What Universi Dominici Gregis Does—And Doesn't—Prohibit

It is very disappointing that many Catholics are apparently disposing themselves to doubt the validity of the upcoming conclave before it has even begun. These doubts seem to be driven by an overly legalistic readings of John Paul II's Universi dominici gregis, the late pontiff's 1996 Apostolic Constitution on choosing the successor of St. Peter.

The most common concern people raise is the issue of Cardinals agreeing to cast their votes for a given candidate. It is commonly asserted that Universi dominic gregis forbids the Cardinal electors from talking together and agreeing on who to support. There are three points from the Apostolic Constitution that are typically raised in this respect: paragraph 79, which forbids Cardinals from laying plans regarding a pope's succession during his lifetime; paragraph 81 which forbids Cardinals from entering into binding pacts to create voting blocs; and paragraph 82 which forbids Cardinals from promising future courses of action in exchange for support during the Conclave. Based on these proscriptions, people assume that if any sort of consulation between Cardinals has taken place to obtain the election of a given candidate, that candidate's election would be ipso facto invalid according to Universi dominici gregis.

People generally read way too much into these paragraphs, taking them to forbid much more than they actually do. We will consider each in turn.

Paragraph 79: No Plotting for the Pope's Succession

Paragraph 79 of Universi dominici gregis forbids Cardinals from establishing plans for the pope's succession while the pope is yet alive. The text states: 

Confirming the prescriptions of my Predecessors, I likewise forbid anyone, even if he is a Cardinal, during the Pope's lifetime and without having consulted him, to make plans concerning the election of his successor, or to promise votes, or to make decisions in this regard in private gatherings.

It should be clear that this pertains to formal planning, not to informal discussion. It prevents Cardinals from gathering together in private and saying, "Okay, when Pope X dies, we need to get Cardinal Y to succeed him. To accomplish this, we are all going to follow this plan and commit our votes to Y and here's how we plan to persuade the others to go along." It does not forbid Cardinals from saying, "I have always admired Cardinal Y; I think he would make a good pope," and conversing about his merits. To "make plans," "promise votes," or "make decisions" implies a resolution of action akin to a plot or conspiracy, not mere conversation.

Paragraph 81: No Commitments to Support a Given Candidate

Paragraph 81 goes on to stipulate that each Cardinal elector must be completely free from compulsion when he casts his ballot and therefore forbids any sort of agreement that imposes a commitment upon them. The Apostolic Constitution reads:

The Cardinal electors shall further abstain from any form of pact, agreement, promise or other commitment of any kind which could oblige them to give or deny their vote to a person or persons. If this were in fact done, even under oath, I decree that such a commitment shall be null and void and that no one shall be bound to observe it; and I hereby impose the penalty of excommunication latae sententiae upon those who violate this prohibition. It is not my intention however to forbid, during the period in which the See is vacant, the exchange of views concerning the election.

This is the text most often cited to cast doubt on the validity of the conclave, as it is clear that Cardinals do indeed talk amongst themselves and come to agreements about whom they will throw their support behind. And that they have always done so. It should be noted, however, that 81 does not forbid the Cardinals from agreeing about a candidate, but only from creating binding pacts. The text says that they may not form any "pact, agreement, promise or other commitment of any kind" if that commitmnet "could oblige them to give or deny their vote." This paragraph is not about the issue of agreement, but rather on maintaining the freedom of the electors. In other words, Cardinal electors are allowed to agree that a given candidate is the best choice for the papacy, so long as that agreement is not of such a nature to give rise to a binding obligation to give or deny their vote. It does not prohibit a free consensus of opinion free of obligation.

Paragraph 82: Campaigning for the Papacy

The following paragraph essentially forbids Cardinals from campaigning for the papacy by means of promising certain actions subsequent to their election:

I likewise forbid the Cardinals before the election to enter into any stipulations, committing themselves of common accord to a certain course of action should one of them be elevated to the Pontificate. These promises too, should any in fact be made, even under oath, I also declare null and void.

You will notice the Cardinals are forbidden from acting in concert in pursuit of "a certain course of action should one of them be elevated to the Pontificate." This prohibits a Cardinal from saying, "If you elect me, I promise I will do such and such." The purpose of this is to prevent the Conclave from degenerating into something like an American election, where politicians sell themselves to the voters in exchange for goodies promised after election. It does not, however, forbid the Cardinals from coming to a voluntary consensus about a candidate without any reference to future papal acts. In other words, they can freely resolve on a common course of action so long as there is no specific quid pro quo.

Null and Void

But what if the Cardinals do violate any of these prohibitions? What if they do enter into a formal pact to choose a successor before the pope dies, or a Cardinal does offer promises in exchange for votes? What if the St. Gallen Mafia came to some sort of formal arrangement to secure the election of Bergoglio while Benedict was still alive? Or what if something like that happens in 2025? Is that Cardinal's election null and void therby?

No. You will notice, for example, that paragraph 82 is careful to point out that, while promises made to gain votes are considered null and void, the validity of the election is not. Universi dominici gregis says, "These promises too, should any in fact be made, even under oath, I also declare null and void." It is the promises that are rendered null, not the election made in light of said promises.

We see elsewhere that John Paul II was careful to state that a papal election would not be nullified even under conditions of simony. Let's look at paragraph 78, which is quite extraordinary:

If—God forbid—in the election of the Roman Pontiff the crime of simony were to be perpetrated, I decree and declare that all those guilty thereof shall incur excommunication latae sententiae. At the same time I remove the nullity or invalidity of the same simoniacal provision, in order that—as was already established by my Predecessors—the validity of the election of the Roman Pontiff may not for this reason be challenged.

John Paul here clarifies that while one guilty of simony in the election of a Roman pontiff would incur excommunication latae sententiae, the simoniacal election itself would not be invalidated, so that "the validity of the election of the Roman Pontiff may not for this reason be challenged."

If the grave ecclesiastical crime of simony would not invalidate the election of the pope, we may safely assume that neither would lesser offenses such as making pacts or discussing papal succession while the current pope lives. 

We really need to let go of this idea that papal conclaves can be invalidated by what amount to procedural violations. Some will contest this based on Universi dominici gregis 76, which says:

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.

This would seem to indicate that deviations from the text of Universi dominici gregis would render any subsequent papal election null. But the text is not meant to be read in such a legalistic way. There are a billion different eventualities that could cause an election to "take place in a way other than what is prescribed," but without nullifying the results. Here I will defer to Dr. Ed Peters on this question, who opines:

Consider: UDG requires (among many, many things) the use of paper ballots with the words “Eligo in Summum Pontificem” across the top. Now suppose some, but only some, ballots read “Eligo in Summum Pontficem”, but this mistake is not noticed until after a winner is announced in the Sistine Chapel. Has the election taken place “in a way other than that prescribed”? Yes. Suppose the electors run out of paper ballots and start using card stock. Has the election taken place “in a way other than that prescribed”? Sure. Suppose some electors cannot spell a candidate’s name correctly and so either badly guess at its spelling or identify him by his city or country? Has the election taken place “in a way other than that prescribed”? Indeed. Suppose Rome is hit with a heat wave and the Sistine Chapel AC breaks down, so, to save aging electors dangerous misery (such as actually happened during the election of Benedict XIV), the afternoon ballots are shifted to take place in the morning. Has the election taken place “in a way other than that prescribed”? Certainly. A thousand variations on the ‘prescribed way’ of electing seem possible, some trivial (like typos on a ballot), others gravely sinful (like simony), such that, in some cases at least, the words in UDG 76, “in a way other than that prescribed”, could not reasonably connote in Church law everything they could well connote in common parlance. ("Francis was never pope? Call me unpersuaded," Catholic World Report, Sept. 28, 2017)

In the aftermath of the 2013 conclave, there were some arguing against the election of Pope Francis based on the fact that he was elected on a fifth ballot in a day when Universi dominici gregis limits the amount of ballots cast in one day to four. This is exactly the sort of thing Dr. Peters is talking about. These kinds of procedural deviations do not touch on the form and substance of the conclave and do not thereby render it invalid (I recommend you read the entirety of Dr. Peters' article, linked above, for further study).

The Number of Cardinal Electors

Today we see people fretting about the number of Cardinal electors being 133 when Universi dominici gregis says they should not exceed 120. This, too, is a nothingburger.

For one thing, it is not easy to keep the number of Cardinal electors at or below 120, as cardinalatial offices need to be filled but no one can predict when a cardinal will die or resign. Popes create cardinals hoping to maintain the college at a general size, but cannot predict how death and resignations will affect this number. Both John Paul II and Benedict XVI created more Cardinal electors than 120. The only difference is that age and death reduced that number below 120 before the conclaves of 2005 and 2013, although this was mere happenstance. In the case of the 2025 conclave, we have over 120 Cardinal electors participating, and this too is happenstance.

One may notice a potential conflict in the text of Universi dominici gregis on this matter. On the one hand, the introduction of the text fixes the maximum amount of electors at 120. Here is the relevant text:

...the universality of the Church is sufficiently expressed by the College of one hundred and twenty electors, made up of Cardinals coming from all parts of the world and from very different cultures. I therefore confirm that this is to be the maximum number of Cardinal electors.

This is reaffirmed in paragraph 33 as well, which says, "The maximum number of Cardinal electors must not exceed one hundred and twenty." Well and good. But, on the other hand, the document also says that every Cardinal under the age of eighty at the time of the sede vacante possesses the right to vote in the conclave:

The right to elect the Roman Pontiff belongs exclusively to the Cardinals of Holy Roman Church, with the exception of those who have reached their eightieth birthday before the day of the Roman Pontiff's death or the day when the Apostolic See becomes vacant...No Cardinal elector can be excluded from active or passive voice in the election of the Supreme Pontiff, for any reason or pretext (33, 35).

The problem should be evident. The document limits the number of Cardinal electors to 120 while also stating that no Cardinal elector can be excluded from voting, even if there are more than 120. To harmonize these provisions, the Church interprets the 120 rule loosely in light of the prerogatives of the Cardinal electors. In other words, which is more important, that the Cardinal electors exercise their millennium-old right to choose the Roman pontiff, or that we adhere to the arbitrary number of 120 set by Paul VI? Obviously the former. This is why the Roman pontiffs have seen fit to interpret this rule broadly, and hence John Paul, Benedict, and Francis all elevated the number of electors above 120, functionally amounting to ad hoc mitigation of the 120 rule. The 120 rule is essentially the debt ceiling of papal conclaves—yes it exists, but it can be raised at will.

The Competency of the College of Cardinals

Perhaps you think I am taking liberties with my explanations. I am certainly no expert in this area, although what I have written has been informed by my own study of those who are much more knowledgeable on matters of law and precedent. If you are still unpersuaded, however, I would like to draw your attention to paragraph 5 of Universi dominic gregis, which is meant to be a catch-all for every potential issue that could be contested during a conclave:

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.

If there is any uncertainty as to any the legality or validity of anything relating to the conclave, it falls to the College of Cardinals to resolve the issue. If "it suffices that the majority of the Cardinals present should concur" on any controverted point, then the very fact that the College of Cardinals does not object to some irregularity—real or perceived—itself constitutes an acceptance of the validity of the conclave and its results.

It is, therefore, not possible to have a conclave wherein two thirds of the Cardinal electors select a pope who is accepted by the Sacred College but have that same election somehow invalidated due to a procedural technicality like the 120 rule of the fifth ballot that elected Jorge Bergoglio. It just doesn't work that way.