Italian Constitutional Court (Corte costituzionale italiana), No. 62/2022, 10 March 2022
The Italian Constitutional Court recently ruled on gender representation in municipal elections. The Court declared unconstitutional the failure of two combined legal provisions to establish the exclusion of an electoral list that does not include candidates of both genders in municipalities with less than five thousand inhabitants.
In this case, the Court declared Article 71, paragraph 3 bis of the “Testo Unico degli Enti Locali” in conjunction with Article 30, paragraph 1, letter d) bis and e) of the “Testo Unico delle Leggi per la composizione e la elezione degli organi delle Amministrazioni Comunali” unconstitutional for violation of Article 3, paragraph 2, and Article 51, paragraph 1 of the Italian Constitution because they do not provide for the exclusion of those lists that do not ensure the representation of both genders in municipalities with a population of fewer than five thousand inhabitants.
The remedy of exclusion from the electoral competition of the list is, the Court argues, necessary to ensure the constitutionally-based promotion of equal opportunities between women and men in access to elected offices. The exclusion is also instrumental to the protection of the principle of substantive equality as well as the interest of rebalancing representation with representativeness.
The solution adopted by the legislator for the promotion of equal opportunities in the smallest municipalities, therefore, is not only directly contrary to the Constitution but also results in the misuse of its discretion, being the treatment between municipalities and between (aspiring) candidates manifestly unreasonable, unjustified and, thereby, unequal. The sanction of the exclusion of the electoral list including candidates of only one gender, which was already incorporated in the legislation regarding municipalities with more than 15,000 inhabitants, should apply also to the provisions concerning municipalities with less than 5,000 inhabitants.
Overall, the proposed solution, i.e. the exclusion, leaves intact the system of promotional measures outlined by the Law 215 of 2012 (Provisions to promote the re-balancing of gender representation in councils and boards of local and regional authorities). This regime, in any case, maintains the principle of proportionality according to the criterion of the size of the municipality. It also sets for small municipalities the obligation of representation of both genders in the lists, with the provision of sanctions in case of violation preserving its global effectiveness.
(Comment by di Edin Skrebo)