If there’s a conclave soon, will cardinals-designate vote?

These are some of the questions I.MEDIA asked Msgr. Patrick Valdrini, professor emeritus of canon law at Lateran University.

After the consistory of September 30, 2023, the Sacred College will include 137 cardinal electors. Of the 18 new cardinals to be included, the Pope has chosen eight from Europe, four from the Americas, three from Africa, two from Asia and one from the Middle East. 

The figure of 137 is a new record under the current pontificate, and well above the threshold of 120 cardinal electors set by Paul VI in the Constitution Romano Pontifici Eligendo of October 1, 1975.

While not abrogating this provision, circumventing it is a “prerogative” of the reigning pope, who is “supreme legislator and can derogate from the laws promulgated by a pope,” whether himself or one of his predecessors. Within the Vatican, “there is no constitutional jurisdiction,” says Valdrini. There is no authority that can invalidate a papal decision, since the separation of powers does not exist.

This will be the 14th time a pope has exceeded the 120 cardinal electorate limit. The record for exceeding the threshold was set during the first consistory of the 21st century, on February 21, 2001, when John Paul II created 42 cardinals, 38 of whom were electors. This raised the number of cardinal electors to 136. He came close again to this record with his last consistory, on October 21, 2003. That raised the number to 135 cardinal electors in the Sacred College.

Recent popes have always shown a certain flexibility in dealing with the 120 elector threshold. John Paul II exceeded the threshold three times, Benedict XVI twice, and Pope Francis has exceeded it in every consistory — nine times, including the upcoming one.

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In the event of Pope Francis’ death or resignation before September 30, this consistory would be canceled, because its convocation is strictly tied to the reigning pontiff. Only the cardinal electors already created, of whom there are currently 121, would be summoned to the conclave. The status of cardinal is conditioned by the actual holding of the consistory and not by the mere announcement of its convocation.

Church law expresses it this way: “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, even if he has not yet received the red hat or the ring, or sworn the oath,” according to Article 36 of the Constitution Universi Dominici Gregis, promulgated by John Paul II in 1996.

This provision means that for consistories that are actually held, the physical absence of a new cardinal from the ceremony for reasons of health or transportation problems — as was the case in November 2020 during a consistory held in the midst of a pandemic — does not prevent him from becoming a cardinal in his own right, and thus from participating in a conclave at a later date. 

The announcement of a consistory is binding only on the reigning pope. If the current pontificate were to end, since the choice of future cardinals is linked to a personal decision by Pope Francis, “his successor might not create them,” says Msgr. Valdrini. However, since it is customary to give signs of continuity, at least at the beginning of a pontificate, the new pope could convene another consistory with the same list, or with additions to it. 

With regard to participation in the conclave, the Constitution of 1996 specifies that “Cardinals who have been canonically deposed or who with the consent of the Roman Pontiff have renounced the cardinalate do not have this right. Moreover, during the period of vacancy the College of Cardinals cannot readmit or rehabilitate them.”

These cases of withdrawal from the cardinalate are very rare but there have been some cases in recent history. In 1927, French Cardinal Louis Billot renounced the cardinalate because of his disagreement with Pius XI over the condemnation of Action Française, and he died as a simple Jesuit priest.

Many decades later, in 2018, former Archbishop of Washington Theodore McCarrick lost his dignity as a cardinal because of his involvement in child abuse. He is still alive, but now reduced to lay status, and he has been charged by the civil justice system.

Cardinal Keith O’Brien, a former archbishop of Edinburgh who was also involved in sexual abuse, but not in the abuse of minors, renounced his participation in the 2013 conclave. He then formally renounced the rights and prerogatives of the cardinalate in 2015, although he retained the title.

Finally, Cardinal Becciu was stripped of his prerogatives as cardinal elector in 2020 due to accusations of corruption related to the London building affair. The former deputy secretary of state would not be able to participate in the conclave if it were held right now. However, like cardinals over 80, he has retained the title of cardinal. He could regain his right to vote if he is acquitted at the end of the current legal proceedings. A possible rehabilitation would again be a personal prerogative of the pope.

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