Electoral Law is a branch of Public Law closely linked to the principles of democracy and popular sovereignty. It is through Electoral Law that the full realization of political rights to participate in the State and the exercise of public offices derived from the popular will through suffrage, that is, voting, is guaranteed.
It is within this discipline that the organization of the electoral system is promoted: it contains the rules that must be followed regarding the form of voting. It deals with the procedures for acquiring and losing the political capacity to vote and be voted for; the functioning and responsibility of political parties; the holding and counting of votes; and the recognition and certification of those elected.
The fundamental objective of all electoral legislation is to ensure the authenticity of elections and to give shape to democracy through popular participation and representation.
The methods and content of Electoral Law are governed by principles, which are true illuminating and guiding instruments in the process of constructing this type of knowledge.
It is important that we, as legal professionals, are familiar with some of these aspects so that we can properly interpret electoral legal rules and apply substantive and procedural law. Follow along with us:
Principle of fair elections
As a principle of Electoral Law, it is stipulated in article 23 of the Law on Ineligibilities: "The Court shall form its conviction through the free assessment of public and notorious facts, indications and presumptions, and evidence produced, paying attention to circumstances or facts, even if not indicated or alleged by the parties, but which preserve the public interest of electoral integrity."
Every election must therefore feature candidates who are equal before the law. They must be free from abuses, including abuse of political and economic power. They must also be free from fraud, corruption, and attacks on political legitimacy.
Here we are referring to the actions of the Electoral Court, the Electoral Public Prosecutor's Office, political parties, candidates, and voters.
Principle of electoral authenticity
Another important principle of Electoral Law that stems from the spirit of the Constitution. For a genuine and sincere democracy, it is necessary to allow for the formation of political will free from vices.
In the formation of the structure of the Legislative Branch, whether municipal, state, district, or national, and in the nomination of the President of the Republic, the procedures must be guided by guarantees of equality and freedom, in free elections. Otherwise, we are talking about an illegitimate representative system.
Candidates must compete on equal terms, and abuses of power are prohibited. Equal and secret voting must be ensured, with free formation of the ballot and its counting carried out correctly to guarantee the complete authenticity of the elections and the fulfillment of the purpose of democracy.
Principle of making the most of one's vote
Article 219, paragraph 1 , of the Electoral Code states : "In applying electoral law, the judge shall always consider the purposes and results to which it is directed, refraining from declaring nullities without demonstration of prejudice."
In cases where the Electoral Court is analyzing irregularities that could invalidate elections, popular sovereignty must be preserved. For this reason, the Electoral Code has mitigated the penalties for irregularities, which can only be validated if the interested parties fail to raise the issue at the appropriate time.
The goal in cases of nullification is not to annul the elections, but rather to preserve the voting process.
Principle of speed
Electoral court decisions must be implemented quickly and efficiently. This is mandated by the Electoral Code, in its article 257, sole paragraph: “The execution of any judgment shall be carried out immediately, through communication by official letter, telegram, or, in special cases, at the discretion of the president of the Court, through a copy of the judgment.”
Measures must be taken immediately, especially since some of these issues occur frequently during the voting process. Legal representatives of candidates, political parties, and coalitions must provide a telephone number and address, including email, for the location where notifications should be served, as well as the name of the person responsible for receiving communications.
Furthermore, by law, the due electoral process must be completed within a maximum period of one year between the filing of the lawsuit and the final result of all electoral instances, under penalty of referral to the National Council of Justice (CNJ).
Principle of annuality or prior notice
This principle of Electoral Law is enshrined in the text of the Federal Constitution, article 16: "The Law that alters the electoral process shall enter into force on the date of its publication, not applying to elections that take place within 1 (one) year of the date of its entry into force."
In practical terms, this means that any law that materially alters the electoral process, whether regarding voter registration, voting, eligibility requirements, causes for loss and suspension of political rights, vote counting, or the certification of elected officials, will be published one year before the election date.
In the 2022 elections, the first round was scheduled for October 02nd, the first Sunday of the month. This means that, to be valid for the 2022 elections, the law must have been published in the Official Gazette by October 1st, 2021. If it was published at a later date, its rules will not be valid for the 2022 election.
It is important to highlight that the formal, procedural process is not hindered by the principle of annuality or prior notice, as it does not affect legal certainty.
Principle of electoral morality
The principle of morality is provided for in Article 14, § 9, of the Federal Constitution: “Supplementary law shall establish other cases of ineligibility and the deadlines for their cessation, in order to protect administrative probity, morality for the exercise of a mandate considering the candidate's past life, and the normality and legitimacy of elections against the influence of economic power or the abuse of the exercise of function, office or employment in the direct or indirect administration”.
Further on, in article 37, caput , the Constitution establishes morality as a principle of Public Administration: “The direct and indirect public administration of any of the Powers of the Union, the States, the Federal District and the Municipalities shall obey the principles of legality, impersonality, morality, publicity and efficiency and, also, the following”.
As a principle of Electoral Law, morality dictates that mandates obtained through illicit or unethical practices lack legitimacy. On the contrary, political mandates must always be won and exercised within ethical and moral standards, in order to protect administrative probity.
One example of legislation aimed at protecting electoral morality was the Clean Slate Law of 2010. It added to the legal system the impediment to candidacy for those who had their mandate revoked.
It also covers those whose accounts related to the exercise of public office or functions were rejected due to irremediable irregularities and administrative misconduct.
How does understanding the principles help you become a better professional?
To practice in the Electoral Courts, it is necessary for legal professionals to know how to correctly apply electoral rules, which have a generic and abstract content. The foundation of Electoral Law is built upon principles, which permeate all norms.
Professionals who understand the principles know how to apply the rules and are more successful in advising candidates, political parties, coalitions, and law firms. They also know how to navigate the electoral courts and have a greater chance of success in their campaigns.
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References:
BRAZIL. Electoral Code . Available at: <http://www.planalto.gov.br/ccivil_03/leis/l4737compilado.htm>.
BRAZIL. Constitution of the Federative Republic of Brazil . Available at: <http://www.planalto.gov.br/ccivil_03/constituicao/constituicaocompilado.htm>.
COSTA, Daniel Castro Gomes da. Course on Electoral Procedural Law . Belo Horizonte: Fórum, 2018.
FREITAS, Luciana Fernandes de. Electoral Law . Rio de Janeiro: Método, 2022.
RAMAYANA, Marcos. Summary of Electoral Law . 5th ed. Niterói: Impetus, 2012.
SALGADO, Eneida Desiree. Structuring Constitutional Principles of Electoral Law . 2010. Doctoral Thesis. Postgraduate Program in Law, Federal University of Paraná, Curitiba,
2010.VIDIGAL, Edson José Travassos. Foundations of Brazilian Electoral Law: contributions to its interpretation and application. Brasília: Penélope Editora, 2012.