The Italian Electoral Law Saga : Judicial Activism or Judicial Subsidiarity?

Electoral laws and mechanisms are, in re ipsa, the very heart of political democracies. As electoral laws define the procedural rules of the democratic principle, they primarily and indissolubly connect the principle of people’s sovereignty to the legitimacy of political representation: as such, these laws fall within a highly sensitive field, in which the boundaries between the political and the legal are very blurred. This is especially true in the Italian constitutional system, where – starting from its very beginning – the decision about the best electoral mechanism for Italy was left to the democratic and political process. For many years, legal scholars argued that there were no constitutional limits to the range of possible electoral mechanisms, and the Italian Constitutional Court has been resilient in entering in a highly political sensitive field as the electoral rules. Then, in 2014, Italian constitutional judges stepped in this political field and re-shaped the main features of the Italian electoral system. This paper deals with the most recent rulings of the Italian Constitutional Court on the constitutionality of the electoral laws (decision no. 1/2014 and no. 35/2017) in the light of the tension between Political Constitutionalism and Legal Constitutionalism theories, and in the light of the separation of powers theory. The double decision of our Constitutional Court was probably related to the political crisis that our system is still facing and originated by the persistent legislative inertia of our Parliament. Constitutional judges probably embraced a sort of “judicial subsidiarity”, entering a field that was left to the discretion of Parliament for many years, because of the inadequacy of this institution. But judicial subsidiarity is supposed to work in two directions: it calls for judicial activism when politics is absent, but it implies judicial deference when politics is ruling.