So why is a race between two ideologically moderate candidates being called a “watershed moment?”  Why do some fear that Guatemalan democracy itself is “under threat?” And why has the Organization of American States (OAS) warned that the “extreme judicialization” of Guatemala’s electoral process is putting the country’s stability at risk?

Because the real contest seems to be taking place not on the campaign trail, but in the country’s judicial system. Guatemala’s courts have repeatedly injected chaos into the campaign by excluding candidates from the left and right for seemingly minor campaign violations in an apparent attempt to favor the governing party.

These efforts have backfired, at least so far. Instead, many voters cast null or blank ballots in the general election on June 25 while anti-establishment voters came out for Arévalo, who has centered his campaign on combating official corruption.

Now prosecutors are focusing on Arévalo’s party, known as the Movimiento Semilla (or “Seed Movement”). They have launched a criminal investigation into fraud allegedly committed years ago, issued arrest warrants for members, and searched both the party headquarters and the Supreme Electoral Council. They are also widening their probe into the first round results, ordering the arrest of a top electoral official and collecting the names of electoral workers.

The interference sparked widespread protests, both in Guatemala City and the interior. Business chambers expressed support for election authorities and warned against delaying the final round.  Indigenous authorities converged on the capital, defending their right to vote. The United States, European Union and OAS also voiced concern about electoral tampering.

USIP senior adviser Mary Speck asked two Guatemalan political analysts, Carlos Mendoza and Gabriela Carrera, to comment on the elections and citizens’ response to the electoral challenges. She asked Guatemalan constitutional expert Alexander Aizenstatd to discuss the dangers of judicial interference in the electoral process. And she asked two former U.S. officials, Ambassador Stephen McFarland and Juan Cruz, to discuss what the United States should do to support Guatemalan democracy.

Speck: What happened during Guatemala’s first round vote on June 25 and what should we expect during the run-off on August 20?

Mendoza: Despite distrust of the electoral process — due to arbitrary and inconsistent decisions by electoral authorities regarding which candidates could compete — six out of 10 registered voters participated in the first round on June 25. For Guatemala, this level of participation is normal, not much below the record turnout in 2015 — amid widespread citizen protests — when seven out of 10 Guatemalan voters participated. 

The National Unity of Hope party (or UNE) and Sandra Torres are associated with the rural vote. As first lady during the government of her husband, Álvaro Colom (2008-2011), Torres promoted and coordinated programs that benefited thousands of indigenous women in rural areas. So, it isn’t surprising that in rural areas the UNE vote outnumbered Semilla’s by more than 330,000 votes. But in urban areas, Semilla outnumbered UNE by more than 111,000 thousand votes. The urban vote represented 84 percent of Semilla’s total, while UNE’s vote was more balanced.  

This does not favor UNE in the second round. The electoral roll is biased toward urban voters, who represent about 62 percent of registered voters. And these voters are more easily mobilized during the second round than rural voters. In rural areas, local caciques (or power brokers), no longer have the incentive to get out the vote since only the presidency — not local mayorships or congressional seats — is in play. This explains, in part, why Sandra Torres is famous for making it to the second round and then losing to the rival candidate. She also faces high unfavourability ratings — the so-called “anti-vote” or people who say they would never vote for her. These voters predominate precisely in the urban areas that tend to vote most in the second round.

Speck: How have Guatemalan citizens reacted to these judicial challenges of the first-run results and the integrity of the voting process?

Carrera: Guatemala has not experienced such diverse demonstrations to defend electoral results and respect for constitutionally guaranteed procedures since the country re-installed democracy in 1986.  The mobilizations, many of which are taking place in departmental capitals, show how exhausted citizens are with political actors who operate with impunity.

These mobilizations are peaceful, nonpartisan and led by young people. Their central demand is to respect the integrity of the electoral process and the will of the citizens as expressed in the results of the first round of elections and the upcoming run-off. Protesters on social media and demonstrating at the Supreme Electoral Tribunal and the Public Prosecutor’s office put it well: "This is not for Semilla, it is for democracy" and "my vote counts and [must be] respected."

Uncertainty has characterized this campaign. Laws are manipulated to favor certain political interests.  Exceptional events, which abruptly change political conditions, have created an atmosphere of tension.

If the second round proceeds as expected, there should be strong participation by young, educated urban voters casting ballots for the first time. Urban votes have always been decisive in the second round. This should favor the progressive option represented by Semilla rather than the clientelist structures associated with the UNE.

But two latent questions remain: Will the contending parties be allowed to campaign freely in the second round? And will the final results be respected?

Speck: What do we mean by “judicialization?” Is this new? And why is it dangerous to Guatemalan democracy?

Aizenstatd: A professor once gave me an example: If you have a barrel of sewage and add a spoonful of wine, you still have a barrel of sewage. But if you have a barrel of wine and add a spoonful of sewage, you now have a barrel of sewage. There are some things that once contaminated become something else; the judicial system being one of them.

Using the courts to influence the electoral process is not new. Over the years, the courts, and particularly the Constitutional Court, have become involved in an ever-growing array of issues. From deciding over whether a dog is properly registered by the national breeders’ association, to punishing a student for bringing beer into a school, it seems the Constitutional Court has a say in almost all issues, not just those that require review by constitutional scholars.

There are many reasons for this: Laws governing which cases can be presented are open ended and judges can disregard their own precedents without consequences. The appointment process permits poorly qualified judges to be chosen for political reasons. Judicial terms are short, which makes judges vulnerable to political interference. They also enjoy largely unchecked powers to issue constitutional rulings that can affect any governmental process.

Adding politics into a judicial system with few checks and balances can turn it into a powder keg.

There are at least some lines in the sand it appears the courts will not cross, like changing the results of an election. I remain hopeful that the constitution will be respected and there will be a runoff election and that the winner will take office in January. But we can expect that people’s trust in Guatemala’s highest judicial institutions will continue to decline.

Still, some political actors find it more profitable to influence judicial appointments than to strive for truly independent courts.

Speck: Why do Guatemala’s elections matter? And what should the United States do?

Cruz: We are in real danger that clouded electoral authorities and their judicial company will strike a devastating blow to Guatemala's still-firming democracy. No reasonable or fair-minded observer should question the June presidential election results. Our first mistake early on was to let these flawed forces, influenced by traditional power brokers, get away with questionable and whimsical rulings against other presidential hopefuls including a front runner and outsider who had the rug pulled out from under him.  Success simply encouraged reoffenders. Thus, they must now be strongly waved off from anything that disrupts the recognized and internationally overseen results. 

To allow any further degradation of the electoral order — a finger on the scale — by misguided authorities makes a mockery of the democratic process and returns Guatemala to an era where presidents were appointed with a wink and a nod from the powerful. Our response needs to be louder, clearer and unequivocal.

McFarland: Guatemala has an authoritarian government system based on a loose confederation of political parties, judicial operators and some wealthy businessmen. Arévalo is anathema to them because he has promised to reduce corruption, and because his victory could inspire others to challenge the system. For the United States and the European Union, a transparent, fair election is crucial to reversing Guatemala’s swing toward authoritarian kleptocracy. What happens in Guatemala will also directly affect migration to the United States.

Nevertheless, no one should underestimate the total commitment by the government and the corrupt circles that support it to either block Arévalo’s participation in the runoff or prevent him from taking office if elected. There is also a more sinister threat: some 40 years ago, two rising center-left politicians in Guatemala were assassinated.

How can the United States and the international community support a transparent and democratic second round presidential election? There are four components:

1. Issue emphatic public and private statements regarding the need to ensure transparent elections and protect the candidates’ security. 
2. Draw on the United States and other embassies’ ability to reach out to all interested parties, especially judicial and electoral authorities, to support electoral transparency and fairness, and to ensure the security of the candidates.
3. Prepare appropriate individual sanctions, and broader economic sanctions, in the event of undemocratic actions. Assess the public release of U.S. information on Guatemalan networks that undermine democracy and their ties to transnational organized crime.
4. Support the OAS, European Union and domestic Guatemalan monitoring of the run-off campaign and the elections.

Alexander Aizenstatd is an attorney specializing in constitutional law, international law and arbitration.

Gabriela Carrera is a professor of political science at Rafael Landívar University in Guatemala City.

Juan Cruz is a non-resident senior advisor to the Center for Strategic and International Studies. He served on the National Security Council from 2017 to 2019 as senior director for Western Hemisphere Affairs.

Stephen G. McFarland is a retired foreign service officer. He served as US ambassador to Guatemala between 2008 and 2011.

Carlos A. Mendoza is an economist and political analyst with Diálogos, a Guatemalan research center.