What Invalidates a Papal Election?

A Doctrinal Interpretation of No. 76 of Universi Dominici Gregis

Introduction

“…tu es Petrus, et super hanc petram aedificabo Ecclesiam meam” (Matt. 16:18). With these words, Our Lord Jesus Christ established St. Peter as the visible head of the Catholic Church on earth, His very own vicar, and the center of unity in ecclesiastical governance. It is thus of supreme importance to ensure that when the election of the Roman Pontiff takes place, the faithful should not be left with doubts regarding the validity of the election. Nevertheless, the Cardinals of the Church are as human as everyone else, and when it comes to the application of canon law, it is inevitable that sometimes they will make mistakes or even commit flagrant violations of the law. Thus, it is of paramount importance that Catholics understand what does and does not lead to the invalid election of the Roman Pontiff.

The Apostolic Constitution Universi Dominici gregis (henceforth UDG) promulgated by Pope John Paul II on 22 February 1996 is the current law governing the election of the Roman Pontiff.¹ The criteria for determining the validity of an election is laid down in UDG 76, which states:

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.

At first glance, the wording of UDG 76 appears very broad, seemingly applying to any violation of any part of the Apostolic Constitution. After all, if any particular law in this document is not followed, then one could build a case that the election has “take[n] place in a way other than…prescribed,” or that “the conditions laid down here [have not been] observed,” thus leading to nullity. However, the meaning of words in canonical terminology often does not exactly align with how those words are used in common parlance, and in the majority of cases, ascertaining the precise interpretation of a law cannot be accomplished by appealing to a single norm. Further, it must be kept in mind that canonical laws, like the laws governing any society, function as part of a system, and that the proper interpretation of a particular law must be carried out in light of the general principles of jurisprudence.

With this in mind, having taken canonical equity into account, having examined the purpose and circumstances of the law according to the mind of the legislator, and having made recourse to parallel places, it is only reasonable to conclude that UDG 76 does not apply to the violation of every provision within the Apostolic Constitution, but only to specific violations. In essence, if the Cardinals choose a different method of election than that by secret ballot, or if a candidate does not receive at least two-thirds of the vote, then the valid election of the Roman Pontiff has not taken place. The purpose of this article to explain what the aforementioned principles mean, and how they lead to this particular conclusion.

Canonical Equity and Reasonableness

Law, declares St. Thomas Aquinas, is “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”² When carrying out the task of interpretation, if one’s reading of the law leads to an interpretation that does not seem reasonable, one must pause and reconsider. The commentators hold that “laws must be interpreted in such a way that they do not result in anything unjust or absurd, which is contrary to the nature of law as an ordinance of reason.”³ If we interpret UDG 76 as invalidating an entire election on account of the violation of any particular provision of the Apostolic Constitution, would this lead to absurd conclusions? Let us consider for a moment what actually happens at a Conclave and picture it as though we were the participants.

The election of a new Pope is a highly complex procedure carried out by a large number of individuals of rather advanced age, with highly specific regulations about such minute things such as how to fold a piece of paper properly and write down the names of candidates (UDG 65). The margin of human error is huge: what if one of the many electors makes a spelling mistake, or if the scrutineer assigned to initially count the ballots makes an error and burns the ballots because he mistakenly believes that the number of ballots did not correspond to the number of electors present (UDG 68)? Technically, these are violations of procedural law, and so arguably the election has not taken place in the way prescribed by law. Is it reasonable to interpret a law in such a way that normal human error could invalidate an extremely important procedure?

UDG also states that “when a maximum of twenty days have elapsed from the beginning of the vacancy of the See, all the Cardinal electors present are obliged to proceed to the election” (UDG 37) and that the election “shall take place within the territory of Vatican City” (UDG 41). Say that just as the twenty days pass, Vatican City is suddenly hit with a catastrophic natural disaster, and all residents and occupants must leave immediately to save their lives. In such a case, the Cardinals would have to either delay the beginning of the election or carry it out immediately in a different place, and both options would technically violate the law. How are they to fix this problem if such a situation, caused by factors totally outside their control, would invalidate the election from the root? Should the Church simply be left with no means to validly elect a Roman Pontiff? Again, a reasonable person would conclude that such an interpretation would lead to absurd and unjust results.

In reading through UDG, one could imagine thousands of ways in which an election could be carried out in a way other than prescribed by law or not meet one of the stated conditions. Any sane and reasonable person understands that demanding absolute perfection from each and every one of the dozens of electors, along with perfect circumstances and complete smoothness in the carrying out of the election procedure dependent on many external factors outside of human control, would be absurd and unjust. If the election of the Roman Pontiff could be thrown into doubt on account of normal human errors or unforeseen events, then such an interpretation of law would necessarily be unjust by causing grave injury to the common good of the Church, to which canon law is directed.

“But,” one may object, “these examples concern mistakes made in good faith and circumstances that were genuinely outside of human control. Surely intentional disobedience on the part of the Cardinal electors would lead to far greater canonical consequences!” While such disobedience could lead to canonical consequences for the individual(s) who broke the law depending on whether such disobedience constituted a canonical delict, the subjective intention of the perpetrators has absolutely no impact on the application of invalidating and disqualifying laws: “If [such laws] were to become ineffectual due to ignorance or error, […] there would never be certainty that juridic acts were valid.”⁴ If something is invalid, it is invalid, regardless of whether the act that rendered it invalid was committed through malice, ignorance, or error, a fact that canon 15 states explicitly.

If the invalidating law of UDG 76 cannot be interpreted to apply to the violation of just any provision of the Apostolic Constitution, then how does one determine what it does apply to?

What did the Legislator Intend and Why?

Canon 17 exhorts interpreters to make recourse “to parallel places, if there are such, to the purpose and circumstances of the law, and to the mind of the legislator” if a dispute arises as to the proper interpretation of a specific law. The matter of parallel places will be addressed in the next section, but here we will first examine the mind of the legislator and the purpose and circumstances of UDG as a whole to provide additional context. First, it should be clarified that the “mind of the legislator” does not refer to the subjective and personal intentions of the individual who happened to promulgate the law under discussion; in other words, the role of the interpreter of canon law is not to attempt to read anyone’s mind! As the commentators explain:

The mind of the legislator (mens legislatoris) does not mean the subjective mind of the legislator or his successor—what he inwardly thinks or wills—because that is largely unknowable and even irrelevant. It is the objective text of the law that must be observed, not what anyone presumes the legislator might have been thinking when he made the law. The mind of the legislator does not refer to a human person’s mind at all. Instead, it is a construct, an “institutional figure” signifying the whole institution of the law itself—the canonical system—especially the basic rules, values and principles that underlie and support it.⁵

Meanwhile, one must also consider “the relevant historical facts about the matter regulated by the law, factors that led to the immediate creation of the law, and if the law is being restated or modified later, the circumstances at that time.”⁶ What was the purpose for John Paul II to issue UDG in the first place, and what indications did he give with regard to his thinking on this matter, in accordance with the legislator’s role as a representative of the canonical system of the Church? Fortunately, he lays out his intentions very clearly in the introduction to UDG itself, in which he begins by explaining that he possesses great esteem for the Conclave laws issued by his predecessors, explicitly naming Pius X, Pius XI, Pius XII, John XXIII, and Paul VI. He explains: “If I too now turn to this matter [of the election of the Roman Pontiff], it is certainly not because of any lack of esteem for those norms, for which I have great respect and which I intend for the most part to confirm…”

Here, he clearly explains the necessity of giving precedence to canonical tradition; although he found it necessary to issue new laws due to his “awareness of the Church’s changed situation,” he nevertheless wished “not to depart in substance from the wise and venerable tradition already established.” While desiring to “simplify the relative norms, reducing them to their essentials” with regard to “the election process itself,” he declared that “the Conclave is to continue in its essential structure” despite his modifications. This explanation sets the groundwork for his announcement of the one substantial revision he decided to make:

Finally, I have deemed it necessary to revise the form of the election itself in the light of the present-day needs of the Church and the usages of modern society. I have thus considered it fitting not to retain election by acclamation quasi ex inspiratione, judging that it is no longer an apt means of interpreting the thought of an electoral college so great in number and so diverse in origin. It also appeared necessary to eliminate election per compromissum, not only because of the difficulty of the procedure, evident from the unwieldy accumulation of rules issued in the past, but also because by its very nature it tends to lessen the responsibility of the individual electors who, in this case, would not be required to express their choice personally.

Prior to the promulgation of UDG, there were three valid methods by which papal elections could take place: by secret ballot, by compromise, and by acclamation. To elect by compromise, the election is delegated to a committee of Cardinals while the rest of the Cardinals agree to accept their choice of candidate. This was abolished by John Paul II because he wanted all the Cardinals to share the responsibility of electing the Pope and because the rules surrounding it had grown too complicated. Acclamation refers to the method of election by which the Pope is elected by “all the cardinals present unanimously proclaiming one of the candidates Supreme Pontiff, without the formality of casting votes,” without any “previous consultation or negotiation.”⁷ This was abolished because it would be too unwieldy for an expanded electorate that now included up to 120 members (UDG 33) with diverse origins.

The historical usage of these methods and the change in modern circumstances, combined with the fact that they had long fallen out of use in recent Conclaves anyway, explain why the legislator believed this change to be necessary. As a result, John Paul II established that “the only form by which the electors can manifest their vote in the election of the Roman Pontiff is by secret ballot.” The rules surrounding the remaining method, however, were not intended to deviate substantially from past legislation, which was being simplified rather than radically modified. This highlights two key points that provide insight into the mind of the legislator: that he was adamant about respecting canonical tradition, but that he also wished to simplify the law to encourage a stronger sense of responsibility among all the Cardinals, clarify the rules of the Conclave, and reduce potential problems that might come up.

The principle that canonical tradition is to be respected is confirmed by canon 6 §2, which decrees that the canons within the 1983 Code are to be interpreted in light of canonical tradition insofar as they repeat earlier law. Although this canon specifically applies to the Code itself, the same principle may be extended to the interpretation of laws outside of the Code, according to the general mind of the Church. This principle is also confirmed by canon 21: although here we are not dealing with a case of a dispute over the revocation of a law, this canon still illustrates the Church’s general desire to harmonize new laws with the old, in accordance with her respect for tradition. These principles are very clearly expressed by the legislator in the introductory paragraphs in UDG.

Secondly, given the accumulation of excessive and burdensome rules surrounding the procedure for electing the Pope, the legislator, seeking to simplify the law and restrict the method of election to secret ballot alone, wished to emphasize the individual responsibility of each and every Cardinal elector by promoting their “effective and fruitful participation” in the election, while also taking pains “to avoid confusion, doubts, and eventual problems of conscience” for the participants. This desire to reduce confusion, doubts, and problems of conscience shows a commitment to canonical equity and reasonableness, concepts which have already been expounded above, further indicating that subjecting UDG 76 to a broad interpretation would be utterly unreasonable.

What did Paul VI’s Laws Say?

With these factors in mind, we now make recourse to parallel places, which refers to the examination of “norms given elsewhere that treat the same subject or make use of the same rule or principle as that of the law at hand.”⁸ In light of the legislator’s strong emphasis on interpreting law in light of canonical tradition, the most logical place to look would be to the norms found in previous legislation on the election of the Roman Pontiff, which John Paul II—according to his own words—mostly intended to confirm. To this end, we must turn our attention to the Apostolic Constitution Romano Pontifici eligendo promulgated by Pope Paul VI on 1 October 1975, specifically No. 77, which forms a direct parallel to UDG 76.⁹ It states the following in Latin, with parts that differ from UDG 76 presented in bold:

Quodsi electio aliter celebrata fuerit, quam uno e tribus modis, qui supra sunt dicti (cfr. nn. 63 sqq.), aut non servatis condicionibus pro unoquoque illorum praescriptis, electio eo ipso est nulla et invalida (cfr. n. 62) absque ulla declaratione, et ita electo nullum ius tribuit.

In English, this means:

Should the election take place in a way other than one of the three ways mentioned above (cfr. nn. 63 sqq.), or should the conditions prescribed for each of them not be observed, the election is for this very reason null and void (cfr. n. 62), without any need for a declaration on the matter, and thus it confers no right on the one elected.¹⁰

While the English translation suffices for our purposes here, I present UDG 76 in its original Latin to draw attention to the differences between it and No. 77 of Romano Pontifici eligendo to emphasize their parallel structure while rendering the differences in bold:

Quodsi electio aliter celebrata fuerit, quam haec Constitutio statuit, aut non servatis condicionibus pariter hic praescriptis, electio eo ipso est nulla et invalida absque ulla declaratione, ideoque electo nullum ius tribuit.

The last difference presented here—between Paul VI’s “et ita” (and thus) and John Paul II’s “ideoque” (and therefore)—is of no consequence here, because the meaning remains substantially the same: that the non-conferral of rights upon the one invalidly elected is a direct consequence of the invalidity of the election. However, the other differences are very important, because they pertain to the significant revision made by John Paul II to the valid methods of election as explained in the previous section of this article. Paul VI’s Apostolic Constitution still retained the three forms of election by secret ballot, compromise, and acclamation; however, John Paul II had chosen to abrogate election by compromise and acclamation, retaining secret ballot alone.

This is why Paul VI forbids other forms of election “quam uno e tribus modis”—in his day, there were still three options to choose from. And if the Cardinals did not choose one of those three, such as if they simply decided to lean out a window and ask the people of Rome who should be Pope, then the election would be invalid. Clearly, this provision is not referring to the violation of any other parts of Romano Pontifici eligendo beyond choosing an entirely different form of election than the three provided. In light of this, we arrive at a proper interpretation of John Paul II’s use of the phrase “quam haec Constitutio statuit.” He is not referring to every single provision of his document but only the essential form of how the election should take place, namely, by secret ballot.

In addition, when Paul VI discusses the “conditions,” he clearly does not refer to all the conditions mentioned in Romano Pontifici eligendo, but only those conditions which pertain to each of the three methods of election. Being a parallel to this law, UDG 76 thus cannot be interpreted as referring to every single condition laid down in UDG as a whole, but rather those conditions that pertain to the essence of the election process (and even then, as will be discussed below, only those specifically required for validity). As further evidence that this interpretation is probable and reasonable, a long-standing principle of jurisprudence holds that burdens are to be restricted and favors multiplied,¹¹ and so strict interpretation ought to be applied to invalidating and disqualifying laws.

Strict interpretation means that the law must be interpreted to the absolute letter and cannot be extended beyond what is plainly stated in its text.¹² To provide a concrete example of how this works, let us look at another class of laws which must be subject to strict interpretation according to the 1983 Code, namely, penal laws (c. 18). Canon 1397 §2 states that one “who procures a completed abortion incurs a latae sententiae excommunication.” This law, when interpreted to the letter, can only apply to completed abortions; thus, if someone attempts to perform an abortion, but it ultimately fails to kill the child, the person is not excommunicated. Moral theologians know that failed and successful murder attempts cause the person responsible for the act to incur exactly the same guilt due to the intention, but the law only discusses completed abortions, and so it cannot be extended to apply to those who procure anything less than a completed, successful abortion.

The principle is clear: the law cannot be extended beyond what is explicitly stated. Remember that UDG 76 discusses the election specifically, and that the conditions refer only to those conditions necessary for a valid election. This significantly narrows the possible invalidating factors: according to UDG 54, the election process is only considered to have begun after the oath taken by the Cardinals following their arrival into the Sistine Chapel, and so UDG 76 cannot be applied to any conditions that came before the taking of this oath. And yet, even among the provisions specifically pertaining to the election (canonically defined), we must narrow our consideration down to those conditions which are expressly identified as invalidating if they are not followed.

Canon 10 states: “Only those laws must be considered invalidating or disqualifying which expressly establish that an act is null or that a person is unqualified.” This establishes a very high standard for invalidity, and commentators hold that “[i]f doubt remains, the law may not be held to be invalidating or disqualifying.”¹³ In accordance with canon 10, we must look at the conditions pertaining to the election via secret ballot that the legislator explicitly determines to be necessary for validity, and not merely liceity, once again according to the requirement of strict interpretation. Why is this necessary? Because, in accordance with canonical equity, no legislator reasonably intends for his law to be so difficult to follow that canonical processes can be so easily invalidated by human error, unforeseen circumstances, or other factors such as those discussed in the first section. This also guards the validity of the election against malicious acts being committed by individual Cardinals or groups of Cardinals.

Fortunately for the interpreters of canon law, the legislator explicitly lays out exactly which conditions are necessary for validity:

I therefore decree that for the valid election of the Roman Pontiff at least two thirds of the votes are required, calculated on the basis of the total number of electors present and voting (UDG 62).

The Scrutineers add up all the votes that each individual has received, and if no one has obtained at least two thirds of the votes on that ballot, the Pope has not been elected; if however it turns out that someone has obtained at least two thirds of the votes, the canonically valid election of the Roman Pontiff has taken place (UDG 70).

If the balloting mentioned in Nos. 72, 73 and 74 of the aforementioned Constitution does not result in an election, one day shall be dedicated to prayer, reflection and dialogue; in the successive balloting, observing the order established in No. 74 of the same Constitution, only the two names which received the greatest number of votes in the previous scrutiny, will have passive voice. There can be no waiving of the requirement that, in these ballots too, for a valid election to take place there must be a clear majority of at least two thirds of the votes of the Cardinals present and voting. In these ballots the two names having passive voice do not have active voice (UDG 75).

The conditions necessary for validity include the following: that a candidate needs at least two-thirds of the vote to win, and that if the electors have to utilize the procedure of selecting between two candidates mentioned in UDG 75, a candidate still needs at least two-thirds of the vote to win, and he and his competitor must only have passive voice. No conditions other than these are invalidating, regardless of whether those conditions were disregarded because of urgent necessity, human error, or even simple disobedience and flagrant disrespect for the law. To summarize: unless the Cardinals choose an entirely different method of election than by secret ballot, or if during the vote by secret ballot a candidate does not receive at least two-thirds of the vote (and in the case of applying UDG 75, if the two candidates have active voice), then the election is valid, even if it may have taken place illicitly due to the violation of other laws.

Conclusion: On the Necessity of Clarity

As we have seen from this analysis, it is unreasonable to interpret UDG 76 as rendering invalid a papal election in which just any provision of UDG was violated. On the contrary, only selecting an election method other than secret ballot or failing to meet the conditions pertaining to secret ballot that the legislator has expressly established as necessary for validity would result in an invalid, rather than a “merely” illicit, election. This becomes clear after studying the legislator’s intention as expressed in the introductory paragraphs of UDG, along with making recourse to No. 77 of Paul VI’s Romano Pontifici eligendo as a parallel place. All of this shows that the proper scholarly interpretation of a given law requires understanding that canon law is a system, thereby leading to the application of correct and relevant principles of jurisprudence—and that easy answers usually cannot be found by appealing to a single norm.

However, in this case, perhaps we also have John Paul II himself to blame, not according to his objective, unchanging capacity as legislator reflecting the mind of the Church and her canonical system, but according to his weak linguistic formulations as a fallible human person. Despite his strong desire to simplify and clarify Conclave laws to reduce confusion and prevent problems of conscience among the participants, the initial ambiguity one is faced with upon a first reading of UDG 76 may actually have become the cause of more confusion and problems of conscience: not among the Cardinals themselves, perhaps, but certainly among the faithful who are by and large untrained in jurisprudence. Therefore, it would be opportune for Pope Leo XIV to revisit UDG 76 in his own capacity as the current supreme legislator for the Church and strengthen the clarity of its language or issue an authentic interpretation on this matter.

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. Summa Theologica I-II, q. 90, art. 4, co.

3. J. Beal et al., New Commentary on the Code of Canon Law (New York, NY and Mahwah, NJ: Paulist Press, 2000), 75, footnote 109.

4. Ibid., 69.

5. Ibid., 75.

6. Ibid., 74.

7. W. Fanning, “Acclamation (in Papal Elections),” The Catholic Encyclopedia, vol. 1 (New York: Robert Appleton Company, 1907), https://www.newadvent.org/cathen/01099a.htm.

8. Beal et al., 74.

9. Paul VI, “Apostolic Constitution Romano Pontifici eligendo on the Vacancy of the Apostolic See and the Election of the Roman Pontiff,” Vatican.Va, 1 October 1975, https://www.vatican.va/content/paul-vi/la/apost_constitutions/documents/hf_p-vi_apc_19751001_romano-pontifici-eligendo.html.

10. Because Romano Pontifici eligendo is not available in an official English translation on the Vatican website, the translation is by the author, who opted for a translation that would be stylistically in harmony with the official English translation given on the Vatican website of UDG 76.

11. Boniface VIII, Regulae Iuris, 15.

12. Beal et al., 75.

13. Ibid., 62-63.