
Commentary by Br. Alexis Bugnolo
The Conclave is barely a week away, and already there has arisen a juridical doubt as to its validity. Archbishop Viganò, in his recent criticism, has publicly decried the illegitimacy of a Conclave containing more than 120 Electors.
In an apparent response to the challenge from the Archbishop, the Cardinals today, in the 7th General Congregation declared that all 133 Electors have the right to vote. Their claim runs directly against n. 33 of the Papal Law, Universi Dominici Gregis (This is the link to the English version, for the other versions, see the top right corner of the linked page. Note, however, that only the LATIN is legally binding).
Here is what the Latin version of that document says in that paragraph:
33. Ius eligendi Romanum Pontificem ad Sanctae Romanae Ecclesiae Cardinales exclusive pertinet, iis exceptis qui ante diem mortis Summi Pontificis vel ante diem quo Sedes Apostolica vacavit octogesimum aetatis annum iam confecerunt. Maximus autem Cardinalium electorum numerus centum viginti ne excedat. Prorsus ergo excluditur quodlibet electionis activae ius cuiuspiam alterius ecclesiasticae dignitatis aut laicae potestatis cuiusvis gradus et ordinis interventus.
Here is my English translation:
33. The right to elect the Roman Pontiff pertains exclusively to the Cardinals of the Holy Roman Church, excepting those who have already completed the 80th year of age before the day of the death of the Roman Pontiff and/or before the day on which the Apostolic See is vacated. Moreover, let the maximum number of Cardinal electors not exceed 120. Furthermore, therefore, there is entirely excluded any right of active election of anyone of another ecclesiastical dignity or the intervening of lay authority of any grade or order.
I have bold-faced the key phrase in my English translation.
The Cardinals, however, make their claim citing n. 36, of the papal law:
36. A Cardinal of Holy Roman Church who has been created and published before the College of Cardinals thereby has the right to elect the Pope, in accordance with the norm of No. 33 of the present Constitution. …
In that paragraph, which reads in the official Latin:
36. Sanctae Romanae Ecclesiae Cardinalis, dummodo creatus renuntiatusque in Consistorio sit, hac ipsa de causa ius eligendi Pontificis possidet secundum huius Constitutionis praescriptum in n. 33. ….
The key word is “secundum”, “according to”, which the Vatican English renders badly as “in accordance with”.
They evidently are claiming that n. 36 means that the numer 130 in paragraph n. 33 as allowing more Cardinals is not fundamentally binding.
What is the problem?
The Papal Law does not allow more than 120 Cardinal Electors to participate in the Conclave at the same time. The Latin construction is much more fixed and mandatory than the Vatican official Italian translation which reads:
Il numero massimo di Cardinali elettori non deve superare i centoventi.
Which I translate thus into English:
The maxim number of Cardinal electors ought not to exceed 120.
The Vatican official English translation, however, reads more strongly, but wrongly on that account.
The maximum number of Cardinal electors must not exceed one hundred and twenty.
Are the Cardinals within their right to decide that 133 can participate?
They can only be within their right, if the text of the Papal Law allows them the discretion to interpret the requirement of 120. In the above press release, it appears that they do not claim such a right, but rather quote another paragraph (n. 36) which does not address the problem directly. In addition they found their claim on the mere fact that Pope Francis created more Cardinal electors than would keep their total number under 121 means that the rule is dispensed from.
They do not even claim the right to interpret the rule of 120 on the basis of the right granted them in n. 5 of the same papal law, because obviously the number of 120 is neither a doubtful nor controverted reading:
5. Should doubts arise concerning the prescriptions contained in this Constitution, or concerning the manner of putting them into effect, I decree that all power of issuing a judgment in this regard belongs to the College of Cardinals, to which I grant the faculty of interpreting doubtful or controverted points. I also establish that should it be necessary to discuss these or other similar questions, except the act of election, it suffices that the majority of the Cardinals present should concur in the same opinion.
The Latin found in n. 33, uses the hortatory subjunctive: this signifies in Latin the obligation of an equipollent precept, that is, the level of obligation equal to a formal command. Without explicit dispensation, therefore, no subject can claim that that requirement can be transgressed.
However, the problem is, that in 2013, in the document, Normas Non Nullas, Pope Benedict XVI, specified a contradictory obligation in n. 35:
35.n No Cardinal elector can be excluded from active or passive voice in the election of the Supreme Pontiff, for any reason or pretext, with due regard for the provisions of Nos. 40 and 75 of this Constitution.
However, n. 35 speaks only of reasons and pretexts, and not requirements of the Papal Law.
Thus, if the Dean of the College of Cardinals does not or cannot produce a document signed by Pope Francis and published into the Acta Apostolica Sedes, it would appear that we must presume that the Cardinals have violated the law by the above declaration that more than 120 can vote. Furthermore, because this problem was known since December 8, when Pope Francis exceeded the limit of 120 Cardinal Electors, and since he failed to correct the papal law before his death, his non-action must be interpreted to mean that he had no intention that more than 120 would vote, since, as I have reminded the world many times, YOU CANNOT PRESUME THE CESSATION OF A RIGHT OR LAW.
John Paul II was quite explicit that the Cardinals cannot do what they just did
In fact, the Papal Law ends with these words:
Wherefore, after mature reflection and following the example of my Predecessors, I lay down and prescribe these norms and I order that no one shall presume to contest the present Constitution and anything contained herein for any reason whatsoever. This Constitution is to be completely observed by all, notwithstanding any disposition to the contrary, even if worthy of special mention. It is to be fully and integrally implemented and is to serve as a guide for all to whom it refers.
As determined above, I hereby declare abrogated all Constitutions and Orders issued in this regard by the Roman Pontiffs, and at the same time I declare completely null and void anything done by any person, whatever his authority, knowingly or unknowingly, in any way contrary to this Constitution.
Given in Rome, at Saint Peter’s, on 22 February, the Feast of the Chair of Saint Peter, Apostle, in the year 1996, the eighteenth of my Pontificate.
Does this affect the validity of the Election?
UPDATE of July 5, 2025:
In this original article, I responded to this question before reading UDG 1, 4, and 68, and therefore I said rightly that 133 Cardinals voting in the Conclave cannot be presumed to violate the Papal Law, unless some part of the Papal Law says so. So after having read the Law in the Latin, and discovered that the Law itself refuted my opinion, I changed my opinion, and published that in detail, HERE, on June 26, 2025, nearly two months later.
UPDATE of May 1, 2025:
This controversy over exceeding the 120 Cardinal Electors is growing in Italy, and in reply Vatican News has issued an article in Italian citing cases in the past when outside of Conclaves, previous Popes appointed more than 120 cardinals, and argument which does not really address the core issue, as the article admits, saying this upcoming Conclave will be the first to have more Electors present than the number specified by law, though in the past, before Paul VI there was no such law.
