Voting protocols as informal judicial institutions: a case study of its perils in Mexico

Constitutional Courts are governed by a set of formal and informal rules. Formal rules have been long an object of study. However, informal rules remain largely unknown. Courts often decide through internal practices, stereotypes, and non-written usages developed through years of internal arrangements. Internal informal rules are one of the biggest challenges since such practices remain largely unknown. Constitutional. Courts tend to hold private deliberations and value secrecy in handling administrative duties. Judges are careful in not disclosing practices that other actors might consider problematic. This paper will tackle potential problems addressed by non-enforceable voting protocols as informal judicial institutions. Many Constitutional Courts lack a detailed voting protocol in their laws and internal regulations. Apart from macro-structures such as quorums and majority requirements, other aspects are frequently left entirely to the Court’s discretion, such as order of voting, deliberation style, the decision between outcome v. issue voting, tie-breaking protocols under non-binary decisions, inter alia. To shed light on the issue, I will perform a case study of the Mexican Supreme Court (performing the role of a Constitutional Court), particularly the AI 64/2021. In AI 64/2021, the Chief Justice seemingly steered the Court into an issue-voting methodology instead of the traditionally accepted outcome voting. The switch allowed the Chief Justice to advance his policy preferences and presumably that of the dominant party with whom he was associated. After the aroused public controversy, many Justices even suggested codifying voting protocols in the Court’s internal rules. Studying the Mexican case is critical in addressing voting protocols. The Mexican Supreme Court and the Brazilian Supreme Court (and, to a lesser extent, the Peruvian Constitutional Court) hold regular public deliberations. Even though analysis of other court voting protocols exists, the material available comes from the Court's opinions and dissents (which may not truly reflect internal agreements) or secondary sources (anecdotes, papers, and internal notes discovered many years later). In turn, public deliberation grants us unparalleled access to the very core of their informal institutions such as voting protocols. By analyzing the Mexican case, we might have a glimpse into similar problems that might arise in other jurisdictions, currently unknown to us by the lack of transparency of internal voting protocols. This paper will show that voting protocols, mainly handled by Court Presidents, may be complicated to enforce and grant immense discretion to advance Chief Justice’s policy goals.