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In the Federal Senate, the Complementary Bill No. 112/2021, currently under the rapporteur of Senator Marcelo Castro (MDB/PI), which deals with the new Electoral Code.
Proposal awaits approval in CCJ/Photo: Reproduction
By the time of this article, 353 (three hundred and fifty -three amendments were proposed, and currently PLP 112/2021 is awaiting a vote by the Constitution and Justice Commission (CCJ).
The possible new code brings several new features, such as the 20% (twenty percent) reserve of chairs in legislative houses for women, digital content boost for pre-campaign dissemination, typification of the crime of “box two” and the quarantine of the so-called “law agents” (minimum disinfit time to compete for elections).
We are interested here to treat briefly about the provisions that directly interest the law, in order to visualize what we have again, what the advances and eventual setbacks of the Electoral Code that knocks on the door.
One of the novelties brought by PLP 112/2021, which is not in the current legislation, is that they cannot be nominated for regional electoral courts affiliated to political parties in the last 4 (four) years (art. 82, item III).
In addition, it will be possible for lawyers, in the virtual sessions, presenting recorded oral support (art. 799, §5), simply presenting media file that contains it, the duration must be compatible with the deadlines set in items I, II and III of art. 799 (and cheer, of course, for the judges to watch him).
It is also new to the need for the lawyer constituted by the party or the coalition to be accredited to act before the places and phases of voting and totalization (art. 334, §2). Although in practice hardly a lawyer or lawyer, on the day of the election, does not receive at least one badge of the party/federation/coalition for which it advocates, there is no such obligation today in electoral legislation.
The rapporteur Marcelo Castro, in his last opinion, justifies the amendment he made to the original project in this part, stating that “it would be prudent that the lawyer constituted by the party or coalition obtain the credential of those who represent so that the attribution of verifying the attorney of lawyers did not fall on the polling stations and servants of the electoral justice, the media generation environments, the preparation of the ballot box and totalization”.
Ponto Novo that deserves a lot of prominence in PLP 112/2021 is article 646, which deals with default in the proceedings in which representation by lawyer is mandatory.
This provision is based that the absence of representation by lawyer when it is mandatory will only attract the material effects of the default (presumption of truth of the factual allegations formulated by the plaintiff) in actions that deal with electoral propaganda, electoral research and right of response.
On the other hand, it will attract the procedural effects of default (unnecessary subpoena of the defendant and possibility of early judgment of the dispute) in all actions, until the representation is regularized.
Article 646, in its sole paragraph, will also be verified that it is prohibited to judge as the political party or candidate accounts on the grounds of the constitution of a lawyer, which proves to be a hit and more legal certainty, since it is an understanding consolidated by the Superior Electoral Court.
Another innovation worthy of applause is the right of inspection and continuous and perennial audit in the source codes, software and electronic systems of biometrics, voting, investigation and totalization of votes (art. 342), and the Brazilian Bar Association is one of the entities legitimized for this supervision (art. 343).
But so far the change that most appeals to this subscriber is the one contained in article 443, §2, providing that the application for regularization of non -political party accounts will be received with suspensive effect.
Anyone who lawsuits in the electoral seara knows how distressing it is to have denied a provisional urgent relief in the request for regularization of accounts in view of the express provision of receipt without suspensive effect. From now on this will change, to the happiness of political parties, that from the regularization request will no longer suffer the consequences caused by the non -presentation of the accounts.
However, as not everything is flowers, the new code has negative questions for law. Although Article 420 maintains the obligation to constitute a lawyer for accountability, other provisions do not require representation by lawyer.
Article 145, §5, adds that in the processes of cancellation of electoral registration the voter may dispense with the representation by lawyer, and it is lawful that he be assisted by a political party delegate.
Now, dispenses with the lawyer but allows assistance by a party delegate? It makes no sense, because the activity of legal advice is private of law, according to article 1, item II, of Federal Law No. 8.906/94.
Similarly, the representation of the party by lawyer regularly registered in the Brazilian Bar Association will be waived for the presentation of a statement of absence of financial movement of political party (art. 72, §1 and art. 645, item II).
And Article 412, §1, pontifies that the rendering of accounts of candidates without financial movement or collection of estimable cash assets during the campaign will be made in the form of a personal declaration, without the requirement of intervention of accountant or lawyer in this specific initial act.
I cannot agree with the exemption of representation by lawyer in the hypotheses of articles 72, §1, 645, item II and 412, §1, because they decrease job opportunities for law and mainly weaken municipal directories and applications. I hope that until the vote by the Senate plenary these articles will be reviewed.
Moreover, despite such negative points, I believe that the new Electoral Code has maintained already consolidated attaches of law, such as the obligation to represent accountability, and has brought other significant advances, such as the possibility of the OAB auditing and overseeing the ballot box and the automatic suspensive effect on the regularization of non -political party accounts.
With the forecast that PLP 112/2021 will be approved by October 3 this year, it is important that the electoralist law is attentive to the new legislation that will probably be applied in the 2026 majority elections.
Thalles Vinícius de Souza Sales is a lawyer. President of the Acre Lawyers Institute – IAAC. Member of the National Commission for the Defense of Prerogatives and Appreciation of the OAB Federal Council. Director of the OAB/Ac.
