Catch 22?

Based on press reports, my understanding is that the Coalición por el Bien de Todos (López Obrador’s) is contesting the election on the following grounds:

(1) inequity in the process since, among other things, (i) the PAN violated the legal limits on campaign spending and (ii) government resources were used in support of the PAN candidate, and

(2) manipulation of the results in a number of polling places (the PRD is talking of “tens of thousands” of polling places).

In my understanding (and I’m NO legal expert), if the TRIFE rules that there was inequity, the whole election could be invalidated. López Obrador says he doesn’t want that scenario and is ruling it out in interviews, but it had to be included as an alternative demand in the legal documents submitted by his coalition to the TRIFE.

The manipulation of the results at the polling-place level can be inferred from the few cases where the ballot packages were opened (begrudgingly by the PAN) during the district-by-district review of the tally. I have no doubt that the sum total of the votes López Obrador lost as a result of retail “irregularities” is huge, particularly in Querétaro, Guanajuato, Jalisco, Colima, northern Michoacán, and northern states.

But there may be a legal procedural problem here for López Obrador. According to knowledgeable commentators (e.g. Jorge Alcocer and Jose Woldenberg, both of whom were personally involved in the design of the current electoral system), the argument to open the electoral packages before the TRIFE has to be casuistic, meaning that to open ballot package X, you need a specific argument Y showing reasons why that particular package must be opened.

It may be hard for López Obrador’s legal team to argue on the basis of the general presumption: Since, in the few cases (rather random) where the packages were opened, the bias in the result was invariably against López Obrador and substantial, then there’s grounds to doubt the results of polling-place tallies in areas where the PAN is politically dominant. Therefore, the packages must be opened and the votes recounted.

To me, professionally deformed as I am by my training in statistics and econometrics, random samples tend to have pretty good information about the characteristics of a population.  But lawyers and judges may operate under a different logic. Isn’t this a catch-22 situation for López Obrador?

* * *

One separate point I’ve been meaning to make here is that there’s a campaign in Mexico’s airwaves, orchestrated by very rich/powerful people afraid of a victory of the left, according to which López Obrador’s legal challenge and — above all — his call for his supporters to mobilize subvert the legal democratic process. Fortunately, very serious commentators in the press, including some whose hearts are with Calderón (Sergio Sarmiento comes to mind), are saying that both, legal challenge and mass mobilizations in support of López Obrador, are within the bounds of the law. Indeed, Mexico’s constitution acknowledges the right to protest and demonstrate.

While Televisa and other media outlets find this distasteful, it is clear that the very purpose of these demonstrations is to show the whole political establishment, the government, the media, the business class, etc. — and, of course, the TRIFE judges — that a lot of regular people are massively involved in the process, backing up the legal demand to open the ballot packages and recount the votes one by one, at least in polling places where the popular perception of fraud is greater. There can be no conflict between an institutional democratic process and the popular engagement in it.

What these people protesting on the streets are saying is that the TRIFE has a very delicate decision to make. Either the outcome is legal and legitimate or else, for the time being, the political establishment can forget about the dream of a stable political system in Mexico.


2 Responses to “Catch 22?”

  1. juan Says:

    my understanding that the few ballot recounts done had in fact favored Lopez Obrador’s case — at least that’s what Greg Palast claimed yesterday.

  2. Charles Says:

    I can’t speak for Mexico’s legal system, nor do I claim special legal knowledge, but I suggest it will play out this way, according to the facts as I understand it: To open the first packet, or the first few hundred packets, a very, very high standard of proof holds. Call it a “beyond reasonable doubt” standard.

    However, a 1% recount demonstrated a consistent pattern of “errors” in favor of Calderon. That lowers the standard, opening the door to examining say 10% of the ballots. If there’s a pattern there, the burden of proof will shift.

    A second avenue to a shift in burden of proof could arise if it were proven that a senior PAN official ordered fraud. For example, if a state governor or his aide were connected to fraud, the court might decide to examine all the ballots in the state.

    The law tends to be reasonable, balancing the right to limit the burden of answering baseless claims with the duty to examine all reasonable claims. And judges can read political returns or, if those have been cooked, demonstrations in the streets. They are, like the rest of us, people concerned for their nation.

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