–Antonio Moreira Maués, Federal University of Para
During the 2022 elections, another actor stood out in Brazil in addition to the candidates and political parties: the Superior Electoral Court. Part of this prominence was due to the behavior of the President of the Republic and candidate for reelection, Jair Bolsonaro. Following the guidelines of other authoritarian populists,[1] Bolsonaro made constant attacks on the electoral justice system throughout his tenure, denouncing alleged fraud in the electronic voting machines and accusing several members of the Superior Electoral Court of partiality. As he did not have evidence of these allegations, Bolsonaro was actually seeking to feed his fake news factory to delegitimize the electoral process. This strategy was partially successful. Its supporters set up camps in front of army barracks to ask the armed forces to annul the elections and, on January 8, 2023, thousands of them stormed the government headquarters in Brasília.
Despite these actions, the electoral justice system safely conducted the 2022 elections, and those who were elected were duly sworn in. In response to the attacks it suffered, the Superior Electoral Court created mechanisms to combat the spread of fake news, forced the removal of numerous pieces of content from the internet, and strengthened the security mechanisms of the electronic voting machines, in addition to other measures that contributed to the electoral justice system to continue to exercise its functions independently. This performance drew the attention of the international press,[2] which tended to present the president of the Superior Electoral Court and member of the Federal Supreme Court, Alexandre de Moraes, as the main party responsible for guaranteeing the integrity of the elections, although he was also criticized for the firmness with which he exercised his powers.[3]
However, the story of the 2022 elections in Brazil cannot be told as a one-person battle. To understand how the electoral justice system was able to resist government attacks, it is necessary to analyze the institutional resources available to it in fulfilling its constitutional role.
In operation since 1932, the electoral justice system has been organized into three bodies: judges and electoral boards, the Regional Electoral Courts, and the Superior Electoral Court. Its members are career judges of the federal judiciary and the judiciary of the states who exercise electoral functions for a determined time. In addition, the Regional Electoral Courts and the Superior Electoral Court are composed by lawyers, also with a fixed term of office. As an organ of the judiciary, the electoral justice system enjoys normative, administrative, and financial autonomy, guaranteed by Article 96 of the Brazilian Constitution.
This structure operates at the three levels of electoral governance identified by Mozaffar and Schedler:[4] organization of elections (rule application), dispute resolution (rule adjudication), and definition of electoral rules (rule making). With regard to rule application, the electoral justice system in Brazil is responsible for the registration of voters, candidates, and parties; the organization of voting and vote counting; and election oversight, including oversight of electoral propaganda and campaign expenditures. In the field of rule adjudication, the electoral justice system certifies the results of elections and resolves pre-electoral, electoral, and post-electoral disputes. In addition, the electoral justice system collaborates in rule making, especially through the instrument of electoral consultation, whereby authorities and political parties request the Superior Electoral Court to interpret the electoral rules.
Thus, the electoral governance model adopted in Brazil centralizes the main functions related to electoral management into a single judicial and specialized body. In keeping with this role, the Superior Electoral Court and the Regional Electoral Courts have a considerable amount of material and human resources for performing their functions. In 2022, the electoral justice system had 17,021 employees, and its budget exceeded 10 billion reais, equivalent to 2 billion dollars.
In addition to these resources, the independence of the electoral justice system is also guaranteed by the composition of the Superior Electoral Court and its institutional linkage with the Federal Supreme Court. The Superior Electoral Court is composed of seven members with a two-year term of office that can be extended by another two. Three of its members are justices on the Federal Supreme Court, two are justices on the Superior Court of Justice—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 the majority of justices on the Superior Electoral Court.
Furthermore, the decisions of the Superior Electoral Court are unappealable, except when they contravene the Constitution or deny habeas corpus and writs of mandamus (Article 121, § 3 of the Brazilian Constitution). In these cases, the only admissible appeals are to the Federal Supreme Court, which on rare occasions modifies the decisions of the Superior Electoral Court,[5] demonstrating that the intersection of the composition of these two courts contributes to the stability of the decisions of the electoral justice system. It is also worth noting that the presidency and vice-presidency of the Superior Electoral Court are mandatorily exercised by members of the Federal Supreme Court.
The institutional linkage between the Superior Electoral Court and the Federal Supreme Court demonstrates that the latter court acts as a veto point in relation to attempts to modify the decisions of the Superior Electoral Court, reducing the chances for success of these actions. In this case, we can observe the operation of a self-referencing[6] veto point, as some of the members of the Superior Electoral Court are responsible for reviewing their own decisions. This institutional linkage also means that legislative and executive initiatives aimed at restricting the free exercise of the powers of the Superior Electoral Court 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 justice system.
The constitutional powers attributed to the Superior Electoral Court and the Federal Supreme Court also contribute to strengthening their role in the definition of electoral rules. Significant changes in Brazilian electoral legislation in the last two decades have been enacted as a result of decisions made by the Superior Electoral Court that were upheld by the Federal Supreme Court or decisions by the Federal Supreme Court that were implemented by the Superior Electoral Court. Among the most significant examples are the loss of mandate of parliamentarians elected by the proportional system (federal deputies, state deputies and councilors) in case of unjustified departure from the party for which they were elected; the prohibition of financing of electoral campaigns by legal entities, including companies; the definition of rules for the distribution of party fund resources; and the establishment of a minimum level of funding for electoral campaigns by women and Black individuals. In all these cases, new electoral rules were created via interpretations of constitutional principles, matters in which the Federal Supreme Court has the last word, limiting the possibility for the reversal of this type of innovation by the National Congress.
A test of the robustness of this independence of electoral justice system occurred in the 2022 elections. Having under its control all the steps of the electoral cycle,[7] including the electoral campaign, the Superior Electoral Court had the institutional resources necessary to preserve the integrity of the elections. One of the best examples of this action involved the fight against fake news. 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 understood that it was 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 hours to two hours, and any failure to comply with these determinations could lead to the suspension of access for 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 the competence of the former court to supervise electoral propaganda. Notably, this decision was reached by a 7 to 2 vote, where the only two votes against were cast by the Federal Supreme Court judges appointed by Bolsonaro.
Therefore, this recent action of the electoral justice system in favor of the integrity of the elections in Brazil became possible due to an institutional trajectory that has consolidated it as an independent electoral management body. The institutional linkage between the Superior Electoral Court and the Federal Supreme Court has also strengthened the authority of the decisions of the electoral justice system, including in situations in which it acted as rule-maker. Thus, the offensive against the Brazilian electoral system led by Bolsonaro had to face the coordinated action of two high courts, which was decisive in preventing the advance of authoritarian actors. There is no doubt that the resistance of civil society and the strength of the democratic opposition contributed to this result; however, the Brazilian constitutional design proved to be adequate to meeting this challenge.
Suggested citation: Antonio Moreira Maués, The Institutional Design of Brazilian Electoral Justice, Int’l J. Const. L. Blog, Jun. 3, 2023, at: http://www.iconnectblog.com/the-institutional-design-of-brazilian-electoral-justice/
[1] Tom Ginsburg and Aziz Z. Huq, How to Save a Constitutional Democracy (Chicago, The University of Chicago Press, 2018).
[2] https://www.nytimes.com/2022/11/05/world/americas/brazil-election-us-democracy.html
[3] https://www.nytimes.com/2023/01/22/world/americas/brazil-alexandre-de-moraes.html?searchResultPosition=1
[4] Shaheen Mozaffar and Andreas Schedler, “The Comparative Study of Electoral Governance – Introduction”, International Political Science Review, v. 23, n. 1, 2002, 5-27.
[5] Vitor Marchetti, Justiça e Competição Eleitoral (Santo André: UFABC, 2013).
[6] Paul Pierson, Politics in Time: History, Institutions, and Social Analysis (Princeton: Princeton University Press, 2004), 145.
[7] Pippa Norris, Why Electoral Integrity Matters (Cambridge: Cambridge University Press, 2014).
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