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July 2006

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Long gone are the days of PRI dominance in Mexico, as evidenced by the virtual tie in the recent presidential elections. Professor Grayson presents a detailed, highly informative analysis of the process and discusses the likely next steps in naming definitively a chief executive. -Ed.

Exporting Democracy

Mexicans usually consider the beginning of summer the longest day of the year. In 2006 it is July 2, the date of the bombastic presidential election, that is seeming to go on and on and on

The Federal Electoral Institute (IFE) declared the preliminary winner—by a paper-thin margin—to be Felipe Calderon (15,000,284 votes, or 35.89 percent), a pro-business moderate who ran on the ticket of outgoing President Vicente Fox's National Action Party (PAN). This sparked vituperative cries of "fraud" from the apparent loser, Andres Manuel Lopez Obrador (14,756,350 votes, or 35.31 percent), a messianic, populist ex-mayor of Mexico City and the nominee of the "For the Good of All" coalition dominated by the leftist-nationalist DemocraticRevolutionary Party (PRD).

Lopez Obrador's thirty lawyers have prepared an 826-page brief of alleged illegal actions taken before, during, and after the showdown. On page 272, the document cites Joseph Stalin, who once averred that: "Those who vote do not decide anything; those who count the votes are the ones who decide everything." Indeed, the ones who will decide everything in Mexico are the seven judges of the Electoral Court of the Federal Judiciary (TEPJF), which has until August 31 to rule on the case and another week to take whatever procedures they deem necessary—including a complete recount—to decide the winner.

In his quest for a vote-by-vote recount and the possible annulment of the election, Lopez Obrador has already convened two mass rallies in the central square of Mexico City (also known as the Federal District—D.F.), with more demonstrations planned. A bitter foe of free-market initiatives and globalization, Lopez Obrador believes that Mexico's political system serves only the affluent at the expense of the masses. He has said that he would not respect TEPJF's judgment unless the body declares him the winner. Even though the Tribunal's decision cannot be appealed, Lopez Obrador may seek to question an adverse finding before the Supreme Court of National Justice. Meanwhile, the PRD's secretary general has raised the specter of an"insurrection" if the TEPJF does not insist on a full recount,[1] and Lopez Obrador refused to condone or condemn the action of a group of his supporters who struck, kicked,and rocked Calderon's automobile, justifying their antics as a protest against a "larger offense" against democracy.[2]

On July 24, Lopez Obrador wrote in an open letter to Calderon that his triumph without a national recount would lead millions of Mexicans to think that "you were a spurious president and our country does not deserve to be governed by someone who lacks political and moral authority."[3]

Roberto Madrazo, 44 (9,301,441 votes, or 22.26 percent), who finished a distant third as the standard-bearer of the once-hegemonic Institutional Revolutionary Party (PRI), has announced that he will support the TEPJF's verdict. Indeed, he and key PRI governors have already met with Calderon's team to explore ways they could cooperate during the six-year presidential term that begins on December 1. Its inability to carry a single state in the presidential showdown has spurred the non-ideological PRI to cut the best deal it can to remain a significant player on Mexico's political stage.

When combined with the votes of the PAN (205 deputies; 52 senators), the PRI (104 deputies; 33 senators) could muster the support to attain majorities in the 500-member Chamber of Deputies and the 128-member Senate to pass ordinary legislation. These two parties, plus a dozen or so votes from small parties, could achieve the two-thirds super majorities required to approve constitutional amendments. The PRI holds 17 of the 31 governorships (at least 17 states must also ratify constitutional amendments), and most of these governors are pragmatists who would twist the arms of newly elected deputies and senators, many of whom they handpicked, to help a Calderon administration achieve its goals in return for executive support of highways, airports, schools, hospitals, and other priorities in their states. If allowed to take office, Calderon has indicated that he would appoint talented PRI members to important cabinet posts.

Why was the preliminary count so close? To begin with, Madrazo never emerged as a serious contender. This was partly because of his reputation as a ruthless, power-hungry "dinosaur," partly because as party president (2002-05) he failed to alter the PRI's image as a corrupt, self-serving patronage machine, and partly because he alienated honchos in his own party: SNTE teachers' union leader Elba Esther Gordillo, former Mexico State governor Arturo Montiel, most of the PRI governors, and Senate President Enrique Jackson. His failure to keep agreements made Madrazo persona non grata to a broad swath of the business community. The myth that PRI's hardcore voters—the once almighty voto duro— would mobilize at the eleventh hour to propel Madrazo to victory proved to be a will-o'-the-wisp.

The marginalization of the PRI candidate turned the race into a clash of opposites. Calderon, 43, a lawyer from a comfortable middle class family and a conventional politician, had grown up in the PAN, which his father helped found nearly seven decades ago. He has functioned as the party's youth leader, president, and gubernatorial candidate in his native state of Michoacan. In addition, he had won election to the D.F. city council plus two terms in the Chamber of Deputies, where he headed the PAN faction (2000-03). Although much more astute than the politically tone-deaf Fox, Calderon pledged to continue, broaden, and deepen the incumbent's market-oriented policies. Inspired by Social Christian ideals, he also promised to combat the poverty that afflicts half of his nation's 107.5 million inhabitants. He proved attractive to economic progressives, women, the relatively prosperous north and west, the well-to-do, university graduates, urban residents, those who approved of Fox's performance, the business community, and beneficiaries of "Opportunities" and other social programs focused on the poorest of poor.[4]

In contrast, Lopez Obrador, 52, grew up in a family of small-town shopkeepers, lived for more than five years amid the impoverished Chontal Indians, spurned creature comforts, and launched "Exodus" marches to decry the political and ecological contamination of his oil-endowed home state of Tabasco. Rather than make a third attempt to win the governorship of Tabasco, he successfully ran for mayor of the capital in 2000. He immediately christened the D.F. as "the City of Hope," called himself the "Little Ray of Hope," and insisted that he was "politically indestructible." While other Latin American populists claim to "represent" the downtrodden, Lopez Obrador "incarnates" their struggle against the 10 percent elite who control 45 percent of the nation's wealth. He appealed to welfare-state advocates, the D.F. voters and those in surrounding areas, the South, the less educated, and have-nots. He and Calderon ran neck-and-neck in rural areas, while Lopez Obrador performed slightly better among men and older voters.

The Federal Electoral Institute is responsible for registering voters, organizing elections, monitoring campaigns, conducting a scientific sample of 70,000 of the 130,488 precincts (the "rapid count," or PREP) on Election Day, overseeing a vote-by-vote tally of ballots, and announcing a preliminary winner. Established by the administration of Carlos Salinas (1988-94) in the aftermath of the fraud-ridden 1988 presidential election, IFE began operations in October 1990 as an arm of the federal government. In accord with a new, comprehensive electoral law (COFIPE), it became an autonomous, citizen-run agency in 1996. Congress selects the nine members who compose IFE's governing General Council.

Under the remarkable leadership of Jose Woldenberg (1996-2003), the General Council gained worldwide fame for its professionalism. In 2003 Carlos Luis Ugalde succeeded Woldenberg when a new General Council was chosen. Although the current body does not enjoy the international prestige of the Woldenberg team, 76 percent of the public once expressed belief in its "impartiality." This figure fell to 56 percent by July 2006 in the wake of Lopez Obrador's drumbeat of attacks on the Institute as a pawn of the Fox administration and as a "sold-out umpire" (arbitro vendido).[5]

Ugalde gratuitously handed Lopez Obrador ammunition by failing to report that some 2.5 million ballots—laid aside because of technical irregularities—had not been included in the first PREP. The omission encouraged the media to trumpet Calderon as the winner on July 3. With the inclusion of these ballots, When included, the PAN candidate's advantage dropped from 1.04 to 0.64 percent. This legerdemain gave the increasingly militant Little Ray of Hope additional grounds to impugn a political system he deems corrupt.

Lopez Obrador is continuing his legal assault on the outcome before the TEPJF. Also a product of reforms in the mid-1990s, the "Superior Chamber" of TEPJF is empowered to resolve definitively and irrevocably challenges to the outcome of presidential elections.

The seven judges, or Electoral Magistrates, who will select Mexico's next president are prestigious jurists. They are among 22 jurists selected unanimously by the Senate from a list of 66 nominees (The Senate unanimously elected 15 other TEPJF judges, who preside over five regional chambers during years in which federal elections are held). To avoid corruption, the judges are paid approximately $415,000 per year and are limited to single 10-year terms. The incumbents are:

* Chief Judge Leonel Castillo Gonzalez. When Judge Eloy Fuentes Cerda resigned as chief magistrate under pressure in September 2005, Castillo Gonzalez (four votes) was chosen his successor over Berta Alfonsina Navarro (two) and Jose de Jesús Orozco (one). At age 10, the fatherless Castillo Gonzalez, whose relatives worked communal lands known as ejidos, lived with the children of refugees from the Spanish Civil War. He has a strong commitment to social causes and is not invulnerable to pressure. He recently stated, "It's wrong to think that demonstrations, marches, the blockage of roads or highways can change the judicial decision of the tribunal."[6]

* Judge Eloy Fuentes Cerda is the author of Reflections on Reelection and About Democracy and the State of Law. While secrecy shrouded the move, tribunal-watchers claim that his colleagues forced the resignation of Fuente Cerda as chief magistrate. The PAN had publicly criticized him because on his watch the TEJPF upheld narrow PRI victories in gubernatorial races in Oaxaca, Sinaloa, and Veracruz. PAN President Manuel Espino Barrientos said the shift would enable the tribunal to "regain its credibility."[7]

* Judge Jose Alejandro Luna Ramos was elected to the TEJPF in April 2005 to replace Judge Jose Luis de la Peza, who died earlier in the year.

* Judge Alfonsina Berta Navarro Hidalgo, the recipient of numerous awards and author of articles on the amparo and the "integration of the TEPJF," was elected to the Tribunal in 1996.

* Judge J. Fernando Ojesto Martinez Porcayo author and lecturer on legal subjects in Mexico and abroad. Although eligible, he failed to win reelection as chief judge in late 2004. In the third round of voting, he lost by a single vote to Fuentes Cerda. Ojesto drew criticism for opposing the imposition of a $89 million fine on the PRI for funneling monies from the state oil monopoly via the petroleum workers union to its 2000 presidential contender. The PRD criticized TEPJF for ordering the reinstatement of Senator Maricarmen Ramirez, wife of the incumbent governor, as its candidate in the race to succeed her husband in 2004.[8]

* Judge J. Jesús Orozco Henriquez is the author or co-author of books on electoral law, constitutional law, the Mexican judiciary, and human rights and has published more than 70 articles in academic journals in Mexico and abroad. He was elected to the Tribunal in 1996.

* Judge Mauro Miguel Reyes Zapata lectures widely and has written about the TEPJF and the role of judges in resolving electoral conflicts in Mexico. He was elected to the Tribunal in 1996.

Despite desultory charges of partisanship, in rendering more than 20,000 decisions, the TEPJF has taken action adverse to the interests of all parties at one time or another. In addition to the PRI and Ramirez cases noted above, it overturned the Chihuahua state electoral court's annulment of a PAN victory in the Ciudad Juarez mayoral election held in May 2002; fined the PAN $40 million and its Greens (PVEM) coalition ally $10 million for illegal contributions made to Vicente Fox by the "Friends of Fox" 2004; and required the PVEM to revise its statutes to make them more democratic (2005).

In deciding several cases, the TEPJP has relied on the amorphous concept of the "abstract cause of nullification" (causa abstracta de nulidad). In December 2000, the Tribunal annulled the gubernatorial election in Tabasco in which the PRI candidate had defeated his PRD opponent by 1.11 percent of the votes cast. In rendering their decision, a majority of judges cited "grave irregularities" such as vote buying and the greater coverage afforded the PRI standard-bearer by the state-owned television network. Judges Castillo and Reyes Zapata championed the broader constitutional precept that voters enjoy the right to select leaders in equitable contests. They enjoyed the support of three colleagues; Judges Eloy Fuentes and Navarro dissented.[9]

In 2003, the Tribunal threw out a PRI gubernatorial victory in Colima state on the grounds that the outgoing governor had intervened in the election of his successor.

In 2004, the Tribunal refused to accede to the PRI's request that it void the local election in Merida, Yucatan, because the winning PAN nominee allegedly benefited from the expenditure of monies from the Federal Disaster Fund. Also that year, the Tribunal reversed a state electoral court ruling that voided a PAN victory by a 12-vote margin over the PRI candidate in the municipal election in Chochola, Yucatan.

Lopez Obrador is relying largely on the precedents set in cases where the TEPJF has invoked the "abstract cause of nullity." He argues, for example, that there is no PRD councilor on the IFE's General Council, that President Fox, whom he derides as a "traitor to democracy," violated the prohibition on participating in political campaigns by blatantly promoting Calderon's candidacy while at the same time openly (although obliquely) castigating Lopez Obrador; and that IFE manipulated the PREP to assist Calderon. His attorneys have drawn attention to areas such as the Coyoacan borough of Mexico City, where the PAN supposedly pressured citizens into voting for Calderon. Lopez Obrador has accused his party's poll watchers, who vouched for the correctness of original tallies as having been "bought off"—an unsubstantiated charge that has ruffled the feathers of many PRD leaders. He also claimed that errors marred the results in 72,197 voting stations.[10]

First, the "nuclear option" would be to void the presidential contest, giving rise to a new election. Many jurists believe the body does not possess this authority, but the judges could reach the same goal by refusing to declare a winner. The chances of such a decision are miniscule. Second, it could comply with Lopez Obrador's demand for a vote-by-vote recount. The chances of such decision are remote. In June 2006, Judge Castillo, anticipating a photo finish, told Milenio Semanal: "Some may ask for a total recount, but when that petition arrives, we're going to say no."[11] Finally, the judges could order a recount of ballots from precincts in which irregularities were alleged on Election Day. This is by far the most likely outcome.

Lopez Obrador loses political credibility with each passing day. A broad array of individuals and groups have spoken out in support of the fairness of Mexico's electoral authorities, including the Roman Catholic Church, leaders of the business community, a majority of the mass media, notable labor organizations like the CTM, the CROC, and the SNTE, European Union observers, the other losing candidates, and the PAN and PRI governors.

Urging Lopez Obrador to defy an adverse TEPJF finding are Mexico City PRD President Marti Batres, members of the Rene Bejarano faction of the PRD known as the National Democratic Left, the El Barzon pro-debtors movement, the Pancho Villa Popular Front, elements of the Zapatista guerrillas, the militant Peoples' Revolutionary Army, UNAM's General Strike Council, locals of the National Coordination of Educational Workers, and the like. Chiefs of many of these organizations would like to supplant the traditional Left, which they believe has sold out to a malignant political system.

Cooler heads in the PRD are urging Lopez Obrador to agree to accept the TEPJF's verdict. After all, he is relatively young, ran an extremely effective campaign for a candidate whose coalition only boasts a structure in the D.F. and a half-dozen states, has placed the issue of poverty and inequality on the political map, and will have other opportunities to hold prominent positions if not the presidency. Moreover, an aggressive reaction to the Tribunal's decision would stigmatize the Left as radicals and firebrands.

Among the PRD officials who have an interest in peacefully abiding by the TEPJF's decision are Amalia Garcia, governor of Zacatecas, a potential member of a Calderon Cabinet, and a possible presidential candidate in 2012; Marcelo Ebrard, mayor-elect of Mexico City, who realizes that ugly demonstrations—especially in the capital—would impede his own presidential prospects; Deputy Manuel Camacho Solis, a top adviser to Lopez Obrador, whose fortunes are intertwined with those of his erstwhile protege Ebrard; Alejandro Encinas Rodriguez, acting mayor of Mexico City, who has expressed interest in the presidency of the PRD and would be an ideal prospect for secretary of the environment or another position in a Calderon administration; and Lazaro Cardenas Batel, governor of Michoacan, a member of the Cardenas Dynasty, and another potential presidential candidate.

Although some claim they would protest a TEPJF ruling in favor of Calderon by refusing to swear the oath of office, most of the PRD's national (125 deputies; 29 senators), state, and local candidates who won election on July 2 oppose continued civic resistance. Cuauhtemoc Cardenas may play the most influential role. An icon of the Left, three-time presidential candidate (1988, 1994, and 2000—he was the victim of egregious fraud in 1988), and president of his nation's bicentennial commission, Cardenas has become disenchanted with Lopez Obrador's dogmatic, secretive, and undemocratic behavior. Although he has maintained a low profile in the current dispute, Cardenas could do more than anyone to enhance the credibility of the Tribunal's decision, especially with the Left.

The Tribunal, which is known for careful deliberations, is expected to proclaim Calderon as Mexico's next chief executive. The burden will then be on the president-elect to select a first-rate, pluralistic cabinet and begin negotiating alliances before his December 1 inauguration. The viciousness of the campaign will militate against the forging of agreements.

Mexico exhibits democratic trappings, but deep-seated intolerance means that politicians regard their foes not as the loyal opposition but as the enemy. The restriction on lawmakers against consecutive terms diminishes constituency influence and magnifies the clout of party bosses, affluent interest groups, and giant television conglomerates—now a virtual fourth branch of the political system.

In addition, there is no consensus on an economic model: the PAN and enlightened PRI members back a local version of perestroika; at the same time, most of the PRD and the old guard within the PRI yearn to return to "the good old days" of strident nationalism, protectionism, bountiful subsidies, and ubiquitous government intervention in the economy.

This is why the next president must reach out to pragmatic PRI governors, results-oriented PRD state executives like Amalia Garcia and Lazaro Cardenas, Mayor-elect Ebrard, Cuauhtemoc Cardenas, Gordillo, modern business and labor leaders, and other sectors to convince the new deputies and senators to back the PAN administration's key anti-poverty, fiscal, energy, labor, and judicial reforms in return for assistance in obtaining their priorities.

Above all, the new chief executive and his probable government secretary, Josefina Sanchez Mota, should strive to hammer out a governing pact among the nation's power brokers. He might model such an understanding on the Moncloa Accords that reconciled the Spain's warring Left and Right on new political (democracy) and economic (socially sensitive capitalism) rules following the death of Generalissimo Francisco Franco in 1975. As a result, Spain— once poorer than Mexico—has flourished.

Such an agreement is crucial to smashing the ubiquitous monopolies, oligopolies, and private conglomerates (telecommunications, television, cement, transportation, processed foods, etc.) that impede efficiency, productivity, and competition, thus contributing to the nation's loss of foreign markets to China and other Asian powerhouses. Absent a Moncloa-style compact, Mexico has the raw material for two major legislative factions: the "reformers" (PAN plus progressive PRI activists plus the small New Alliance—PANAL dominated by Gordillo) and the "antiglobalists" (PRD plus PRI graybeards plus the Workers Party—PT).

Official Washington quietly rooted for Calderon until President George W. Bush publicly and prematurely congratulated him on his victory. If declared the winner, even the PAN leader will encounter mounting resistance to Mexico's top bilateral issue with the U.S.: liberalized immigration statutes. In accord with public opinion, a majority of Republicans in the House of Representatives favor a crackdown on illegal workers, the coyotes who facilitate their entry, and the employers who hire them. At the same time, American opinion makers are beginning to ask why the pampered establishment in their resource-rich neighbor relies on the border as an escape valve for jobseekers rather than creating opportunities at home for Mexico's downtrodden.

If declared the loser, Lopez Obrador can reintegrate himself into the system and possibly attempt to recapture the presidency of the PRD. Alternatively, he can play the role of a victimized messiah and roam the country for the next six years declaring himself a kind of "president in exile" and excoriating government initiatives. Should, however, he encourage or condone violence in his extremely conservative country, Lopez Obrador would compromise his effectiveness and discredit the Left, which made impressive electoral gains on July 2.

Republished by permission of the Foreign Policy Research Institute. For information, contact by email at FPRI@fpri.org.

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