With nine votes in favor among the eleven ministers that make up its plenary session, the Supreme Court of Justice of the Nation (SCJN) totally annulled this Thursday the Plan B electoral of President Andrés Manuel López Obrador, because for its approval the majority of Morena in Congress incurred in multiple violations of the legislative procedure, seriously violating article 72 of the Constitution that establishes the principle of democratic deliberation.
The only ministers who voted against this ruling were Loreta Ortiz Ahlf and Yasmín Esquivel Mossa, both proposed by the president to form part of the country’s highest court.
With this, for the presidential elections of 2024, the regulations prior to this reform attempted by the official party will govern, which implies that the electoral process will begin on the first day of September of this 2023, so there is no longer any opportunity that the laws that will be applied in the general elections next year be changed.
In accordance with the penultimate paragraph of section II of article 105 of the Constitution, electoral laws -federal and local- must be promulgated and published at least ninety days before the beginning of the electoral process in which they are to be applied, “and during it there may be no fundamental legal changes.”
In turn, numeral 2 of article 40 of the General Law of Electoral Institutions and Procedures provides that the electoral process begins the first week of September of the year prior to that in which the ordinary federal elections are held.
So, The last day to reform the electoral legislation that will regulate the 2024 contest was June 3. Although the majority of Morena in Congress can once again propose changes to the same laws that were already annulled by the Supreme Court, these could not be applied in the presidential contest.
The reforms invalidated in their entirety were those introduced in the following norms: General Law of Electoral Institutions and Procedures (LGIPE), General Law of Political Parties, Organic Law of the Judiciary of the Federation, in addition to the new General Law of Media Challenge in Electoral Matters.
Significance of the annulment
The ruling approved this Thursday by the majority of the Court’s ministers has general effects, which means that the second part of the president’s electoral reform has been expelled from the Mexican legal system.
The same thing happened on May 8 when the country’s highest court, with a qualified vote of 9 votes, completely invalidated the first part of the electoral Plan Beliminating the reforms to the General Law of Social Communication and Administrative Responsibilities that allowed public servants to promote their actions while on duty, which is expressly prohibited in the last two paragraphs of article 134 of the Constitution.
Likewise, the sentence approved this Thursday by the Court reiterates jurisprudential criteria issued by it for 16 years, contrary to what the Court has argued. Legal Counsel of the Presidencyan office that considers that this type of decision violates article 17 of the magna carta, which provides for the independence of the jurisdictional bodies, in addition to the fact that they must give priority to the solution of conflicts over the procedural formalities.
In a statement issued on Wednesday afternoon, the Ministry of the head of the federal Executive Power accused the rapporteur minister of the already voted resolution, Javier Laynez Potisek, to propose “the total invalidity of the contested decree without going into a true in-depth study of the questioned norms, which unjustifiably delays the necessary transformation of the Mexican electoral system.”
The problem in this case is that the Presidential Legal Department does not mention that there is jurisprudence, of obligatory observance for the Supreme Court, approved since April 17, 2007, ordering that “procedural violations must be examined prior to substantive violations, because they can have an effect of total invalidation on the challenged norm”.
This is exactly what the sentence drafted by Laynez Potisek does, before entering the substantive analysis of the Unconstitutionality Actions, all the transgressions to the legislative procedure were studied, resulting that these were so serious that they necessarily produce the complete invalidation of the electoral reform.
The Ministry added that the sentence incorporates “a fact not invoked by the opposition to invalidate the electoral Plan B”, which is not true, since the plaintiffs, who were the parties, deputies and senators in opposition to Morena, did expose in their Occurs that the legislative procedure transgressed articles 6, 7, 14, 16, 40, 41, 65, 70, 71 and 72 of the Constitution, so that -in essence- the decree “suffers from seven invalidating defects”.
The INE will not be diminished
With the decision made this Thursday by the Plenary of the Court, the National Electoral Institute (INE) will no longer have to disappear several of its technical bodies, as ordered by Plan B, which diminishes its functions and powers.
As the legislation prior to this reform is in force, the Technical Oversight Unit and the Technical Unit for Electoral Litigation will continue to operate, in addition to the fact that the permanent district bodies of the INE are also maintained.
Had the changes proposed by President López Obrador and endorsed by his party in Congress been applied, the electoral authority would have fired between 4,000 and 6,000 workers.
Another relevant fact is that the independence and full jurisdiction of the Electoral Tribunal of the Federal Judiciary (TEPJF) will remain intact, since the reform indicated to that instance how the rules should be interpreted, prohibiting electoral magistrates from canceling candidacies of candidates who have violated the law.
In this vein, Morena’s presidential candidates, who have been touring the country since this week, could even be sanctioned with the loss of their registration, because their current activities constitute anticipated campaign acts, and they have denounced this in the INE and in the TEPJF the parties of the Democratic Revolution and Citizen Movement.
This sanction is included in numeral 1, subsection c), section III, of article 456 of the General Law of Electoral Institutions and Procedures, which punishes this type of transgression “with the loss of the right of the offending pre-candidate to be registered as a candidate or , where appropriate, if the registration has already been made, with its cancellation.
It should be noted that this provision was repealed in the president’s electoral Plan B, leaving as sanctions for early campaign and pre-campaign acts only public reprimand, and a fine of up to 5,000,000 Measurement and Update Units (518,700 pesos), which can no longer be applied thanks to the ruling of the Court.
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surya palaces Journalist and lawyer, specialist in legal analysis and human rights. She has been a reporter, radio host and editor.