Mexico will be the only country that elects all its judges

On June 1st Mexicans will vote to elect judges to 850 federal posts, nine Supreme Court seats, 22 powerful tribunal jobs and thousands of roles in lower courts. In 2027 a second vote will see the rest of Mexico’s judiciary filled. A few countries elect a handful of judges, mostly to lower courts. Mexico will become the first country in the world where every judge on just about every court is chosen by popular vote.

Mexico’s Congress passed the constitutional changes required for this upheaval in September last year. It was Andrés Manuel López Obrador’s final act as president, achieving one of his most cherished goals. His successor, Claudia Sheinbaum, has followed in his footsteps. Their party, Morena, argues that the election of judges will make the judiciary more democratic, purge corruption and nepotism, and widen access to justice. “The public isn’t stupid,” says Olivia Aguirre Bonilla, a candidate for the Supreme Court. “If we trust voters to choose a president, why not judges?”

The country’s justice system has been in bad shape. Although the federal judiciary has become more professional over the past 30 years, well over 90% of crimes go unreported. Just 14% of reports lead to convictions. Some judges are corrupt. But there are good reasons why so few democracies ask voters to select judges. Having to seek election subjects judges to the warping power of public opinion. Elected judges are less likely to uphold the law when doing so is unpopular. They are also less likely to hold politicians to account when those politicians are following the public’s mood. “Nobody elected me,” says Martha Magaña, a sitting federal judge who is not running for election. “So when I issue a ruling, I don’t owe anyone anything.” Electing all judges is a bad idea “full stop”, says Julio Ríos, a political scientist at ITAM, a university in Mexico City.

The only place where judges are currently elected to higher courts is Bolivia. Its Supreme Court judges have been elected since 2011. The selection mechanism has been a disaster, with the court’s authority undermined by an endless political squabble to control it. Two-fifths of Bolivians who voted in the most recent judicial election spoiled their ballots.

In Mexico, judicial elections pose a graver danger than mere chaos: control of the justice system by drug gangs. Criminal gangs are happy to kill or threaten public officials to get what they want. The gangs already field their own candidates in local elections. More quotidian corruption of judges by businessmen and officials, also endemic, will probably expand.

It is hard not to see the elections as a final step that entrenches Morena as Mexico’s political hegemon. Mr López Obrador came to power dismissing judges as elitist and partial. By blocking several of his signature reforms, such as an attempt to hand control of the National Guard to the army (subsequently pushed through by constitutional amendment), the Supreme Court became a target. Gerardo Fernández Noroña, a Morena politician who leads the Senate, claims that judges in Mexico’s old, appointment-based system don’t apply the law. “They respond to political and economic interests,” he says. “They are the ones who have broken the rule of law.”

The chances of coercion and corruption have been increased by the limp process whereby candidates get on the ballot. They need only a law degree with good grades, five years of legal experience and five letters of recommendation. In little more than six weeks three committees vetted 24,000 candidates. Interviews often lasted just a few minutes. Moreover, the committees were drawn from the executive, legislature and judiciary, meaning two of the three were dominated by Morena.

As a result, some candidates with known criminal ties have got onto the ballot, a fact Morena admits. This has led to farce. The Senate insists that only the electoral authority has the power to remove the gang-linked names. The electoral authority says it us unable to do so. Instead it looks like the names of tainted candidates will appear on ballots, but that if any of them win a judgeship, their victories will be annulled. Amid the chaos, it is hard to imagine that the gangs have not managed to slip some of their own people, or those they control, into at least some of the thousands of races unnoticed.

Institutional knowledge will be lost. Only a minority of sitting federal judges are standing for election. Just three of the current 11 Supreme Court judges are running. A study by Mr Ríos found that it took an average of 24 years to become a magistrate. From June, cases on constitutional law and million-dollar commercial disputes will be heard by people who may have never set foot in a courtroom.

Morena is unlikely to suffer many defeats in the new courts. Not only does it have a big sway over which candidates get onto the ballot. It also, via its people on the disciplinary tribunal, has some control of judges’ behaviour once they are elected. “We can expect the government will not lose the cases it cares about,” says Mr Ríos.

And although Morena says the elections are all about democratic accountability, turnout is expected to be very low. Just 7% of voters showed up in 2021 to vote in Mr López Obrador’s referendum on whether he should prosecute a handful of former presidents. In contrast, turnout in last year’s presidential election was 61%.

Even some Morena fans recognise the flaws of judicial elections. But the time for resistance has passed. Mauricio Flores Castro, a lawyer who is running for a seat on the Supreme Court, says there are two options: “Criticise from the sidelines or get involved and try to improve things. This path may not be perfect, but it’s the one we’ve chosen. History will judge it.”