Election crimes can be understood as illegal or reprehensible conduct that ends up offending the principles protected by electoral legislation.
Electoral Law is an autonomous branch of Public Law that emerged to fulfill the need for regulation of human conduct surrounding the electoral process.
The context before the creation of the first electoral code was marked by several crises of an economic, political, and social nature, as well as electoral fraud, such as vote buying.
In 1930, under the Getúlio Vargas government, the Vargas Era began, a time when electoral legislation was reformed, resulting in the first electoral code. Want to know more? Check out the full article!
What are election crimes?
Election crimes are classified as common crimes, meaning that no specific qualification is required of the perpetrator. Therefore, any citizen who commits this offense may be subject to the prescribed penalties.
Election crimes are public offenses, therefore, any citizen can report the criminal offense by means of an electoral crime report, addressed to the Electoral Judge, which can be delivered either in writing or verbally.
The jurisdiction for processing and judging electoral crimes and other related offenses lies with the Electoral Court.
There is special jurisdiction in cases involving the President and Vice-President of the Republic (Supreme Federal Court); Governors and Vice-Governors of States and the Federal District (Superior Court of Justice); and finally, Municipal Mayors (Regional Electoral Courts). The classifications of electoral crimes are found in the Electoral Code, as well as in Law 9.504/97.
The complexity and seriousness of electoral crimes require a drastic and prompt state response. Therefore, the appropriate response is criminal prosecution of those who disrupt and offend, through their actions, democracy, collective representation, and the democratic rule of law.
What are the main electoral crimes?
Now that the topic has been initially introduced, in order to better elucidate the proposed area, we will address some of the foreseen electoral crimes:
Exit poll
Electioneering at polling stations is legally defined in article 39, paragraph 5 of the Election Law No. 9.504/1997 and provides for its punishment as follows:
Article 39, § 5: The following constitute crimes committed on election day, punishable by imprisonment from six months to one year, with the alternative of community service for the same period, and a fine of five thousand to fifteen thousand UFIR:
II – voter recruitment or campaigning at polling places;
In this sense, "boca de urna" (literally "entrance exam") refers to the act of conducting electoral campaigning or attempting to persuade a voter to change their vote on election day.
The law also stipulates that the use of loudspeakers and the holding of motorcades and rallies are also prohibited. The distribution of campaign leaflets is prohibited from 22 pm on the day before the election.
Electoral corruption
Electoral corruption, in turn, is addressed in Article 299 of the Electoral Code, as follows:
Article 299. To give, offer, promise, solicit, or receive, for oneself or for another, money, a gift, or any other advantage, in order to obtain or give a vote and to secure or promise abstention, even if the offer is not accepted:
Penalty – imprisonment for up to four years and payment of a fine of five to fifteen days' wages.
Thus, for criminal purposes, both the one who buys votes and the one who sells them are considered guilty. The one who buys is accused of active corruption, and the one who sells is accused of passive corruption.
Dissemination of false information.
The reasons for creating the infamous "fake news" are diverse. One of the most common ways to spread false news is through the use of specialized companies that create rumors, which are then disseminated on a large scale, reaching millions of users.
The legal provision is found in article 323 of the Electoral Code, as follows:
Article 323. To disseminate, in electoral propaganda or during the electoral campaign period, facts that one knows to be untrue in relation to parties or candidates and that are capable of influencing the electorate:
Penalty – imprisonment from two months to one year, or payment of a fine of 120 to 150 daily wages.
Other election crimes
For better visualization, we have compiled the electoral crimes foreseen and their respective legal provisions for further study, as follows:
| CRIMES | LEGAL PROVISION |
| Electoral slander | Article 324, § 1, of the Electoral Code |
| Buying votes | art. 299 of the Electoral Code |
| Spilling of religious pamphlets | art. 39, §5°, inc. III, of Law no. 9.504/97 |
| Electoral defamation | art. 325 of the Electoral Code |
| Electoral ideological falsehood/ slush fund | art. 350 of the Electoral Code |
| Dissemination of false information (fake news) | art. 323 of the Electoral Code |
| Electoral insult | art. 326 of the Electoral Code |
| Promoting disorder and hindering electoral processes. | art. 296 of the Electoral Code |
| Election propaganda – use of government phrases and slogans | Article 40 of Law No. 9.504/97 |
| Transportation of voters | art. 11, inc. III, c/c art. 5th, both of Law no. 6.091/74 |
How to report election crimes?
After all the information presented, the question remains, "How do I report election crimes?"
The TSE (Superior Electoral Court) recently created a system called "Pardal" that allows citizens to report electoral infractions and irregularities observed in election campaigns to the Electoral Court and the Public Prosecutor's Office, strengthening the principles of popular participation, transparency, and fairness in the election.
Pardal, which is free to use on smartphones and tablets, is also available for download from the Apple Store and Google Play virtual stores and via web form on [website name]. Electoral Justice Portals.
For the elections that will take place in October 2022, the TSE (Superior Electoral Court) has updated the application to facilitate integration with the Electronic Judicial Process (PJe) of the Electoral Court, enabling the generation of statistics regarding complaints received and processed.
There is nothing to fear regarding the protection of your data. The improvements made ensure the confidentiality of voter information, as provided for in the General Data Protection Law (LGPD).
It is worth noting that, in cases where bad faith is evident, the user will be held responsible for the act and subject to applicable penalties.
How can legal professionals enter the field of electoral law?
To enter the field of electoral law, lawyers are required to seek knowledge beyond just theory. Resilience and interdisciplinarity are necessary, as well as time for participation in campaigns and party activities, and a great deal of dedication to studying and staying up-to-date.
Electoral professionals are responsible for legal and administrative defenses, drafting legal opinions, issuing public statements, and, most importantly, providing guidance, answers, and even direction in debates.
An election lawyer is one who ensures the legality and compliance of electoral processes, whether by advising politicians, movements, or political parties.
For a professional to perform satisfactorily for a political party, it is necessary to have knowledge of Tax Law, basic knowledge of Labor Law, as well as familiarity with Civil Law and a constant focus on Criminal Law.
This means that lawyers need to make decisions based on knowledge of electoral law, but always in parallel with other branches of law.
In certain situations, depending on the specific case, a lawyer may need knowledge of accounting, political science, marketing, strategy, psychology, and, most importantly, people management. In this context, the professional must understand that their work encompasses and extends beyond just the legal field.
In addition to practicing law, legal professionals can prepare for public service exams for positions related to electoral processes in institutions such as the Public Prosecutor's Office and Electoral Courts.
References
Botelho, Patrick Bragança. Electoral Code: changes over the years. POLITIZE, 2022.
TSE. Pardal app receives reports of irregularities regarding the 2022 Elections. Brazil, 2022.
TSE. Electoral complaint, 2018.
TSE. Candidate registration.