With each electoral cycle, voting day arrives. This generally occurs in cases where appeals are pending.
As a consequence, there is a risk that voters will waste their votes on people who, in fact, could not even run. Ultimately, if a winning candidate is later rejected, that’s it.
Among the reasons for a registration to be denied is failure to meet basic requirements, such as minimum age, electoral domicile and party affiliation, as well as the more complex analysis as to whether the potential candidate fits into one of the hypotheses.
Under the justification of addressing this problem, the creation of a “request for declaration of eligibility”. Legal operators heard by the Sheetamong electoral lawyers, members of and employees of , point out, however, that the new law left a series of gaps in how this mechanism would work.
Therefore, the definition of the requirements and contours of this innovation still depend on regulation by the (Superior Electoral Court), which can strengthen or deflate it.
The expectation is that these gaps will be addressed in the elections, which must be approved by March 5th and whose preliminary versions must be known from this Monday (19th).
According to the new law, the pre-candidate who demonstrates that he has a “reasonable doubt about his electoral capacity” may “at any time” make a request for this declaration, as well as his party. It also says that this request can be challenged by other acronyms.
In general terms, experts highlight that the basic procedural questions were not defined, such as in which instance the questioning should be made. Depending on this, it may be that the pre-candidate would already have to define which position he would run for – which today only happens closer to the election.
Another question is about the period in which it can be carried out, how it must be formulated and accompanied by which documents. The pre-candidate must, for example, ask a question based on a specific case (such as a conviction that he is not sure whether or not it generates ineligibility), and would the Electoral Court respond only to this question, or would there be some broader analysis?
And what is the legal validity of this response? Should the judge who later analyzes the candidacy record follow the position given in the previous application? In what situations?
Without an adequate design, the new tool may have little practical effectiveness and even generate more cases for the courts to analyze. There is also a risk that it will create confusion among the electorate, as in the eventuality of there being cases in which a candidate obtains a positive prior declaration and, later, for some reason, is denied registration.
Lawyer and former judge Márlon Reis, who was one of the creators of Ficha Limpa and also claims to be behind the suggestion of this request, defends the proposal. “It’s a small but important step towards increasing legal security in elections.”
He agrees that there are points that will need to be defined by the TSE, but says that this is commonplace. He regrets, however, that it was approved within the project that changed the Clean Record law – he even signed the Network’s action at the (Supreme Federal Court) which, if accepted in full, would end up overturning his article together.
Carla Nicolini, electoral lawyer and member of Abradep (Brazilian Academy of Electoral and Political Law), assesses that, although the objective of creating the tool was good, it would have actually ended up bringing more uncertainty, and believes that it will be little used.
“There is little use within our system, especially considering the format, how the record analysis is judged, which is when you will really fight”, he says.
Lawyer Ricardo Vita Porto, president of the Electoral Law Commission of the OAB-SP (Brazilian Bar Association), argues that only in the period close to the campaign are teams mobilized to monitor and eventually challenge the records.
A Sheet questioned different TREs (Regional Electoral Courts) about whether they had already received requests of this type. Everyone who responded said no and some indicated the need for regulation. Also asked whether it had received requests of this type or whether it had been consulted by the TREs in this regard, the TSE did not respond to the report.
While considering that the tool may have positive aspects, Alexandre Azevedo, who is a TRE-GO employee and professor of electoral law at PUC-GO (Pontifical Catholic University of Goiás), points out that there is also a risk of it being manipulated. “This instrument can transform into a political-electoral marketing situation in a pre-campaign”, he says.
For electoral lawyer Hélio Freitas da Silveira, despite the doubts that still linger, the measure can help ease the moment of registering the candidacy. He argues, however, that the ideal would be to have brought forward the period for registering candidacies, so that the Courts would have more time to assess who is fit or not to compete.
