Mexico's Election May Rest on 7 Votes
By Richard Boudreaux, Los Angeles Times Staff Writer
July 15, 2006
MEXICO CITY ? Each morning, the seven judges who will decide Mexico's
disputed presidential election are chauffeured into their gated
office compound past a crowd of Andres Manuel Lopez Obrador's angry
supporters.
"Where are our votes ? in the garbage?" says one of the banners
demanding that the Federal Electoral Tribunal overturn Felipe
Calderon's narrow victory in the July 2 vote and certify Lopez
Obrador as president-elect.
It has been 10 years since the current tribunal was created to police
an electoral system long plagued by blatant fraud. In that time, the
tribunal has nullified 17 local, state and congressional elections
and ruled against each of Mexico's three major parties in roughly
equal proportions.
But the judicial arbiter of Mexico's young democracy has never faced
a challenge like this.
With tens of thousands of protesters backing him in the streets,
Lopez Obrador, of the leftist Democratic Revolution Party, or PRD, is
asking the tribunal for two rulings that would stretch legal
precedent.
Publicly, he is calling for a recount of all 41 million votes, in the
hope of erasing his 244,000-vote deficit.
The motion his lawyers filed this week also seeks a ruling that
President Vicente Fox's government tilted the playing field for
Calderon, the candidate of Fox's conservative National Action Party,
or PAN.
A favorable ruling on that motion would open the election to
annulment and force a new one.
Calderon's legal team is contesting both motions. By law, the
tribunal, which is scheduled to begin hearing the case next week,
must resolve the motions by Aug. 31 and declare a winner by Sept. 6.
The decision, and whether it is accepted by both parties, will be a
crucial test of whether Mexico can resolve disputes in a peaceful,
legal manner rather than through the street demonstrations and
backroom deals that settled close elections in the early 1990s.
At stake, too, is the prestige of this country's most trusted public
institution after the army. In a country struggling to establish rule
of law, the tribunal's authority stands out: The losers have always
respected its decisions.
The tribunal was insulated from pressure when established in 1996.
The 65 nominees vetted by the Supreme Court had to be free of
political affiliation. The three big parties negotiated that list to
seven ? five career judges and two legal scholars ? for election by a
unanimous Congress.
They were given nonrenewable 10-year terms and, to discourage
attempts to bribe them, the highest salaries of any Mexican public
official ? about $415,000 a year.
The court has settled more than 20,000 electoral disputes; overruled
banking secrecy laws in search of illegal campaign donations; and
levied multimillion-dollar fines on electoral scofflaws.
In 2000, it nullified a 7,000-vote victory by the Institutional
Revolutionary Party, the PRI, in Tabasco state. The tribunal found
that the incumbent PRI governor had rigged the process in favor of
his protege: Rival candidates got almost no media coverage, their
mailed campaign literature was intercepted, voters were bribed and
coerced.
That landmark ruling established the court's readiness to go beyond
vote-tallying disputes and use "abstract causes" of unfairness to
void an election ? one of the principles Lopez Obrador is now
embracing.
In subsequent rulings, the tribunal caused riots among PRI supporters
by removing a PRI-stacked state electoral board in Yucatan. It
nullified the triumph of the PAN's congressional candidate in
Michoacan state, ruling that he had violated the principle of church-
state separation by portraying the Virgin of Guadalupe on his
leaflets.
Todd A. Eisenstadt, an American University professor and author of a
2004 history titled "Courting Democracy in Mexico: Party Strategies
and Electoral Institutions," said the tribunal's rulings show a
consistency that protects the judges from claims of bias.
The judges have built "a very strong canon of electoral law on what
used to be a quagmire of fraud," he said.
That record is a rough guide to how the judges might rule on the
presidential race: They have been willing to recount ballots, but
only selectively.
Lopez Obrador is asking for much more, however, and he has pointedly
refused to say whether he would accept defeat.
Lopez Obrador's 836-page legal challenge alleges that the PAN
exceeded campaign spending limits, used funds diverted from the
treasury, pressed poor voters to back Calderon by threatening to cut
off public welfare benefits, slandered Calderon's opponent in
televised ads, and benefited from Fox's refusal to abide by a ban on
his involvement in the campaign.
The legal drama is heightened by the tribunal's record of 4-to-3
splits on key rulings.
Many legal scholars think the tribunal will refuse to order the
blanket recount Lopez Obrador wants ? the court has always rejected
such requests ? and will balk at annulling the election.
If it grants either request, "that would be taking 10 years of
jurisprudence and throwing it out overnight," said Cesar Nava, head
of Calderon's legal team. He will argue that the court has no
authority to annul a presidential election and that any recount
should be limited to ballot boxes whose tally sheets are specifically
challenged as irregular.
When Lopez Obrador's PRD lost a close race for governor of Guerrero
in 1999 and staged boisterous protests, for example, the tribunal
opened a sample of ballot boxes, just enough to determine that a full
recount would not make a difference.
In June, anticipating a close finish in the presidential race, Leonel
Castillo, the panel's chief magistrate, told Milenio magazine, "Some
may ask for a total recount, but when that petition arrives, we're
going to say no."
The tribunal's position on Lopez Obrador's challenge to the fairness
of the election is less predictable.
The tribunal often acts boldly, beyond the letter of electoral law,
to uphold the broader constitutional principle that voters enjoy the
rights to choose leaders in equitable contests.
Judges Castillo and Mauro Miguel Reyes Zapata championed the 2000
Tabasco precedent of voiding a state election in the case of extreme
inequity. They were backed in that ruling and subsequent ones by
three colleagues. But the panel's majority has wavered over the
years, letting some less-tainted elections stand.
The remaining two judges, Eloy Fuentes and Alfonsina Navarro,
dissented from the Tabasco decision.
Another issue is whether the panel can annul a presidential election.
John M. Ackerman, a legal scholar at the National Autonomous
University of Mexico, said the panel's power to nullify elections was
explicit only for state and local races.
The spectacle of mass rallies planned by the PRD, already visible in
microcosm at the tribunal's doorstep, will oblige the judges to think
beyond legalities and weigh political fallout, observers of the court
say.
Jesus Cantu Escalante, a former electoral official, said the judges
might balk at forcing a new election with the country so polarized.
Author Eisenstadt said, "That will make them stick within the band of
discretion they have established in previous cases.
"Going outside of that and establishing new grounds of activism could
have some destabilizing effects, and I think they're going to avoid
that at all costs."bajajudy - 7-15-2006 at 04:36 PM
Thanks, Oso
Interesting and insightful.
I hope that it will not turn into something ugly.bancoduo - 7-15-2006 at 04:55 PM
Everything is going to be done right ,because there are 7 mexican $$$$$$$$$judge's in charge.vandenberg - 7-15-2006 at 05:40 PM
Duo,
Anybody ever told you that you sound like a juvenile jerk of the first order ??bancoduo - 7-15-2006 at 05:49 PM
Quote:
Originally posted by vandenberg
Duo,
Anybody ever told you that you sound like a juvenile jerk of the first order ??
Head in the sand mate?bajamigo - 7-15-2006 at 09:06 PM
Very thoughtful response. These judges are under enormous pressure, but I don't think they'll be swayed by money (hell, they each make more than the
President of the United States, and they're guaranteed ten years). On the one hand, you've got that 10% of the population that owns all the marbles
and wants Calderon and the status quo, vs. the rest who feel they've been screwed since Napoleonic times (and probably have been). Mexico could become
one hell of a pressure cooker, but I think these guys can handle better than our own Supreme Court.
The Supremes
MrBillM - 7-16-2006 at 09:52 AM
It is a familiar refrain heard from those whose candidate lost the 2000 election, that the U.S. Supreme Court was somehow in error in that decision.
Other than a partisan disappointment in the result, try explaining (legally) how that decision was deficient, remembering that it was a 7 - 2 decision
on the legal position of the Florida Supreme Court.
