Mexican Democracy (and the Supreme Court) at a Crossroads

Mexican democracy has come a long way since the creation of the electoral watchdog three decades ago. The Instituto Nacional Electoral (INE) had a crucial role in securing the transition to democracy after the Partido de la Revolución Institucional (PRI) 70-year hegemonic rule. As such, it has since become a pillar of the country’s democracy. Yet, on February 22nd, the Mexican Federal Congress passed a set of amendments to electoral law overhauling the electoral agency. Together with a set of amendments passed last December, these changes to electoral law undermine the agency’s independence by, among other things, slashing the size of the agency’s civil service by 85%. This puts into serious question the capacity of the agency to guarantee the organization of free and fair elections in the general election next year.

It is no exaggeration to say that, with the passage of these modifications, the President and his party are testing the resilience of Mexico’s democracy, the constitution, and the country’s Supreme Court, which is expected to review the constitutionality of these legislative measures in the coming months. The people who took the streets across 100 cities in Mexico and abroad to protest against these measures last Sunday know this.

The changes to ordinary legislation (known as President López Obrador’s Plan B) were pursued as the second-best option to overhaul the electoral agency after MORENA, the party in government, failed to meet the qualified majority threshold to pass a constitutional amendment last year. This was due to the refusal of the (once hegemonic) PRI to partner with the government to push the reform through Congress. In so doing, PRI broke with what I have elsewhere described as an unwritten rule of cross-party cooperation to meet the otherwise stringent constitutional requirements to amend the constitution.

In normal circumstances, with the constitutional text intact (which regulates the electoral process and institutions in great detail), the newly adopted modifications to electoral law would theoretically have very little chance of surviving judicial review. However, in the current political environment, it is hard to predict the outcome. The Supreme Court is in less-than-ideal circumstances to have a case of this importance in its docket. This is because in recent years, external and internal factors have threatened and put into question its independence.

Externally, López Obrador has exerted pressure on the Supreme Court to influence the outcome of high-profile cases and expressed his discontent with rulings against his administration. For instance, the President regularly attacks judges  in his daily press conferences and has sent members of his cabinet to meet Supreme Court Justices prior to the hearings of specific cases. Internally, former Chief Justice Arturo Zaldívar infamously built a reputation of being subservient to the President during his tenure (e.g., by using his position as Chief Justice to manipulate constitutional voting rules to strike down legislation to save the constitutionality of government policy). However, there is hope for change as the newly appointed Chief Justice Norma Piña has been emphatic about the need to protect judicial independence.

The organizers of last Sunday’s mass demonstration are aware of the Supreme Court’s vulnerability. As such, the demonstrations were different to previous demonstrations in an important way: to the best of my knowledge, it was the first mass protest in Mexico’s recent history where one of the main demands was directed, not at the government or legislators, but at the Supreme Court. The objective was clear: to appeal to the Supreme Court not to shy away from ruling according to the constitution and striking down President López Obrador’s Plan B. Demonstrators chanted “I trust the court” (to strike down the piece of legislation that was being protested) and flowers were left at the main gate of the Court.

Referring to earlier attacks by President López Obrador on the Supreme Court, former Justice José Ramón Cossío Díaz, one of the speakers at the protest in Mexico City, said the following:

The President has said that the Justices’ corruption will be evinced if they invalidate the amendments. On the contrary, the Justices could only be considered corrupt if they disregard the constitutional provisions that regulate the electoral organs and processes in detail.

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We want to tell [the Justices] that we are aware of the difficulties that their work implies. Of the pressure that they are being subjected to by those who want to take over the Mexican electoral system.  

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We want to tell you […] that we trust you, your democratic character and your ability to understand the seriousness of the decisions that you will take to preserve the country’s democratic life …”

The Supreme Court and democracy in Mexico have, no doubt, a difficult road ahead. But last Sunday’s expression of popular support to the Supreme Court is, in and of itself, something to celebrate as it suggests that Mexico’s constitutional culture is changing: large sectors of the public are becoming aware of the different institutional means available to defend the constitution and they are prepared to take the streets to support and defend them.

Unfortunately, however, the fact that most of the people in the demonstrations were middle and upper class, gave the President ammunition to portray the movement as conservative and elitist. Ideally, a social movement to protect democracy should appeal to people across the class divide. After all, President López Obrador came to power on an electoral platform that appealed to those in most need in Mexico. Arguably his approval ratings are above 55% because of that divide. Nonetheless, these demonstrations in favor of the Supreme Court are historic and their importance should not be underestimated. Less than thirty years ago, when a set of constitutional amendments were adopted to transform the Supreme Court into a constitutional tribunal, something like Sunday’s demonstrations would have been unthinkable.