Brazilian electoral law is a branch of law of extreme relevance and complexity, encompassing norms and principles that govern the electoral process. One of its greatest concerns is guaranteeing fairness and equity in elections, with abuse of power being one of the main threats to these principles.
As Francisco Alvim characterizes it, "electoral science focuses on investigating power as a phenomenon of interpersonal relations, so that the meaning given to it has a social character." The professor continues, quoting the master Norberto Bobbio, stating that power is "the capacity of man to determine the behavior of man."
In this sense, the view of power adopted in Electoral Law refers to how influences are exerted in human relations.
This article aims to discuss the concept of abuse of power in the context of electoral disputes in Brazil, its forms, legal consequences, and preventive measures.
Read also: What are the principles of Electoral Law?
Concept of Abuse of Power
A correct conceptualization of the phenomenon of Abuse of Power is of high relevance for guaranteeing the
fairness of the electoral process in its confrontation with that.
Abuse of power in elections is defined as the improper, excessive, or fraudulent use of power or authority with the aim of influencing the outcome of the election. In other words, the intention and objective is only one: to obtain the largest possible number of votes so that the electoral result is shaped according to the will of the power holder.
It can manifest itself in different ways, which generally fall into three categories: abuse of political power, abuse of economic power, and misuse of the media.
Abuse of Political Power
This occurs when public officials illegitimately use their position or state resources to favor one candidate or harm another. As Professor Dieison Bernanrdi aptly describes:
“… is recognized within the scope of the Electoral Court as abuse of authority, or abuse in the exercise of function, position or employment in the direct or indirect public administration, practiced in violation of Brazilian electoral laws, abusively benefiting candidates for elective office, often candidates for reelection.”
Thus, examples include the unequal distribution of public resources, the use of the administrative machinery for personal promotion, and pressure on public servants for political support.
Abuse of Economic Power
The abuse of economic power in electoral disputes is a complex and multifaceted issue within the context of Brazilian electoral law. This type of abuse occurs when financial resources are used disproportionately and unethically to influence the outcome of elections.
It is primarily characterized by the excessive and unequal use of financial resources in election campaigns. This creates a significant disparity between candidates, benefiting those with more resources and hindering fair competition.
One of the most direct manifestations of the abuse of economic power is vote buying. This involves offering money, goods, or services in exchange for votes, violating the principle of the voter's freedom of choice.
Another factor that generates abuse of economic power is illegal campaign financing. This includes receiving donations from illegal or undeclared sources and the use of undeclared funds. Illegal financing masks the true origin of the resources, compromising the transparency of the electoral process.
Finally, the excessive use of resources for advertising and electoral marketing, exceeding the limits established by electoral legislation, also constitutes abuse. This results in disproportionate exposure of some candidates to the detriment of others.
It can be seen that the abuse of economic power has profound implications for the integrity of the democratic process. It compromises the equality of conditions between candidates, unduly influences voters' decisions, and can lead to the election of candidates who do not necessarily represent the popular will, but rather financial power.
Misuse of Media
This refers to the biased use of media, seeking to benefit a particular candidate or harm others. Censorship, propaganda disguised as news, and unequal media exposure fall under this category.
This occurs primarily when the media gives unequal coverage to candidates, favoring some at the expense of others. It can include more airtime, more favorable articles, or disproportionate representation in debates and interviews.
For example, propaganda disguised as news is a common factor. The use of media to spread election propaganda under the guise of news, deceiving the public as to the nature of the content, occurs in many electoral environments across the country.
Two more issues deserve attention regarding the misuse of media:
Censorship or suppression of information involves the omission or censorship of important information about certain candidates or parties, thus limiting the electorate's ability to make informed decisions. Information manipulation, on the other hand, occurs when agents act to distort or manipulate facts to favor or harm specific candidates or parties.
The misuse of media compromises the fairness of the election, as it influences the electorate's perception in an unequal and unfair manner. This undermines the principle of equitable competition, which is essential for a healthy democratic process.
Legal Consequences
Abuse of power is a serious violation of Brazilian electoral law, and can lead to various legal consequences. The most common include the revocation of the registration or diploma of the candidate who benefited, ineligibility for a specified period, and fines. These penalties are mainly provided for in the Elections Law (Law No. 9.504/97) and the Clean Slate Law (Complementary Law No. 135/2010).
Another important legal provision that regulates, for example, the provision of goods and services with the purpose of securing voter support for a candidacy, is Article 299 of the Electoral Code, which establishes the practice as a criminal offense. The infamous vote buying.
To prevent and combat abuse of power, firm action by the Electoral Court is essential, in addition to awareness and active participation from society. Actions include rigorous oversight of campaign financing, political education for voters, promotion of transparency, and effective application of sanctions provided for by law. To understand more about this subject, see the article “ What is the role of the TSE in the investigation of electoral crimes? ” by Professor Fernanda de Morais here on our IDP Blog.
Conclusion
Abuse of power in electoral disputes is an ongoing challenge in the Brazilian democratic system. Its prevention and combating are fundamental to guaranteeing fair and equitable elections, reflecting the true will of the electorate. Only through joint efforts between electoral bodies, candidates, political parties, and civil society will it be possible to ensure the integrity and legitimacy of the electoral process in Brazil.
Read also: Election lawyer: how to build a career in the field?
For a practicing lawyer specializing in electoral law, a purely theoretical framework is not enough. Interdisciplinary study and the honing of skills necessary to navigate the dynamic context of electoral processes are also essential.
In Morais' words, "an electoral law attorney is one who guarantees the legality and compliance of electoral processes, whether by advising politicians, movements, or parties."
IDP, aiming to train professionals ready for this market, presents its online postgraduate program in Electoral Law . It consists of a curriculum taught by professors involved in the Brazilian Electoral Justice system and lawyers active in this market. Through this postgraduate program, you will be prepared to understand and act upon the nuances of the Electoral System.
References
ALVIM, FREDERICO FRANCO. The abuse of power in electoral disputes. Available at: https://www.tse.jus.br/institucional/escola-judiciaria-eleitoral/publicacoes/revistas-da-eje/artigos/revista-eletronica-eje-n.-2-ano-5/ilegitimidade-do-comite-financeiro-para-interpor-recurso-eleitoral . Accessed on: 10/12/2023.
BERNARDI, DIEISON PICIN SOARES. Abuse of political power and the rigor of its punishment by the Brazilian Electoral Court: effectiveness of the constitutional norm for the protection of the legitimacy of elections. Available at: https://www.tre-sc.jus.br/institucional/escola-judiciaria-eleitoral/resenha-eleitoral/revista-tecnica/3a-edicao-jan-jun-2013/abuso-do-poder-politico-eo-rigor-de-sua-punicao-pela-justica-eleitoral-do-brasil-efetividade-da-norma-constitucional-de-tutela-da-legitimidade-das-eleicoes . Accessed on: 10/12/2023.
MILAGRES, MARCELO DE OLIVEIRA. Abuse of Power in the Electoral Process. Brazilian Journal of Political Studies, 100, 155-172. https://doi.org/10.9732/113.
