TRANSCRIPT

The Mexican Electoral Court and the Federal Judiciary and the 2006 Presidential Election

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Jesús Orozco-Henríquez
Monday, July 10, 2006; 7:11 PM

Presented on May 18, 2006 at a CSIS Mexico Project event titled "Administering Mexico's 2006 Federal Elections"

This speech aims at explaining the main features distinguishing the resolution system for electoral disputes which is in force in Mexico, pointing out the institutional role played by the Electoral Court of the Federal Judicial Branch in the 2006 presidential election.

The current Mexican Resolution System for Electoral Disputes was established in 1996, when both the Constitution and the electoral legislation were amended in order to provide for an Electoral Court of the Federal Judicial Power (to which I will refer simply as the electoral court in what follows) which is empowered to resolve not only every dispute arisen from federal elections (whether presidential or congressional), but also those derived from state elections [affecting the election of governors, state congressmen and city councils (ayuntamientos municipales)].

Due to the 1996 reform, the electoral disputes resolution system in force since the nineteenth century was modified. Such a system prevented judicial review on the legality and constitutionality of electoral executive orders, authorizing political bodies (the congressional electoral colleges), to resolve disputes derived from both presidential and congressional elections in a final way. It must be said, however, that such final resolutions were not always made according to the law but following political criteria on behalf of the political party in control of each Electoral College. As a matter of fact, even though the first electoral court which was created in 1987 had a partial autonomy, as well as that one established in 1990, their rulings were reviewed and even modified by the congressional electoral colleges. As a consequence Mexico had a mixed political-judicial electoral dispute system from 1987 to 1996.

Today, there are two federal electoral authorities in Mexico. On the one hand, the Federal Electoral Institute which is an independent and permanent public agency in charge of organizing the federal elections and in charge of resolving some administrative appeals as well. On the other hand, the Electoral Court of the Federal Judicial Power, which is in charge of resolving judicially the appeals submitted to it and derived from the elections, in order to review the compliance of electoral authorities' orders and resolutions with the principles of constitutionality and legality, as well as to protect the electoral-political rights of every citizen to vote, to be voted and to associate with others to achieve political objectives. Former electoral courts' powers were limited to review appeals on legal grounds. Nowadays, the Electoral Court is empowered to review appeals on constitutional grounds.

The Electoral Court is the specialized court within the Federal Judicial Power as well as the top judicial electoral authority of the country, except in those cases involving lawsuits challenging the constitutionality of electoral legislation, which are under the Supreme Court's jurisdiction. The Electoral Court is divided into a High Court and five Regional Courts. The High Court, which is permanently open for business, has seven judges who have been appointed for a period of ten years. They cannot be reappointed to a second term. The High Court is located in Mexico City. The Regional Courts, on the other hand, have three judges appointed for a period of eight years. They cannot be reappointed to a second term unless they are promoted to a higher post. Such courts are only open for business during the federal electoral process.

There are many constitutional and legal provisions (both institutional and procedural) aimed at ensuring the Electoral Court's autonomy, as well as an independent and impartial behaviour from the electoral judges and an effective and efficient case adjudication.

The Electoral Court's rulings are unchallengeable. Therefore, they cannot be further reviewed nor modified by any other agency or court. The Mexican Supreme Court considers the electoral court's decisions to be both definitive and unchallengeable.

Likewise, a kind of "normative autonomy" is constitutionally vested in the Electoral Court. As a result, the Electoral Court is entitled to pass an internal regulation on its own. Besides, the Electoral Court is entitled to a sort of "managerial autonomy" which derives from its constitutional powers. The Electoral Court's Management Commission (which is integrated by a chairman who is the President of the Electoral Court along with members of the Federal Judiciary Council) is authorized to design a budgetary project on its own as well as to direct its managerial and financial activities within a considerable range of freedom. The Electoral Court is also entitled to manage labour relations on its own.

The Electoral Judges' independence, impartiality and professionalism are ensured by requiring from them the fulfillment of very high professional and technical standards. The electoral judges also have to demonstrate a complete independence with respect all political parties. Besides, each single judge to the Electoral Court is appointed by a two-thirds majority of senators out of a shortlist of three candidates submitted by the Supreme Court after a public summon has been issued to fill-up the vacancies in the Court. I would like to mention that in 1996, we were appointed to the Electoral Court unanimously. Such an appointment was a result of a great consensus reached by the political parties which were represented in the Senate at the time. I should add that the electoral judges' wages, which cannot be diminished during their time in Office, are determined in order to pay for the performance of a very professional and committed job.

According to the Federal Judiciary Act (Ley Orgánica del Poder Judicial de la Federación), there are several grounds on which an electoral judge's approach to a case could be biased. In such cases (family or friendship ties or public enmity with one of the contesting parties) the electoral judge involved cannot take part in solving disputes. Furthermore, electoral judges are not allowed either to accept or to perform any other job or employment, except unpaid ones at scientific, teaching, literary or philanthropic associations. Besides, for two years after their last day in Office, electoral judges are forbidden to take any kind of job or employment under any administration derived from an electoral dispute sorted out by them. They are not authorized to perform any kind of employment, position or undertake any kind of commission for an administration derived from their rulings either. According to the Mexican Constitution, electoral judges can be accountable politically, criminally and administratively. Every Mexican citizen is empowered to fill in a report about any electoral judge's wrongdoings. The electoral judges have to turnout an annual report on their wealth.

Judicial rulings have to be based on reasons. The more reasonable judicial rulings are the more legitimated courts and judges become. Therefore, it can be said that judges' legitimacy is derived from their own resolutions rational quality. Bearing this in mind and taking into account the common opinions of several commentators, the Electoral Court has made an effort to improve its rulings' quality, not only from a normative point of view, but also in executing evidentiary rules to sort out every single case filed before it. Furthermore, according to many Mexican polls, the electoral court's approval ratings are as high as others' autonomous institutions.

According to both article 99 of the Mexican Constitution and the Federal Judiciary Act, the High Court of the Electoral Court is empowered to review and solve all the appeals filed before it in respect to the election of the President of the Mexican United States in a definitive way. The high court is also empowered to validate the presidential race and to declare the winner of it as Elected President. Before any validation takes place, the high court has to check the winner's accomplishment of all requirements set down in order to be elected.

Anyway, it is very important to bear in mind further information as follows:

On July 2nd, 130, 564 voting polls will be opened for business across the Nation. On that Sunday election-day is going to take place. Besides, counting points will count the ballots sent by 40,000 Mexicans registered abroad;

On Wednesday, July 5th, the 300 district councils of the Federal Electoral Institute will be summoned to perform the official district counting, including the counting of the presidential race. It must be noticed that the ballots sent by Mexicans abroad have to be counted as well; After de official district counting has been finishes (probably from July 6th or 7th), political parties have 4 days to file appeals before the electoral district councils to challenge the counting of the presidential race. From July 14th onwards, the Electoral Court will receive such appeals from the presidents of the district councils.

The appeals aimed at challenging the presidential election, shall be solved by the High Court of the Electoral Court on August 31st at the latest.

The presidential election concludes when the High Court issues the final report on the presidential election's counting, the validation of the presidential election and the declaration of Elected President in behalf of the candidate who obtained a majority of votes. All such documents have to issue on September 6th at the latest.

The electoral court has a 66 days-long deadline after the election-day has taken place to solve the presidential election, which means that it has something like 55 days after the appeals have been filed before it.

As all courts, the Electoral Court can be evaluated from an institutional point of view based on their rulings. We have some statistical data which can be helpful to undertake such an evaluation.1

The Mexican system of electoral appeals is far more active than others. Electoral litigation is much more frequent in Mexico than in other, and more consolidated, democracies. However, it is important to notice how contenders have used institutional instruments at their disposal to prevent and solve electoral disputes. We have to be glad that the rulings issued by the electoral court have been honored by legal contenders and that traditional conflicts have been rather scarce.

Until yesterday [May 17th], 21,032 electoral appeals have been filed before the electoral court. 20,705 out of them have been solved. A less than 1.6% is still on litigation [tomorrow, May 19th, in a public session nearly 115 more are expected to be solved], which means that pending cases are very few. On an average, it takes 8 days for the High Court to solve an appeal, counting from the day in which the file is submitted onwards.

1104 cases out of 1248 received by the High Court on this year (approximately 2/3 of them) have been filed by citizens against political parties which have apparently violated their own internal democratic rules.

A classification of electoral appeals can be outlined taking into account which political party filed the case. From that point of view, and taking into account the appeals filed by the biggest political parties of Mexico (the National Action Party-PAN, the Revolutionary Institutional Party-PRI and the Party of the Democratic Revolution-PRD) the impartial performance of the electoral court is evident. So, each one of them has won electoral appeals filed before the High Court in a similar proportion. PAN has won 177 (19.93%) appeals out of 888 filed before the High Court. PRI has won 178 (20.27%) appeals out of 878 filed before the High Court. PRD has won 204 (22.05%) out of 925 filed before the High Court.

In some other places, I have claimed that the Electoral Court's work can be seen as inspired by a non-formalist credo which is also close to a jurisprudential position protective of fundamental civil and political rights. The electoral tribunal is resolved to uphold the constitutional and the legal principles aim at protecting citizens as well as regulating the activities of electoral authorities and political parties.2

In order to have the whole picture of the way in which the electoral court performs its duties, and to evaluate how important such performance is within electoral justice in general, some important rulings can be brought about as follows:

a) The High Court upheld the 2000 presidential election and as a result of such a ruling a candidate from an opposition party was proclaimed as Elected President for the first time in seventy years;

b) The High Court is empowered to annul federal, state or municipal elections whenever serious and proved irregularities can be considered to play a significant role to determine the election's result. From 1996 there has been more than 59,000 public (federal, state and local) posts elected in Mexico. The Electoral Court has used such a constitutional power to annul 17 elections, including a couple of congressional elections in 2003 (affecting the election of the Federal Representatives of the electoral districts of Torreón, Coahuila, y Zamora, Michoacán), as well as a couple of governorships (affecting the election of the governor of Tabasco in 2000 and Colima in 2002). Besides, the elections of 11 city councils, 1 state congressman, and 1 city councilor have been nullified. Furthermore, the High Court has upheld 13 nullifications rulings issued by state electoral courts (12 derived from appeals challenging city councils' elections, plus 1 derived from appeals challenging the election of a municipal delegate). Moreover, the High Court has reversed the nullification of 22 elections based on inferior courts' decisions (15 derived from city councils' elections, 2 derived from mayors' elections, 1 derived from the election of a city councilor, 1 derived from the election of a municipal official, 1 derived from the election of a delegate to the Federal District, 1 derived from the election of a federal congressmen, and 1 derived from the election of a state congressmen). It is important to bear in mind that all three main political parties have filed appeals before the High Court to challenge electoral results and all of them have won many of those appeals on legal grounds;

c) The Electoral Court has the constitutional power to either uphold or impose severe fines to political parties which have had financed their electoral campaigns irregularly. The Court upheld or imposed such kind of fines after the 2000 federal election took place [around 100 million US dollars to the political party holding the majority of the Congress (i.e. PRI) and 50 million US dollars to the coalition of political parties which won the Presidency (i.e. PAN y PVEM)];

d) The Electoral Court has also revoked illegal and unduly congressional appointments of local electoral authorities (as it did in resolving the lawsuits submitted by political parties with respect to the electoral authorities of Guerrero, Nuevo León, Yucatán, and Zacatecas);

e) The Electoral Court has upheld the right of every indigenous citizen to appeal an electoral system based on indigenous customs and communal procedures (Tlacolulita, Oaxaca). It's worth mentioning that the Electoral Court annulled an election organized under an indigenous customary electoral system which infringed the principle according to which to vote must be considered as a universal right (Santiago Yhaveo, Oaxaca), and

f) In many of its rulings, the Electoral Court has upheld a number of measures aimed at ensuring that political parties organize themselves in a democratic way (some of the examples of such kind of rulings can be listed as follows: the unconstitutionality declaration over the internal regulation of a political party which did not reach the minimum democratic threshold established by the law; the obligation of achieving a balanced relation between the political parties? right to self determination and the militants' rights to a democratic participation in deciding on the party's objectives (the declaration of a candidate's registration whose name is different to the winner's of the primary election as null and void; the declaration of internal elections of both directive members and candidates as null and void; the revocation of penalties unduly imposed upon affiliates; the revocation of penalties imposed upon affiliates which can be considered as violating fundamental rights such as freedom of speech).

In addition, it is worth mentioning the transparent way in which the Electoral Court performs its duties. Every single resolution session is public and all of them can be followed through internet. Furthermore, within the twenty four hours following the resolution session all our rulings and resolutions can be accessed freely in our web page. Likewise, any individual is allowed to review all concluded cases stored in the judicial archive.

The judicial review on the resolutions and executive orders issued by federal and state electoral authorities have "inoculated certainty" into elections. As a matter of fact, it has produced a new legal culture among political agents,3 especially taking into account that political parties can also be held accountable for the harmonic undertaking of elections. Now, in Mexico, political contenders know that judicial procedures are at their disposal and that they can get legal victories providing their lawsuits with strong reasons and convincing evidence. Judicial review of electoral decisions has substituted both media litigation and street demonstrations.

In my view, the institutional design for elections, which includes a new legal framework regulating the independent and legal activities of both the Federal Electoral Institute and the electoral court, brings about certainty in respect to electoral results and to the validation of the presidential race as well.

Summing up, the Mexican Resolution System for Electoral Disputes, which is operated by the Federal Electoral Institute along with the Electoral Court, has played a significant role within the transition from a regime dominated by a hegemonic political party to a pluralistic regime where political parties compete against each other in a democratic way. Such a system upholds a democratic rule of law which is aimed at protecting fundamental voting rights as well as at strengthening a political system in which elections are free, periodic and authentic under both the Constitution and the law.

1. It is important to notice that statistical data is always relative. Such a distinctive feature is particular relevant in respect to the evaluation of any court. It has to be remembered that single case is unique. Each single evaluation has to take into account whether procedural formalities were followed or not. The overall evaluation of the electoral court?s performance has to be based on technical, objective and professional examinations on the legal reasons used by the court to support each single ruling. Such legal reasons are available to everyone at our web (www.trife.org.mx). Besides, all the files are stored and available in the Judicial Archive of the Electoral Court.

2. Vid., J. Jesús Orozco Henríquez, Justicia electoral y garantismo jurídico, México, Porrúa, IIJUNAM, 2006, 339pp.

3. José Woldenberg, ?Jueces y política. El Tribunal Electoral del Poder Judicial de la Federación en México?


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