Participation in the panel of reelection. XXVIII International Congress of Electoral Studies. Mexico City, August 22, 2017

(I made some adjustments in order to facilitate the reading and avoid unnecessary repetitions, as well as to better distinguish the points addressed)

Thank you, good morning, I would like to return to the questions that Roselia (Bustillo Morán, coordinator of the panel) asked us at the beginning, the issue of parity on the one hand and in the other  the questions that I believe can be included in a single matter the equity in the contest; After the expositions that have preceded me, I think they have clearly shown the senses, the functions of re-election and the normative framework in which we find ourselves.

Reflections on parity and reelection.

I emphasize at the outset that the term that Roselia used was "the parity rule", she did not speak about the "principle of parity" and of course being as she is a deep knowledge of the electoral matter, she consciously chose the concept, and this seems important to me, for the next reason.

On some occasions, for example in certain sentences, we have found the reference to parity as "principle" and the truth is that I doubt that parity is really a "principle", it seems to me that it would rather be a "rule"; if we go to this distinction between "principles and rules" understanding the "principles" as optimization mandates and as "rules" those that are fulfillment or not fulfillment. And I believe we should distinguish parity at least in two moments: one in the nominations and another in the access to the position; It would simply bring us to mind that resolution of the Superior Court, in its previous integration, on the Morelos case where it spoke of parity, that is how I understand it, as a rule in the nomination but as a principle in the access to the position. So I think we should start discussing it from there because the method of solving antinomies is different if we talk about principles or rules.

There is an important possibility of a clash between parity and re-election. I would like to quote some information from counselor Claudia Zavala that men are the ones who lead 91% of the city councils in Mexico. Therefore, we have to be certain that there will be conflicts between parity and re-election, that is, we cannot think that they are not going to take place, we have to assume that they are going to take place and, as the magistrate Sánchez Morales commented (Jorge, of the Sala Guadalajara, member of the panel) hopefully the political parties are already taking their forecasts. The electoral institutes we have been doing it since the last year at least with the rules or guidelines of parity, are the cases of Veracruz and Oaxaca.

Some laws expressly state that parity goes beyond any other right including re-election, and that is why I started by commenting on whether parity is "rule or principle", because if parity is "principle", then this type of provisions can be questioned or it would be questioned in jurisdictional seat, since one of the characteristics of the "principles" is that we can not a priori establish a hierarchy between them. If we take it as a "rule" then it is different, of course I could not do the judicial fortune-teller, more if we analyze the resolutions and the criteria that have been taken by the Superior Court in its actual integration as well as the Regional Chambers, I would think that the parity will have an important preeminence.

Adding to the comment of the magistrate (Sánchez Morales) that I hope the political parties are already foreseeing this in their internal procedures for the selection of candidates, and that I am not only saying pre-campaigns, because as we well know, the selective procedures may or may not be through pre-campaign or any other method and hopefully this is being anticipated.

Reflections about equity in the contest and re-election.

Magistrate Sanchez Cordero (Monterrey Regional Chamber, participant in the panel) referred precisely to the issue of the "incumbent" and the situation that they started with a certain advantage, because in the end we cannot say that we are in equal circumstances when it competes with who already has the position and among other reasons for the media exposure it has; adding to the comment of Magistrate Sanchez Cordero this exposition is for both the good and the bad and therefore the issue is precisely that reelection implies a threat a possible threat to the equity in the contest, but not only the constitutional contest but also since the internal processes of the parties themselves, I am thinking above all about the pre-campaign. Care must be taken in the matter of impartiality in the use of public resources, as mandated in Article 134; There is the fundamental issue of where equity may be at risk with re-election.

Now this has tried to been addressed in some ways, in the first point the rich jurisprudence that has the TEPJF on the use of public resources and the interpretation of Article 134. Secondly, some laws have provided that who seeks re-election  must separate itself from the position.

The Councilor Ciro Murayama set out an interesting topic about this that I leave it pointed on the table, because it questions the constitutionality of demanding the license or separation of the position to whoever intends to be re-elected. As far as I have been able to investigate, there is no such pronouncement from the courts and it will be very interesting because I am sure that more than one official in those states where it is expected to have to ask for a license will happen not to do so, he or she will impugn, and then in first, we the Administrative Electoral Bodies, and secondly, the courts, we will have to pronounce ourselves.

It seems to me that the key lies in what can and what cannot be done by those who whats to participate in a process seeking re-election, and it has to do with issues such as inaugurating public works, making presence, using the mass media and a subject that it seems very important that it is the one of the government or management reports, to see how to combine this topic of the government or management reports with a re-election system? The specialized chamber has already spoken on this issue in procedure SRE-PSC-5/2014 where it is pointed that the reports are valid in a system where we have re-election, which  makes a lot of sense, because if we see the opinion of the Senate about the constitutional reform   which look after one of the ideas that form  it is to look for a greater connection with the citizenship, as well as the rendering of accounts; therefore, it would seem contradictory to the reform itself to exclude the possibility of the reports. Now the problems are both the timeliness of the report and its content.

And to this I would add another element that is the subject of the proselytizing acts during office hours, you will remember that there was a first criterion of the TEPJF where it was said that one could, if and only if, the official asked for a license or permit that day. And then the criteria were changed, and the current one is not, that you cannot do proselytizing acts even ask for a license, even without pay, which presents a very interesting operational practical problem what happens in those States where you are not asked to leave office?  Or in the hypothetical case of a State where they are asked to leave office, the official impugn and wins the impugnation, with this determination that no proselytizing acts can be done in days and hours, which would limit in an important way the acts that could make this official therefore could be in the end better to separate from the position even in those cases where it is not requested by the legislation.

Personally and assuming that it is a position that we can certainly discuss; I do believe in the phrase of Holmes that the constitution is what the judges say it is, therefore I think it is important to review some of the judicial resolutions that have already been taken on the subject of re-election by acting on the case Nayarit that has been commented here.

The Supreme Court has addressed it in three actions of unconstitutionality, one regarding Colima on 32/2014, where it points out what was presented to us a moment ago, that is perfectly constitutional that the local legislatures do not go to the limit of the three possibilities of re-election that is in one period and three more for legislators.

The second one that I think is very interesting and that one I will go in depth is in the final part with some of the doubts that I want to raise, refers to the state of Puebla which is 88/2015 where it is stated that it is valid to demand reelection in the same district in which it was competed. Which at first has a certain logic, because if we connect it with the idea of ​​reports and rendering of accounts as well as the link with the electorate, it certainly seems logical, but we must not forget that even in the criteria of the court electoral has been held that the deputy (speaking specifically of deputies), represents the entire state not only his district, I leave it there and I will try to problematize it a little later.

Finally the action of unconstitutionality 126/2015 and which states that, if you contend for a different charge than you have in a town hall, is not re-election, this in the state of Quintana Roo, the counselor (counselor Pot Pech of the Electoral Institute of Quintana Roo) that accompanies us will surely know better than I this issue, which is important because it has to do with that old jurisprudence of the TEPJF of 2002, if I'm not mistaken, which considered as re-election in the municipalities to opt  for the immediate election following that in which the position was obtained for another diverse position within the same collegiate, that is to say from councilor to sindico in those cases where the dindico is elected or to the municipal president and it is an issue that was addressed in the Monterrey Chamber  that integrates of course the  Magistrate Sánchez Cordero in three files, the accumulated 7 and 8-JRC / 2017 and the 6/2017 where remembering that, in one speaker was the magistrate and another formulated particular vote,  it seems to me that we can summarize that it is pointed out that there will be reelection whenever he is looking for the same position, not when he is contending for a different position.

Now this seems to me that it is necessary to understand it making a reference to the city council by virtue of which constitutionally and as of from the legislation of the states, there are different functions depending on whether one is municipal president, alderman or sindico although they integrate the same body. It would be interesting when this is discussed in relation to legislators if it is allowed or not in the laws or in the internal dispositions of the parties, the re-election by different principles, majority to proportional representation or vice versa, because in the end and as far as I remember this criterion has not changed, there is absolute equality between legislators no matter the principle by which they arrived what is relevant is that you integrate the organ and you have the same faculties.

I do not know if maybe I had a short time, but I would like to leave it until here in order in the second round try to raise some issues that I think will continue to problematize this and that will require first a resolution by the legislators, second by the parties themselves, third by the electoral bodies and fourth in its case by the Courts, and that I think it is appropriate to bring them on the radar as surely as others that each of us will have in mind because I am sure that they are issues that we they are going to present, thank you very much.

Second intervention.

The issues that I consider are open to discussion are the following:

a)     If reelection is limited to the same district in which it was elected, can the report be publicized throughout the whole entity?

b)     Parity versUs reelection clash of rules or principles?

c)      Reelection of candidates elected by a party of which they are not members but they are sympathizers, should they be nominated by the same party?

d)     The re-election should be given by the same party, What effects will party tension have on party discipline-bonding with voters? Especially if it is not forced to apply for the same district position in which it was originally won.

e)       Regarding legislative practices, what changes will re-election bring? Will we have figures like the "breakfast of prayer" of the American Congress, or of "Father" or "Baby of the house"?

Thank you.