Mexican tribunal faces test

MEXICO CITY — MEXICO CITY -- Each morning, the seven judges who will decide Mexico's disputed presidential election are chauffeured into their gated office compound past a crowd of Andres Manuel Lopez Obrador's angry supporters.

"Where are our votes -- in the garbage?" asks one of the banners demanding that the Federal Electoral Tribunal overturn Felipe Calderon's narrow victory in the July 2 vote and certify Lopez Obrador as president-elect.


It is 10 years since the tribunal was created to police an electoral system long marred by blatant fraud. In that time, the tribunal has nullified 17 local, state and congressional elections, and ruled against each of Mexico's three major parties in roughly equal proportions.

But the judicial arbiter of Mexico's young democracy has never faced a challenge like this.


With tens of thousands of protesters backing him in the streets, Lopez Obrador is asking the tribunal for two rulings that would stretch legal precedent.

Publicly, he is calling for a recount of all 41 million votes, in the hope of erasing his 244,000-vote deficit.

The motion his lawyers filed this week also seeks a ruling that President Vicente Fox's government tilted the playing field for Calderon, the candidate of Fox's conservative National Action Party, or PAN.

A favorable ruling on that motion would open the election to annulment and force a new one.

Calderon's legal team is contesting both motions. By law, the tribunal, scheduled to begin hearing the case next week, must resolve the motions by Aug. 31 and declare a winner by Sept. 6.

The decision, and whether it is accepted by both parties, will be a critical test of whether Mexico can resolve disputes in a peaceful, legal manner rather than through the street demonstrations and backroom deals that settled close elections in the early 1990s. Ultimately, that choice could weigh on the stability of the country.

At stake, too, is the prestige of this country's most trusted public institution after the army. In a country struggling to establish rule of law, its authority stands out: Until now, the losers have always respected its decisions.

The tribunal was created in 1996 and insulated from extralegal pressure. The 65 nominees vetted by the Supreme Court had to be free of political affiliation. The three big parties negotiated the choice of seven from that list -- five career judges and two legal scholars -- for election by a unanimous Congress.


They were given nonrenewable 10-year terms and, to discourage attempts at bribing them, the highest salaries of any Mexican public official -- about $415,000 a year.

The court has settled more than 20,000 electoral disputes, overruled banking secrecy laws in search of illegal campaign donations and levied multimillion-dollar fines on electoral scofflaws

In 2000, it nullified an 8,000-vote victory by the Institutional Revolutionary Party, the PRI, in Tabasco state. The incumbent PRI governor, they found, had rigged the process in favor of his protege: Rival candidates got almost no media coverage, mailed campaign literature was intercepted, voters were bribed and coerced.

That landmark ruling established the court's readiness to go beyond vote-tallying disputes and use "abstract causes" of unfairness to void an election -- one of the principles Lopez Obrador is embracing.

In subsequent rulings, the tribunal caused riots among PRI supporters by removing a PRI-stacked state electoral board in Yucatan. It nullified the triumph of the PAN's congressional candidate in Michoacan state, ruling that he had violated the principle of church-state separation by portraying the Virgin of Guadalupe on his leaflets.

Todd Eisenstadt, an American University professor and author of a 2004 history of the tribunal, said its rulings show a logical consistency that protects the judges from claims of political bias.


That record is a rough guide to how the judges might rule on the presidential race: They have been consistently willing to recount ballots, but only selectively.

Lopez Obrador is asking for much more, however, and he has pointedly refused to say whether he would accept defeat.

Lopez Obrador's 836-page appeal alleges that the PAN exceeded campaign spending limits, used funds diverted from the treasury, pressed poor voters to back Calderon by threatening to cut off public welfare benefits, slandered his opponent in televised ads, and benefited from Fox's refusal to abide by a ban on his involvement in the campaign.

Richard Boudreaux writes for the Los Angeles Times.