Student protest over low standards in education in Chile. Demotix/Rodrigo Daniel Selles Ferrer. All rights reserved.

When Chilean citizens go to vote in the run-off of the presidential election on December 15, thousands are expected to mark the ballot paper with more than their preferred candidate. While former president Michelle Bachelet remains the clear favourite to attract most votes on the left-hand-side of the ballot, confirming her 47% in the first round, a campaign to encourage voters to mark the right-hand-side with ‘AC’ (Asamblea Constituyente, or constituent assembly) may produce a second victory: constitutional reform.

The ‘Marca Tu Voto’ campaign is aiming to transform the presidential election into an unofficial referendum on constitutional change. Chile’s 1980 constitution was not only written by Pinochet’s advisors but also aimed to protect the dictator’s neoliberal legacy with a series of democratic deadlocks. Features including super-majoritarian laws, an electoral system that gives the same representation to the winners and losers, and a conservative Constitutional Court were meant to protect the neoliberal system established during the dictatorship.

Voters are being asked to mark their votes if they believe Chile requires a new constitution and that the way to change it is with a constitutional assembly. The campaign has principally taken place online, via the campaign website, Facebook, Twitter and even electoral broadcasting, but has also increased its presence in traditional media as the idea of constitutional change - if not Marca Tu Voto itself - has gained support from seven of the nine presidential candidates, with only the right-wing Evelyn Matthei opposed.

The Chilean constitutional moment

Constitutional reform has been a matter of serious public debate since the student movement of 2011 drew hundreds of thousands of protesters onto streets up and down the country. The protests began with a series of demands related to the unequal educational system, including university entrance exam fees and transport passes. However, it soon became clear that as education policy formed one of the “organic laws” of the Chilean Constitution, inserted by Pinochet’s advisors, the real obstacle to progress on education policy was the constitution itself.

The student leaders of the time, including Camila Vallejos and Giorgio Jackson, incorporated into their discourse the idea that the democratic process has been severely compromised by an illegitimate constitution. This demand for structural change capitalised on the distrust and discontent of citizens regarding the ruling elites since the return to democracy in 1990, indicated in part by low turnouts since voting became non-mandatory. Broad public support for the student movement steadily grew and built such traction that the idea of constitutional change became one of the three key messages of Bachelet’s campaign to return to government after four years; the other two being free quality education for all and tax reform to fund it.

Students, health workers and teachers' unions protest together in Santiago. Over 200 arrests were made and more than 30 policer officers were injured during the rally. Demotix/Boris Andres Burgueño Rivas. All rights reserved.

As mentioned previously, Bachelet is not the only candidate to back the campaign. However, there is a great deal less agreement upon the way in which the change should be brought about. Within Bachelet's ‘Nueva Mayoría’ coalition, which includes a spectrum of parties from Christian Democrat to Communist, the internal fight was won by the institutional method, which respects the ability of the current constitution to produce a new constitution. However, this ‘change from within’ implies recognizing the veto power granted by the constitution to right-wing parties and its feasibility therefore depends upon whether the ‘Nueva Mayoría’ is able to win enough votes to neutralise this.

Marking the ballot

The institutional method of constitutional change or ‘change from within’ is not a satisfactory way out for many people. As has repeatedly been pointed out by Chilean law academic Fernando Atria - who has been leading the critical discussion since 2011 and whose commentaries on the topic were carried by the student leaders in their backpacks  - any product of the institutional way will be marred by the “cheat” of the constitution. A spontaneously-organised group of citizens began to think of alternative strategies.

One source of inspiration was Colombia, where an additional ballot box was installed in the elections of 1991 and eventually led to a new constitution, thereby avoiding ‘change from within’ without producing a constitutional breakdown. Similarly, the Marca Tu Voto campaign was launched on May 4 this year as a legal way to effectively call a referendum that is forbidden by the Constitution. It is not illegal because it is being promoted, organised and evaluated entirely by civil society, using formal electoral channels as a vehicle for a parallel electoral act.

This is possible due to the fact that Chilean electoral law, though strategically planned to prevent any changes in many other respects, does not consider void a vote marked with any expression or sign, as long as it clearly expresses a preference for one of the candidates. This peculiarity, which during the last twenty years has been a way to express individual political discontent in explicit terms as well as by noting a preference for Mickey Mouse, could now be used in a collective and coordinated way to yield the most significant political decision of the 2013 election.

However, the campaign has not been without its problems. After its launch, the government of the right wing president Sebastian Piñera called for the annulment of those votes marked with ‘AC’, and clarification from the Electoral Office that only clean votes would be perfectly valid. The movement dealt effectively with this threat by publishing in a national newspaper a letter signed by 100 law scholars defending both the legitimacy of the constitutional assembly and the legality of the AC mark. This forced the Electoral Office to clearly state that the votes marked would be counted as valid. Since then, the campaign has focused upon ensuring that the votes will be counted to give further confidence to those who want to participate. 

Second, all conservative sectors of the political elite, including some sectors of the ‘Nueva Mayoría’, have been campaigning against the idea of the constitutional assembly by comparing it with the constitution-making processes carried out in Bolivia and Venezuela. In short, ‘Marca tu Voto’ has been accused of being a leftist movement that wants to transform Chile into a Chavez-like political project. These claims have been strongly contested with the obvious argument that a constitutional assembly is the most inclusive mechanism available to create a constitution that people can talk about as their own. All sectors, even those which oppose the assembly, must be represented in it.

Third, even though it is legitimate and legal, the strategy of marking the ballot with ‘AC’ faces another problem: logistics. The implication of strategically using the presidential ballot to do something other than elect a president is that formal electoral institutions will be blind to those preferences. This presents a big challenge in terms of counting the votes marked ‘AC’ that will be ignored by officials, requiring an army of observers in each of the 35,000 ballot boxes in the country.

First round and ballotage

The results of the first round on November 17 marked a clear triumph for the constitutional change with just 25% of votes going to candidates against a new constitution. The ‘AC’ marks for a constitutional assembly were fewer and concentrated in wealthier and urban voting districts. The final count indicated that around 6% of the votes that volunteers were able to count were marked with ‘AC’, but they were able to count only 38% of the boxes across the country. All told, around 410,000 people marked the ballot, in what represents the biggest instance of political activism in Chile since the student protests of 2011.

The campaign has been relaunched for the run-off vote with more volunteers spreading awareness in the streets, in hope of greater support outwith the main cities. By December 15, both sets of votes will again be in. Even if the number of ballots marked with ‘AC’ is not the majority of the voters, this initiative will nevertheless contribute to establishing the possibility of constitutional reform and placing the idea of a constitutional assembly on the horizon of Chilean democracy for all to see.