The Court and the Suffrage Threshold

The oral arguments in Carcamo v. Federal Electoral Commission are scheduled for next week. The case asks a straightforward question with no straightforward answer: does the Federal Charter, read in its plain language, permit the Federal Assembly to extend the vote to virtual citizens, or does the Charter forbid it? The Federal Court will have to decide whether the founding document speaks clearly on this point, or whether it leaves the matter to the Assembly's ordinary judgment.

We do not envy the justices. The Charter's text on citizenship is deliberately open. It creates two classes of citizen with different rights—founding and virtual—but it does not say those classes must remain forever fixed. It also does not say they may be changed by simple statute. The silence is not accidental. The Convention of 1994 chose not to resolve this question because the Convention itself was not ready to resolve it. That caution was wisdom then. Whether it remains wisdom now depends on what the Court believes its role to be.

If the Court rules that the Charter forbids the Assembly from enfranchising virtual citizens without a constitutional amendment, it will have resolved the suffrage question by judicial fiat. The Assembly will have to gather sixty-seven votes for an amendment—a high bar, but not impossible. If the Court rules that the Charter permits the Assembly to act by statute, the Assembly will still have to find a majority willing to pass that statute. Neither path is wrong. But the first path treats the Charter as a settled document that the judges must protect; the second treats it as a living framework that the Assembly may develop.

We have watched this Republic grow from a convention of strangers into something resembling a polity. That growth has happened because the institutions have learned to speak to each other—the Assembly to the regions, the regions to the Assembly, the Court to both when the language breaks down. The suffrage question will be decided one way or another. What matters now is that it be decided in a way that leaves the institutions still speaking when the dust settles.