UPDATE 2/26/13 - Renowned U.S. Canonist E. Peters offers some great commentary on the changes in Normas Nonnullas. As I did, he raises the question of how they can start early without all of the elector present. (For that reason I would suggest he amend his blog title from "Problem Solved" to "Problems Created"!) He offers the following solution:
Well, I suggest that authorizing an earlier conclave under certain express conditions authorizes resort to reasonable means to determine whether those conditions have been met. Now Darmaatmadja and O’Brien have declared their intention not to enter the conclave. There is no reason not to think that those are free choices. So the opening date can be set without further notice of themI think it is easier than that. The law itself allows cardinals to be excused from voting. They may be excused for illness, and Darmaatmadja is clearly covered by this. By that alone, I think he would not count in determining whether they could permit early voting. As I mention, the law also allows a cardinal to be absent for another grave reason. But this can only be determined by the Cardinals. The solution, it seems to me, for the case of O'Brien, would be for him to submit his intention not attend, citing his reason. The other Cardinals could then vote to approve this as a sufficiently grave reason--if they truly believe that it is--and he would be excluded. With that, and all other Cardinals present and accounted for, I believe they could begin. Absent this, I do not believe the may begin early.
The Pope issued today a new motu proprio (Normas Nonnullas) amending the Apostolic Constitution which governs Papal Conclaves. A number of changes were made, many of them small or technical. One of the most expected changes was the decision regarding when the Conclave could begin. The document is currently not available in English, only Latin and Italian. From the Italian version:
lascio peraltro al Collegio dei Cardinali la facoltà di anticipare l’inizio del Conclave se consta della presenza di tutti i Cardinali elettoriEssentially, that means that it is left to the Cardinals the faculty to begin the Conclave early, so long as all of them are present. This is a key point.
For in addition to this, the document requires all cardinals to respond to the convoking of the Conclave. Only those who are unable to attend by reason of illness or other grave impediment are excused. Moreover, it is up to the Cardinals as a body to decide what that means.
To take a real example, Cardinal O’Brian of Scotland has declared his intention not to attend the Conclave. I presume he means that he suffers from some impediment preventing his attendance. But what if the Cardinal-Electors decide that is not a sufficiently grave reason? Then they have to wait for him to attend before they can set an earlier vote. In other words, before they can vote to begin the voting early, they first have to determine that all the Cardinal electors are present, except those legitimately impeded. A Cardinal can always refuse to attend, but unless excused the Cardinals may not vote before the lapse of the 15 days.
So, the question is, when will the Conclave start? The answer now is, we don't know. We will have to wait for the Cardinals to gather on March 1 and tell us.
[I am happy to see, as I hoped, that in issuing the new motu proprio, the Pope also waived the vacatio legis and declared it would be promulgated in L'Osservatore Romano.]