Brazil's Electoral Justice system is pretty unique
brazil electoral justice system 2018 election

Brazil’s Electoral Justice system is pretty unique

On October 7, 144 million Brazilian voters will cast ballots in five different electoral races. They will choose a new president, new governors, new congressmen, renew two-thirds of the Senate, and choose members of the 27 state lower houses. This entire operation is overseen by one single institution: Brazil’s Electoral Justice system. From the rules of the game, to the registration of voters and guidelines for polling institutes, everything goes through the Electoral Justice system.

The Electoral Justice is a special branch of the Justice system, with three main duties: to set up the rules for elections at all levels (federal, state, municipal); to run and organize how voting takes place across Brazil, and to rule on challenges and legal controversies that may arise throughout the process.

No controversy, of course, will be more resounding than 2018’s million-dollar question: will jailed former president Lula be allowed to run for president?

</span></p> <h2>Brazil&#8217;s Electoral Justice is flawed</h2> <p><span style="font-weight: 400;">This particular branch of justice was established in 1932, during the Getulio Vargas administration. Back then, elections were controlled by landowners from São Paulo and Minas Gerais &#8211; a </span><a href="https://brazilian.report/guide-to-brazil/2017/10/15/brazil-first-republic/"><span style="font-weight: 400;">political system</span></a><span style="font-weight: 400;"> colloquially known as ‘coffee with milk’ period, named after the two main products from the ruling states.</span></p> <p><span style="font-weight: 400;">But if the Electoral Justice system was created to curb the high levels of corruption in Brazil&#8217;s first republic, it has by no means created a perfect system. The Superior Electoral Court <a href="http://www.tse.jus.br/">doesn&#8217;t</a> have its own set of Justices, but rather &#8220;borrows&#8221; them from other courts. Its seven members are made up of three Supreme Court Justices, two judges from the Superior Court of Justice (Brazil&#8217;s second-highest court), and two lawyers recommended by the Supreme Court and nominated by the president.</span></p> <p><span style="font-weight: 400;">“It’s too much of a workload for one branch of government to handle alone. Electoral Justices keep on working in other courts. In some cases, there might be a conflict of interest, especially at the state level, due to the proximity with governors, for instance,” says Silvana Batini, a former electoral attorney and a law professor at </span><a href="https://brazilian.report/money/2017/12/12/brazils-think-tank-boom/"><span style="font-weight: 400;">think tank</span></a><span style="font-weight: 400;"> Fundação Getúlio Vargas.</span></p> <p><span style="font-weight: 400;">But Carlos Ayres Britto, a retired Supreme Court Chief Justice (and former Supreme Electoral Court Presiding Justice), defends the autonomy of the Brazilian electoral system: “In other countries, electoral entities are part of the Executive or don’t belong to any of the branches of government. As a part of the Brazilian Justice system, it preserves its political independence.” </span></p> <p><span style="font-weight: 400;">A recent case, however, reinforces the idea of the Superior Electoral Court&#8217;s perceived lack of political independence: the trial over corruption in the 2014 election. When Dilma Rousseff was still president, mounting evidence showed how her campaign benefited from illegal donations from construction companies. Supreme Court Justice Gilmar Mendes, a man connected to right-wing parties, was an electoral justice at the time and pushed for the case &#8211; which could have led to the annulment of the election, and Ms. Rousseff&#8217;s removal from office &#8211; to move forward.</span></p> <p><span style="font-weight: 400;">The case continued even after she was impeached by Congress, as she was replaced by her running mate Michel Temer. If Ms. Rousseff benefited from corruption, then so did Mr. Temer, who ran on the same ticket. But during the trial, two justices stepped down, being nominated by Mr. Temer, the same person whose political fate they would decide. When the trial vote came, Mr. Mendes changed his views on the case (although the evidence had remained the same) and the president was let off the hook.</span></p> <h2>Measures against corruption and fraud</h2> <p><span style="font-weight: 400;">Brazil has set up arguably one of the world&#8217;s most modern voting systems. In 2000, it became the first country in the world to have elections completely run by an electronic voting system. Since 2008, the country has developed a biometric system to control voters&#8217; access to the polls and avoid fraud. Ten years ago, 58 percent of voters had their fingerprint included in the Electoral Justice system&#8217;s database, and the country expects that 100 percent will be on the register by 2020.</span></p> <p><span style="font-weight: 400;">Furthermore, in 2015, the country changed the rules for electoral financing. Companies are no longer allowed to donate after the scandals brought to light by Operation Car Wash. Instead, Congress created a BRL 1.7 billion electoral fund (using taxpayer money) that will be split among parties according to their number of seats in the House. Individual donations are also allowed, as well as crowdfunding campaigns.</span></p> <p><span style="font-weight: 400;">The new rules implemented by the electoral reform pose an unprecedented challenge for the Electoral Justice in 2018, according to Silvana Batini. She thinks the prohibition of donations from companies will reduce illegal funding, a major problem throughout the history of Brazilian elections. “The Electoral Justice must also seize this moment to ask itself how it has allowed to let the corruption go so far.”  </span></p> <p>This year, the Electoral Justice system has shown <a href="https://brazilian.report/power/2018/06/21/brazil-fake-2018-election/">deep concerns</a> about the power of false information online. Brazil’s Chief Electoral Justice, Luiz Fux, said that if <a href="https://brazilian.report/power/2018/02/02/brazil-fake-news-2018-election/">fake news</a> is the deciding factor in an election, then the result could be overturned.</p> <h2>How does it work in other countries?</h2> <p><span style="font-weight: 400;">The Brazilian electoral system has almost nothing in common with the U.S., where each state has more autonomy to manage its own voting system. Therefore, no election is the same in every state &#8211; some use electronic voting booths, some use paper ballots, and so forth. While the American system certainly has its upsides, such as allowing systems to adapt to local particularities, it also increases the chances of mismanagement and the unbalanced application of the law.</span></p> <p><span style="font-weight: 400;">Decentralization is also a part of the British system, although it has authorities named by the national government, such as the Electoral Commission. It rules on how parties and the elections are financed, and while its members are assigned by the Parliament, the <a href="https://www.electoralcommission.org.uk/england">commission</a> works autonomously. The Acting Returning Officer (a sort of observer) is in charge of the vote count, while the Electoral Registration Officer compiles the electoral roll. Both work at a local level.</span></p> <p><span style="font-weight: 400;">In Latin America, Argentina has a federal special department. The National Electoral Direction is under the care of the Ministry of the Interior and provides structure for national voting, as well as information on parties’ funding. In case of local elections, though, provincial administrations play the main role.

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PowerJul 23, 2018

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BY Maria Martha Bruno

Maria Martha is a journalist with 14 years of experience in politics, arts, and breaking news. She has already collaborated with Al Jazeera, NBC, and CNN, among others. She has also worked as an international correspondent in Buenos Aires.