DISSENTING OPINION OF LUIS OCTAVIO VADO GRAJALES, REGARDING THE AGREEMENT IN WHICH THE CONSECUTIVE ELECTION GUIDELINES FOR THE ELECTORAL PROCEDURE 2017-2018 ARE APPROVED.

In moving away from the project that is put in consideration, I want to present the arguments by which I hold a consistent interpretation of art. 14, section V of the Electoral Law of the State of Querétaro on re-election, based on the criteria held by the SCJN (Mexico´s Supreme Court)

The foregoing considering that the current text of the national Constitution, as well as the various initiatives in terms of reelection and consecutive election, it follows that the reasons for those are the following:

1. Create closer links between the voters and their representatives.
2. Limit the allocation of candidacies for the so-called power quotas.
3. Establish an accountability mechanism, given the prospect of re-occupying a position of popular election.
4. Professionalize the exercise of public office.

The mentioned article 14, section V of the Queretaro law, in this regard, regulates in a literal sense the following assumptions:

• Legislators who intend to be re-elected or elected for a different position: they do not have to separate from their duties.
• Concejals and Syndics: they only require separating from their functions if they opt for the position of municipal president.
• Mayor: he / she must have separated from his position, regardless of the position to which he / she aspires, at least ninety calendar days before the election.

To interpret the legal text should be considered based on the resolution of unconstitutionality action 126/2015 as well as SM-JDC-6, 7 8/2017 antecedents that indicate that there is no re-election when, in the case of a city council, there is a dispute over an other position than that in which it is held, although the same collegiate is integrated, the change from a syndic to a councilor or municipal president does not imply reelection but a new election.

However, considering the oblitarion to separate of his position in case of mayor valid, does it present any problem of unconstitutionality in it?

When resolving unconstitutionality actions 76/2016, 50/2017, 61/2017 and accumulated; as well as 131/2017  and accumulated, there are two principles:

1. Free legislative configuration of local legislatures.
2. Need for equal treatment among members of the same collegiate regarding the need or not to separate from the position to seek re-election.

In relation to the above, the Monterrey Chamber of the Electoral Tribunal of the Federal Judicial Power of the Federation, in resolving the issue SM-JDC-498/2017 and accumulated, regarding the electoral legislation of Aguascalientes as far as the necessary separation of the position, determined that It is optional for the public servant, and that although there is configurative freedom for local legislators, no greater limitations can be imposed than those already contained in the Mexican Constitution.

The Toluca Chamber of the aforementioned Federal Court of Appeals ruled, in the file ST.JRC-6/2017 and accumulated with a coinciding criterion regarding the need for an equitable treatment among the members of a collegiate seeking re-election.

Thus, in my opinion there is a coincidence between what was decided by the Supreme Court of Justice of the Nation and the Electoral Court of the Judicial Power of the Federation, a coincidence that demands a specific reading of article 14, fraction V, of our Electoral Law of Queretaro.

Applying the above criteria, and estimating the free configuration of the legislator of Queretaro, is there an equitable treatment of the members of the collegiate of popular election in Querétaro? Regarding the deputies it is clear that no distinction is made so that they seek re-election in their position, so there is no inequitable treatment.

Now, then in the case of the town councils it can be seen that the legislator opted for a model in which the limitation revolves around the position of mayor, for which anyone who contends (whether re-election or election) and integrates the municipality in question, It must be separated ninety days before the election.

However, when analyzing the matter from the point of view of the person seeking re-election, which I respectfully believe is the vision that the SCJN has departed in the matters already described, there is an inequity given that as mayor, concejals and syndics of the same collegiate body, the former must separate from his position to seek re-election, without the seconds and thirds must do so. It would be difficult to sustain a reason that justifies such unequal treatment.

It is not an obstacle for the above to consider as a ratio of the legislative decision to avoid that the municipal presidents, who have the effective administrative management of the municipal body, can use it in their favor, since as was discussed in the case 50/2017, a differentiation must be made between the requirements to access the position and the prohibitions with respect to any public servant. That is, who in the exercise of the assignment intends to be re-elected must abstain from the use of public resources and perform campaign actions on labour days.

If it is estimated that there is unequal treatment among the members of the city council in our legislation, I believe that we are in a position to make a conforming interpretation in an ample sense, in the terms required by the determination of the issue Various 912/2010 of the SCJN and also considering the jurisprudence with the item CONFORMING INTERPRETATION. ITS SCOPE IN RELATION TO THE PRINCIPLE OF MOST FAVORABLE INTRPERETATION TO THE PERSON.

The conforming interpretation in ample sense that this resolution requires of all authorities implies, in my opinion, it’s that when constructing the major premise of our decisions (normative premise) all legal material existing and relevant to the case is taken into account, such as the aforementioned matters are already resolved by the SCJN.

In a this way, the reading of article 14 section V of the local Electoral Law must be carried out in a way that is consistent with the Constitution and its interpretation pronounced by the highest court, since otherwise political-electoral rights would be unduly violated, even though there is a way to protect them.

Therefore, I believe that the conforming interpretation that must be given is to estimate that the municipal president seeking re-election is not obliged to be separated from the position.

It may be objected that this interpretation is limited, since it does not imply accepting that the Concejals and Syndics those who opt for the position of mayor may also omit to separate from their commissions; However, it seems to me that the assumption is different, because in the previous paragraph we are talking about a case of re-election; and in this paragraph it is a continuous electoral election for the same body but with a different position.

The interpretation that I propose is legally possible since this collegiate would not be determining an inapplication due to unconstitutionality, which is forbidden when this is an administrative matter; but making a reading of article 14 section V of the Law in the light of jurisdictional decisions, in attention to the conforming interpretation to which the alluded agreement 912/2010 subjects us, it turns out to be viable

For the expound I depart from the sense of the project.