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Rule of law: Future of Mexico’s electoral authority rests with Supreme Court

Ann Louise Deslandes Tuesday 23 May 2023

Mexico’s President Andrés Manuel López Obrador has a plan for the country’s electoral commission, the Instituto Nacional Electoral (INE). His ‘Plan B’ electoral reform was passed by the national Congress in February and is now sitting before the Supreme Court, which in early May ruled that part of the reforms is invalid under Mexico’s Constitution.

Plan B would provide for a large funding and staffing cut for the INE and a wide reduction in the institution’s architecture and attributions for overseeing election campaigns and voting.

The INE is a cornerstone of the country’s transition to a liberal democratic system. The victory of Vicente Fox and his Partido Acción Nacional in 2000 ended 70 years of rule by the Partido Revolucionario Institucional, who ‘won’ term after term via highly controlled elections.

Following several earlier electoral reforms, the Instituto Federal Electoral (IFE) was created in the 1990s via an amendment to Mexico’s Constitution. Article 41 of the Constitution now stipulates an apolitical, autonomous organ to professionally manage the technicalities of multi-party elections at a federal level.

The formation of the electoral body was accompanied by guarantees on the representation, advertising space and equitable funding of minority opposition parties, as well as other conditions of competition, such as restrictions on public servants interfering in political contests and mandated oversight on campaign spending. In 2014, the INE was built on the IFE’s foundations, with a broader remit to include local elections.

The original Plan B package comprised a series of amendments and repeals to five federal statutes and the introduction of a new one. The Supreme Court has now invalidated the changes to the laws regulating political advertising. The Court found there were ‘serious violations in legislative procedure’ in Congress’ passing of the reforms.

Enfeeblement of independent electoral bodies is increasingly a pervasive problem across the world

Mark Stephens CBE
Co-Chair, IBA’s Human Rights Institute

The remaining parts of the reform would reduce both the functions and the ability of the INE to regulate campaign funding, administrative liability, electoral procedure, political parties, civil service employees and the appeal of election results. According to a review by Mexico’s National Autonomous University, the INE’s professional staff would be reduced by up to 85 per cent.

The President has sold the reform to voters as an austerity measure. According to him, the operations of the Institute – particularly the high salaries of its civil service employees – have been too costly for the Mexican people.

Large protests against Plan B were held both before and immediately after it was passed by Congress. The protests were supported by the INE’s leadership and have galvanised opposition to the reforms, with critics claiming that Plan B is a move against the democratic rights in Mexico. Civil society groups within Mexico have raised concerns about the impact on access to political participation for women and groups that experience discrimination, such as transgender people and people with disabilities. International oversight bodies including Human Rights Watch also say Plan B would weaken an important institution for Mexican democracy.

López Obrador denies the reforms represent a threat to democracy. After a US State Department official commented that ‘We respect Mexico’s sovereignty. We believe that a well-resourced, independent electoral system and respect for judicial independence support healthy democracy’, the Mexican President retorted that he can ‘prove there is more liberty and democracy in our country [than in the US]’.

It’s important to understand Mexico’s electoral authority as a constitutional body, says Benito Nacif, a professor in the Political Studies Division of the Centro de Investigación y Docencia Económicas. ‘Most new democracies […] including Mexico – have adopted constitutional solutions to the problem of organising independent elections that are different to the way more well-established democracies solve the problem’, Nacif explains.

These new democracies have created ‘constitutionally autonomous electoral management bodies’ to keep elections away from the executive branch of government, given that, historically, that branch has been used by the government to maintain power. The specific fear for many critics of Plan B is that the running of elections ‘becomes dependent on decisions taken by the government; reducing the authority and capabilities’ of the electoral body, Nacif adds.

Pamela San Martín is a human rights lawyer and served as Electoral Councillor within the INE from 2014–2020. She says it’s essential to understand Mexico’s electoral system within the country’s political history. In the wake of government control of elections under one-party rule and given deep mistrust between the government and citizenry, the existing electoral system has ‘rules, safeguards, supervision and monitoring mechanisms’ at each stage of the electoral process, San Martín explains. ‘It is the INE’s technical strength’ in organising democratic elections, ‘to be able to materialise the right to vote in all senses’, which gained it international recognition, she adds.

For each federal election, close to 1.5 million citizens are randomly selected and trained to attend polling booths in their neighbourhoods, of which there are some 163,000. This work is carried out by 300 district bodies led by five civil service officers and supervised by a temporary citizens’ council. Plan B would eliminate four of those five positions in each district, San Martín says, replacing them with auxiliary, temporary, non-professional staff. The permanent district bodies would be removed and district oversight managed by just one civil service officer. Claims that the López Obrador’s administration plans to ‘disappear the INE’ entirely are not correct – more specifically, says San Martín, Plan B would ‘take away the material capacity [for the Institute] to carry out its activities’.

Public affairs consultant Nuria Valenzuela agrees. She says that Plan B puts ‘democracy at risk in a very practical sense’, by jeopardising ‘the organisation of elections’. Mark Stephens CBE, Co-Chair of the IBA’s Human Rights Institute, adds that ‘Enfeeblement of independent electoral bodies is increasingly a pervasive problem across the world’, with many strong independent electoral institutions being ‘starved of the funding to allow them to do their jobs’.

Meanwhile, López Obrador regularly targets Supreme Court ministers appointed under previous administrations for criticism and says the Court also needs reform. The President has railed against the Court’s decisions regarding Plan B, claiming that it ‘serves the powerful and criminals’, with no care for ‘the people’. ‘Supreme Courts have to be the guardians of the democratic process’, says Stephens. This role is under pressure in many states as ‘politicisation of the judiciary is increasing internationally, including in Mexico’.

Regardless of the final judgments on the electoral reforms, López Obrador may yet have succeeded in discrediting the INE with his criticisms. A survey carried out by national daily El Financiero found an approval rating of 59 per cent for the Institute in March, a decline of nine points compared to October 2022.

Image credit: Brenda Blossom/AdobeStock.com