The Price of Democracy: How Judicial Elections Undermine Mexico's Constitutional Integrity

Judicial independence is fundamental for constitutional democracy by ensuring that courts can make decisions solely based on the law, free from political interference. In Mexico, the Constitution of 1917 established a judiciary separate from the other branches of government to protect this independence. Nonetheless, former president Andrés Manuel López Obrador (AMLO)’s recent reforms proposing judicial elections in place of merit-based appointments threaten this important principle. While scholars such as Laden assert that elections enhance democratic legitimacy, this article states that they jeopardize judicial impartiality and constitutional protections.[1] It examines how judicial elections expose judges to political influence, leading to potential corruption and undermining the separation of powers. Furthermore, this article claims that judicial elections compromise Mexico’s legal system by weakening the judiciary’s ability to uphold the law impartially.

Legal scholars and international entities widely define judicial independence as the ability of the judiciary to make decisions based solely on the law without interference by public opinion, or the executive and legislative branches. Chief Justice Brian Dickson of the Supreme Court of Canada called judicial independence “the lifeblood of constitutionalism,”emphasizing its central role in maintaining constitutional integrity.[2] Similarly, U.S. Supreme Court Justice Sandra Day O'Connor stressed the importance of judicial independence for societal stability, encouraging Americans to remain committed to its protection.[3] The United Nations Basic Principles on the Independence of the Judiciary[4] and Article 8(1) of the American Convention further emphasize this principle, considering judicial autonomy as essential to impartiality and human rights.[5] These international standards demonstrate a broad consensus that judicial independence and impartiality are crucial for maintaining the rule of law and protecting human rights.

Countries with international influence tend to hold strong judicial independence mechanisms, and therefore generally avoid judicial elections, which tend to compromise impartiality. According to Meron, judicial independence is essential for fairness in the legal system because it allows judges to make decisions based on the law without being influenced by external pressures.[6] Meron goes on to state that independence fosters public respect for the courts and promotes stability through impartial decisions. The United States’ electoral system supports this view where, while allowing elections in some state courts, an appointed federal judiciary is expected to guarantee tenures exempt from electoral pressures. Similarly, the European judicial systems adopt appointment-based selection processes seeking independent judicial councils.[7] In both contexts, the appointment methods are meant to minimize political influence that can undermine judicial credibility and public trust.

Prior to AMLO’s reforms, Mexico held a significant amount of value on such judicial independence. In Mexico, judicial independence is enshrined in the Constitution of 1917, which considers the judiciary as a separate and independent branch of government. Article 94 of the Mexican Constitution ensures that justices and judges serve specified terms, protecting them from arbitrary removal and protecting their impartiality.[8] These provisions were designed to prevent political interference due to Mexico's historical struggles with authoritarianism.[9]

The current Mexican judicial reform, which seeks to replace merit-based appointments with direct elections, diverges from these internationally recognized legal protections. Judicial elections would reverse decades of progress in judicial impartiality by subjecting the judiciary to political dynamics. As Inter-American Dialogue, a U.S.-based think tank warns, “Judges selected through elections increase the risk of candidates seeking financial support of political parties or interest groups.”[10] This resulting polarization of the judiciary can undermine its independence. Candidates may align themselves with partisan influences to guarantee electoral support, which leads to decisions influenced by political considerations rather than legal principles. By subjecting the judiciary to electoral competition, this reform threatens to compromise its impartiality, exposing it to the same partisan struggles as the other branches of government.

Bolivia’s experience with judicial elections provides a case study of judicial reform’s consequences. Although the goal was to make the judiciary more democratic, the process made judicial appointments more political.[11] Instead of increasing confidence, judicial elections fueled political divides, with support for the Supreme Court becoming more tied to party loyalty. Additionally, voters often lack enough information about candidates' qualifications, which results in choices based more on political affiliation than merit.

Bolivia became the first Latin American country to adopt judicial elections in 2011.[12] The 2009 reform that allowed the election of judges by popular vote sought a “democratization of justice” [13], expecting increased public confidence in the judiciary and solid institutional independence. Bolivia aimed to depoliticize the judiciary and ensure that judges were professionally qualified. However, the election resulted in successful candidates who aligned more with voter’s preferences instead of having high professional qualifications. [14]

Despite the reform’s goal of democratizing the judiciary, its impact on public confidence was uneven and partisan. Confidence in the judiciary increased among supporters of the political party Movimiento al Socialismo (MAS) but declined among the opposition and the rest of the country.[15] According to Driscoll and Nelson’s study, confidence in the Bolivian Supreme Court increased among MAS supporters after the judicial elections. [16] However, their research also found that most voters refused to choose a candidate altogether, which indicates a decline in public confidence in the Supreme Court between 2008 and 2012. [17] These findings therefore show little public trust in Bolivia’s judicial institutions. The reform may have strengthened confidence among MAS supporters but failed to gain general public trust in the judiciary. [18]

Such case study of Bolivia further demonstrates the consequences of populist influence, particularly in regards to the weakening of constitutional protections intent on preserving judicial independence. In spite of the 2009 Constitution’s requirement of a two-thirds majority vote in the national assembly to approve judicial candidates, this protection proved insignificant when the ruling MAS party gained supermajority control.[19] As a result, the party dominated the selection process, reducing the judiciary’s ability to act as a fair and independent check on government power. Driscoll and Nelson argue that while the two-thirds majority vote requirement in the Constitution was designed to ensure opposition participation in the nomination process, it missed the possibility that a single political party, like the MAS, could gain majority control. The outcome of this majority control is a populist authority being able to manipulate democratic processes that can ultimately undermine judicial independence.

Judges encountering electoral pressures may prioritize popular opinion over legal principles, deciding to appease voters rather than following constitutional rights. As Canes-Wrone and Clark argue, when judges do not have party labels to communicate their policy preferences, they feel pressured to align their judgments with public opinion, especially on important issues. As they explain, "a decision that is out of line with public opinion—even though the decision may be grounded in reason and legal precedent—may be the death knell for a candidate." [20] This pressure can result in decisions that reflect a majoritarian view, even when those decisions are not grounded in legal precedent or reason.[21] The need to secure votes can thus lead to judicial rulings shaped by public sentiment that can compromise the judiciary’s role in protecting individual rights against majoritarian impulses. Such an effect compromises the impartiality of judges.

Mexico's motion to elect judges has already encountered challenges. The assassination of a former high-ranking judge in Acapulco has raised concerns about the safety of judicial candidates and the potential for criminal organizations to influence judicial elections.[22] This incident shows the risks of exposing the judiciary to electoral politics in a context where criminal groups hold substantial power. If judges are required to campaign for votes, they may become vulnerable to threats, intimidation, or even violence from organized crime groups seeking to persuade judicial outcomes in their favor.

Additionally, the involvement of criminal organizations in judicial elections could harm public confidence in the legal system. Trust in the independence of the judiciary will suffer if voters believe criminal interests influence judges. This possibility could weaken the rule of law, as citizens may question the fairness of court decisions, in addition to the judiciary’s ability to protect basic rights. Gibson et al. find that confidence measures are effective in identifying individuals' true preference[23], suggesting that perceptions—such as beliefs about corruption—are more influential than actual experiences in shaping trust in the judiciary.[24] From this reasoning, electing judges could unintentionally harm public confidence in the judiciary if there exists the belief that criminal organizations impact judge's decisions.

Advocates of judicial elections believe that popular voting enhances democratic legitimacy and accountability in the judiciary by decreasing corruption. Andrés Manuel López Obrador (AMLO) shares this sentiment, claiming that enabling citizens to elect judges encourages public trust and makes the judiciary more sensitive to the needs of society. He has specifically attacked the current system, referring to the judiciary as “rotten” and accusing appointed judges of being “corrupt”, with conflicts of interest and engagement in low criminal interests, complicity, unspeakable cohabitation, corruption, and waste of resources.”[25] This notion is consistent with the perspective that in a democracy, all public officials, including judges, must be directly accountable to the people. Similarly, Professor of Law Siegel claims that elections can help reduce corruption by breaking the cycle of elite control over judicial appointments.[26]

However, these perspectives ignore the risks to judicial independence and impartiality. While democratic accountability is important, the judiciary’s primary role is to uphold the Constitution and protect individual rights, not to reflect popular sentiment. As previously mentioned, judges may feel pressured to make decisions based on public opinion to align voters' views.[27] This possibility could compromise their impartiality and weaken public trust in the judiciary’s objectivity. Moreover, the assumption that elections reduce corruption is flawed. Instead of reducing elite influence, elections can create opportunities for political manipulation. Gibson, Caldeira, and Spence (2003) explain that judicial symbols and symbols of political power are often manipulated by elites and interest groups, which indicates that judicial decisions are exposed to public scrutiny through these symbols.[28] It risks creating a judiciary more accountable to political or economic elites than to the law itself.

Introducing judicial elections in Mexico might threaten the constitutionality of Mexico and the independence of its judiciary. Advocates of judicial elections have argued that it enhances democratic accountability and legitimacy. However, these reforms may be plagued with potential political interference, corruption, and external pressure compromising the impartiality of the judiciary. The Bolivian case study is especially insightful because it demonstrates judicial elections' ability to be able to force judges into subordinate allegiance to political interests, and not retaining a commitment to the law objectively. Judicial independence upholds the rule of law, and any reform placing judges at odds with electoral pressures jeopardizes undermining this principle. Following this history, judicial elections will likely jeopardize the foundational impartiality of Mexico's judiciary.

Biblography

[1] Laden, Anthony Simon. “Democratic Legitimacy and the 2000 Election.” Law and Philosophy 21, no. 2 (2002): 197–220. http://www.jstor.org/stable/3505130

[2] Sharpe, Robert J. “The Constitutional Legacy of Chief Justice Brian Dickson.” Osgoode Hall Law Journal 38, no. 1 (January 1, 2000): 189–219. https://doi.org/10.60082/2817-5069.1512

[3] O'Connor, Sandra Day. "The Importance of Judicial Independence." Stanford Lawyer, Spring 2008, Issue 78, Stanford Law School, 15 May 2008, https://law.stanford.edu/stanford-lawyer/articles/the-importance-of-judicial-independence/

[4] United Nations. Basic Principles on the Independence of the Judiciary. Office of the High Commissioner for Human Rights, https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-independence-judiciary. Accessed 17 Mar. 2025.

[5] Organization of American States. American Convention on Human Rights. 22 Nov. 1969, 1144 U.N.T.S. 123.

[6] Meron, Theodor. “Judicial Independence and Impartiality in International Criminal Tribunals.” The American Journal of International Law 99, no. 2 (2005): 359–69. https://doi.org/10.2307/1562502

[7] Pozen, David E. “The Irony of Judicial Elections.” Columbia Law Review 108, no. 2 (2008): 265–330. http://www.jstor.org/stable/40041759

[8] Justia. “Constitución Política de los Estados Unidos Mexicanos › Título Tercero› Capítulo IV - Del Poder Judicial› Artículos 94 al 107,” May 25, 2023. https://mexico.justia.com/federales/constitucion-politica-de-los-estados-unidos-mexicanos/titulo-tercero/capitulo-iv/.

[9] Finkel, Jodi. “Judicial Reform as Insurance Policy: Mexico in the 1990s.” Latin American Politics and Society 47, no. 1 (2005): 87–113.

[10] Inter-American Dialogue. Judicial Independence in Mexico: Challenges and Perspectives. Inter-American Dialogue, May 2024, thedialogue.org/wp-content/uploads/2024/05/EN_Mexico-Report_Judicial-Independence.pdf

[11] Kapiszewski, Diana, and Matthew M. Taylor. “Doing Courts Justice? Studying Judicial Politics in Latin America.” Perspectives on Politics 6, no. 4 (2008): 741–67.

[12] Driscoll, Amanda, and Michael J. Nelson. “Judicial Selection and the Democratization of Justice: Lessons from the Bolivian Judicial Elections.” Journal of Law and Courts 3, no. 1 (2015): 115–48. https://doi.org/10.1086/679017

[13] Ibid

[14] Ibid

[15] Ibid

[16] Ibid

[17] Ibid

[18] Ibid

[19] Ibid

[20] Canes-Wrone, Brandice, and Tom S. Clark. Judicial Independence and Nonpartisan Elections. Accessed March 23, 2025. https://biblioteca.cejamericas.org/bitstream/handle/2015/2258/Judicial-Independence-and-Nonpartisan-Elections.pdf?sequence=1

[21] Ibid

[27] Ibid

[22] Detenido un presunto implicado en el asesinato del magistrado Edmundo Román Pinzón en Acapulco." 2025. El País, enero 6, 2025. https://elpais.com/mexico/2025-01-06/detenido-un-presunto-implicado-en-el-asesinato-del-magistrado-edmundo-roman-pinzon-en-acapulco.html

[23] Gibson, James L., Gregory A. Caldeira, and Vanessa A. Baird**.** "On the Legitimacy of National High Courts." American Journal of Political Science, vol. 47, no. 2, 2003, pp. 247-261. Wiley Online Library, https://doi.org/10.1111/1540-5907.00025

[24] Salzman, Ryan, and Adam Ramsey. “Judging the Judiciary: Understanding Public Confidence in Latin American Courts.” Latin American Politics and Society 55, no. 1 (2013): 73–95. http://www.jstor.org/stable/43284809

[25] United Nations Office of the High Commissioner for Human Rights. Mandato de la Relatora Especial sobre la independencia de los magistrados y abogados. 16 Apr. 2024, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=28953

[26] Siegel, Martin J. 2004. "In Defense of Judicial Elections (Sort Of)." Journal of Politics 66 (3): 1105-1128. https://www.jstor.org/stable/25801815

[28] Gibson, James L., Gregory A. Caldeira, and Lester Ken Spence. The Influence of the U.S. Supreme Court in Contemporary American Politics. Princeton University Press, 2003. https://assets.press.princeton.edu/chapters/s8940.pdf