The topic of "elections" has been one of the main subjects of debate in society, both among laypeople and experts, and this has been further amplified by the focus given to the subject by the press. This is because electoral law directly impacts society, especially during the election period, when this topic comes to the forefront.
Among the main topics under discussion are the role of the Electoral Court and electoral judicial processes. It is important to differentiate between two terms that, in many cases, are used as if they were identical, but deserve a proper distinction: electoral process and electoral judicial process.
The first refers to the period between the start of party conventions, when each party chooses its candidates, and the official certification of those who were democratically elected. The second term refers to electoral legal oversight, consisting of "a set of ordered acts and procedures carried out before a jurisdictional body in order to resolve a specific electoral dispute ."
The reason for this distinction lies in the fact that the Electoral Court is competent to conduct both procedures. While the first concept aims to establish who was the representative chosen by the population to occupy a certain position; the second is characterized by jurisdiction in its essence, carried out by the Judiciary, through the establishment of positive or negative obligations for those under its jurisdiction.
Based on the second concept, among the acts and procedures indicated by Rodolfo Viana Barros, electoral actions stand out, which structure the entire electoral litigation process, in addition to being extremely important tools during the campaign period, as well as in the post-campaign period.
For this study, it is necessary to understand what the main electoral legal actions are, and the moment in which each one fits into the Brazilian legal context, guided by the Federal Constitution and respective Complementary Laws that deal with the subject.
Read also: What is the role of the TSE (Superior Electoral Court) in the investigation of electoral crimes?
Action to Challenge Candidate Registration (AIRC)
However obvious it may seem, a given pre-candidate only becomes an effective candidate after formally submitting their candidacy registration request to the Electoral Court.
Any action taken before the election period is considered a pre-campaign act, which has specific rules. Only after the start of the election period and the registration of candidacy can the candidate publicly declare themselves and begin their journey in search of votes.
However, not everyone who intends to be elected has the full capacity to become a candidate. This scenario became even more evident with the advent of Complementary Law No. 64/1990, popularly known as the Law of Ineligibilities.
Later, in 2010, at a time of great public outcry for increased rigor in addressing the corruption cases that were emerging at the time, the Ineligibility Law was amended by Complementary Law No. 135/2010, which was named the Clean Record Law.
It should be noted that the 1990 Law established a new electoral legal action, which aimed to prevent those prospective candidates who did not meet the minimum requirements to become candidates or to become political agents representing society. This created the action to challenge the registration of candidacy.
Marina Morais and Wandir de Oliveira indicate that this new regulation was " designed to ensure the conformity and legitimacy of the electoral process ." Furthermore, according to the authors, this electoral action " aims to prevent individuals who do not meet the established legal requirements from running for elected office, thus guaranteeing the integrity and morality of the election ."
Based on the aforementioned legislative decrees, after the submission of the registration of a prospective candidate, it is up to " any candidate, political party, coalition or the Public Prosecutor's Office, within a period of 5 (five) days " to present an objection to the application for registration of candidacy.
It is also worth highlighting the possibility of federations seeking to challenge the registration, given that this is a new figure in the legal system, whose legitimacy extends due to the possibility of coalitions also playing this role.
Article 97 of the Electoral Code authorizes voters, candidates, or parties to challenge registration. Finally, item III of § 1 of article 34 of Resolution No. 23.609/2019 establishes a period of 5 (five) days for " any citizen to report ineligibility ".
However, even though the Electoral Code establishes the legitimacy of voters to challenge candidacies based on the candidate's ineligibility or incompatibility, or on the applicability of Article 96 of the same Code, the jurisprudence of the Superior Electoral Court goes in the opposite direction:
According to the established jurisprudence of this Superior Court, voters do not have standing to appeal a decision that grants a request for registration of candidacy; they may only report ineligibility to the competent judge.
In short, the legislator established that it should be everyone's duty to verify compliance with the legal requirements for participation in the upcoming election.
Thus arises one of the acronyms for electoral legal actions, AIRC. It is worth noting that I have already discussed this procedural instrument here at IDP, in the e-book entitled " The Action to Challenge the Candidacy Registration and the legitimacy of the Public Prosecutor's Office to appeal a decision on the merits ".
Since its inception, the AIRC has undergone several debates of an electoral and procedural nature. Among them, the most notable is Summary No. 45/TSE, which authorizes the judge to recognize, ex officio, a cause of ineligibility and the absence of a condition of eligibility, provided that the candidate is guaranteed full defense and the right to a fair hearing.
Nevertheless, this position established by the Superior Electoral Court was reaffirmed in other cases, in which, initially, there was no challenge to the registration of candidacy, but the condition of ineligibility was indicated by the ministerial opinion:
2020 ELECTIONS. REGIMENTAL APPEAL IN ELECTORAL SPECIAL APPEAL. CANDIDACY REGISTRATION. CITY COUNCILOR POSITION. INELIGIBILITY. DISQUALIFICATION. SURPRISE DECISION. FAILURE TO NOTIFY FOR PRESENTATION OF DEFENSE. DENIAL OF DEFENSE. PREJUDICE ESTABLISHED. APPEAL DISMISSED. 1. The guarantees of due process and full defense are constitutionally enshrined, pursuant to Article 5, LV, of the 1988 Federal Constitution, which provides that litigants in judicial or administrative proceedings, and defendants in general, are guaranteed due process and full defense, with the means and resources inherent thereto. 2. Summary No. 45/TSE authorizes the judge to recognize, ex officio, a cause of ineligibility and the absence of a condition of eligibility, provided that the candidate is guaranteed full defense and the right to a fair hearing. 3. The mitigation of these guarantees is only admitted by this Court when the decision benefits the party, which clearly does not occur in this case, since the candidate's registration was denied in both lower instances. 4. In this case, absent any challenge to the candidacy registration or report of ineligibility, the cause of ineligibility was indicated only in the ministerial opinion, and from there it was submitted for judgment, which denied the candidate's registration. 5. Thus, a surprise decision is configured, the prohibition of which is expressly stated in Article 10 of the CPC, given that the party was not aware of the cause of ineligibility and could not exercise its right of defense. 6. The prejudice to the party is not remedied by the possibility of presenting documents in motions for clarification or on appeal, since all procedural instruction was suppressed in the first instance and, consequently, the possibility of influencing the content of the judicial decision.7. Appeal denied.
Based on what is established in Summary No. 45/TSE, and the aforementioned ruling, it can be deduced that the recognition of a candidate's ineligibility does not depend solely on the AIRC (Action for the Investigation of Electoral Irregularities), but can be evidenced by the opinion of the Public Prosecutor's Office – which is also entitled to propose the AIRC – as well as ex officio by the magistrate himself.
After the application for registration of candidacy is filed, an effective electoral campaign begins, which includes, among other things, a specific legal entity for that candidacy.
Electoral Judicial Investigation Action (AIJE)
The Electoral Judicial Investigation Action, popularly known as AIJE, arises from the constitutional text, based on the provisions of article 14 of the Federal Constitution. Furthermore, this procedural tool was regulated by article 22, caput , of Complementary Law 64/1990.
The main objective of this procedure concerns the investigation of the occurrence of abuse of economic power, abuse of political power, and/or abuse of authority. Based on the identification of such conduct, it will be possible to apply a potential sanction of ineligibility to a specific candidate or slate of candidates.
This is a civil action, typically related to elections, which must observe the guiding principles of actions in general, especially those of due process and the right to a full defense.
Although it is a civil action, its procedure sometimes involves an intersection with criminal proceedings, given that it carries an investigative function aimed at ascertaining irregularities committed by candidates and voters, as well as the possible investigation of criminal offenses.
It is important to highlight that this action has a specific time frame for filing, the statute of limitations for which corresponds to the date of the diploma issuance. After this deadline, only an action to challenge an elected mandate (AIME) will be admissible, which will be discussed in the following chapter.
Following the due procedural steps, the AIJE (Electoral Investigation Action) must be judged by the competent body, depending on who is being investigated. Since this action aims to investigate irregularities foreseen in the Constitution and the Law of Ineligibilities, there are only two possible outcomes for the judgment of this action.
If the claim is deemed valid, even after the proclamation of the elected officials, the competent body will declare the ineligibility of the represented party(ies) and those who contributed to the act, for a period of eight years following the election in which the event occurred.
Furthermore, article 22, item XIV, of Supplementary Law No. 64/1990 — amended by the Clean Record Law — establishes the revocation of the registration or diploma of the directly benefited candidate.
Furthermore, if there is evidence of electoral offenses of a criminal nature, the case must be referred to the Electoral Public Prosecutor's Office for investigation and possible initiation of an inquiry and/or filing of appropriate criminal charges.
Several highly significant cases have been judged by the Superior Electoral Court over the past few years. Among them, the AIJEs (Electoral Investigation Actions) filed against former Presidents of the Republic stand out: Michel Temer, Dilma Rousseff, and Jair Messias Bolsonaro.
In the judgment of AIJE No. 194358, which sought the annulment of the ticket formed by Dilma Rousseff and Michel Temer, re-elected to the Presidency of the Republic in 2014, the majority of the ministers understood that there was no abuse of political and economic power in their campaign in the presidential election of that year.
At that time, Electoral Investigation Action No. 194358 was processed jointly with Electoral Investigation Action No. 154781, with the Action for the Annulment of an Elected Mandate (AIME) No. 761 and with the Representation (RP) No. 846.
It is important to highlight that the ticket composed of former President Dilma and her vice-president Michel Temer was included in the investigated party in the aforementioned action. This fact arises from the unity and indivisibility of the majority ticket, which generates joint liability for those candidates.
Back in 2023, former President Jair Messias Bolsonaro responded to a series of lawsuits before the Electoral Court, among which the following stand out: (i) AIJE 0600828-69; (ii) AIJE 0601212-32, (iii) AIJE 0601665-27 and (iv) AIJE 0600814-85.
All of these processes aimed to establish the abuse of political and economic power in the 2022 presidential election campaign. Part of it dealt with the use of the structure of the Presidency of the Republic and the office itself to promote attacks on the electronic voting system, as well as the misuse of the media.
You might be interested in: How is abuse of power characterized in electoral disputes?
In this case, the former President succumbed, which is why he was declared ineligible by the Court, given the occurrence of electoral offenses.
Another core point of debate regarding the 2022 campaign concerned the use of public assets, such as the official presidential residence and the president's workplace, for conducting live online broadcasts on electoral topics. In this case, the ministers understood that, despite the irregularity in the action, there was not sufficient gravity to declare Bolsonaro ineligible.
Finally, it is important to highlight that in this case, there was application of item XVI of article 22 of Supplementary Law No. 64/1990, included by the Clean Slate Law, which determines that " for the configuration of the abusive act, the potential of the fact to alter the result of the election will not be considered, but only the seriousness of the circumstances that characterize it ".
In other words, recognizing that a citizen's ineligibility is a highly punishable measure, it should only be applied in cases where the seriousness of the conduct constituting the offense committed is established.
Action to Challenge an Elected Mandate (AIME)
Once the election period has passed and those who were elected have received their diplomas, based on article 14, §10, of the Federal Constitution, the elected mandate may be challenged before the Electoral Court within 15 (fifteen) days, supported by evidence of abuse of economic power, fraud or corruption.
As can be seen, the grounds for filing an AIME (Action for the Investigation of Electoral Misconduct) are very similar to the requirements for filing an AIJE (Action for Judicial Investigation of Electoral Misconduct), especially when we talk about abuses of power of any kind, corruption, and fraud.
What differentiates the two, as already reported in the previous chapter, concerns the statute of limitations for each, as well as the requirement that the targeted candidate has been elected, given that the purpose of the AIME (Action for the Investigation of Electoral Misconduct) is to challenge their mandate.
As already discussed in the chapter on AIJE (Electoral Investigation Action), some emblematic cases have already been judged by the TSE (Superior Electoral Court) and have had a direct impact on the mandates of majoritarian tickets, highlighting again the ticket of former Presidents Dilma and Bolsonaro.
It is important to highlight that, according to article 14, § 11, of the Constitution of the Republic, any AIME (Action for the Investigation of Electoral Misconduct) must be processed under seal. However, even though the procedural process is confidential, its judgment must be public, since it is a matter of public interest.
Against the decision on the merits of the aforementioned action, we have the electoral appeal, the writ of mandamus, the appeal against the issuance of a diploma, and the rescissory action. Each has a specific type of appeal, with its own admissibility, whose main purpose is to maintain the elected mandate.
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References
BARROS, Francisco Dirceu. Course on electoral procedure. 3rd ed., Rio de Janeiro: Elsevier, 2014, p. 40.
BRAZIL. Decision of November 27, 2020, in the Appeal for Review No. 060025565, rapporteur Justice Sérgio Banhos.
BRAZIL. Appeal in the Special Electoral Appeal No. 060028362, Judgment, Justice Edson Fachin, Publication: DJE – Electronic Official Gazette, 03/17/2021.
MORAIS, Marina Almeida; DE OLIVEIRA, Wandir Allan. Introduction to Electoral Law. 1st ed. Rio de Janeiro: Lumen Juris, 2024, p. 177.
PEREIRA, Rodolfo Viana. Electoral litigation: conceptual polysemy, comparative systems and the Brazilian position. Brazilian Journal of Electoral Law – RBDE, Belo Horizonte, year 7, no. 12, pp. 145-170, Jan./Jun. 2015, p. 150.
