The Santa Cruz court wants to keep Cristina Kirchner on the electoral roll, in a snub to the Supreme Court.

On the last business day before the winter break, the acting federal judge of Río Gallegos, Mariel Borruto, declared the unconstitutionality of the articles of the Penal and Electoral Codes that allowed for the ban on Cristina Kirchner's voting . The ruling comes as a challenge by the Santa Cruz courts to the Supreme Court , since it has only symbolic effect: the former president—whose six-year prison sentence and absolute ban from holding public office, handed down in the Vialidad case, has been final since July 10—will not be able to travel for the elections because she is being held in her apartment at San José 1.111.

However, the intention to support Kirchner as an elector is a message aimed at disobeying the judicial doctrine that exempts crimes against public administration —corruption—from the right to vote . And it's no small feat that the former president's small payment, the Santa Cruz courts, embody that fight.

The ruling, dated July 18, was signed by a substitute judge, who replaced the original judge who was supposed to rule and who, for some reason, was unable to do so. In this case, the judge who was supposed to intervene was the federal judge of Río Gallegos, Claudio Vázquez . However, according to the newspaper La Nación , when his court received notification from the National Electoral Chamber instructing him to exclude Cristina Kirchner from the electoral roll, he requested four days of leave .

For this reason, the decision was left in the hands of Borruto, who was appointed federal judge of Río Grande in Tierra del Fuego by Mauricio Macri in 2019 after having served 20 years as civil secretary of that court.

In her ruling, the judge also decided to ignore the request of prosecutor Julio Zárate, who had considered that " it is appropriate to decree the disqualification of the citizen from the electoral register, in accordance with article 3 of the CEN [National Electoral Code]." This article establishes that the following are excluded from the electoral register, among others: "those convicted of intentional crimes and sentenced to imprisonment, and, by final judgment, for the term of the sentence" and "those who, by virtue of other legal and regulatory provisions, are disqualified from exercising political rights ."

In making her decision, the Santa Cruz authority took into account that, after the sentence became final, the former president was "disqualified from voting by automatic application of Articles 12 and 19 of the Penal Code and Article 3, paragraph e) of the National Electoral Code." However, when making her ruling, she considered two rulings by the National Electoral Chamber that had found that these articles violate fundamental rights " such as the right to vote , equality, human dignity, and the principle of social rehabilitation." In Creole, the judge sought case law to contradict the Court.

Her ruling, although controversial, is nothing new. The same judge stated in her opinion that the court originally overseeing Vázquez had previously ruled in the same direction "in numerous cases." The judge was a Kirchnerist force to fill in for absences in the Federal Court of Cassation.

Based on the rulings she had previously mentioned, the judge considered that the decision affected only the active aspect of suffrage, that is, the right to cast a vote in the election of representatives, and not its passive exercise, which would be the right to be elected as a representative. Therefore, despite the ruling, Cristina would still be disqualified from running as a candidate . But she would be given the political symbol of remaining on the electoral roll.

"I understand that depriving people of the right to vote violates the standards of our highest court, without losing sight of the fact that the challenged rules do not meet the standards of legality, necessity, and proportionality required by the Inter-American Court of Human Rights," Judge Borruto stated in one passage of her ruling, in a warning to the highest court.

The judge did not consider that in one of the rulings she cites, issued by the National Electoral Chamber, judges Alberto Dalla Vía and Santiago Corcuera had considered as an exception certain cases "in which the legislator may consider the application of the accessory penalty of disqualification justified (e.g. in crimes of corruption , organized crime, money laundering, embezzlement of public funds, fraud against the public administration, among others)".

On the other hand, the jurisprudence of the National Electoral Chamber and the Supreme Court of Justice also determined that the prohibition on voting is not a generic measure: hence the established doctrine of excluding those convicted, for example, of crimes against public administration or corruption cases.

Friday's ruling orders the continued registration of "Cristina Kirchner, class of 1953," as an active voter in the Río Gallegos district, "for the sole purpose of exercising her right to vote." It is a symbolic declaration, since while she remains detained at San José 1.111, she will not be able to go to the polls in her electoral district.

In any case, the ruling is not final. After the holiday, the prosecutor will be able to appeal the decision. But the message from Santa Cruz will already be on the table.