Right to Vote and Electoral Judiciary in Brazil

Antonio Moreira Maués*

Professor at Federal University of Para. Researcher at the National Council for Scientific and Technological Development. Orcid: 0000-0003-2186-8514.

amaues@ufpa.br

Received: November 20th, 2023 | Accepted: July 26th, 2024

How to cite: Moreira Maués, Antonio. “Right to Vote and Electoral Judiciary in Brazil”. Latin American Law Review n.o 13 (2024): 25-43, doi https://doi.org/10.29263/lar12.2024.02

Abstract

The purpose of this paper is to show how the constitutional guarantees of the right to vote and the constitutional design of the Electoral Judiciary have protected electoral integrity in Brazil during the Bolsonaro administration (2019-2022). The 1988 Constitution entrenched voting rights, expanded suffrage, and adopted compulsory voting, creating inclusive voting practices that facilitate voter turnout. In addition, the Constitution established an independent Electoral Judiciary that operates at all levels of electoral governance, including rulemaking. The paper discusses how these institutions have evolved and the process of positive feedback that reinforced the authority of the Electoral Judiciary as the sole electoral management body in the country. This process was also guaranteed by the institutional link between the Superior Electoral Court and the Federal Supreme Court, where the latter acts as a self-referencing veto point, upholding the Electoral Judiciary’s decisions.

Keywords

Voting rights, electoral management, electoral justice, Brazilian election law.

Derecho al Voto y Poder Judicial Electoral en Brasil

Resumen

Este artículo tiene como objetivo demostrar cómo las garantías constitucionales del derecho de voto y el diseño constitucional del Poder Judicial Electoral han protegido la integridad electoral en Brasil durante el gobierno Bolsonaro (2019-2022). La Constitución de 1988 atrincheró el derecho al voto, amplió el sufragio y adoptó el voto obligatorio, creando prácticas de voto inclusivo que facilitan la participación electoral. Además, la Constitución estableció un Poder Judicial Electoral independiente que opera en todos los niveles de gobernanza electoral, incluida la elaboración de normas. El artículo analiza cómo han evolucionado esas instituciones y el proceso de retroalimentación positiva que reforzó la autoridad del Poder Judicial Electoral como único organismo de gestión electoral en el país. Este proceso también ha sido garantizado por la vinculación institucional del Tribunal Superior Electoral con el Supremo Tribunal Federal, donde este último actúa como punto de veto autorreferente, ratificando las decisiones del Poder Judicial Electoral.

Palabras clave

Derecho al voto, gestión electoral, justicia electoral, derecho electoral brasileño.

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Introduction

Processes of democratic backsliding usually present a variety of attacks against free and fair elections. To remain in power, authoritarian leaders try to hinder the right to vote by increasing requirements for electoral registration, reducing polling places, or even using violence against voters.1 To achieve their goals, rulers need the complicity of the electoral management bodies in the country.2 When they face resistance, these leaders seek to discredit the elections and question their results.

The damage that these actions cause to democracy is great. To fulfil their role of legitimizing the government, elections need to meet criteria of integrity. Norris states that electoral integrity matters for political legitimacy “by strengthening public confidence in electoral institutions, a sense of external political efficacy, and satisfaction with the performance of democracy” and also for political activism, “by reinforcing voter turnout while dampening the propensity to engage in protest actions and violent conflict.”3 Thus, while facilitating the maintenance of incumbents in power, elections without integrity may discourage the democratic participation of the population. For IDEA,4 “the credibility and legitimacy of electoral processes is inextricably linked to electoral integrity”, which demands developing professional and competent electoral management bodies with full independence and removing barriers to universal and equal political participation, among other measures.

During the Bolsonaro administration, the Electoral Judiciary in Brazil was subjected to constant attacks, aimed at undermining its credibility and interfere with the electoral process to favor the reelection of the President of the Republic.5 Shortly after the 2018 elections, Jair Bolsonaro claimed that there had been a “fraud” that prevented his victory in the first round and decreased his votes in the second round.6 Although he maintained this claim in the following years, the president acknowledged in a live broadcast in July 2021 that he did not have evidence for his allegations.7 On several occasions, Bolsonaro also raised suspicions about the impartiality of the presidents of the Superior Electoral Court: Justice Roberto Barroso connived with electoral fraud,8 Justice Edson Fachin acted in favor of Lula da Silva’s candidacy,9 and Justice Alexandre de Moraes issued decisions aimed at harming his candidacy.10

The systematic dissemination of fake news about the elections continued throughout the entire Bolsonaro’s administration and was accentuated in 2022, having been documented in a lawsuit filed before the Superior Electoral Court, whose preliminary injunction was partially granted. In July 2022, the president summoned diplomatic representatives to a public meeting where, once again, he raised a series of suspicions about the functioning of the electoral system.11 Faced with this unprecedented volume of attacks, the Superior Electoral Court created mechanisms to fight the spread of fake news and began to publish regularly correct information about the Brazilian electoral process through social media.12

Bolsonaro’s various actions against the Electoral Judiciary cannot be dissociated from his authoritarian project of power.13 One part of this strategy consists of discrediting elections through accusations of fraud and bias directed against electoral bodies. Thus, in the event of defeat, the authoritarian leader has arguments, albeit fallacious, for not accepting the result, arguments which are also taken up by his supporters. This strategy has serious consequences for democracy. Although the 2022 elections took place without major incidents, Bolsonaro’s supporters set up camps in front of army barracks asking the armed forces to annul the elections and, on January 8th, 2023, thousands of them stormed the government headquarters in Brasília.

Despite these actions, Bolsonaro was the first president defeated in his bid to seek re-election in Brazil. This unprecedented defeat indicates that a complex combination of factors contributed to this result, such as the economic situation of the country, the effects of the COVID-19 pandemic, the realignment of sections of the electorate and the strength of the opposition’s candidacy. Moreover, voter turnout in the 2022 elections remained high and the Electoral Judiciary exercised its functions independently. After his defeat, Bolsonaro was declared ineligible until 2030 by the Superior Electoral Court, for spreading disinformation about the electronic voting system.

In this paper, my goal is to show how the constitutional guarantees of the right to vote and the constitutional design of the Electoral Judiciary have protected electoral integrity in Brazil. The first section studies the inclusive voting practices developed under the 1988 Constitution, which entrenched voting rights, expanded suffrage, and adopted compulsory voting. The second section analyzes the independence of the Electoral Judiciary and how it operates at all levels of electoral governance as the sole electoral management body in the country. Finally, the third section discusses the process of positive feedback that reinforced the authority of the Electoral Judiciary and helped the Superior Electoral Court in resisting pressure from Bolsonaro. This process was also guaranteed by the institutional links between the Superior Electoral Court and the Federal Supreme Court, where the latter acts as a self-referencing veto point, upholding the decisions of the Electoral Judiciary.

Inclusive Voting

Based on documents such as the Universal Declaration of Human Rights, Article 21 (3),14 and the UN International Covenant for Civil and Political Rights, Article 25,15 Norris states that electoral integrity demands, at least, periodic elections at regular intervals; universal suffrage; equal suffrage (one-person, one-vote); the right to stand for public office and contest elections; the rights of all eligible electors to vote; and the use of secret ballots.16 Viewing elections as a sequential cycle and not only as the polling day, these standards apply to all stages in the electoral process, from the design of election laws and electoral procedures; voter, party and candidate registration; campaign media and finance; until the voting process, vote counting, and results.17 Each of these steps may create the risk of violating electoral integrity principles.

Although universal and equal suffrage, through secret ballot, is a necessary feature of democracy, the practice of democratic regimes does not always fully meet these criteria. The creation of barriers to voter’s registration, difficulties in accessing polling stations, manipulation of voter lists, and breach of the vote’s secrecy are some of the problems that limit the exercise of the right to vote and affect the integrity of elections in many countries.

Faced with these problems, the state may respond in three different ways:18 by a repressive response, rulers may try to restrict the participation of specific groups to gain political advantage, using voter intimidation, fraud, and onerous voter identification requirements, among other tactics. This response is not limited to autocracies, but also appears in democracies where the government creates obstacles to voting. The laissez-faire response also maintains political inequality, as the State adopts a minimalist approach to elections and does not take any measures to tackle uneven levels of voter education or turnout, or to facilitate voter registration. Finally, the interventionist response identifies cultural and material inequalities among voters to promote inclusive voting practices that reduce inequality in the electoral process. Some of these practices are the enfranchisement of those citizens who are primarily affected by public policy decisions within a policy, compulsory voting, better resourced electoral management bodies, and mechanisms for identifying electoral violence.19 This last approach is the only one that helps states to comply with their international obligations regarding universal and equal suffrage.20

The 1988 Constitution gives an example of an interventionist response to inequality in voting. Inclusive voting practices in Brazil are based on the constitutional entrenchment of voting rights, the expansion of suffrage, and compulsory voting:

a) Entrenching voting rights: the 1988 Constitution’s Declaration of Rights (Title II) includes political rights among the fundamental rights of citizens. After declaring that the sovereignty of the people shall be exercised by universal suffrage and by direct and secret voting, with equal value for all, the Constitution states that electoral registration and voting are mandatory for persons over eighteen years of age (Article 14).21

In addition, the Constitution establishes a broad right to be elected. The general conditions for eligibility are: Brazilian nationality; full exercise of political rights; electoral registration; electoral domicile in the electoral district; and membership in a political party. The Constitution also defines the minimum ages of thirty-five years for candidates for President and Vice-President of the Republic and Senator; thirty years for candidates for Governor and Vice-Governor of States and of the Federal District; twenty-one years for candidates for Federal Deputy, State or District Deputy, Mayor, Vice-Mayor, and judge of peace; eighteen years for candidates for City Councilor.22

The constitutional character of these rights prevents any legislative attempt to limit or eliminate them. Moreover, the right to vote is an entrenched clause of the 1988 Constitution, as no constitutional amendment proposal shall be considered if it aims at abolishing the direct, secret, universal and periodic vote (Article 60, paragraph 4, II).

b) Universal and equal vote: although periodic elections have been held in Brazil since the country’s independence, in 1822, indirect voting and requirements of income, gender and literacy have limited the expansion of suffrage for more than a century.23 The first election in which the number of registered voters surpassed fifty percent of the adult population took place only in 1966.24

The number of voters in Brazil continued to grow over the next two decades, due to the reduction in the number of illiterates among the population. The 1988 Constitution abolished the requirement of literacy for the right to vote but maintained it for the right to be elected.25 After this change, the percentage of voters surpassed 90% of the adult population. In absolute numbers, the electorate has grown from 82,074,718 voters in 1989 to 156,453,354 voters in 2022.

Given the equal representation of states in the Brazilian Senate, the weight of each vote varies according to the states’ population. The same is true for the Chamber of Deputies, where the minimum of eight and maximum of seventy representatives by state also creates disproportionality among voters. However, since the Constitution defines the States and Municipalities as electoral districts, this rule limits the possibility of discriminating against groups of voters by redistricting;26

c) Compulsory voting: granting political rights may not be sufficient to guarantee equal access to the ballot. The acts of registering and voting always impose a burden on voters, which may be heavier for certain groups.27 Even seemingly minor aspects, such as the number of voting places and poll workers may influence the ability to vote. Furthermore, since voters need to be registered to vote, barriers to voter registration may suppress the right to vote and affect the fairness of an election.28

In Brazil, the compulsory voting system established by the 1988 Constitution helped reduce voting costs and eliminate voter suppression. As electoral registration and voting are mandatory for all Brazilian citizens over eighteen years of age,29 the state has the corresponding duty to register all voters free of charge and guarantee their voting rights. These constitutional rules led the state to adopt several measures to ensure inclusive voting in Brazil.

As we shall show below, the Electoral Judiciary is responsible for the electoral register in Brazil. Regional Electoral Courts organize voter lists and issue voter registration cards30 but today voters can register through internet and smartphones using an app created by the Superior Electoral Court.31 In 1986, before the elections for the National Constituent Assembly, the Superior Electoral Court conducted a voter reregistration based on electronic processing and eliminated all manual registries. Finally, biometric identification of voters has been gradually adopted since 2010 and will cover the entire electorate in 2026.32

In addition to facilitating voter registration, electoral management in Brazil also reduces the costs for citizens to cast a ballot. As the electorate expanded due to compulsory voting, the Electoral Judiciary increased the number of polling stations throughout the country. The number of electoral zones, which organize polling stations, increased from 2.320 zones in 1988 to 3.035 in 2016. After the electronic voting system reduced the time it takes for the elector to vote, the Electoral Judiciary lowered the number of electoral zones to 2.636 in 2022. This year, the voters used 577,000 electronic voting machines (EVM), which corresponds to an average of 270 voters per voting machine.

The electronic voting system in Brazil started to be used in 1996 and was fully implemented in the 2000 elections.33 This major innovation has virtually eliminated fraud during voting and counting.34 In addition, two devices on the EVM facilitated voting by uneducated voters: a keyboard whose numbers have the same layout as telephone keyboards and the display of the candidate’s photograph on the screen after entering his/her number.35 Since the adoption of the electronic voting system, the only remaining possibility of fraud is for one citizen to vote in place of another, but even this possibility was eliminated after biometric registration.

The system has many security mechanisms to prevent equipment adulteration and protect ballot secrecy. EVMs are not connected to the internet or any network device and have digital and physical defenders.36 Before elections, public security tests are carried out with the participation of technology and information security experts from many different organizations, who are invited to attempt to hack EVMs to identify system vulnerabilities. None of the identified vulnerabilities have ever posed an actual threat to the integrity of elections.37

Regarding the impact of compulsory voting on voter turnout in Brazil, Aguiar and Casalecchi38 note that abstention rates are relatively high compared to other countries that adopt compulsory voting,39 but turnout rates are well above those in voluntary voting countries. According to this study, socioeconomic status has a positive correlation with electoral attendance in Brazil, and turnout rates would be significantly lower if the country adopted voluntary voting. In this hypothetical situation, turnout will likely be higher among the richest, most educated, and white people.

Inclusive voting practices in Brazil have ensured broad electoral participation in the country, as the Electoral Judiciary has enforced constitutional provisions. Registering and voting are easy and low-cost, and the expansion of suffrage eliminated income, gender, and regional inequalities among voters. Compulsory voting could be ineffective to increase voter turnout if barriers limited access to the polls, but the adoption of measures such as electronic registering and voting, and the expansion of polling stations guaranteed universal and equal vote.

This process developed without government interference. Constitutional and legal rules gave the Electoral Judiciary broad powers and resources to organize elections. Acting as an independent electoral body, the electoral courts became a central institution to protect the right to vote in Brazil.

The Electoral Judiciary in Brazil: Characteristics

The Electoral Judiciary was created in 1932 by Decree No. 21,076 (Electoral Code) after the 1930 Revolution, which promoted electoral reform to combat serious problems with fraud that had affected elections during the First Republic (1889-1930). The 1934 Constitution maintained the Electoral Judiciary, but it was abolished by the 1937 Constitution, which created the Estado Novo’s authoritarian regime. At the end of this period, Decree-Law No. 7,586/45 regulated the presidential elections that would take place later that year and re-established the Electoral Judiciary. All subsequent Constitutions (1946, 1967, 1969, and 1988) provided for the Electoral Judiciary.

The 1988 Constitution (Articles 118 to 121) maintained the Electoral Judiciary’s traditional structure composed of three bodies: judges and electoral boards, Regional Electoral Courts, and the Superior Electoral Court. Its members are career judges of the Federal Judiciary and the States Judiciary who exercise electoral functions for a determined time. In addition, the Regional Electoral Courts and the Superior Electoral Court are integrated by lawyers, also with a fixed term of office. As a specialized part of the judicial branch, the Electoral Judiciary enjoys normative, administrative and financial autonomy, guaranteed by Article 96 of the Brazilian Constitution.

It should be noted that, when the National Constituent Assembly was held (1987-1988), the Electoral Judiciary had already assumed a central role in governing elections in Brazil. As emphasized by Lamounier,40 the process of democratic transition in the country was based on the holding of elections,41 conducted by the Electoral Judiciary despite the political repression imposed by the authoritarian regime. In 1974, the opposition party Movimento Democrático Brasileiro won the Senate elections in 16 of the 22 states of the federation, which reinforced the opposition’s strategy of using elections to confront the regime. Thus, although the government had modified the electoral rules several times to favor its candidates,42 the democratic transition advanced, as other positions began to be filled through direct elections, such as State Governors, in 1982, and Mayors of Capitals and National Security Municipalities, in 1985.

This electoral calendar increased the importance of the Electoral Judiciary in Brazil for conducting free and fair elections in the country. With the end of bipartisanship, in 1979, the Electoral Judiciary also became responsible for the registration of political parties. The flexible rules at that time quickly expanded the number of parties in Brazil: from 1985 to 1994, 67 parties competed in various elections.43 As we saw above, before the 1986 elections, the Electoral Judiciary conducted a complete reregistration of the country’s electorate.

The peculiar role played by the Electoral Judiciary in Brazil derives from its powers and independence. For Mozaffar and Schedler, the electoral governance operates at three levels: rule application, rule adjudication and rulemaking.44 Regarding rule application, the Electoral Judiciary in Brazil is responsible for organizing the elections, which includes voters, candidates, and parties’ registration; the organization of the voting process and vote counting; and voter education campaigns. In the area of rule adjudication, the Electoral Judiciary certifies election results and resolves pre-electoral, electoral and post-electoral disputes. Finally, the Electoral Judiciary also collaborates in rulemaking, especially through the electoral consultation, whereby authorities and political parties request the Superior Electoral Court to interpret electoral rules.

Therefore, in addition to administering electoral justice,45 the Electoral Judiciary in Brazil operates as the sole electoral management body. Electoral judges and courts are responsible for all the elements that are essential for holding elections:46 determining who is eligible to vote; receiving and validating the nominations of political parties and candidates; conducting polling; and counting and tabulating the votes. Besides, the Electoral Judiciary in Brazil also performs other important functions, such as voter education and information, and media monitoring.47 The 1988 Constitution defines some of these powers, such as the competence to resolve disputes on the certification of elected candidates (Article 14, paragraph 10), disqualification of candidates (Article 121, paragraph 4, III), and loss of mandates (Article 121, paragraph 4, IV). The Electoral Judiciary is also responsible for the political parties’ registration (art. 17, paragraph 2) and for monitoring their financial activities (art. 17, III).

These broad powers of the Electoral Judiciary in Brazil also contribute to the independent exercise of its functions. According to van Ham and Garnett,48 four key areas of responsibility serve as indicators of the functional independence of an electoral management body: ordering a (partial or full) recount of results, ordering re-polling in particular polling stations, completely annulling an election, and calling elections. All these powers are granted to the Electoral Judiciary in Brazil by the Electoral Code: recount of votes (Article 181, caput and sole paragraph), re-polling (Article 224, caput and paragraph 3), annulling an election (Article 19, sole paragraph), and calling elections (Article 186, caput; art. 202, paragraph 1 and Article 211).

Regarding independence, there are three broad models of electoral management: governmental, independent, and mixed. In the governmental model, elections are organized by the executive branch; in the independent model, the electoral management body is institutionally independent and autonomous from the executive branch; in the mixed model, there are two electoral management bodies, a supervisory body that is independent of the executive branch, and an implementation body pertaining to the executive branch.49

The composition of the electoral management body is also important to assess its independence. In this respect, we can distinguish between a “multiparty-based” and an “expert-based” electoral management body. In the first model, each political party chooses some of its members, while in the second model, the members are appointed based on their professional qualifications. We can also find countries where the electoral management body is formed both by expert and multiparty membership.50

Applying these categories to Brazil, we can conclude that the Electoral Judiciary is an independent and expert-based electoral management body, as in other Latin American countries.51 This institutional choice of the 1988 Constitution contributes to the independence of the Electoral Judiciary, which enjoys normative, administrative and financial autonomy (Article 96), while the constitutional guarantees of life tenure, impossibility of removal, and irreducibility of compensation protect its members (Article 95).

Finally, it is worth noting that all the dimensions of the independence of the Electoral Judiciary in Brazil constitute an entrenched clause, as no proposal of constitutional amendment shall be considered if it aims at abolishing the separation of powers (Article 60, paragraph 4, III, of the 1988 Constitution).

Institutional Resources of the Electoral Judiciary

The set of norms presented above is the starting point for analyzing how the Electoral Judiciary has exercised its powers under the 1988 Constitution and which instruments have contributed to reinforcing its independence.

Comparative studies show that de jure independence of the electoral body from the executive branch, while strengthening citizens’ confidence in the electoral process, does not necessarily improve the quality of elections.52 For van Ham and Garnett,53 de jure independence “does not automatically translate” into de facto independence, as factors such as the rule of law and the presence of checks and balances usually affect how electoral bodies perform their duties. However, some dimensions of de jure independence may also impact de facto independence.

One of these dimensions is financial independence, which refers to how the electoral body budget is allocated and by whom, as well as the degree of control it exerts over its budget. In addition, financial independence includes the electoral body’s control over its internal organization and the hiring and firing of employees.54

Under the 1988 Constitution, the Electoral Judiciary meets these requirements of financial independence. The Superior Electoral Court and the Regional Electoral Courts have considerable material and human resources for performing their functions, managed without interference from the executive branch. In 2022, the Electoral Judiciary had 17,021 employees and its budget exceeded 10 billion reais, equivalent to 2 billion dollars.55 Therefore, the high cost of holding elections in Brazil has been met by a continuous increase, in real terms, of the Electoral Judiciary’s budget, which includes both personnel expenses and expenses related to polling stations, voting, and advertising campaigns.

In addition to managing its budget, the Electoral Judiciary is also responsible for distributing the resources from the Party Fund, a public financing system established by Article 17, paragraph 3 of the 1988 Constitution. In 2022, the Party Fund resources amounted to more than 1 billion reais and 31 political parties were registered with the Superior Electoral Court, while 14 parties were in the process of formation.56 Given its broad powers, the number of cases at the Electoral Judiciary is very high and reached 1.4 million new cases in 2020.57

In addition to the scope of its powers, the independence of the Electoral Judiciary is guaranteed by the composition of the Superior Electoral Court and its institutional link to the Federal Supreme Court.58 The Superior Electoral Court is composed of seven members with a two-year term of office that can be extended for two additional years. Three of its members are Federal Supreme Court’ justices, two are Superior Court of Justice’s justices – all of them chosen by their peers—and two are lawyers appointed by the President of the Republic based on lists prepared by the Federal Supreme Court. Therefore, the Supreme Court is responsible, directly or indirectly, for choosing most justices for the Superior Electoral Court.

Furthermore, the decisions of the Superior Electoral Court are unappealable unless they contravene the Constitution or deny habeas corpus and writs of mandamus (Article 121, paragraph 3 of the 1988 Constitution).59 In these cases, the only admissible appeals are submitted to the Federal Supreme Court, which on rare occasions has modified the decisions of the Superior Electoral Court,60 demonstrating that the intersection of the composition of these two courts contributes to the stability of the Electoral Judiciary’s decisions. Of the 29 members of the Federal Supreme Court who have been justices at the Superior Electoral Court and whose terms began after the 1988 Constitution was enacted, 17 held their positions for more than one biennium (58%). Notably, the presidency and vice-presidency of the Superior Electoral Court are mandatorily exercised by members of the Federal Supreme Court.

This functioning of the Electoral Judiciary has created a process of positive feedback that has enabled it to accumulate, especially regarding the Superior Electoral Court, institutional resources for the independent exercise of its functions of electoral governance. According to Pierson,61 processes of positive feedback or self-reinforcement occur when the trajectory developed by institutions in a particular direction makes it difficult to change the course of this development. Over time, the functioning of such institutions generates benefits and increases the costs of opting for alternative institutional arrangements. Among the sources of positive feedback, Pierson highlights political authority, through which certain actors have the power to impose rules on others. In this context, the use of power can work as a self-reinforcing mechanism, as actors, by changing the rules, “increase their own capacity for political action while diminishing those of their rivals.”62

Using its legal competences and material resources, the trajectory of the Electoral Judiciary in Brazil has consolidated its authority over the complete electoral cycle. In addition to the broad powers conferred to the Electoral Judiciary by the legal system, the complexity of the organization of elections in Brazil and the increasing electoral litigation have further strengthened the role of the Electoral Judiciary in governing elections, as both rule application and rule adjudication functions have been concentrated on it. Responsible for conducting all phases of the electoral cycle and solving electoral disputes, the Electoral Judiciary does not need interventions from the executive branch to carry out its management functions, while the Superior Electoral Court decisions are appealable only before the Federal Supreme Court. The simultaneous exercise of these functions has rendered them mutually reinforcing, as any attempts to restrict the powers of the Electoral Judiciary could affect the efficiency of the electoral management and create uncertainties about the integrity of its results.

However, the main assessment of the institutional robustness of the Electoral Judiciary in Brazil must be performed through an examination of the Superior Electoral Court decisions that have modified electoral rules. The exercise of rulemaking functions can be understood as the highest degree of independence of an electoral governance body, enabling it to make decisions that may limit the power of other bodies to define these rules. Thus, examining how the National Congress has reacted to the legal innovations created by the Superior Electoral Court is important for assessing whether, in this area, a process of self-reinforcement of the powers of the Electoral Judiciary has also occurred. For this article, we have selected three cases that highly impacted the functioning of the electoral system in Brazil.63

Verticalization of coalitions

In 2002, the Superior Electoral Court responded to Consultation No. 715 and issued Resolution No. 21,002, changing its position on party coalitions. According to this Resolution, political parties that form a coalition for the election of the President of the Republic may not form coalitions for the election of State Governor, Senator, Federal Deputy and State Deputy with other political parties that have, alone or in a different alliance, launched candidates for the presidential election. Known as the “verticalization of coalitions”, this decision was upheld by the Federal Supreme Court, which rejected the actions of unconstitutionality that were filed against it.64

After four years of legislative process, the National Congress approved Constitutional Amendment (CA) No. 52/06, declaring that political parties were free to decide on their electoral coalitions. However, after the enactment of CA No. 52/06, the Federal Supreme Court was again called upon to intervene. According to Article 16 of the 1988 Constitution, the law that alters the electoral process shall not apply to the elections that take place within one year of it being in force. Based on this provision, the Federal Supreme Court ruled that CA n. 52/06 should not apply to the 2006 elections. For the Court, Article 16 is a guarantee of fundamental rights of citizenship that cannot be abolished even by constitutional amendment.

The verticalization of coalitions case shows that the National Congress faces two difficulties when it decides to react to a Superior Electoral Court decision. The need to pass a constitutional amendment imposes a lengthier legislative process, which demands a supermajority of three-fifths of the votes to approve it. Furthermore, constitutional amendments may be submitted to judicial review by the Supreme Court, which has the last word on the constitutionality of these changes. Although the National Congress has overruled the Superior Electoral Court decision, this ruling has prevailed in two general elections.

Party loyalty

In 2007, the Superior Electoral Court again changed its position on another relevant issue. Responding to Consultation No. 1,398/07, Resolution No. 22,526 stated that a representative loses his/her seat in cases of party disaffiliation or party switching. Interpreting the proportional representation system adopted by the Brazilian Constitution, the Court decided that the seat belongs to the party or coalition, and the vacancy should be filled by it. Afterward, the Court issued Resolution No. 22.610, creating four hypotheses for party disaffiliation without loss of seat (“just cause disaffiliation”): incorporation or merger between parties; creation of a new party; substantial changes in the party’s platform; and serious personal discrimination.

Since the Chamber of Deputies has not complied with this decision, three writs of mandamus65 were filed before the Federal Supreme Court, which also changed its jurisprudence on this matter and upheld the Superior Electoral Court decision.66 After many years of unsuccessful attempts to overrule this decision, the National Congress approved Constitutional Amendment No. 91/16, which created the possibility of party disaffiliation, without loss of seat by the representative, thirty days after its promulgation. This transitory exception did not change the rules created by the Superior Electoral Court and the Supreme Federal Court.

Five years later, the approval of Constitutional Amendment No. 111/21 exemplified the acceptance of the rulemaking function of the Electoral Judiciary by the National Congress. Changing Article 17, paragraph 6, the Congress included the rule of party loyalty in the Constitution, declaring that Federal Deputies, State Deputies and Councilors who leave the party by which they were elected will lose their seat, except in cases of party consent or other just cause hypothesis established by law.67

Gender and racial quotas

In 2018, the Federal Supreme Court decided that the proportion of financial resources allocated to the campaign of female candidates should be equal to their number68 and declared the unconstitutionality of the five per cent floor and fifteen per cent ceiling for this funding, created by Law No. 13,165/1569. These resources are provided by the Party Fund.

That same year, responding to Consultation No. 0600252-18, the Superior Electoral Court applied this proportionality rule to the Special Fund for Campaign Financing (Fundo Especial de Financiamento de Campanha), created in 2017,70 and to the free campaign airtime on radio and television. According to the Electoral Court, if the number of female candidates is higher than thirty per cent, the parties must increase these candidacies’ financial resources and campaign airtime in the same proportion.

Subsequently, the Superior Electoral Court made a new decision on distribution of campaign resources and airtime for the 2022 elections (Consultation No. 0600306-47). In this case, the Court ruled that propaganda on radio and television and financial resources allocated to women’s candidacies should be divided between Black and White women in exact proportion to their number. In addition, this proportionality should also apply to the funding of Black men candidates. Closing this cycle of decisions, the Federal Supreme Court ruled that the incentives for Black people created by the Superior Electoral Court should apply in the 2020 elections.71

These decisions led the National Congress to create new rules on gender and racial quotas. Previously, Constitutional Amendment No. 111/21 established a new instrument for encouraging candidacies of women and Black people. According to this amendment, the number of votes given to women or Black candidates for the Chamber of Deputies in elections held from 2022 to 2030 should be counted twice for the distribution of resources from the Party Fund and the Special Fund for Campaign Financing. Later, the National Congress approved Constitutional Amendment No. 117/22, stating that the Special Fund for Campaign Financing and the portion of the Party Fund allocated for electoral campaigns, as well as the free campaign airtime on radio and television, must be proportionally distributed according to the number of female candidates, observing the minimum of thirty per cent.72

Reinforcing authority

The analysis of these cases shows that the participation of the Superior Electoral Court in defining electoral rules has also contributed to the independence of the Electoral Judiciary. When making decisions on electoral coalitions, party loyalty and gender and racial quotas, the Superior Electoral Court has repeatedly deemed these electoral matters subject to its regulation, to the detriment of the competence of the National Congress, who must approve constitutional amendments to modify electoral jurisprudence, and not always with success. Thus, the Electoral Judiciary developed a process of self-strengthening of its powers, expanding its role in electoral governance and reducing the space for the political action of the National Congress.

This reinforcement of the authority of the Superior Electoral Court can also be explained by its institutional links to the Federal Supreme Court, which has acted as a veto point in relation to attempts to modify the decisions of the Superior Electoral Court, reducing their chances of success. According to Pierson,73 veto points are sources of institutional resilience because they make it difficult to change rules. This resilience increases when veto points are self-referencing, that is, when the same set of actors protected by them must agree to modify the institutional arrangement.

The relationship between the Federal Supreme Court and the Superior Electoral Court is an example of this situation, as some of the members of the Superior Electoral Court are responsible for reviewing their own decisions. This institutional linkage also means that any initiatives of the legislative and executive branches aimed at restricting the free exercise of the Superior Electoral Court’s powers affect members of the Federal Supreme Court, who are responsible for deciding on the constitutionality of laws and amendments to the Constitution. Thus, the Brazilian constitutional design creates incentives for the Federal Supreme Court to protect the independence of the Electoral Judiciary by maintaining the decisions of the Superior Electoral Court and hindering any legislative change in electoral rules because any decrease in the political influence of the Superior Electoral Court would also decrease the political influence of the Federal Supreme Court.

This institutional framework contributed to the Electoral Judiciary’s resistance to the attacks of the Bolsonaro administration, as the Superior Electoral Court had already consolidated its role in electoral governance. Other examples of this include the actions taken to combat disinformation. In 2021, through Resolution No. 23,671, the Superior Electoral Court declared its competence in determining the removal of electoral propaganda with content known to be untrue or seriously decontextualized. Subsequently, through Resolution No. 23,714, of October 2022, the Superior Electoral Court expanded its powers to combat the disinformation activities that affect electoral integrity.

At that time, on the eve of the second round of the presidential election, the dissemination of fake news reached unprecedented levels in the country, and the Court deemed it necessary to adopt new measures to contain it. According to Resolution No. 23,714, any decision to exclude content that undermines electoral integrity could be extended ex officio by the presidency of the Superior Electoral Court to other situations with identical content without the need for new judicial representation. In addition, the maximum period for content removal by networks and providers was reduced from twenty-four to two hours, and any failure to comply with these determinations could lead to the suspension of access to the platform involved. Despite questions about the scope of the powers that this resolution conferred on the Superior Electoral Court, the Federal Supreme Court rejected all allegations of unconstitutionality and reaffirmed its competence to monitor electoral propaganda. It should be noted that this decision was reached with 7 x 2 votes, where the only two votes against were cast by the Federal Supreme Court justices appointed by Bolsonaro.

Conclusion

In this paper, I have provided evidence that constitutional guarantees of the right to vote and the constitutional design of the Electoral Judiciary have protected electoral integrity in Brazil. Facing Bolsonaro’s attempts to discredit elections, voters and judges collaborated to preserve free and fair elections in the country.74

First, the 1988 Constitution provided for policy instruments that reduced inequality in voting. The Constitution entrenched the rights to vote and to be elected as fundamental rights of citizens that not even constitutional amendments may abolish. The compulsory voting system helped to reduce voting costs and eliminate voter suppression, as the state adopted several measures to register all voters free of charge and guarantee their voting rights. Today, voters can register through internet and smartphones; the number of polling stations has increased throughout the country; and the country’s electronic voting system has virtually eliminated fraud during voting and counting and has facilitated voting by uneducated voters. Because of these inclusive voting practices, the percentage of voters in Brazil surpassed 90% of the adult population, and turnout rates are well above those in voluntary voting countries.

Second, these constitutional rules on voting rights are enforced by the Electoral Judiciary. According to the 1988 Constitution, the Electoral Judiciary is a specialized section of the judicial branch enjoying normative, administrative and financial autonomy. As an independent and expert-based electoral management body, the Electoral Judiciary in Brazil has accumulated institutional resources that enabled it to resist the government’s attacks.

As the sole electoral management body, the Electoral Judiciary operates at all levels of electoral governance, organizing the elections, resolving pre-electoral, electoral and post-electoral disputes, and collaborating in the definition of electoral rules. In addition, the Electoral Judiciary has considerable material and human resources for performing its functions, managed without interference from the executive branch. The independence of the Electoral Judiciary is also guaranteed by the composition of the Superior Electoral Court and its institutional links to the Federal Supreme Court, which is responsible for choosing, directly or indirectly, most of the Superior Electoral Court’s justices. Moreover, the only admissible appeals against the Superior Electoral Court decisions must be filed before the Federal Supreme Court, which contributes to the stability of the Electoral Judiciary decisions.

Third, the operation of the Electoral Judiciary under the 1988 Constitution has created a process of positive feedback that consolidated its authority over the complete electoral cycle and electoral disputes resolution. The simultaneous exercise of these functions has rendered them mutually reinforcing, as any attempts to restrict the powers of the Electoral Judiciary could affect the efficiency of the electoral management and create uncertainties about the integrity of its results. The Superior Electoral Court has imposed its authority even on the National Congress, making decisions that modified electoral rules, as in the cases of verticalization of coalitions, party loyalty, and gender and racial quotas.

This definition of electoral rules by the Superior Electoral Court demonstrates, once again, the importance of its institutional links to the Federal Supreme Court, which upheld these rulings. As some of the members of the Superior Electoral Court are responsible for reviewing their own decisions, the Supreme Federal Court acts as a self-referencing veto point that reinforces the authority of the Electoral Judiciary. Given that any initiatives of the legislative and executive branches aimed at restricting the free exercise of the Superior Electoral Court’s powers will also affect members of the Federal Supreme Court, the later has incentives to protect the independence of the Electoral Judiciary.

Finally, this study of the Brazilian case may contribute to the understanding of the role of Courts in protecting democracy.75 A high level of judicial intervention in the democratic process usually faces criticism. However, the accumulation of institutional resources by the Electoral Judiciary in Brazil was decisive in protecting electoral integrity and safeguarding the instruments that guarantee the right to vote in the country.

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___________________________________________________________________________

* I am grateful to Juliana Freitas for discussing parts of this paper.

  1. 1 Ginsburg and Huq, Constitutional democracy, 107-115; Norris, Electoral integrity, 3-20; V-Dem Institute, Democracy.

  2. 2 Norris, Why elections fail, 133-159; James, Comparative electoral management.

  3. 3 Norris, Electoral integrity, 12

  4. 4 IDEA, Electoral management, 1.

  5. 5 Available at: https://www.nytimes.com/interactive/2022/10/25/world/americas/brazil-bolsonaro-misinformation.html?action=click&module=RelatedLinks&pgtype=Article. Access: Jul 31st, 2023.

  6. 6 Available at: https://www.cnnbrasil.com.br/politica/bolsonaro-diz-que-provara-que-houve-fraude-na-eleicao-de-2018/. Access: Jul 31st, 2023.

  7. 7 Available at: https://g1.globo.com/politica/noticia/2021/07/29/apos-tres-anos-falando-em-fraudes-eleitorais-bolsonaro-faz-live-com-noticias-falsas-e-admite-nao-ter-provas-das-acusacoes.ghtml. Access: Jul. 31st, 2023.

  8. 8 Available at: https://www1.folha.uol.com.br/poder/2021/07/de-novo-sem-provas-bolsonaro-repete-ameaca-e-diz-que-fraude-eleitoral-esta-no-tse.shtml. Access: Jul 31st l. 2023.

  9. 9 Available at: https://www.cnnbrasil.com.br/politica/bolsonaro-acusa-fachin-de-ter-colocado-lula-para-fora-da-cadeia-para-ser-presidente/. Access: Jul. 31st, 2023.

  10. 10 Available at: https://gauchazh.clicrbs.com.br/politica/eleicoes/noticia/2022/09/bolsonaro-reforca-criticas-a-moraes-e-diz-que-ministro-trabalha-para-lula-cl8mxsbcg0015016uzkcpob05.html. Access: Jul. 31st, 2023.

  11. 11 Available at: https://www.uol.com.br/eleicoes/2022/07/19/embaixadores-ficaram-abalados-apos-reuniao-com-bolsonaro.htm. Access: Jul. 31st, 2023.

  12. 12 Available at: https://www.justicaeleitoral.jus.br/desinformacao/. Access: Jul.31st, 2023.

  13. 13 Meyer, Constitutional Erosion.

  14. 14 “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures”.

  15. 15 “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country”.

  16. 16 These standards were recently reinforced by the UN General Assembly Resolution 74/158, adopted on December 18th, 2019 (Strengthening the role of the United Nations in enhancing periodic and genuine elections and the promotion of democratization), which “Strongly condemns any manipulation of election processes, coercion and tampering with vote counts, particularly when done by States, as well as by other actors, and calls upon all Member States to respect the rule of law and the human rights and fundamental freedoms of all persons, including the right to vote and to be elected at genuine periodic elections, which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors, thereby fostering conditions in which all citizens, regardless of how they voted, whom they supported or whether their candidates prevailed, have the motivation and incentive, as well as the right and opportunity, to continue to participate directly or through elected representatives in the conduct of public affairs and their Government”.

  17. 17 Norris, Electoral Integrity, 33-34.

  18. 18 James and Garnett, “Introduction”, 121-122.

  19. 19 James and Garnett, “Inclusive voting practices”.

  20. 20 Schaffer discusses the detrimental impact that election reform may have on voter turnout, as some historical examples show that new rules for voter registration disenfranchised some specific groups and the adoption of secret ballots reduced illiterate voting (Schaffer, “Might cleaning up”, 70-75). The recent history of electoral reform in Brazil, as we shall see, does not display such consequences.

  21. 21 According to the same Article 14, electoral registration and voting are voluntary for the illiterate, those over seventy years of age, and those over sixteen and under eighteen years of age. The Constitution also forbids disenfranchisement, except in cases of cancellation of naturalization by a final and unappealable decision; absolute civil incapacity; final and unappealable criminal sentence, for as long as its effects last; refusal to comply with a legal obligation imposed upon everyone or to render an alternative service; and administrative dishonesty (Article 15).

  22. 22 Besides these general rules on eligibility, the Constitution limits the candidacy of the spouse and relatives by blood or marriage, up to the second degree or by adoption, of the President of the Republic, the Governor of a State or Territory or the Federal District, a Mayor or those who have replaced them within the six months preceding the election, who are not eligible in the jurisdiction of the incumbent, unless they already hold an elective office and are candidates for re-election.

  23. 23 Holston, Insurgent citizenship, 82-111.

  24. 24 Nicolau, Eleições no Brasil, 114.

  25. 25 In 1980, the number of illiterates in Brazil amounted to 26 per cent of the adult population.

  26. 26 As Lessig points out in the US case, the weight of each vote may depend on where you live or how the districts are drawn, as “states systematically allocated representatives so that people living in rural areas had a weightier vote than people living in cities” (Lessig, They don’t represent us, 7).

  27. 27 Electoral laws can “either reduce or raise the logistical barriers (time, effort, and possibly money) that citizens face when seeking to register and/or cast a ballot” and “convenience electoral facilities” may promote full and equal participation (Norris, Strengthening electoral integrity, 238). IDEA also highlights that electoral management bodies must pursue the objective of enfranchising all eligible voters, using active voter registration processes and voter information campaigns (IDEA, Electoral Management, 79-80).

  28. 28 IDEA, Electoral Management, 370.

  29. 29 According to the Electoral Code (Law n. 4,737/65), the voter who fails to vote must pay a fine, otherwise he/she may not make contracts with the government, get loans from public entities, or enroll in public schools, among other penalties. Today, the amount of this fine is very low, ranging from 1,05 to 3,51 reais (less than US$1 dollar).

  30. 30 In Brazil, voters must register before elections since 1842 and the first voter registration card was adopted in 1875 (Nicolau, Eleições no Brasil, 29-30).

  31. 31 Available at: https://cad-app-titulonet.tse.jus.br/titulonet/novoRequerimento. Access: Jul. 31st, 2023.

  32. 32 According to IDEA, biometric data capture helps the integrity of the voter registration process, decreasing voter impersonation and multiple voting (IDEA, Electoral Management, 388). In the 2022 election, more than 118 million of voters used biometric registration. Norris recognizes that the loosening of registration procedures may increase the risks of voter impersonation and fraud at the ballot box, although several studies have not confirmed that more lenient procedures undermine the honesty of elections (Norris, Strengthening electoral integrity, 237). However, Brazilian elections do not use some of the most controversial of these procedures, as advance voting, absentee balloting, and postal voting.

  33. 33 An official ballot paper was first adopted in Brazil in 1955.

  34. 34 Nicolau observes that, before the adoption of the electronic voting system, fraud occurred mainly during the counting of votes, by filling in blank ballots, erasing votes, and, above all, falsifying the number of total votes to favor certain candidates (Nicolau, Eleições no Brasil, 134)

  35. 35 Nicolau, “Impact of electronic voting”.

  36. 36 The Superior Electoral Court gives the following technical explanations: “all computer systems used in vote casting, counting and tallying procedures are sealed and digitally signed during the Ceremony of Digital Signing and Sealing of Systems. A hash code is generated during the event, and it works as the identity (a summary) of each sealed app. The adulteration of one single character in the source code would result in an incompatibility with the original hash code. The list of hash codes is handed over to the authorities that attend the event and is then published in the Superior Electoral Court web portal. Thus, it is possible to check, anytime and anywhere in Brazil, if the app that is running in an EVM is the same that was generated during the public ceremony. The cryptographic hardware of each EVM constitutes another important barrier that provides these devices with individual identities. This feature ensures the authenticity and origin of machine-generated data” (Superior Electoral Court, Brazilian electronic voting machine, 21). Additionally, each EVM has a security seal and secure logs, which constitute a security-relevant record of events. After the 2022 elections, an independent study confirmed the integrity of the electronic voting system (Available at: https://www.tse.jus.br/++theme++justica_eleitoral/pdfjs/web/viewer.html?file=https://www.tse.jus.br/comunicacao/arquivos/comentarios-sobre-alegacoes-infundadas-ou-falsas-sobre-as-urnas-eletronicas-brasileiras-11-11.2022/@@download/file/TSE-analise-usp-ufscar-ufabc-urnas-11-11-2022.pdf. Access: Jul. 31st, 2023.

  37. 37 Superior Electoral Court, Brazilian electronic voting machine, 26.

  38. 38 Aguiar and Casalecchi, “E se o voto fosse facultativo?”

  39. 39 Abstention rates in Brazil range from 16.75 per cent in the first round of the 2006 elections to 21.5 per cent in the second round of the 2010 elections (Aguiar and Casalecchi, “E se o voto fosse facultativo?”, 264).

  40. 40 Lamounier, “Authoritarian Brazil Revisited”.

  41. 41 During military rule, there were elections for Senators, Federal Deputies, State Deputies and Mayors, excepting Mayors of Capitals and Municipalities declared as national security areas.

  42. 42 One example was the creation of rules that privileged the representation of less populated and rural areas at the National Congress (Schedler, “The nested game”, 107).

  43. 43 Nicolau, Eleições no Brasil, 124.

  44. 44 Mozaffar and Schedler, “Electoral governance”, 7-8.

  45. 45 According to IDEA, electoral justice involves the means to ensure that the electoral process is in accordance with the law and to protect and restore the enjoyment of electoral rights, including both the means to prevent violations thereof and to resolve electoral disputes (IDEA, Electoral justice, 9).

  46. 46 IDEA, Electoral management, 5-6, 73-77.

  47. 47 The powers of Electoral Judiciary in Brazil also correspond to the list of essential elements for the conduction of elections presented by James, Garnett, Loeber, and van Ham, “Electoral management”, 299.

  48. 48 Van Ham and Garnett, “Impartial electoral management”, 322.

  49. 49 IDEA, Electoral management, 6-10.

  50. 50 IDEA, Electoral management, 110-112.

  51. 51 Orozco Henríquez, Justicia electoral comparada.

  52. 52 Norris, Why elections fail, 146.

  53. 53 Van Ham and Garnett, “Impartial electoral management”, 316.

  54. 54 Van Ham and Garnett, “Impartial electoral management”, 318.

  55. 55 In 1998, the Electoral Judiciary budget was just over 1 billion reais. If the budget is adjusted only for the period’s inflation, its value in 2022 is less than 7 billion reais.

  56. 56 Composed of federal budget resources and electoral fines, among other sources, the Party Fund is distributed monthly by the Superior Electoral Court to political parties, following the criteria defined in Article 41 of the Law of Political Parties (Law No. 9,096/95). However, the Superior Electoral Court has the power to suspend the transfer of these revenues in various cases, such as receiving money of unknown origin (Article 36, I, of Law No. 9,096/95) or delaying the presentation of electoral accounts (Article 37-A of Law No. 9,096/95).

  57. 57 Available at: https://www.cnj.jus.br/wp-content/uploads/2022/09/justica-em-numeros-2022-1.pdf. Access: Jul. 10th, 2023.

  58. 58 In Brazil, the Federal Supreme Court has also broad powers. The Court is responsible for safeguarding the Constitution, which includes the judicial review of legislation and other “normative acts” (Article 102). In addition, the Federal Supreme Court decides criminal cases against the President of the Republic, members of the National Congress and other authorities. Its members serve lifetime appointments.

  59. 59 For Orozco Henríquez (Justicia electoral comparada, 175), this feature confers maximum functional independence to the electoral justice in a country.

  60. 60 Marchetti, Justiça e competição eleitoral, 47.

  61. 61 Pierson, Politics in time.

  62. 62 Pierson, Politics in time, 36.

  63. 63 In these cases, the Superior Electoral Court used the instrument of electoral consultation provided by Article 23, XII of the Electoral Code. In another set of cases, the Superior Electoral Court has also collaborated in the making of electoral rules by implementing decisions adopted by the Federal Supreme Court, such as the delimitation of the number of City Councilors (Resolution No. 21,702/04) and the rules for distributing the Party Fund (Resolution No. 22,506/07).

  64. 64 Ações Diretas de Inconstitucionalidade No. 2,628, and No. 2,626.

  65. 65 Mandados de Segurança No. 26,602, No. 26,603, and No. 26,604.

  66. 66 Subsequently, the Superior Electoral Court extended its ruling on party loyalty to officials elected by the majoritarian system (Governors, Senators and Mayors). However, in this case the Federal Supreme Court overruled the decision of the Electoral Court (Ação Direta de Inconstitucionalidade No. 5,081).

  67. 67 Previously, Law No. 13,165/15 had already provided for the loss of seat by a parliamentarian due to party disaffiliation. In addition, the new rule included among the hypotheses of disaffiliation with just cause any change in party in the thirty days preceding the term of affiliation required to run for the election. The Federal Supreme Court has not yet ruled on the constitutionality of this provision.

  68. 68 According to Article 10, paragraph 3 of Law No. 9,504/1997, at least thirty per cent of the candidates must be women.

  69. 69 Ação Direta de Inconstitucionalidade No. 5,617.

  70. 70 Articles 16-C and 16-D of Law No. 9,504/97.

  71. 71 Arguição de Descumprimento de Preceito Fundamental No. 738.

  72. 72 This amendment also allocated a minimum of five per cent of the Party Fund to the creation and maintenance of programs for the promotion and dissemination of women’s political participation. Moreover, Law No. 14,291/22 established that free campaign airtime outside the electoral period should allocate at least thirty per cent of the time to the promotion and dissemination of women’s political participation (Article 50-B, paragraph 2).

  73. 73 Pierson, Politics in time, 144-146.

  74. 74 According to the Electoral Integrity Global Report, the Perceptions of Electoral Integrity (PEI) Index for the 2022 Brazilian presidential election was 69, and for the legislative election was 73. See Garnett, James, MacGregor, and Caal-Lam, Year in elections, 12.

  75. 75 Gardbaum, Comparative political process; Ginsburg, The jurisprudence of anti-erosion.