the universal Church” and that “special laws…are to be observed” (c. 335). Among these “special laws” include the Apostolic Constitution Universi Dominici gregis, promulgated by Pope John Paul II in 1996, which governs the election of the Roman Pontiff. With the next Conclave beginning in only five days, there has been much controversy over No. 33 of Universi Dominici gregis (henceforth UDG), which sets the maximum number of Cardinal Electors at 120 and excludes those who had reached their eightieth birthday by the beginning of the vacancy from voting.¹ Under the pontificate of Francis, the number of Cardinals under the age of eighty has grown to 135, although two have already decided not to participate in the conclave. This raises the question: can 133 Cardinals participate in the conclave, if the special laws only permit 120 to serve as Electors?

On 30 April 2025, the Cardinals gathered in the General Congregation attempted to resolve the debate by arguing that Pope Francis, by creating more than 120 Cardinals below the age of eighty, had simply dispensed from the limit of 120.² This answer fails, however, because they do not make any distinction between the creation of Cardinals and the creation of Cardinal Electors, or between whether UDG prohibits the creation of more than 120 Cardinal Electors in the first place or merely forbids more than 120 of them from serving as Electors during a specific Conclave. The plain text of UDG 33 simply states: “The maximum number of Cardinal Electors must not exceed one hundred and twenty”—it does not state: “A maximum number of 120 Cardinal Electors may participate in a Conclave,” which would leave open the possibility of there being over 120 eligible Electors existing but not actually serving as such. In other words, the goal of this provision is to prevent there from exceeding 120 eligible Electors in the first place, not to exclude excess ones from a particular Conclave.

In essence, this means that when Pope Francis appointed fifteen extra Cardinals, he did not necessarily appoint fifteen extra Cardinal Electors. This conclusion is supported by UDG 36, which states that Cardinals have “the right to elect the Pope, in accordance with the norm of No. 33 of the present Constitution.” The phrase “in accordance with,” a phrase often found in the Code of Canon Law and other legislative documents, is intended to subordinate one provision to another. By giving precedence to UDG 33, it is established by UDG 36 that, provided that the conditions of the former are met, a Cardinal “who has been created and published before the College of Cardinals thereby has the right to elect the Pope.” Referring back to UDG 33, this means that if the Pope were to create an 85-year-old cardinal, such a cardinal would not by the mere fact of creation and publication before the College possess the right to vote, precisely because the age limit of UDG 33 is not met.

In a similar way, when a Cardinal who has not exceeded the age limit is created and published when there are already 120 Electors, he may be truly created a Cardinal, but he is not a Cardinal Elector until another one exceeds the age limit, passes away, is deposed, or is otherwise removed from the picture, thus creating a vacant spot. Essentially, there are two possible impediments to any given Cardinal being a Cardinal Elector: being above the age limit, and being appointed when the number of Electors has already reached the maximum of 120. Unless Pope Francis explicitly removed the latter impediment from the fifteen newest Cardinals under the age of eighty who were created, it should not be presumed that he intended to dispense from the law limiting the number of Electors simply by creating the Cardinals in the first place. On the contrary, he simply followed the law by creating new Cardinals who simply are not Electors.

The underlying assumption behind the controversy surrounding the upcoming Conclave is that there are, in fact, 133 Cardinal Electors, thus creating a lacuna legis with respect to the 120 limit. Supposedly, the problem is that 133 individuals possess the right to vote, thus rendering the application of No. 33 contrary to No. 35 in this case, as no one who possesses the right can have his right violated according to the latter provision. However, in reality, there is no lacuna legis at all; No. 35 is in fact inapplicable if it can be established that those extra Cardinals never possessed the right to vote in the first place. Of course, one Pope cannot prevent a future Pope from creating as many Cardinal Electors as he likes, and if Pope Francis wished to expand the Electorate or even change the law entirely, he would have been entirely free to do so. However, given that he never dispensed from the law, whether verbally or in writing, the only reasonable conclusion is that he simply created extra non-voting Cardinals, in accordance with the existing law establishing the two impediments from becoming Electors.

Having been confronted with these facts, one may be tempted to ask: what about canon 349, which defines the College of Cardinals as that “which provides for the election of the Roman Pontiff according to the norm of special law?” Logically speaking, what is the point of creating a new Cardinal if one does not intend to confer upon him the right to participate in a Conclave? This is a good question to ask, but it is a theoretical question that does not concern us at the present moment. What does concern us is what the existing law actually says, and the existing law, as shown above, explicitly supports the notion of a Cardinal who is truly a member of the College but nevertheless a non-voting member. After all, every Cardinal who turned eighty by the time of the vacancy falls into this category! Thus, canon 349 cannot be used to argue against the conclusion that any Cardinal, no matter his age, created after the maximum of 120 Electors has been reached simply is not a Cardinal Elector. No Catholic writer or media personality addressing this controversy has ever argued that Pope Francis had “dispensed” from UDG 33’s exclusion of Cardinals over the age of eighty by appointing the 99-year-old Angelo Cardinal Acerbi, so why should his appointment of over 120 Cardinals result in a dispensation?

Additionally, the phrase “according to the norms of special law” appears in canon 349, reminiscent of what has already been expounded above regarding the precedence of UDG 33 over UDG 36. Canon 349 ultimately subjects itself to the “norms of special law,” which in this case is UDG itself. UDG explicitly subjects the right to vote to two conditions: that the Cardinal not be over the age of eighty, and that the total number of Electors not exceed 120. And as established above, UDG, which enjoys precedence over canon 349 in this situation, quite clearly indicates that any Cardinals, regardless of their age, appointed after the maximum limit has been reached simply do not have the right to vote. Cardinals who do not possess voting rights can still participate in other aspects of the election, thus still falling under the definition of the College as that which “provides for” the election.³ Simply put, the right to vote is not essential to whether a Cardinal is a Cardinal, especially given that Cardinals over the age of eighty are automatically considered non-voting members of the College—and so there is no reason why there could not be a Cardinal even under the age of eighty who is nevertheless not an Elector.

The entire discussion surrounding this topic has taken as its premise the assumption that Pope Francis appointed 135 Cardinal Electors, but that only 120 Cardinal Electors can actually vote, thus setting up a contradiction. However, this premise is incorrect; when UDG 33 is interpreted in light of its text and context, with due respect for general juridical principles and proper consideration of other relevant laws, it becomes clear that the last fifteen appointed Cardinals simply are not Cardinal Electors in the first place. They are non-voting members of the College, along with all of those above the age limit. Thus, the debate should be settled: no, 133 Cardinals cannot participate in the upcoming Conclave. There is also no question that it is the most recently created Cardinals who should be excluded, since it is those individuals who were never given the right to vote in the first place, as the conditions of UDG 33 were not met at the time of their appointment. Given that this matter can be settled by appealing to the letter of the law itself, the 30 April Congregation’s appeal to an extraordinary dispensation has absolutely no merit.

Nevertheless, unless the relevant parties were to willingly acknowledge their lack of voting rights and step away from the Conclave of their own accord, the faithful will ultimately have to grapple with the question of whether the election of the next Pope will be valid if the Cardinals proceed with allowing thirteen non-Electors into the Conclave. Given John Paul II’s rather threatening words at the end of his Apostolic Constitution, in which he declares “completely null and void anything done by any person, whatever his authority, knowingly or unknowingly, in any way contrary to this Constitution,” the faithful would have every right to be concerned. This passage, however, gives no explicit provisions for determining how an entire election could be invalid; on the contrary, the same Constitution even addresses a case in which certain ballots may be declared null without having to annul the entire session of voting.⁴ Thus, John Paul II clearly shows that if the entire election were to be rendered invalid, there would have to be the commission of specific acts named in the law itself that the law states result in nullity. For this purpose, we turn to No. 76, which is the only part of the document that addresses this:

Should the election take place in a way other than that prescribed in the present Constitution, or should the conditions laid down here not be observed, the election is for this very reason null and void, without any need for a declaration on the matter; consequently, it confers no right on the one elected.

Here, the phrase “take place in a way” indicates that No. 76 speaks of the election procedure itself as discussed in Chapter V of UDG, and not necessarily any and all acts and events surrounding the election. Thus, if the voting process takes place in a way other than what is legally prescribed in Chapter V, the election will be invalid. According to No. 54, the election process is only considered to have begun after the oath taken by the Cardinals following their arrival into the Sistine Chapel. This logically happens after all those who desire to vote have arrived, which indicates that an error in the determination of legitimate Electors, having taken place before the process spoken of in No. 76 begins, would not render the election invalid. Given the maxim that burdens are to be restricted and favors multiplied,⁵ strict interpretation ought to be applied to invalidating and disqualifying laws: because UDG is silent on whether having more than 120 ballots produces an invalid election, it must be concluded that, even if all 133 Cardinals erroneously insist on participating in the Conclave, the election would not be rendered invalid solely on that account.

Essentially, the problem that the Church would face if the last thirteen Cardinals do not step away from the conclave is that of a valid but illicit election. This would resolve the question of whether Catholics should accept the eventually-elected man as the true Pope, but nevertheless, it does create scandal within the Church, and this is unacceptable. We live in an era in which trust in institutions is arguably at a historically low point, and the general perception of canon law among average laymen in the pews is that it is an outdated system of bureaucratic red tape that serves no real purpose. The average Catholic, who is not (and should not have to be!) well-versed in canonical jurisprudence, can easily ask, “Why did 133 Cardinals vote when the law clearly states that there can only be 120?” It is quite likely that any response will simply go over his head and thus be totally unsatisfactory from his perspective. Nor is it logistically feasible in 2025 to convince the laity as a whole to simply stop worrying about the issue, given that the chaos of the past century and this one so far was largely caused by attitudes of blind obedience that led Catholics to repeatedly stick their heads in the sand.

Finally, while this scandal ultimately comes down to a question of “mere” liceity, rather than strict validity, liceity is still important. The silver lining of our present moment is that, after decades of rampant antinomianism during the second half of the twentieth century, canonists and those interested in canonical matters are finally starting to gain the upper hand in the fight to restore law and order within the Church. If the Cardinals do not figure out this matter within the next five days and proceed with having thirteen non-Electors vote during the Conclave, the message sent to the faithful will inevitably be that law simply does not matter, which would undo the years of work that these canonists have put in. Regardless of whether a Pope is validly elected or not, not resolving this question satisfactorily will still cause harm to the entire Church and her members. Let us pray that the College of Cardinals does the right thing and prevents its non-voting members from voting, and that a good and holy Pope worthy of his office will be elected.

1. John Paul II, “Apostolic Constitution Universi Dominici gregis on the Vacancy of the Apostolic See and the Election of the Roman Pontiff,” Vatican.Va, 22 February 1996, https://www.vatican.va/content/john-paul-ii/en/apost_constitutions/documents/hf_jp-ii_apc_22021996_universi-dominici-gregis.html.

2. Bollettino Sala Stampa della Santa Sede, “Dichiarazione della Congregazione dei Cardinali,” Press.Vatican.Va, 30 April 2025, https://press.vatican.va/content/salastampa/it/bollettino/pubblico/2025/04/30/0289/00514.html.

3. “All the Cardinals who are not legitimately impeded must attend the General Congregations, once they have been informed of the vacancy of the Apostolic See. Cardinals who, by virtue of No. 33 of this Constitution, do not enjoy the right of electing the Pope are granted the faculty of not attending these General Congregations, should they prefer” (UDG 7).

4. “If during the opening of the ballots the Scrutineers should discover two ballots folded in such a way that they appear to have been completed by one elector, if these ballots bear the same name they are counted as one vote; if however they bear two different names, neither vote will be valid; however, in neither of the two cases is the voting session annulled” (UDG 69).

5. Boniface VIII, Regulae Iuris, 15.