A Shadow Looms Over Salvadoran Legislative Elections

An onslaught of conservative rulings by the Supreme Court in El Salvador threatens the 2018 mid-term elections—and the very fabric of the nation’s post-conflict institutions.

March 2, 2018

The National Palace in San Salvador, El Salvador formerly housed the three branches of government. (Wikimedia Commons/Lexdjelectronic2013)

On Sunday, March 4, Salvadorans will go to the polls to vote for legislators and mayors across the country. The elections are a major test for the governing Farabundo Martí National Liberation Front (FMLN) party of the former leftist insurgency and president Salvador Sánchez Cerén. The administration is currently constrained by a right-wing majority in the legislature, a conservative Supreme Court, and a hostile corporate media allied in the effort to restore elites to power. The midterms hit as the 2019 presidential campaign is already well underway.

The most visible contest this midterm season is over the capital city of San Salvador. In 2015, the FMLN with rising star Nayib Bukele as its mayoral candidate won the city back from ARENA. Bukele, a young millionaire with a background in publicity, used his social media savvy to consolidate a middle class millennial base, but his personal ambition soon ran him afoul of the party leadership. In October, he was dramatically expelled from the party over a sexist attack on an FMLN city councilwoman.

Bukele’s controversial ouster occurred too late for him to run for re-election as an independent, but it freed him to pursue the presidency, as he has done aggressively in the intervening months. To spite his former party, Bukele, who frames himself as something of a post-ideological antiestablishment renegade, called on his followers to annul their ballots in the March elections, or just stay home.

To replace Bukele as mayor, the FMLN is running Jaqueline Rivera, a legislator and former guerilla combatant. She faces off against Ernesto Muyshondt of ARENA, also a legislator and longtime party leader. An FMLN victory would be a blow not just to ARENA’s presidential prospects but to Bukele’s as well, while an ARENA win would be damaging to the FMLN and likely embolden Bukele’s challenge in 2019. So far, recent polls show Rivera trailing Muyshondt by about three points.

In the legislature, the FMLN hopes to gain seats against the Right’s current majority. A majority would allow the party to advance key social movement issues such as partially decriminalizing abortion and guaranteeing universal access to water as a public good and human right. It would also favor the election of progressives to the Attorney General’s Office and, importantly, the Supreme Court’s Constitutional Chamber. Nevertheless, the polls suggest an unfavorable outcome for the governing party, with the FMLN trailing 12 points behind ARENA in the legislature.

The 2018 elections, as with the previous 2015 midterms, have been marred by significant operational complications stemming from ongoing Supreme Court interference with the democratic process. Since the FMLN’s ascendency to the presidency in 2009, the Court has increasingly overstepped its jurisdiction to undermine FMLN governance, striking down progressive tax measures, and removing FMLN nominees from key public posts.

The most disturbing effect of this judicial usurpation, however, has been the dramatic restructuring of El Salvador’s electoral system at the hands of the Court. As electoral authorities scramble to comply with successive controversial orders from the court, experts fear the confusion generated by the magistrates’ arbitrary decrees could significantly impact logistics on election day, and, more gravely, damage El Salvador’s democratic institutions for the long term.

The Supreme Electoral Tribunal: A Legacy of Peace

Following a bloody 12-year civil war between the FMLN and the U.S.-backed military dictatorship, the 1992 Peace Accords established a new electoral system in El Salvador under the authority of the Supreme Electoral Tribunal (TSE, in Spanish), whose magistrates are elected by the legislature for five-year terms.  

The new system, structured on strong political parties, was remarkable for its massive mobilization of citizens.Every election cycle, thousands of local volunteers from competing parties sacrificed their time to extensive trainings in order to staff tables in voting centers across the country on election day. These volunteers would prepare the voting stations, then count the ballots one-by-one in through a meticulous analogue procedure often punctuated by heated disagreements and debates.

This system’s best guarantee against electoral fraud—an ugly specter that haunts recent Salvadoran history—was plurality, political engagement, and checks and balances that ensured participation from all major parties. By ensuring that the parties who had received the most votes in the last elections were represented at every level of the electoral system, from the TSE magistrates to the departmental and municipal electoral authorities down to the volunteer members of the voting tables, no single party interest could monopolize the process, and all electoral actors had eyes and ears in the system.

When the FMLN won the general election in 2009, it gained control of the TSE presidency. Under FMLN leadership, the TSE instituted sweeping reforms to make the voting process more democratic. It did away with the old system of assigning voters alphabetically to a handful of overextended municipal voting centers, and implemented a residential voting system that increased the number of centers and assigned voters in their closest facility; the TSE also extended the vote to Salvadorans living abroad, made voting centers, booths, and ballots accessible to people with disabilities, and allowed LGBTQ citizens to exercise their voting rights irrespective of their gender expression and that indicated on their identification. Indeed, international observers praised the 2014 presidential election for its unprecedented transparency and efficiency.

Judicial Intervention

Unfortunately, El Salvador’s notoriously recalcitrant oligarchy quickly sought to counter these democratic gains. In 2009, the FMLN won the largest share of seats in the legislature, but with 35 representatives, it was far from the 56 required for a two-thirds majority vote necessary to elect Supreme Court magistrates, and the right-wing parties united to stack the Court’s Constitutional Chamber with conservatives. Diplomatic cables leaked by Wikileaks confirmed that the right-wing Nationalist Republican Alliance (ARENA) party’s strategy after becoming the opposition in 2009 centered on using the Court to undermine the FMLN government. Following the right’s ouster from the presidency, the Constitutional Chamber began to take on an unusually proactive role, systematically blocking FMLN programs, cutting off government financing, and unseating FMLN functionaries.

As early as 2010, the Chamber began to interfere in the electoral process. Since the 1992 Peace Accords, Salvadorans cast their votes by marking the flag of their preferred political party on the ballot, be it municipal, legislative, or presidential elections. In the case of the legislature, the parties would then fill the corresponding seats won with representatives determined by internal party processes. In 2010, however, the Court mandated that citizens also be able to vote for individual legislators. The same ruling also allowed for independent candidates to run for legislative or municipal office, breaking with El Salvador’s tradition of partisan-based politics.

These measures sparked controversy, not only for the Court’s encroachment into the TSE’s jurisdiction, but for the individualistic nature of the reforms, which paved the way for U.S.-style campaigns that favor photogenics and competitive, personally-funded advertising over unified party platforms—just at the time when the FMLN had consolidated its power as the strongest party in the country.

In 2013, the Court’s attacks on the FMLN continued under the pretense of fighting partisanship: the Constitutional Chamber unseated its own president—and the Chamber’s lone progressive—for his membership in the FMLN. Despite the Constitution containing no restrictions on magistrates’ political membership, the remaining conservative magistrates claimed that political affiliations would contaminate his objectivity. They neglected, however, to remove ARENA donors from the bench.

Shortly after the FMLN won a second term in the presidency in 2014, the Court issued similar prohibitions for TSE magistrates, who are nominated by political parties for a Legislative Assembly vote. The ruling explicitly ousted then-TSE President Eugenio Chicas for his membership in the FMLN, dealing a crippling blow to an institution defined in the Peace Accords by its plurality. In February of 2017, the Court suspended—pending a final decision—another TSE magistrate, Ulises Rivas, for having supported the FMLN’s 2014 presidential campaign. Rivas is not a registered member of the FMLN.

Chaos in the 2015 Midterms

After successfully stacking the Tribunal in favor of the opposition under the guise of de-politicizing the institution, the Constitutional Chamber resumed its upheaval of the voting process. Just weeks before the 2015 midterms, the Court ordered that citizens be allowed to vote for multiple individual candidates from different political parties, a bizarre system only in use in a handful of countries around the world. This created a great deal of confusion, both for the TSE in constructing a mechanism for counting such ballots on the eve of the elections, and even more so for the public, who struggled with the new changes to voting.

Onidia Gómez of the Salvadoran Foundation for Democracy and Social Development (FUNDASPAD), a non-profit that accredits hundreds of national and international elections observers, recalls: “The worst part was that the electoral process had already begun when they [the Constitutional Chamber] began to issue decisions on electoral matters. And that ended up complicating things much more,” she said. “We were two months away from the 2015 elections and no one knew how the tables were going to count the votes.”

The resulting system was extremely convoluted: In the case of the legislative ballot, voters could now mark the flag of a single party, or mark a flag and select several preferred candidates of that party; alternatively, a voter could select no flag but mark the faces of candidates across multiple competing parties, but should a voter mark a flag together with the faces of competing candidates from another party, or multiple flags, the ballot would be annulled.

“We had a lot of problems going into the 2015 elections,” remembers Malcolm Cartagena, who trains volunteer poll workers and international observers for the TSE, “problems with little training, problems of not understanding the procedure well at the tables.” Long after the polls closed, volunteer ballot counters wrestled with complex formulas of fractured votes into the wee hours of the morning, prompting delays in the results.

Later in 2015, the Court went further, prohibiting citizens with “material or formal ties” to any political party from participating at any level of the electoral structures, including as volunteers who will staff the voting tables across 1,595 voting centers in the 2018 elections—that’s 9,422 tables, each comprised of five principal members and five alternates, for a total of 94,220 necessary volunteers.

In addition to discriminating against party members, the prohibition has proven terribly impractical. For Cartagena at the TSE, the ruling presented serious difficulties. “You can establish the question of a formal tie by affiliation. If someone is registered [in a party], well, it’s evident. But how do you prove the material tie?” he asks. “We all have sympathies in this country. How are you going to erase them?”

The Court has barred partisans from the electoral process, but like its purging of magistrates with FMLN sympathies, the burden of producing these non-partisans remains in the hands of the political parties themselves. The parties will continue to provide poll workers, who alternate across the voting tables such that each of the five members of a given table represent different parties. Only this time, these volunteers cannot actually be—nor can they ever have been—political party members.

Naturally, parties struggled to produce a total of 94,000 non-affiliated supporters. The TSE reports 5,186,042 eligible voters this year. The Tribunal resorted to a national lottery to fill the remaining 28,000 seats. But the Court, having effectively rejected the politically active and engaged population from the democratic process, left the TSE to draw from an unwilling pool of the disaffected and uninformed. Unsurprisingly, thousands presented excuses not to participate, and many have compelling material barriers to doing so, such as illness, disability, or poor literacy. Meanwhile, thousands of able, willing and prepared volunteers have been excluded on the basis of their political affiliations.

“Before, we didn’t have these complaints, because people went out of conviction for their party, not so much for the payment or anything like that,” Cartagena says. “There are concerns that these people won’t show up.” Onidia Gómez shares his concerns, and places the blame squarely on the Supreme Court: “The real difficulty will be if the voting tables are not staffed. And we will know exactly who is responsible if that happens.” 

The decision to exclude partisans from the process is all the more disturbing because it was unprompted. The 2015 ruling came in response to a member of a small political party who petitioned in 2013 to allow that all competing parties be represented at the voting tables, regardless of their presence in the legislature. “No one was asking them to ‘citizenize’ the tables, no one was asking that they ‘professionalize’ the tables—no one!” says Cartagena.

Contested Territory

Gómez of FUNDASPAD has joined other organizations in denouncing the Constitutional Chamber’s interventions: “In our view, this effort to ‘citizenize’ politics, destroying political apparatuses, has been an error by the Constitutional Chamber, because the Court has taken an anti-political party position. And this is very serious, because an institution like the Constitutional Chamber can’t undermine the very pillars that are fundamental to democracy,” she says.

At the same time, suspended TSE magistrate Ulises Rivas and ousted Supreme Court presiding magistrate Salomón Padilla have joined several other former public officials removed by the Constitutional Chamber to file suit before the Inter-American Commission on Human Rights (IACHR) in Washington, where they traveled for hearings in March. Rivas told the media that he and his colleagues are calling for “the protection of civil and political rights, freedom of expression and the right to freedom of thought, as well as the right of association of all Salvadorans…The Chamber has violated human rights, violated the civil and political rights protected by international law and especially by regional law.”

To further complicate matters, the U.S. Embassy has joined the fray, staking a vocal position on the side of the Constitutional Chamber, even threatening aid should rulings not be respected. “The Ambassador herself has meddled in the whole situation of the Constitutional Chamber’s rulings, and she always ends up backing the Chamber,” says Gómez.

In response to the growing concern over the Embassy’s political posturing during an election season, 21 representatives from the U.S. Congress’ Progressive Caucus signed a letter sent Monday to the State Department and the Embassy in El Salvador that raises concerns over the Salvadoran Supreme Court’s overreach and calls for U.S. neutrality.

A Dangerous Precedent

As the FMLN seeks to expand its mandate on Sunday, the opposition appears to be gaining ground, emboldened no doubt by the conservative backlash sweeping the hemisphere. This reactionary momentum is aided by the Supreme Court’s selective attacks on partisanship, which have had a corrosive effect on El Salvador’s political climate.

The campaign season has been characterized by a marked malaise and hostility to the political establishment, stoked in part by an ongoing right-wing campaign in the corporate mass media to promote disaffection following successive FMLN electoral victories. Bukele’s calls against electoral participation have only bolstered this sentiment. Polls show that public confidence in the electoral system and political parties has plummeted.

Certainly, as the governing party, the FMLN must hold a share of responsibility for the growing sense of disillusion with El Salvador’s political system. But the Supreme Court’s rulings have provided a critical base for the ascendant discourse, reinforcing the notion that political ideology and partisan organizing are harmful to modern society. A democracy as nascent and fragile as El Salvador’s stands little to gain from such a posture, which can only serve to dis-incentivize collective mobilization and benefit elites.

Hilary Goodfriend is a writer and researcher based in San Salvador, El Salvador. She graduated from New York University in 2012 with a bachelor’s degree in Latin American Studies and received a Masters in Communications in 2016 from the Universidad Centroamericana “José Simeón Cañas” (UCA), where she teaches research methods. Hilary is a member of the NACLA Editorial Board.

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