[Editor’s Note: This is one of our biweekly ICONnect columns. For more information on our 2022 columnists, see here.]
In my last column I tried to bring attention to the way in which Mexico’s ruling party (MORENA) hijacked the presidential recall election process, acting against both the constitution and a Supreme Court decision that held that the active participation (e.g., signature gathering, promoting and advertising) of political parties in these processes is unconstitutional. In so doing, I pointed out that these violations were unlikely to be subject to judicial scrutiny because the Mexican Congress did not include a clear path to challenge them when adopting the statute that regulates recall processes (Ley Federal de Revocación de Mandato – LFRM).
Importantly, I argued that the time and energy put into the efforts to hold the recall election, despite the high approval rate of President López Obrador, suggested that the endgame wasn’t the recall election but the local elections to be held in the following months, whereby six governorships are up for grabs. Being able to actively promote the recall process, in my view, has served as a useful campaign tool to increase the ruling party’s candidates’ visibility. Judging from recent developments, however, it turns out that the endgame might not only be the immediate upcoming elections but a broader attempt to undermine important pillars of Mexico’s electoral democracy.
Article 35 § IX-7 of the constitution provides a strict framework regarding presidential recall election campaigns according to which, among other things, i) the INE has the exclusive power to promote a recall election; ii) the use of public funds is strictly prohibited; and iii) government propaganda (e.g., any information regarding government’s policy achievements) is strictly prohibited with only limited exceptions. The idea behind this provision is to ensure that the recall election is promoted in a balanced and neutral manner. After the Supreme Court’s decision holding on political parties’ active participation in recall elections processes, MORENA faced pushback from the Instituto Nacional Electoral (INE) given the party’s sheer disregard of both Supreme Court’s ruling and the constitution. For instance, days after the Supreme Court decision, the INE ordered a joint public statement in which 18 governors expressed their support to President Lopez Obrador and listed some policy achievements of his administration to be taken down. Led by President López Obrador, and as a response to the INE’s measures and orders to comply with the constitution and the Supreme Court’s ruling, members of Congress, cabinet members and party affiliates alike claimed that the INE was conducting an “anti-democratic campaign” seeking to thwart the recall election and censor them –a claim that would prove useful to justify what came next.
Against this backdrop, on mid-March, MORENA and its allies in Congress passed a “decreto de interpretación auténtica” (authentic interpretation decree) amending the LFRM and, most importantly, the Ley General de Instituciones y Procedimientos Electorales (LGIPE—the statute that regulates electoral processes) to redefine the concepts of “government electoral propaganda” and “impartiality” on the use of public funds. The immediate effect of the amendment was to allow government officials, legislators and party members to actively promote the recall election without being subject to any interference by the INE.
Importantly, the justification provided for the adoption of the authentic interpretation decree exclusively focused on the ongoing recall election process. It was justified as a measure to further develop and protect the mechanisms of participatory democracy in Mexico. In particular, it was supposed to offer the true and authentic wishes of the constitution-amending power that introduced the prohibition of the use of public funds in electoral processes into the constitution and address the alleged efforts by the INE to thwart the recall election process and “censor” government official and legislators actively promoting the recall election. Some have argued that, from the President’s perspective, it was very important for the turnout to be relatively high as a way of showcasing that after three years into his 6 year-term he hasn’t lost the popular support that brought him into power in the historic landslide election of 2018. After the adoption of the decree, the campaign efforts by government officials and legislators at all levels of government multiplied. Arguably, the time and energy invested in it proved effective. At the time of writing, with 97% of the votes counted, the INE reported a 17.27% voter turnout last Sunday (out of which 91% voted for the President to remain in power). That is to say, more than double the 7.11% turnout in last year’s referendum.
The public discourse has almost exclusively focused on the recall election. In my view, that focus is misplaced and may obscure the most consequential (and problematic) aspect of this process. In fact, given the high threshold necessary (40% of registered voters) to make the results binding and Lopez Obrador’s high approval ratings, the election had close to zero possibilities of ending in the removal of the sitting President. As I suggested in my previous column, perhaps our attention should have instead focused on the ways the incumbent President was using the recall election mechanism as a political tool. But after the adoption of the authentic interpretation decree (and contrary to what I suggested) the endgame seems to be not only to use the recall election campaign as an extension of the state political campaigns to secure an unfair advantage in the upcoming local elections. Instead, the endgame seems to be something much more ambitious.
The scope of the authentic interpretation decree is not limited to recall elections, it affects rules regulating government’s propaganda and impartiality on the use of public funds in electoral processes in general. For all practical matters, the effect of the decree allows government officials, state organs (see e.g., this time-stamped tweet by the Ministry of Finance), and legislators at all levels of government to engage in partisan advocacy in all future electoral processes (including, but not limited to this year’s elections). As such, the decree has the potential of blowing up important pillars of Mexico’s electoral institutions.
A constitutional challenge against it has been brought to the Supreme Court in abstract review. There are two factors that would allow us to roughly predict how the Supreme Court is going to decide this case: on the one hand, in light of article 35 § IX-7 of the constitution, the authentic interpretation decree appears to be clearly unconstitutional. On the other hand, there is an applicable precedent (Acción de Inconstitucionalidad 26/2004) regarding the scope and limits of authentic interpretation decrees as interpretative norms. However, given that the membership of the Supreme Court has radically changed since the last time it considered such a question and taking into account that in recent months and weeks the Supreme Court has been increasingly acting in a partisan way, it is hard to say how this case will turn out.
Government officials have systematically and coordinately violated the constitution throughout the presidential recall election process. Should the authentic interpretation decree survive the constitutional challenge at the Supreme Court, what we have seen during this process is just the tip of the iceberg of what we will see in future elections. It is not an exaggeration to say that the integrity of Mexico’s electoral system is at stake. In this respect, it is worrisome that the public discourse has mostly focused on the presidential recall election while missing the dire bigger picture.