Electoral reforms that can be challenged before the Court

Changes approved by Congress in articles of the General Law of Electoral Institutions and Procedures (Legipe); General of Political Parties (LGPP) and Organic of the Judicial Power of the Federation (LOPJF), as well as some that are part of the new General Law of Appeals, which await the approval of the Senate to be sent to President Andrés Manuel López Obrador for their promulgation, they will be in conflict with the federal Constitution, for which reason political parties and the INE have already announced that they will promote actions of unconstitutionality, constitutional controversies, amparo and labor lawsuits. These are some of the most relevant.

Articles of the General Law of Electoral Institutions and Procedures (Legipe) that contravene the Mexican Constitution

Thinning of the INE structure

Article 33, numeral 1, which states that the INE will have 32 local bodies, one in each federative entity, and may have up to 300 auxiliary bodies or offices, contemplating a maximum of one for each electoral district. It points out that these auxiliary bodies may be permanent or temporary, as determined by the General Council, but no criteria are established in the Law to be able to make this determination. In addition, temporality does not expressly emerge from the constitutional norm.

• It constitutes a violation of the electoral geography, as well as the design and determination of the electoral districts enshrined in numeral 2, subparagraph a), Section B, section V, article 41 of the Constitution, as well as article 116.

Modification of the permanent commissions of the INE

Article 42, numerals 2 and 4 that contemplates the modification of the permanent commissions of the National Electoral Institute. Of nine that currently exist, they become seven. It also indicates that the commissions would be renewed in their entirety every three years.

• It is contrary to the provisions of the first and second paragraphs of section A of section V of article 41 of the Constitution, since they violate the guiding principles of legal certainty and security in the exercise of said state function and compromise the effectiveness of the provision regarding that the executive and technical bodies of the National Electoral Institute will have the necessary qualified personnel for the exercise of their powers.

Said proposals contain an implicit risk of discretion in structural and operational decision-making, in the sense that decisions as relevant as the definition of the number of auxiliary offices, the size of the workforce that will comply with the constitutional obligations to carry out the electoral processes, the perceptions of administrative and specialized officials.

Changes of dates and stages of electoral processes

Modifications to articles 40, 209, 225 and 456 on:

• Date of meeting of the General Council, going from September to November.

• Election preparation stage, which would no longer be held during the first week of September but rather in November, reducing the time for the campaigns.

• Conceptual simplification of what should be understood by propaganda or the possibility that governments can, during electoral campaigns, carry out information campaigns related to public services.

• With these modifications, the principle of fairness in the contest is violated.

Vote of Mexicans residing abroad

Numeral 1 of article 329 indicates that Mexican citizens residing abroad may exercise their right to vote for the election of the person in charge of the Federal Executive of the United Mexican States and senators, as well as the governorships of the entities federations and of the Government Headquarters of Mexico City, provided that the Constitutions of the federative entities so determine.

• It clearly contravenes the provisions of article 35, section I of the Political Constitution of the United Mexican States, which does not provide distinctions between the positions that can be chosen depending on whether or not the Mexican citizen resides abroad, nor does it empower the legislator regulate or establish this type of exception to said right.

I vote for people in a state of prostration

Article 284 seeks to recognize the right to vote of people with permanent disabilities or in a state of prostration.

• The issuance of suffrage under the proposed conditions violates the principles of freedom and secrecy of the vote enshrined in the second paragraph of section I; and subparagraph a) of section IV, both of article 41; fractions II, III and VI, subparagraph a) of Section A of article 122 of the Constitution, since there is no way to guarantee that people in these conditions express the meaning of their vote without it being known, nor to guarantee that there is no interference that restrict the free exercise of your right.

Voting rights for prisoners

Article 284 Bis seeks to recognize the right to vote of people who are subject to informal preventive detention.

• It is contrary to what is established in article 38 of the Constitution, which determines the hypotheses by which the rights of citizens are suspended, among which is contemplated, in its section II, being subject to a criminal process for a crime that deserves corporal pain.

Remuneration of INE public servants

Article 98, numeral 4, as well as article 116 paragraph 1 of the General Law of Electoral Institutions and Procedures; Article 167 of the Organic Law of the Judicial Power of the Federation, and Article 173, last paragraph of the same Law, propose a series of provisions to restrict the amount of remuneration received by various public servants, or to leave said amount at the discretion of other authorities.

• The Federal Constitution, in its article 116, section III, establishes that magistrates and judges will receive an adequate and inalienable remuneration, which cannot be decreased during their tenure. Therefore, it is not constitutionally valid to reduce their salary and even less of those people who currently hold the position, since this contravenes the principle of non-retroactivity. Doing so constitutes a violation of the principles of autonomy and independence contained in the first paragraph of Section A of Section V of Article 41 of the Constitution.

In the General Law of Political Parties (LGPP)

Party self-determination

Article 5 mentions that the electoral authority must respect, at all times, the self-determination and self-organization of the political parties enshrined in their basic documents.

• The Federal Constitution indicates various parameters that must be observed both when making the right of political association effective and in the nomination of candidacies (for example, the principle of gender parity), so it cannot be left exclusively to the discretion of the content. of the basic documents of the political parties the determination of their candidacies, without being forced to respect the constitutional content, in observance of fraction I of article 41 of the Constitution, which establishes the principle of gender parity in the postulation of candidacies.

Articles from other legal systems that contravene the Mexican Constitution

Non-application of laws by the TEPJF in specific cases

Article 6, paragraph 4 of the General Law on Appeals in Electoral Matters and 217 and 218 of the Organic Law of the Judicial Power of the Federation sent to the Senate as reviewing chamber, expressly provide for the power of the Electoral Tribunal of the Judicial Power of the Federation to not apply laws to the concrete case.

The Organic Law also explicitly provides that the jurisprudence and declaration of validity or invalidity of the Supreme Court of Justice of the Nation is mandatory, limits the court to refrain from resolving issues subject to resolution of the Supreme Court, which must resolve the issues prior to the conclusion of the electoral process.

• They are unconstitutional for violating the principle of autonomy set forth in the first paragraph of article 99 of our Magna Carta, which specifically mentions that, except for the provisions of section II of article 105 of our highest legal system, the highest jurisdictional authority in the matter and specialized body of the Federal Judiciary is the Electoral Tribunal.

Definitiveness of judicial decisions

In numeral 4 of article 41 of the General Law of the Means of Challenge in Electoral Matters, the finality of the judicial resolutions of deputies and senates is established.

• It is necessary to adjust the temporality of the finality of said resolutions to be consistent with the provisions of Article 65 of the Constitution; Otherwise, the assumption that it intends to regulate would be left inoperative, since, if the electoral trials are allowed to remain firm until August 3 of the year of the election, the start of the Legislature that begins on the first would be seriously affected. August, as there is no certainty about the legislators who would definitively integrate the Congress of the Union.

Replacement of the current Executive Secretary of the INE

The Seventeenth Transitory Article of the Decree establishes the replacement mechanism for the current Executive Secretary of the National Electoral Institute.

• The ninth paragraph of Section A of section V of current constitutional article 41 establishes specific criteria in the procedure for the appointment of said Executive Secretary that are not included in the transitory article indicated.

Changes in administrative structure

• Proposals for changes in the electoral administrative and jurisdictional structure, such as eliminating the Executive Secretariat, the Executive General Board, the Electoral Official and the Technical Unit for Electoral Litigation.

• The creation of an Administration Commission, made up of 5 electoral advisers, with executive powers.

• The dismissal of the current executive secretary.

• The confirmation of the head of the OIC and the ratification of electoral advisers.

• It is contrary to article 41 of the Constitution.

Proposal to create a “National Elections System”

• Explicitly contravenes the provisions of Article 41 of the Constitution, Base V, Section A.

Elimination of the Specialized Regional Chamber of the TEPJF

• By eliminating this chamber, a resolution section of the Superior Chamber of the TEPJF is created, but this issue is not provided for in article 99 of the Constitution.

The name of the holder of the Federal Executive Power is changed.

• It is contrary to article 80 of the Constitution.

Compulsory license for legislators seeking immediate re-election

• It has no constitutional basis.

Reforms to the General Law of Social Communication

• The proposed norms are contrary to the eighth paragraph of article 134 of the Constitution, which establishes what is related to propaganda.

Regulations that can generate protections and labor complaints before the TEPJF

Dismissal of INE workers

The fact that people would lose their jobs due to the thinning of the INE would imply a violation of fundamental rights in labor matters, as well as a series of labor and administrative disputes.

• Amparo trial proceeds, as well as labor lawsuits before the TELPF.

Source: Minute on reforms to the General Law of Electoral Institutions and Procedures (Legipe); General of Political Parties (LGPP) and Organic of the Judiciary of the Federation (LOPJF) and new General Law of Appeals / Particular vote of Senator Ricardo Monreal / Marco Baños / Santiago Creel.

diego.badillo@eleconomista.com.mx