[Editor’s Note: This is one of our regular ICONnect columns.]
In recent years, a series of constitutional amendments have introduced mechanisms of direct democracy in Mexico—in particular, referendums (2012) and Presidential recall elections (2019). The first referendum in Mexico’s contemporary constitutional history took place last year and the first recall election will take place this coming April. The former, which was supposed to be a referendum to hold former Presidents accountable for crimes committed in past administrations, caused plenty of controversy as President López Obrador was accused of using the mechanism as a political tool for nothing more than self-promotion. The latter has also been contentious.
There has been considerable controversy and debate, for instance, about the costs of holding the recall election, whether it is necessary to hold it when the President’s approval rates remain above 60%, about the obligation of Congress to assign funds for such an exercise, and about the formulation of the question to be asked. Just last week, the Supreme Court decided a case (in abstract review) that challenged the constitutionality of several sections of the federal statute that regulates recall elections (the recorded live sessions are available here, here and here)—including the template question and the provisions that allowed for the active participation of political parties in this kind of exercises. While most of the attention has been directed to (the rather inconsequential issue regarding) the formulation of the question, the ubiquitous presence and influence that political parties may have in the process leading to a recall election has been largely overlooked. This is unfortunate given that the current process has been hijacked by the ruling party (MORENA). Even though in light of the recent court decision such a situation would seem to render the whole process unconstitutional, it is very likely that the ruling party will get away with it without any repercussions.
Constitutional Requirements for Recall Elections
Article 35 § IX of the constitution, which lists the rights of citizens, provides that recall elections are to be called and organized by the national electoral body, the Instituto Nacional Electoral (INE), after formally receiving a citizen’s petition. A recall election petition is considered as such when i) at least 3% of signatures of registered voters on the national electoral register are gathered (i.e., about 2.8 million signatures), and ii) at the same time, that those signatures respectively represent 3% of the registered voters on the local electoral register in 17 out the 32 states. The INE must verify the validity of the signatures and the constitutional requirements within 30 days after recipience and issue the official call for the recall election—which, in turn, must take place 90 days after the issuance of the call.
Moreover, for the recall election to bebindingthe constitution requires a 40% turnout—that is to say, over 37 million voters. This means that if the majority votes in favor of recalling in a turnout of 39.99%, the President would remain in power. Moreover, recall elections cannot take place on the same day as federal elections, and the constitution also prohibits the use of public resources for any activity related to the recall process (e.g., signature gathering, promoting, and advertising).
On its face, given that it can only be triggered by a citizen’s petition and that it explicitly bans the use of public resources, the recall election seems to have been designed as a mechanism to enable an unmediated and bottom-up exercise of self-government. Yet, this assumption became less clear when the bill of the Ley Federal de Revocación de Mandato (LFRM)—the statute to implement the respective constitutional amendment—was passed in Congress. The bill raised two main issues, one related to the template question and the other to the active participation of parties in a recall election. Article 19 § V of the bill established the following template question:
Do you agree that (name), remains in the office of President of the United Mexican States until the end of his/her term?
The formulation of the question raised concerns among legislators and the legal community in that by exclusively asking if the President should remain in office, the question distorted the recall mechanism and turned it into a ratification process. Accordingly, the template question that was approved reads as follows:
Do you agree that (name) is recalled from the office of President of the United Mexican States due to loss of confidence, or that he/she continues in the Presidency of the Republic until his/her term ends?
As to the second issue, Article 32 and 40 of the statute allowed the participation of political parties throughout recall election processes through activities such as the promotion of citizen participation. Members of the opposition parties (PAN, PRI and PRD) in the Chamber of Deputies brought a constitutional challenge before the Supreme Court against, among other things, the template question and the active participation of parties in recall processes. Essentially, the claimants argued that, on the one hand, the second part of the template question (asking if the President should remain in office) distorted the recall election mechanism by turning it into a ratification process and, on the other hand, that the active participation of parties constituted a violation of the constitutional ban on the use of public resources for any activity related to recall elections.
The Supreme Court’s decision
The court fell short by one vote from reaching the qualified majority of 8 out of 11 votes to strike down the template question. In short, the (prevailing) minority considered that the question did not distort the nature of the recall election mechanism in that, if anything, referring to the only two possible outcomes made it easier for voters to understand the stakes of their vote.
The court, however, in a 9 to 2 decision did strike down one of the provisions (LFRM, Article 32) allowing for the active participation of political parties in recall processes. In a nutshell, the court considered that such participation distorted the nature of a recall election as an instrument of direct democracy. For the court, an instrument of direct democracy must be designed to be exclusively used by the citizenry. Moreover, the court determined that the constitution is clear in that the only body allowed to conduct the organization and promotion of the recall election is the INE. As such, the active participation of political parties has no place in them.
The ongoing recall election process and the implications of the Supreme Court’s decision
The upcoming recall election could not be further from being a bottom-up citizen’s effort. Quite the contrary. It will be the product of very well-organized top-down effort by the ruling party. From the outset, the President and his party have been the only actors keen to hold the recall election. For months now, the issue has been a constant topic on the public agenda continuously brought up and discussed by the President himself. Most recently, the Secretary of the Interior publicly encouraged MORENA Senators to go out to promote the recall election in their respective states. Moreover, the leadership of the civil society organization that coordinated the effort across the country to gather the signatures to make the formal petition to hold the recall election is comprised by individuals with clear links to MORENA (i.e., former members of congress, individuals who either ran and lost the election for a seat in the Chamber of Deputies or were party employees).
Against this backdrop, the question is what should be the effect of the court’s decision regarding the active participation of political parties on the ongoing recall election process? Does the fact that the efforts to hold the recall election have been quite clearly a partisan effort (i.e., not a genuine citizen demand), likely in violation of the ban on the use of public resources to this end, should amount to the unconstitutionality of the whole process? This is obviously a question that (one would think) a court should decide. However, in this case there is no clear legal pathway to challenge the process because the Congress, as determined by the Supreme Court, omitted to provide an adequate mechanism to review recall processes in the LFRM.
In any event, it is unlikely that the 40% turnout threshold requirement for the result of the recall election to be binding would be reached. If the low turnout in the referendum last year serves as an indication of the possible turnout on a recall election, there is little reason to believe that this time around will be any different.
Politically speaking, however, the exercise may not be a waste of time and resources (at least for MORENA) even if the threshold is not met. One should not forget that the constitutional amendment to adopt the recall election mechanism was an initiative of the ruling party and, judging from the time and energy it has invested on pushing for it, there are definitely political points to score. While the high turnout threshold requirement and the popularity of the President provide insurance against backfire, maintaining the issue on the public agenda has given the ruling party continued visibility in the months leading up to an important election year in which six governorships are up for grabs—all of which are currently held by opposition parties. The fact that it is likely that the President and his party, acting in violation of the constitution, will get away with holding a recall election that does not reflect any genuine popular demand, is not a good precedent for the development and consolidation of direct democracy in Mexico.
Suggested citation: Mariana Velasco-Rivera, Mexico’s Upcoming Presidential Recall Election has been Hijacked by the President’s Party, Int’l J. Const. L. Blog, Feb. 9, 2022, at: http://www.iconnectblog.com/2022/02/mexicos-upcoming-presidential-recall-election-has-been-hijacked-by-the-presidents-party/