The vote nobody understood

Posted on: 23 March 2026

In a few months, perhaps a year or two, you will hear someone complain about the Italian justice system. About a magistracy that operates as a state within the state, or about judges bent to political pressure, depending on which way the wind blows. And that person, with reasonable probability, was standing in a queue at a polling station this weekend.

More than 46% of eligible voters turned out to cast their ballot on Saturday and Sunday — a record for a constitutional referendum in modern Italy. Everyone went home feeling they had done their civic duty. The problem is that civic duty, in its adult form, is supposed to include knowing what you are actually voting on.

To understand why that was so difficult this time, you need to understand something peculiar about how Italy organised its judiciary after the Second World War. Unlike Britain, where judges and prosecutors are drawn from the same legal profession but operate in entirely separate institutions, Italy grouped them together under a single constitutional category: magistrates. A person who enters the Italian judiciary can, in principle, begin their career as a prosecutor, spend years building criminal cases, and then switch tracks to become a judge deciding the very type of cases they once prosecuted. The two roles share the same governing body, the Consiglio Superiore della Magistratura, a constitutional organ responsible for appointments, promotions, transfers and discipline across the entire judiciary.

The CSM, as it is universally known, is not a simple administrative body. Two-thirds of its members are elected by the magistrates themselves, which means that the internal factions within the judiciary — the correnti, loose political groupings that operate not unlike party caucuses — effectively control who gets promoted, who gets transferred, and who faces disciplinary proceedings. Over decades, these factions became influential enough to constitute what critics describe as a parallel power structure, one with the legal tools to investigate and prosecute politicians, the institutional autonomy to resist oversight, and the organisational coherence of a well-run guild.

This is the context in which the reform on the ballot this weekend needs to be understood. The government's proposal would create a permanent and irrevocable separation between judges and prosecutors from the moment they enter the judiciary. No more switching roles. The single CSM would split into two separate councils, one for each function. And instead of the correnti-dominated internal elections, two-thirds of each council would be selected by lottery from eligible candidates — a mechanism designed, its supporters argued, to break the factional grip on judicial governance. A new High Disciplinary Court would take over the disciplinary function from the CSM entirely.

Proponents said this was the logical completion of a reform process begun in 1988, when Italy moved from an inquisitorial to an adversarial criminal procedure model. The argument runs that you cannot have a genuinely adversarial system if judges and prosecutors share the same career path, the same professional culture and the same governing body. Critics responded that splitting the judiciary would expose prosecutors to greater political influence, that a unified magistracy is structurally more resistant to executive pressure, and that none of this addresses Italy's actual justice problem: proceedings that take an average of seven years to reach a final verdict, chronic understaffing, and a backlog that has become a systemic brake on economic activity.

Both arguments have serious legal scholars behind them. The debate has been running, with various degrees of intensity, since the 1990s. Most Italians have not followed it.

So what did the electorate do? The only rational thing available given the information environment: they followed the signal of whichever group they trusted most. Government supporters voted Yes because the government wanted Yes. Centre-left voters voted No because their parties said No. Those who instinctively distrust the magistracy — and after thirty years of high-profile political trials, acquittals, leaks to newspapers and the occasional spectacular judicial scandal, there are quite a few of them — found in the Yes a small symbolic satisfaction. Those who view an independent judiciary as the last institutional check on executive overreach voted No as an act of resistance. Almost none of them read the reform.

This is not ignorance. It is a perfectly rational response to costly information and limited time. When a technical question is genuinely complex, delegating judgement to your reference group is the most efficient heuristic available. The failure is not in the voter.

The failure is that no actor had any real interest in explaining the substance clearly. The governing coalition promoted the reform without ever finding a message that reached beyond its own base. The centre-left opposition built its campaign almost entirely around defending the magistracy as an institution — a framing that works for those who already oppose the government and alienates anyone with a more ambivalent view of judicial power. The magistrates themselves campaigned with a unanimity that inadvertently demonstrated precisely what the reform's supporters had always alleged: that the Italian judiciary functions as a self-contained interest group, capable of mobilising in defence of its institutional prerogatives with a coherence it rarely shows when the question is accountability for its own errors.

An unintentional gift to the Yes campaign, delivered by those most invested in the No.

Whatever the result, the structural problems of Italian justice will remain untouched. The correnti will find ways to operate within any constitutional architecture. A culture built over decades does not dissolve because the organisational chart changes. The backlog will still be there on Tuesday morning. And those who voted Yes expecting a reformed judiciary, and those who voted No expecting to have protected its independence, will eventually find reasons to be disappointed by what they helped decide.

At which point, punctually, the complaining will resume.