Elections Series – The Role of the Judiciary in Electoral Contexts: A View from Latin America

Featured photo: Stanford Law School

Democratic backsliding is presenting enormous challenges for the rule of law in Latin America and the Caribbean. In recent years, several democratically elected leaders, once in power, have turned their back on basic guarantees such as electoral integrity, freedom of expression, and judicial independence. The silver lining of such decline has been the work of independent courts that have acted as a check on the abuse of executive power.

Stanford Law School and the Inter-American Dialogue organized a virtual discussion, moderated by Amrit Singh, executive director of the university’s Rule of Law Impact Lab, with current and former magistrates from Brazil, Ecuador, and El Salvador on the role of the judiciary in electoral contexts in Latin America.  

In her opening remarks, Rebecca Bill Chavez, president & CEO of the Inter-American Dialogue, highlighted that assaults on the rule of law play a central role in today’s democratic recession. The threat to liberal democracy is no longer a military coup and an abrupt break in constitutional order. Instead, we’ve seen democratically elected leaders deliberately and gradually undermine basic guarantees such as judicial autonomy, electoral integrity, and freedom of expression. Bill Chavez said this event would allow us to hear about courts that have fulfilled their constitutional role of checking the abuse of executive power.

Justice Luis Roberto Barroso, from Brazil’s Supreme Federal Court, described a world context with challenges posed by extremist populism and the rise of authoritarianism globally, disinformation campaigns, and that some institutions have been coopted by filling seats with submissive judges. In Brazil, the electoral justice system, which is part of the federal justice system, has the dual role of administratively organizing and overseeing elections, and judicially deciding conflicts that may arise. The electronic voting system, in place since 1996, has eliminated fraud. Barroso also talked about threats to democratic institutions in the recent past in Brazil, including episodes in which former President Bolsonaro attacked the press, independent institutions, and the judiciary, and repeatedly made false accusations of fraud. Barroso described how the Brazilian judiciary played a decisive role in protecting the right to vote and ensuring free and fair elections in 2022.

Magistrate Daniela Salazar Marin, from Ecuador’s Constitutional Court, explained the court's role, which does not typically deal with electoral matters, during the political crisis this year. In February 2023, Ecuadoreans participated in a referendum of eight measures proposed by President Lasso. The Constitutional Court was charged with reviewing which questions could go to the ballot, and authorized most, except some, such as one regarding the militarization of security or another on changes to criminal legislation, which didn’t pass the court’s test. The referendum was rejected. In March, Congress started a process to impeach Lasso. The court’s task was to decide on the impeachment process’ admissibility and allowed it to go forward on one accusation. The National Assembly was responsible for carrying out the impeachment, but it ended abruptly before legislators were set to vote, when President Lasso applied for the first time a constitutional provision that allowed him to dissolve Congress and call for early presidential and legislative elections, now scheduled for August 20. The court is now charged with reviewing legislative decrees on urgent economic matters that the president can adopt because there is no functioning Congress.

Former Magistrate Sidney Blanco, from the Constitutional Chamber of El Salvador’s Supreme Court, described several rulings adopted during his tenure that upheld Salvadorans' right to vote in free and fair elections, including, for example, on the possibility to participate without belonging to a political party, rules on campaign financing, and criteria to select members for the Electoral Tribunal. He also explained jurisprudence interpreting several constitutional provisions that prohibit immediate reelection, which has been reversed by the current Supreme Court. The composition of the court was subject to a political takeover after President Bukele’s allies removed independent justices and appointed allies in May 2021. Blanco highlighted that an independent judiciary is key to protecting human rights.

During the Q&A period, the magistrates shared insights on parallels between the January 8, 2023, mob attack on democratic institutions in Brasilia and the assault on the US Capitol on January 6, 2021, the positive consequences that decisions adopted by other high courts in the region can have on justices working on these difficult issues elsewhere, the impact that a political takeover of high courts can have on lower court judges, and the perspectives of an international electoral oversight mission in El Salvador. The justices discussed lessons learned, including that adequate mechanisms to select and remove judges, as well as measures to ensure financial independence of courts, are key to protect judicial independence.

In her closing remarks, Tamara Taraciuk Broner, Peter D. Bell Rule of Law Program director at the Inter-American Dialogue, said that the event pointed to a common thread: when there’s a threat to democracy, judicial independence is key. This situation goes well beyond the three countries addressed in the conversation – we’ve seen this be an issue in Argentina, Mexico, Guatemala, and elsewhere – and it’s a critical topic for the region. Taraciuk Broner concluded that judicial activism is not necessarily bad for the rule of law. If what judges are doing is setting the democratic limits within which political actors must operate, we need them to do so. This is a difficult task to carry out in polarized environments – and that’s certainly the case in Latin America and the Caribbean, in particular in electoral contexts – but it’s much-needed and judges who do this, bravely, must receive the support from everyone who is concerned about democratic decline in the region.

Watch the event recording here: