Should Mexico elect judges by popular vote?

Should Mexico elect judges by popular vote?

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Claudia Sheinbaum, Mexico’s President-elect following her landslide victory in 2 June’s election, confirmed last week that her government will press ahead with a series of constitutional reforms originally proposed by President Andrés Manuel López Obrador (commonly known as AMLO) in February.

Amongst them – with several wide-ranging bills waiting in the wings, including overhauls to Mexico’s electoral system and the abolishment of autonomous regulatory bodies – is one that has generated particular controversy: a proposal for Supreme Court Justices and 1,647 judges [1] in lower courts to be elected by popular vote.

In a press conference held on 17 June, Sheinbaum announced that polls commissioned by Morena, her political party, show clear support for these judicial reforms.

The results indicated that 70% of those who had an opinion were in favour the popular election of Supreme Court justices – though around 50% of respondents said they were unaware of the topic.

Sheinbaum has promised a wide programme of discussion and consultation on the proposed changes.

Mexico’s recent election handed Morena and its allies a two-thirds majority in Congress and at the state level, enabling them to pass constitutional reforms like these effectively unilaterally.

In the weeks since the election, the Mexican peso has tumbled in value amid uncertainty from markets about the implications of that super-majority and the proposed judicial reforms for investment in Mexico.

 

There can be no doubt that Mexico needs judicial reform.

Democracies require an independent, competent judiciary to uphold the rule of law, guarantee judicial certainty and provide justice for all.

The World Justice Project’s latest data show that while rule of law challenges continue, there are some areas of success across Mexico’s 32 states. Nevertheless, in 2023, Mexico was placed 116th on the Global Rule of Law Index.

According to the National Institute of Statistics and Geography, Mexico only has four judges per 100,000 inhabitants, four times below the global average.

Additionally, a lack of substantial progress in the Federal Prosecutor General’s Office since its creation in 2019 leaves this ‘new’ body less efficient and effective than might be hoped after its first five years.

In this context, the judicial reform initiative recognises a necessary change aiming to strengthen the independence of local judicial powers, and establishes a legal framework for the judiciary in Mexico City.

 

The proposed reforms come with wide-ranging implications.

Examining the bill brought by AMLO in February, we can see that Mexico’s executive, legislative and judicial branches would each nominate ten candidates, from which voters would elect nine Supreme Court Justices, reduced from eleven at present. These Justices would serve 12-year terms.

Judicial candidates’ names would be included on electoral ballots, enabling them to set our their proposals and, in effect, campaign for votes. The election, to be organised by the National Electoral Institute (INE) in 2025, would be overseen by an electoral tribunal. Notably, under another reform bill, INE leaders would be elected by popular vote, too. [2]

Judges’ salaries would be aligned with the President’s, ensuring no judge earns more than the executive. Back in 2018, AMLO cut the president’s – that is, his own – salary by 60% upon taking office, with his remuneration set as the upper limit for civil servants’ pay. This reform would bring judicial officials under this limit.

The Supreme Court would operate exclusively in Plenary – as a complete group – requiring six out of nine judges to reach agreement to pass rulings, instead of the current eight out of eleven. This is a reduction in the proportion required for consensus from 72% to 66%, theoretically making it easier to achieve.

Following the recent reform to the Amparo Law, processes for challenging the constitutionality of legal norms, whether due to legal recourses such as constitutional controversy or rulings of unconstitutionality, would also be altered.

A new Judicial Disciplinary Tribunal, also to be elected by the public, would replace some duties of the Judicial Council. This Tribunal would investigate and punish judicial misconduct, with its decisions being final and unappealable.

While justices would continue to be removed through an impeachment process, the scope to investigate and criminally prosecute judicial officials would be made broader. In some cases, the Tribunal’s decisions could override those of the Supreme Court, giving it significant authority.

 

Around the world, very few countries select judges by popular vote.

It is only in the United States and Bolivia that judges with constitutional jurisdiction are selected via judicial elections.

In the US case, 39 states out of 50 elect some judges by popular vote, and around ninety percent of state court judges are elected by some form of popular ballot. Another practice unique to the US is selecting local prosecutors by popular vote, as a tool of accountability.

Many have warned of the corrosive effect and influence that money can have on judicial selections.

With regards to Bolivia, judicial elections in 2011 and 2017 have also revealed considerable challenges.

Following constitutional reform in 2009, the preselection of suitable candidates has appeared to prioritise political considerations over their professional merits.

Moreover, even in Bolivia’s mandatory voting system, in both of these previous judicial elections over 60% of votes have been annulled.

Following an on-site observation of Bolivia’s judiciary in 2023, the Inter-American Commission on Human Rights concluded that its operations may be subordinated to the “interests of the ruling political power.”

Judicial elections scheduled for 2023 have been delayed mainly due to Congress’ failure to agree on a short list of replacement candidates.

 

Clearly, judicial appointments based on merit and transparency strengthen claims to legitimacy.

The international examples mentioned above indicate that judicial elections do not ensure that judges are selected on the basis of merit.

In complex economic or competition trials, technical capabilities aim to provide judicial certainty to citizens and investors.

For Mexico, electing judges by popular vote does not guarantee that an independent authority will conduct a fair, transparent and independent selection process.

So, as open discussion forums on the proposed judicial reform begin this week, it is fundamental to consider the risks of politicising judicial selection.

In countries such as the United Kingdom, senior judges are appointed following a public process on the basis of their expertise, without the active involvement of elected politicians. Independent committees – including judges – recommend the best qualified candidates with little room for ministerial veto.

The main instrument for judicial accountability is transparency. All decisions must be reasoned and published.

Whatever method used for selecting judges in Mexico, it should enable them to protect their decisions from external influences, namely partisan politics, illicit money and organised crime.

In the end, judicial reform should address the biggest obstacle to improve Mexico’s rule of law and guarantee justice for all: the efficiency and effectiveness of the criminal justice system.

[1] According to INEGI’s Censo Nacional de Impartición de Justicia 2023, 910 magistrates and 737 were registered at the end of 2022.

[2] After which it would be known as the National Institute of Elections and Consultations.

Susana Berruecos

Susana is Head of Policy and Public Affairs at Canning House, and a Research Associate at the University of Oxford. She obtained her PhD in Government from the London School of Economics and Political Science with her thesis "Separation of Powers in New Democracies: Federalism and the Judicial Power in Mexico."

This blog post was edited by Freddy Nevison-Andrews.