Almost a month after election day and we are still asking ourselves: What happened? What is the reality of the electoral process? Is it true that we had an immaculate electoral process, in which citizen participation was overwhelming and democracy won? The reality is that we will never know with absolute certainty what happened; But we are not blind either, there are several data and objective facts that did happen and that clearly we cannot speak of a 100% clean electoral process.
During the entire electoral process, which also began years before what the law requires, let's not pretend that we didn't realize it, we saw several things that make us wonder where we are, that is, in terms of the democratic index and electoral integrity. What our rating as a country is.
Before getting into the topic, you should know that in 2023 Mexico was in the 90th place out of 167 countries in the ranking of the democracy index carried out by The Economist [1] , with a rating of 5.14; That is, we began the electoral process with a failing grade and almost at the end of the list.
One of the main legal problems of the presidential election was the constant intervention of the Federal Government, specifically, the President, and the scenario of impunity that the electoral authorities allowed throughout the electoral process.
In our legal system, equity between contenders is provided as a constitutional principle that aims to guarantee that the participation of candidates is carried out under a scenario of equal opportunities, this, consequently, ensures that voters cast a truly free vote, since it is understood that their decision is free of manipulations or interference that tilts the balance in favor of a specific candidate or political party.
We all already know this principle, those of us who are directly related to the electoral world and those of us who are not also, perfect, so what happened? Because if something was very clear to us, it is that the morning conferences were the main political communication mechanism for Morena and its candidacies, and the President was the first spokesperson and promoter of the campaigns.
The reality is that, legally, the constitutional framework does contain provisions that prohibit the head of the Federal Executive from intervening in the electoral process and using the resources at his disposal to promote or influence the electoral balance, however, the problem of the constitutional design is that the non-compliance or violation of these rules and principles by the President has no consequences other than the declaration of non-compliance.
That is, our regulatory system warns that the president has a special obligation and duty during electoral processes, this should be enough to “motivate” a restriction and restraint in the president's expressions, but the truth is that the constitution, or at least the interpretation that the TEPJF has made about the scope of the violations by the head of the Executive, do not allow him to be sanctioned, only allowing the jurisdictional authority to declare the violation or non-compliance; a measure that is clearly insufficient.
Just before the electoral campaigns began, the president had already mentioned Claudia Sheinbaum 351 times and Xóchitl Gálvez 96 times during his morning conferences, according to data from Spin [2] ; The truth is that he should not have mentioned either of them.
Public servants during electoral processes must refrain from any type of electoral expression, their expressions have a double impact, on the one hand it benefits a person - whether indirectly or directly - and, on the other, it harms the opposite option, obviously, but, legally, this implies that the person who is being harmed is also tolerating a violation of human rights - whether we want to say it or not - which implies that as a society we are also tolerating this violation.
What then happens with the scenario of impunity? As I was saying, the legal framework prevents a sanction from being imposed on the president, for a simple - or complex, depending on how you see it - and only problem, the LGIPE [3] does not indicate a specific catalog applicable to non-compliance or violations carried out by the President and, in any case, the law states that for the imposition of sanctions the TEPJF must delegate this task to the hierarchical superior of the public servant, and since the president does not have a hierarchical superior, then here is the problem.
Now, this does not mean that the jurisdictional authorities have not had the opportunity to do something or issue measures to limit the president's interventions and expressions; The Complaints Commission of the INE, during the electoral process, fought tooth and nail with this issue, issuing more than 20 agreements on precautionary measures and preventive protection in which it requested compliance with the law; Clearly this request was not going to be of any use, the problem was not that the president did not know his constitutional obligations. In more than 50 rulings the TEPJF - including one issued yesterday [4] - declared non-compliance with electoral regulations by the head of the Executive, without consequence of any sanction, obviously.
This means that, in total, the electoral authorities issued more than 70 resolutions in which they have declared, requested, expressed, almost begged the president to comply with the law during the electoral process, but all were limited to legal speeches without material effects, due to the limit of the legal framework.
My final question or reflection is, isn't there some other measure, interpretation or something that they could have implemented? It is difficult to believe that constitutional interpretation is not enough to issue sufficient measures to protect electoral integrity. As a starting point I am going to highlight that, beyond an -impossible- sanction, we have a conventional and constitutional framework that obliges jurisdictional authorities to issue reparation and non-repetition measures in the case of human rights violations, which, given their nature, they cannot be considered as a sanction, since they are aimed at restoring constitutional order. So, in my opinion, we were not entirely tied up.
Why is this relevant? Beyond political options and preferences, as I mentioned at the beginning, our democratic ranking is on the ground, democracy is not only limited to the election day and when the citizen casts his vote -as an executive action- the democratic process must be surrounded by certain conditions that allow us to assume that the voters were free to exercise their right and that it was a truly democratic exercise.
This right, as a whole, is much broader than the simple exercise of voting, it is the right to live a democratic life, this includes the entire electoral process, not only election day, free of interventions and manipulations, which we have never seen in our country; starting with this topic and many others that happened in the electoral process that we will talk about throughout these publications; For now, in this first electoral count, it is worth starting by asking ourselves how many points on the democracy index did the intervention of the President take away from us or did its intervention make us more democratic?
@safeharbormx
[2] Information obtained from infographic 102 of Spin Taller de Comunicación Política SC, available at: http://www.spintcp.com/conferencepresidente/wp-content/uploads/2024/02/Infografia-102.png
[3] General Law of Electoral Institutions and Procedures
[4] SUP-REP-608/2023
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