Eligibility and ineligibility: the Complete Guide

Here, we will see a complete analysis of the electoral institutes of eligibility and ineligibility.

So, let's start with the definition:

What is eligibility? 

In short, eligibility is the ability to be elected , that is, passive electoral capacity.

In this regard, in the judgment of ADCs No. 29/DF , the Supreme Federal Court stated that:

" Eligibility is the suitability of an individual to the legal regime – constitutional and complementary legal framework – of the electoral process ."

Thus, for eligibility to be complete, certain conditions stipulated in the Federal Constitution must be met; these are the well-known eligibility requirements, which we will discuss below.

What are the eligibility requirements? 

Firstly, eligibility conditions are qualifying conditions , positive, necessary requirements , provided for in the Federal Constitution, article 14, § 3.

In other words, these are the basic requirements to apply for and therefore exercise passive citizenship:

• Brazilian nationality;
• The full exercise of political rights;
• Voter registration;
• The electoral domicile in the constituency;
• Party affiliation;
• The minimum age of 35 years for President and Vice-President of the Republic and Senator, 30 years for Governor and Vice-Governor of State and Federal District, 21 years for Federal, State or District Deputy, Mayor, Deputy Mayor and Justice of the Peace and 18 years to become a City Councilor.

Furthermore, eligibility requirements must be assessed at the time of application for candidacy registration.

Read also: What is the role of the TSE (Superior Electoral Court) in the investigation of electoral crimes?

Eligibility and ineligibility: some important considerations

How does military eligibility work?

Here, the first point is that Article 142, paragraph 3, item V, of the Federal Constitution stipulates that:  

" A member of the military, while on active duty, cannot be affiliated with political parties ."

This brings us to the question: if they are prohibited from joining a political party, how can a member of the military exercise their passive citizenship, since it is a basic requirement? 

The second point is that the TSE, according to Resolution 21.787/2004 , understands that:

"The party affiliation stipulated in Article 14, § 3, V, of the Federal Constitution is not required for active-duty military personnel who intend to run for elected office; a request for registration of candidacy after prior selection at a party convention is sufficient."

In summary, military personnel must meet all other eligibility requirements; therefore, the only exception is party affiliation.

Furthermore, the third point is that, according to article 14, paragraph 8 of the Federal Constitution:

"A person eligible for military service is eligible, provided the following conditions are met:"

I – If you have less than ten years of service, you must leave the activity;

II – if he has more than ten years of service, he will be placed on reserve status by the superior authority and, if elected, will automatically be transferred to inactive status upon taking office .”

Now, given the peculiarities of military eligibility, let's proceed.

What is re-election?

In summary, reelection establishes that the head of the Executive Branch, or the person who has replaced or succeeded him, may extend his term for a single consecutive period.

Thus, it should be noted that the same individual is not prohibited from holding office three or four times; that is, the ineligibility arises from the succession of a "third" consecutive term. 

However, this doesn't exist in the Legislative branch. Notice that there is no ineligibility for reelection of its members. Only in the Executive branch is there such ineligibility for reelection.

Now, regarding the broader approach to eligibility and ineligibility, we will discuss the second set of conditions next.

What are ineligibilities?

In short, ineligibility is a negative requirement , that is, a requirement that prevents the individual from being elected.

Therefore, this is the opposite of the notion of positive eligibility requirements seen previously.

What are the grounds for ineligibility?

In short, the conditions for ineligibility are divided into: constitutional ineligibilities and infra-constitutional or legal ineligibilities.

We will examine each of them below.

Constitutional Ineligibilities

Here, as the name itself suggests, the Federal Constitution provides for instances of ineligibility in article 14, paragraphs 4 to 7. "The following are ineligible:

• Those ineligible to register to vote and the illiterate;
• The President of the Republic, the Governors of the States and the Federal District, the Mayors, and those who have succeeded or replaced them during their terms of office may be re-elected for a single subsequent term.
• To run for other offices, the President of the Republic, State Governors, Governors of the Federal District, and Mayors must resign from their respective mandates up to six months before the election;
• Within the jurisdiction of the incumbent, the spouse and blood relatives or relatives by marriage, up to the second degree or by adoption, of the President of the Republic, of a State or Territory Governor, of the Federal District, of a Mayor, or of anyone who has replaced them within the six months prior to the election, are ineligible, unless they are already holders of an elective mandate and candidates for reelection.. "

Ineligibilities arising from infra-constitutional or legal circumstances

Legal ineligibilities are further divided into absolute and relative ineligibilities.

Absolute legal ineligibilities 

Firstly, absolute legal ineligibilities (LC 64/90, art. 1, I) create an impediment to any elective public office, that is, it is independent of whether it is a federal, state or municipal office.

Let's examine these ineligibilities below and their respective legislative allocation for further verification and detailed analysis:

• Loss of legislative mandate (art. 1º, I, b);
• Loss of executive mandate (art. 1º, I, c);
• Abuse of economic and political power (art. 1º, I, d);
• Criminal conviction, past life and presumption of innocence (art. 1º, I, e);
• Unworthiness of the officer corps (art. 1º, I, f);
• Rejection of accounts (art. 1º, I, g);
• Abuse of economic or political power by a public official (art. 1º, I, h);
• Position or function in a financial institution undergoing liquidation (art. 1º, I, i);
• Abuse of power: electoral corruption, illegal vote buying, illegal fundraising or spending in campaigns, prohibited conduct (art. 1º, I, j);
• Resignation from an elected office (art. 1º, I, k);
• Administrative misconduct (art. 1º, I, l);
• Exclusion from professional practice (art. 1º, I, m);
• Simulation of the dissolution of a marital bond (art. 1º, I, n);
• Dismissal from public service (art. 1º, I, o);
• Illegal electoral donation (art. 1º, I, p);
• Compulsory retirement and loss of office for magistrates and members of the Public Prosecutor's Office (art. 1º, I, q).

Legal ineligibilities relating 

In a second instance, the relative legal ineligibilities (LC 64/90, art. 1, II to VII) only create obstacles for certain positions , that is, they impose restrictions on some candidacies.

Here, note that legal ineligibilities are usually based on functional criteria , which requires resignation from incompatible positions in order to be elected.

Let us therefore examine them:

• Ineligibility for President and Vice-President of the Republic (art. 1, II);
• Ineligibility for Governor and Vice-Governor (art. 1, III);
• Ineligibility for Mayor and Deputy Mayor (art. 1, IV);
• Ineligibility for the Senate (art. 1, V);
• Ineligibility for the Chamber of Deputies (art. 1, VI);
• Ineligibility for the City Council (art. 1, VII);
• And specific situations.

When does the suspension of ineligibility occur?

In some situations, there may be a suspension of ineligibility , as seen below:

“ The collegiate body of the court responsible for reviewing appeals against collegiate decisions referred to in subparagraphs d, e, h, j, and l of item I of article 1 may, on a precautionary basis, suspend the ineligibility whenever there is plausibility of the appeal claim and provided that the measure has been expressly requested , under penalty of preclusion, at the time of filing the appeal .” ( article 26-C of LC no. 64/90 ).

There is also the possibility of a stay of execution of an appeal filed against the decision of the collegiate body.

In this way, the suspension of the effects of the challenged decision implies the prevention of the perpetuation of any concrete effects, including with regard to ineligibility.

Eligibility and ineligibility: the ongoing study

In light of the above, it is clear that the concepts of eligibility and ineligibility have been presented succinctly in this guide, which you can revisit whenever necessary.

However, it is essential that knowledge of Electoral Law is constantly refined, since the laws regarding eligibility and ineligibility are always subject to change.