A Tarnished Institution from Its Start

June 1st was a historical day for Mexico. The Mexican people – or, more precisely, around 13% of the electorate – went to the ballots to democratically elect their judges for the first time. The newly elected 2681 public officials, which will be announced in the following weeks, will serve in the local and federal judiciary, including the Supreme Court, and solve all types of disputes. For many, including myself, the unprecedented judicial election that took place last Sunday represents the culmination of efforts by MORENA, the party in power, to capture the judiciary. It is a central part of a more general attempt to undermine or even eliminate institutions that serve as check and balances to its power and that would otherwise safeguard the rule of law. However, for those who believe the narrative of former President Lopez Obrador and current President Claudia Sheinbaum, the constitutional amendment subjecting judicial appointments to democratic vote was an indispensable step to overcome the main cause of the failures of the Mexican system of justice: its corrupt and privileged judges. The amendment would finally end nepotism in the judiciary and break its ties with the economic elite and organized crime. It would guarantee that judges will, instead, serve the Mexican people. And, most of all, it would achieve the main objective stated in the initiative of the judicial reform: to provide the judiciary with the legitimacy and independence it needs to adequately perform its functions in Mexico’s constitutional democracy.

Only time will tell whether the amendment will live up to these expectations. I have previously argued on this blog that an analysis of its content should not only cause skepticism but also deep concern. On this occasion, instead of focusing on the content of the reform, I will focus on the procedure through which it was adopted and the recent electoral process it authorized. I will claim that, notwithstanding MORENA’s promise that the amendment would grant Mexico a reinvigorated judicial branch, it is getting a newly elected judiciary whose legitimacy has been tarnished from its very start.

The constitutional amendment’s approval

In theory, one important source of legitimacy of the new judiciary is the fact that it came into existence through a constitutional amendment. Similar attempts to undermine the judiciary in other jurisdictions have usually been made through ordinary legislative procedures, like in Poland and Israel, or even through plainly illegal acts. The fact that the Mexican judicial reform was adopted through a process requiring a supermajority of 2/3 of the votes of those present in both chambers of Congress, plus the approval of half of the State legislatures, suggests broad support from different political forces. It also suggests that MORENA is still partially committed to the ideal of the rule of law; although it adopted radical institutional change which seriously threatens the system of check and balances, it still did so through the existing legal mechanisms established in the Mexican Constitution.

However, attributing procedural legitimacy to the newly elected judiciary for these reasons would be a mistake. Although the Mexican Constitution is highly rigid in theory, it has actually been extremely flexible in practice (it has “suffered” more than 700 amendments since it was adopted in 1917). Moreover, leaving that aside, a more fundamental concern is at stake here: as previously explained in this blog, the approval of the constitutional amendment was only made possible by gaming the electoral system and presumedly extorting members of the opposition.

Article 54 of the Constitution establishes a limit to overrepresentation: no party can get a percentage of seats in the Chamber of Deputies that exceeds by 8% the national votes they got in the election. This prohibition, however, does not explicitly apply to coalitions, which enabled MORENA and its allies to commit what experts have called a constitutional fraud. They ran as a coalition with the deliberate electoral strategy of avoiding the constitutional prohibition and maximizing the seats they would obtain. Although the strategy complies with a literal – and shallow – interpretation of the constitutional provision, it undermines its purpose. And it did so extremely successfully: while MORENA and its allies obtained 54.7% of the national vote, they won 72.8% of the seats in the Chamber of Deputies, more than enough to approve a constitutional amendment in that Chamber.

This strategy, however, did not suffice for them to obtain the required supermajority in the Senate, where they obtained 83 out of 128 seats. MORENA managed to convince two members of the opposition to switch parties and vote in favor of the amendment. But, to approve the judicial reform, they still needed to ensure that one additional member of the opposition would vote in favor of the amendment or fail to attend the voting session. Compelling evidence suggests that MORENA achieved these goals illegally. Daniel Barreda, a Senator of the Citizens Movement party failed to attend the session. He claims that his father was detained that very morning and that, when he went to help him, he was prevented from communicating with anyone and threatened: if he were to head to the Senate to vote on the judicial reform, his father would be criminally indicted. Additionally, Senator Miguel Ángel Yunes Marquez from the National Action Party (PAN) suddenly reported that he was ill and requested for his father and substitute to join the session in his place. His father announced that he would vote in favor of the judicial reform. Moments later, Miguel Ángel Yunes Marquez “miraculously” recovered and provided the last vote that MORENA needed. It is suspected that MORENA offered to stop criminal investigations against the senator and his family in exchange for his vote.

The selection of candidates

The contempt that MORENA showed to the Constitution and the political process continued during the selection of judicial candidates. This is so because 1/3 of the candidates who ran for election last Sunday were not actually selected in compliance with the procedure established in Article 96 of the amended Constitution.

According to this article, the legislative, executive, and judicial branches of government had to establish evaluation committees with the task of coming up with a list of the best candidates for each available position. The candidates running for election would then be determined by drawing names from these lists using a lottery. Although this system is no adequate substitute for the experience, courses and exams that were required under the previous career merit-based appointment system, it attempted to ensure that the elected judges would have the minimum qualifications needed to perform their functions.

The evaluation committees of each branch of government were set up and began to assess the candidates. But federal judges issued preliminary injunctions ordering to stop the assessment until they had decided several amparo cases in which the constitutionality of the judicial reform and of the massive removal of judges was being assessed. The evaluation committees of the legislative and executive branch refused to comply with the injunction, which they claimed to be illegal. In contrast, the committee of the judicial branch decided to suspend its selection process until the injunction was modified or revoked by a competent authority. The Electoral Tribunal, who has recently systematically decided in favor of MORENA’s interests, has no authority to review decisions made in amparo cases. It nevertheless declared that the injunctions were invalid and then instructed the Senate to bypass the evaluation process required by the Constitution and to select the candidates of the judicial branch by draw. It did so even though MORENA had added a transitory provision in the amendment which requires the reform to be interpreted literally and forbids modifying its terms or their efficacy (out of fear that judges would interpret the amendment in a way that deviated from MORENA’s intent).

As a result, the only branch of government that was not controlled by MORENA – the judiciary – did not actually select any of the candidates that ran in the election, in contravention of the amendment itself. And, although MORENA claimed that the judicial reform would break the judiciary’s ties with the elites and finally ensure the independence of the institution, several candidates of the election in fact have close ties with important members of the party. Similarly, approximately 1/3 of the candidates ran with discourses that closely resemble the one by MORENA. As to the ties between the judiciary and organized crime, MORENA’s leaders acknowledged that the committees had made “human errors” after it was discovered that several candidates had been criminally convicted or were being investigated for collaborating with the drug cartels. However, the National Electoral Institute and the Electoral Tribunal determined that it was too late to review whether these and other contested candidates fulfilled the constitutional requirements to become judges before the election took place.

The election

The fact that the election actually took place on the 1st of June would have to be characterized as a miracle, if only its implications were not so damaging. The National Electoral Institute only had 8 months to organize an election which has been characterized as “Kafkaesque”. It did so with 52.9% less money than what it considered necessary due to the brutal reduction of its budget by MORENA and its allies. The serious budgetary constraints, combined with the unprecedented complexity of the election, led it to be very different from previous ones. The Institute could only afford to install 84’000 polling places (which it succeeded to do), less than half of the ones installed in the federal election of 2024. The citizens that served as polling station officials did not count the votes casted at their stations, and the Institute was also unable to publish preliminary results the day of the election. Nevertheless, the elections took place relatively peacefully and, at least for now, without flagrant irregularities.

There are, however, reasons to doubt whether the election will provide the new judges the democratic legitimacy that MORENA has promised. Only around 13% of the electorate participated in the election, that is 48% less than the federal election of 2024. This level of participation really makes it misleading if not deceptive to claim, as the current President does, that the Mexican people – and not simply a small proportion of the citizenry – have selected its judges. It also greatly undermines the argument that there existed a strong democratic mandate to pass the judicial reform.

Additionally, this election required citizens to fulfill an extremely burdensome – and I would say unreasonable – task. An average voter in Mexico City, for instance, had to fill 9 different ballots, and choose 50 names out of almost 300 candidates. This raises questions about how meaningful the democratic participation was in this election: for most voters, making a responsible and informed assessment of the candidates was simply impossible. These difficulties were compounded by flaws in 3/4 of the ballots to elect federal judges which increase the likelihood of invalid votes. The flawed ballots allowed to simultaneously vote for competing candidates, contained insufficient spaces to vote for all the positions under election, or made it less likely for some candidates to win, among other problems.

Under these conditions, it is unsurprising that many voters took physical or digital cheat sheets (acordeones) with them to the polling place, which instructed them on how to fill their ballots. These cheat sheets had been massively distributed in the days preceding the election, and predominantly favored candidates with close ties to MORENA. The opposition has also accused members of MORENA of organizing and funding the distribution of these documents. Elections like this risk weakening the citizenry’s commitment to democracy and the already fragile belief that they can make meaningful political decisions through the electoral process.

Conclusion

The newly elected judiciary stemmed from a constitutional amendment made possible by gaming the electoral system and presumably threatening members of the opposition. At least 1/3 of the candidates that ran for election were selected in contravention of the procedure set out in the constitutional amendment itself. Many of them have strong ties with the political elite that is currently in power and, at least some of them, with organized crime. And the culmination of this process, which took place last Sunday, gives democracy a bad name. If the new judiciary is to fulfill the promises that MORENA has made, it will have to overcome the original sins on which it was built.