The Elections and rule of law

Title:  Elections and Rule of Law

By: Elias Hannon Gonzalez

The two bodies in charge of overseeing Mexico’s political and electoral process—the National Electoral Institute (NEI) (the policy and regulatory authority) and the Electoral Tribunal of the Federal Judiciary Power (ETFJP) (the dispute resolution authority)—are on the cusp of potential massive change.

President Andrés Manuel López Obrador has proposed three substantial electoral reforms.  First, he aims to change the name of the NEI to the National Institute of Elections and Consultations. Second, he wants to alter the composition of the newly named body: instead of 11 NEI Councilors proposed and ratified by the Chamber of Deputies, there would be only seven Councilors, all chosen by popular election. And third, he has proposed that the Magistrates of the ETFJP be elected by popular vote. 

What would these potential reforms mean for Mexico?  What do they mean for rule of law in the country?

Background

For as long as I can remember, elections in Mexico have been organized and overseen by the NEI, a body independent from Mexico’s other three branches of power. Indeed, my first memory of the electoral process comes from 2006, when my father filled out his ballot for the presidential election by hand. Only six years prior, in 2000, President Vicente Fox Quezada achieved a great victory for Mexican democracy: he was elected president, as a member of a party other than the Partido Revolucionario Institucional (PRI).  Before President Fox’s victory, a PRI politician held Mexico’s highest political office for seventy years.  And after President Fox’s administration, Mexico continued to have peaceful transitions of presidential power, even amongst different parties—all organized, supervised, and facilitated by the NEI (or a precursor thereto).  

The path to these functioning democratic presidential transitions was not an easy one, and democratic successes were achieved largely due to pressure exerted by Mexican civil society. Before the NEI, and during most of the 20th Century, elections were organized by the Executive Power itself. And, as a result, the presidency was held by the same party from 1930 until 2000.

It was not until 1987 and 1990, respectively, that the Electoral Disputes Tribunal (today the ETFJP) and the Federal Electoral Institute (today the NEI) were created through a series of constitutional reforms. The ETFJP forms part of Mexico’s Judicial Power and is tasked with settling electoral controversies and protecting electoral rights. The NEI executes, supervises, and facilitates electoral processes, ensuring that elections comply with applicable regulations; the NEI is also responsible for ensuring that none of Mexico’s Executive, Legislative, or Judicial Powers interfere with free and open elections.

Today: Electoral Reform and Rule of Law

Today, Mexico is facing hotly debated reforms to these electoral mechanisms, which will inevitably impact rule of law in the country.  The electoral reforms proposed by President Andrés Manuel López Obrador establish, among others, three substantial changes to the current electoral system. First, his administrations seeks to change of name of the NEI to the National Institute of Elections and Consultations.  Second, his administrations seeks to change the composition of the NEI. The 11 Councilors proposed and ratified by the Chamber of Deputies would be reduced to seven Councilors, who would be elected by popular vote; in addition, the Councilors’ terms would be reduced from nine to six years.^[1]  (Notably, this contradicts Article 41, section V, paragraph «A» of the Mexican Constitution.) Finally, the Magistrates of the Electoral Tribunal of the Judicial Power would be elected by popular vote.

Dr. Elías Díaz defines rule of law as: a state whose power and activity are regulated and controlled by the law, law that is itself a reflection of the general will.^[2]  And as Pallares Yabur and Ramírez García describe, rule of law is closely related to fundamental aspects of a functioning society, including the legality and legitimacy of government.^[3] Legality addresses the empowering authority of a government to execute a governing act.  Legitimacy centers on how citizens perceive the law and honor their duty to comply with the law. The electoral reforms should be analyzed for their impact on both legality (that they accord with current legal order) and legitimacy (that they reflect the will of the population, such that people will be encouraged to comply).

Legality

The explanatory memorandum, accompanying the proposed reforms, highlights the NEI’s significant expense, as well as the expense of the country’s political parties. (Unlike the U.S., the Mexican federal government uses tax money to cover the expenses of political parties.)  These significant expenses, the memorandum claims, justify the reduction of resources to the NEI, to political parties, and to the electoral process more generally.

 President López Obrador has also emphasized that the NEI and the ETFJP suffer from institutionalized corruption, and he invokes this corruption as additional reason for the proposed reforms.  During a recent morning press conference, President López Obrador went so far as to state that he wants a “reliable” NEI and ETFJP that (1) do not operate in service of conservatism, and (2) do not execute electoral frauds supported by corrupt and anti-democratic Councilors and Magistrates.^[4] 

Of course, in accordance with the legality facet of rule of law, the president faces legal obstacles to carry out these proposed reforms. Because the reforms require constitutional amendments, a qualified majority (two-thirds of the legislators present) will need to vote in favor of the changes, in accordance with Article 135 of the Constitution.

From a political point of view, this seems unlikely.  The President’s party (MORENA) and its allies (PT and PV) only have a simple majority in Congress, so opposition members (from PAN, PRI, PRD, and MC) would need to vote in favor of the proposed reforms.  The current political winds in congress do not favor this outcome.

Given these political challenges, President López Obrador has suggested that he might achieve the same electoral policy changes within the framework of current election law.^[5] Because the election law is a general law, changes require just a simple majority (over half).  But under this framework, none of the new legal provisions could contradict the Mexican Constitution on electoral matters (e.g., the reform could not legally change the number of Councilors). 

Legitimacy

The implications that these proposed reforms could have on the legitimacy arm of the rule of law may prove complex.  Recent weeks have seen significant demonstrations of hundreds of thousands of people in Mexico’s major cities—Mexico City, Guadalajara, and Monterrey—all against the proposed reforms. 

The protests reflect the polarization sweeping Mexico in light of these proposed reforms. The NEI conducted a survey showing that most people supported, in order, budget cuts to the federally funded political parties, direct election of Councilors and Magistrates, and a decrease in the NEI budget. And a simple majority of people polled (52%) favored the name-change for the NEI. ^[6]  But that support is, of course, not universal.

 

 

Conclusion

These electoral reforms, and the considerations they present, invite us to reflect on the importance of the rule of law, including implications for legality and legitimacy.