Brazil is going to the elections this Sunday (02/10) in an unprecedented situation: it is not known how President Jair Bolsonaro (PL) will react in the event of a defeat against former President’s candidate Luiz Inácio Lula da Silva (PT) will be the one that leads the most important election polls and appears with the prospect of winning the first round.
In democratic elections, the loser is expected to recognize the opponent’s victory as soon as the result is announced by the competent authority in the case of Brazil, the Superior Electoral Court (TSE).
However, Bolsonaro has hinted that he might not do so if his defeat is confirmed. For example, when questioned in August during an interview with Jornal Nacional on Saturday, the president said that “as long as the elections are clean and transparent, the results of the polls will be respected.”
The condition in the President’s reply suggests that he will not accept the victory of an eventual opponent. For he has already made it clear that he does not believe that the Brazilian elections are “clean and transparent” a view disputed by the TSE.
Since last year, Bolsonaro has intensified his questions about the security of the electronic voting machine without providing any evidence to support his claims of possible fraud in Brazil’s electoral system. For critics of the president, this stance is precisely aimed at preparing the ground for future challenges to the election results.
But how could Bolsonaro challenge the ballot box in the electoral justice system? In theory, the President can attempt to file a complaint with the TSE alleging that there was an illegality in the voting.
The Elective Mandate Challenge Action (Aime) makes it possible to challenge the mandate of the elected candidate in cases of abuse of economic power, corruption or fraud during the election campaign. It can be presented to the electoral tribunal within 15 days of the award of the diploma, a ceremony scheduled for December 19 at this election.
But even a lawsuit would not prevent the inauguration of the presidentelect. His process can take a few months or even years, during which time the successful candidate remains in office.
This is what happened, for example, in the election of the presidential candidate formed by Dilma Rousseff and Michel Temer. PSDB lawsuits questioning the legitimacy of the PT campaign were not judged until 2017, when Dilma had already been charged. The TSE eventually opposed the action and retained Temer as president.
However, any initiative by Bolsonaro in the event that Lula is elected could not even reach the courts, as the progress of a lawsuit would depend on the Bolsonaro campaign presenting concrete elements supporting his allegation, say experts heard by BBC News Brasil became.
“An action to challenge an electoral mandate must have solid preconstituted evidence,” said Attorney General of the Republic Silvana Batini, professor of electoral law at the FGV.
According to the experts interviewed, it seems quite unlikely that the President will be able to annul Lula’s eventual election on charges of illegal electronic voting machine and vote counting, since there has never been any evidence of fraud on a significant scale in the electronic voting system.
Any problems that may arise in one ballot box or another are not considered sufficient to affect the outcome of the elections, especially given the presidential election involving more than 156 million voters.
Therefore, such actions are extremely rare. A wellknown precedent occurred in 2006 when João Lyra, the losing PTB candidate for Alagoas governor, challenged the victory of Teotônio Vilela Filho (PSDB) by alleging alleged irregularities in electronic voting machines. However, his campaign refused to pay an expert to review the allegations. The TSE found there was no evidence and fined Lyra for “malicious litigation”.
Any argument can turn against Bolsonaro
Today, launching a lawsuit with false allegations against the electronic voting machine can have even more serious consequences than the fine imposed on João Lyra, Abradep (Brazilian Academy of Electoral and Political Law) general coordinator Luiz Fernando Pereira told BBC News Brasil.
He recalled that in October 2021, the TSE revoked the mandate of the State Deputy for Paraná Fernando Francischini due to unfounded allegations against the functioning of the elections. In addition to losing his mandate, he was declared ineligible for eight years.
The penalty came because Francischini made a live broadcast on Facebook during the 2018 vote, in which he pointed out alleged fraud in electronic voting machines that would not register votes for thencandidate Jair Bolsonaro. The charge was that the voter typed 17 (Bolsonaro’s number in 2018 when he was running for the former PSL) but the current president’s face and name did not appear on the ballot box.
However, investigation of the case revealed that these people actually typed 17 when the ballot box registered the vote for the governor and not the president, making it impossible To the vote for Bolsonaro.
Then, Pereira adds, a December 2021 TSE resolution stated that “the disclosure or disclosure of facts known to be untrue or seriously taken out of context that compromise the integrity of the electoral process, including the processes of voting, counting and counting of votes”. forbidden.
Also according to that resolution, anyone who promotes these types of false allegations against the electoral process could face “criminal liability, abuse of power and abuse of the media.” This means that such a person may not only be prosecuted, but may also be prosecuted in the electoral court.
For experts, attacks on the polls against Bolsonaro could be taken to court
“So Bolsonaro could still be sued and eventually ineligible if he attacks the electronic ballot box on the basis of known untrue facts,” Pereira said.
Lawyer Vânia Aieta, a professor in Uerj and a specialist in electoral law, reads similarly. In theory, she says, Bolsonaro could try to challenge Lula’s eventual election with shares in the TSE. In practice, the professor assesses, it is the president who faces the greatest risk of being punished after the election because, in her opinion, he illegally used the federal public apparatus for his own benefit.
“The only candidate who is committing real legal errors, particularly in the area of prohibited conduct by public officials in violation of electoral law, is him (Bolsonaro), using an unprecedented machine,” Aieta says.
“Every government uses the machine. That is a premise. Well, the dosimetry of use will create the possibility of future problems,” he said.
As an example, she cites the use of the September 7 bicentennial Independence ceremony as a campaign site.
The campaigns of Lula, Ciro Gomes (PDT) and Soraya Thronicke (União Brasil), among others, have already presented actions accusing Bolsonaro and his vicepresidential candidate, General Braga Netto, of political and economic abuse and media abuse of the speech of the Presidents was broadcast live and in full nationwide by TV Brasil.
In this case, the appellate team is the Electoral Judicial Investigation Action (Aije), which can be brought up to the candidate’s closing date to investigate conduct that affects equality in the dispute. Like Aime, it could be months or years before Aije is brought to justice.
Based on the actions unveiled on September 7, the TSE issued an injunction barring the Bolsonaro campaign from using the images of the independence ceremony in its election propaganda.
The court has yet to determine whether “the conduct practiced was sufficiently serious to cause the revocation of registration or diploma and the declaration of ineligibility of politicians and other stakeholders,” said the Minister of Justice and Inspector General of Electoral Justice. Benedito Gonçalves, in the preliminary round.
Audit of polls in 2014
In addition to trying to challenge Lula’s eventual election through actions, Bolsonaro could seek to challenge the outcome of the elections through an administrative procedure similar to what the PSDB called for after Aécio Neves’ defeat in 2014.
In this election, Dilma won by a small margin in the second round. She received 51.64% of the valid votes versus 48.36% for the Toucan candidate.
The 2022 election was marked by Bolsonaro’s attacks on the security of electronic voting machines
Thereafter, the PSDB claimed that there were questions in society about the “roundabout” of the election and defended an audit of the electoral system that was eventually approved by the TSE.
“Precisely with the aim of not allowing the credibility of the electoral process to be called into question by the Brazilian citizen, we address this moment to the presence of Your Excellencies to respectfully ask Your Excellency to allow a procedure of examination to be carried out Voting systems and the summation of votes by a committee of experts composed of representatives appointed by political parties, through the following procedures,” the PSDB’s request reads.
According to a former TSE minister who was heard listening to the report, the court decided to grant Aécio’s request in order to make the electoral process more transparent. Today, however, legal experts assess that the court’s decision to grant the application may have been a mistake, as this review process appears to have contributed to distrust of the electronic voting machine.
At the end of the audit, which lasted about a year, the PSDB concluded there was no evidence of fraud, but the party also said it was not possible to audit the system independently from the court.
“It may appear (a request for consideration by Bolsonaro) as a repetition of 2014, on a different scale. But that will not prevent it, since it did not prevent the presidential succession last time either,” stresses FGV’s Silvana Batini.
“The court very generously granted this (the PSDB review request) and set a bad precedent. Because the idea is that the person requesting a vote recount has to have a solid basis for doing so,” he said.
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