18 AUGUST 2006
Mexican Newsweekly Asks for Access to Contested Ballots, Uses Access to Information Act to Request Independent Count

By Emilene Martínez Morales and Jesse Franzblau, National Security Archive's Mexico Project
Editing Assistance Farrah Hassen and Michael Baney

In the spirit of the right to know Mexican newsweekly Proceso has requested access to documents, tally sheets and ballots pertaining to the July 2, 2006 presidential elections via four different requests through Mexico's Freedom of Information Law. Three of the requests, signed by the magazine's director, Rafael Rodriguez Castañeda, were submitted to the Federal Electoral Institute (IFE) on July 28, 2006. A separate petition was submitted to the IFE on August 14. Proceso seeks to gain access to this information to hold an independent recount of the votes cast in the closest election in Mexican history. If Proceso is granted access to the ballots the process could unfold in a way similar to that of the independent analysis conducted by media organizations and civil society groups in the U.S. following the disputed 2000 presidential elections.

A Controversial Election

The frontrunners of the 2006 election were Felipe Calderon from President Fox's conservative PAN and Andrés Manuel López Obrador from the leftist Democratic Revolution Party (PRD), which led the electoral alliance known as the Coalición por el Bien de Todos (Alliance for the Good of All). Polls conducted shortly before the elections showed a tight race between the two main candidates.

Voting was held peacefully on July 2, 2006. Preliminary counts gave Calderón less than a 1% lead over López Obrador. Although the Federal Electoral Institute (IFE) announced that the race was too close to call without a count of all the ballots, both candidates proclaimed themselves victorious on the night of the elections. Mexicans had to wait until July 7, when the final figures were announced. Felipe Calderon obtained a narrow victory by 243,934 votes over Andrés Manuel López Obrador, only 0.58% of the total number of votes for this presidential election, which was close to 42 million in total.

López Obrador refused to accept the results as declared by IFE, claiming that a series of irregularities occurred at polling stations. He submitted a 900 page challenge to the Mexican Federal Electoral Tribunal of the Judicial Branch (TEPJF), demanding a manual recount of each of the votes cast for president. Since then, his followers have taken to the streets, demanding a recount "vote by vote, polling station by polling station." Supporters of López Obrador have set up camps in Mexico City's main square and adjacent roads, disrupting life in the Mexican capital. They have engaged in other forms of civil resistance across the country, blocking access to government offices, banks and taking over tollbooths in highways leading to Mexico City.

On August 5, the Federal Electoral Tribunal of the Judicial Branch rejected López Obrador's demand for a full recount and instead ordered a partial one encompassing 9% of the country's 130,500 polling stations. The recount of the votes concluded on August 13th, but the tribunal has not issued any decision yet. The Electoral Tribunal is the court of final appeal in this dispute and must reach a final decision by September 6, 2006, when the president-elect is declared. The presidential inauguration will be held on December 1.

The Call for an Independent Recount

The election has left Mexico divided. According to Arcop, a leading Mexican pollster, 56% of Mexicans believe the elections were clean, while 33% believe that the election was fraudulent. According to pollster GEA-ISA 36% of Mexicans do not think IFE is impartial. Whether or not the allegations of fraud are true, a shadow of doubt has been cast over an electoral system that most Mexicans were proud of and believed to be reliable.

Proceso has filed four different requests to the IFE. Daniel Lizárraga, the investigative journalist from Proceso who has led this effort, provided an electronic copy of each request to freedominfo.org. Lizárraga stated that Proceso's "first motivation was strictly informative, from a journalistic perspective. Our second motivation was to use the rights bestowed upon citizens through the Mexican Transparency Law to try to find out what happened at the polls. The Mexican media was the principal promoter of the Law in Mexico; these requests are a step forward in its use."

Proceso made a call for volunteers to participate in what they have called an independent recount that would take place if the Federal Electoral Institute responds favorably to their request. So far, over 12,000 people have registered through Proceso's website to be a part of this effort. Prominent intellectuals such as Sergio Aguayo, Lorenzo Meyer, Ernesto Villanueva, and John Ackerman have supported this project.

Media-led Recount in Florida

The call by Mexican citizens for an independent non-governmental recount follows the precedent set in the United States when controversy erupted over the validity of the Florida results in the 2000 presidential elections. After the United States Supreme Court issued an injunction ordering that the Florida counties stop the recount, giving the presidency to George W. Bush, there was strong public dissatisfaction in the decision making process. This led media organizations and public interest groups to come up with their own way of testing the results of the election by analyzing the disputed ballots in Florida.

The watchdog organization Judicial Watch was the first group to seek access to the Florida ballots. According to their Director of Investigations & Research, Christopher J. Farrell, Judicial Watch sent requests to each election commission for the ballots in 67 different Florida counties. At first, access to the ballots was met with resistance from many of the county election supervisors. But, on November 27, 2000 Palm Beach Circuit Judge Jorge La Barga ruled on the basis of Florida's Sunshine law which allows for access to state ballots, even after the certification deadline has passed.

This ruling by Judge Barga to uphold Florida's access to public information law made the independent recount possible. Judicial Watch carried out their study using a public accounting firm, Johnson, Lambert and Co., that oversaw the efforts to analyze the ballots. They conducted the review at each of the Supervisor of Elections offices from December 2000-February 2001. County employees held up the ballots for Judicial Watch observes to analyze, so there was no discrepancy over the handling of the ballots. (See the report by Judicial Watch on the recount: http://www.judicialwatch.org/cases/63/recountreport.htm).

Another study of the elections results was conducted by The National Opinion Research Center (NORC) at the University of Chicago. The NORC was sponsored by a consortium of major U.S. news organizations, to conduct a Florida Ballot Project comprehensive review of all ballots that went uncounted (by machine) in the official Florida tally. The study used an experienced staff of 153 ballot examiners who moved through courthouses and office buildings across Florida's 67 counties to inspect 175,010 ballots provided by local election officials. The study lasted six months, beginning in February 2001, and cost more than $500,000.

Access to the ballots was never a question for NORC or the media conglomerates sponsoring the study. "There was never any dispute that ballots were public - everyone accepted that fact," a lawyer who represented the New York Times, Rachel Fugate stated in a November 12, 2001 New York Times article. "What we had to fight about was the manner in which they were produced for us." See the report by NORC http://www.norc.uchicago.edu/fl/index.asp).

The Miami Herald, its parent company Knight-Ridder and the USA Today also sponsored a study analyzing the Florida ballots. Similar to the other studies they hired an accounting firm, BDO Seidman to analyze the ballots. The study counted over 60,000 votes in Florida's 67 counties, tabulating separate vote totals using several standards. The newspapers paid more than $500,000 and employed 27 accountants for the study. It began on December 18, 2000 and concluded on March 13, 2001. See the "Miami Herald Report, Democracy Held Hostage".

The Requests Submitted to IFE

The requests submitted by Proceso seek to get the necessary information to be able to compare the information about the votes cast for each candidate with the official figures released by IFE. Records requested are related to several aspects surrounding the July 2 elections.

In its first request Proceso asks for access to the envelopes containing all ballots (including leftover ballots, unused ballots, valid and null votes) from all polling stations installed for the July 2 presidential election. Proceso is not seeking copies of these materials given the volume of the records that are being requested (copying costs, for example, would exceed 3.8 million dollars). The request also states that access to these materials is requested after the Electoral Tribunal reaches a final decision.

The second request is for copies of tally sheets and scrutiny acts from each of the 130,477 polling stations across the country. The third request concerns copies of tally sheets of each of the 300 electoral districts in Mexico, along with other related materials that are specified in the request. The last request is for the public version (i.e. excluding any personal data of the voters) of the voters lists of each polling station with the purpose of finding out the number of people that voted in each one of them.

The Federal Electoral Institute is a State body with its own regulations and procedures concerning transparency and access to information. Its decisions cannot be appealed to the Federal Institute for Access to Public Information. An adverse decision can be appealed to the Information and Transparency Committee within IFE. If the requester is not satisfied with this ruling she can choose to challenge this decision at the Federal Electoral Tribunal of the Judicial Branch citing a violation of her Political and Electoral Rights.

The electoral law in Mexico states that the data in the voters' lists is confidential and that after the electoral process is over, the electoral material should be destroyed. Proceso acknowledges this fact in its second request, asking for a public version of these lists. Thus, the items in the above mentioned requests would not violate Mexican privacy regulations, as no personal information would be disclosed. The Classified Records Index of IFE does not mention any other of the records requested by Proceso as classified. Daniel Lizárraga commented that this is the first-time a request of this type is being made, and that it will set an important precedent in access to information. The Mexican Federal Electoral Institute must respond to Proceso's three first requests by Friday August 18th and its fourth request should be responded by September 15th. IFE may choose to ask for a 15 day extension to respond to the requests.

A request of this nature is unprecedented in Mexico's history; it shows how citizens can use the federal access to information law to gain insight into a political crisis that has put Mexican institutions to the test. It also represents one of the biggest tests of the incipient Mexican FOI Law to date.

In a petition that was published in El Universal on August 16th, members of civil society and the Mexican academic and artistic communities stated that "…citizens have the right to know if the electoral authorities acted correctly and responsibly." The close to 200 citizens that signed the petition concluded their statement by saying: "Today for the first time in history, citizens have the possibility of accessing ballots and carrying out a complete independent recount, fully exercising their constitutional rights."

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Sample ballot. Source: IFE.

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