The (Superior Electoral Court) did not incorporate any proposal for black and indigenous candidates in the previous version of the rules for the 2026 election.
The draft presented by the court, the final version of which will be voted on in the plenary, did not provide for hetero-identification, as is the case in competitions and universities, to evaluate the self-declaration made by candidates. Nor did it make it mandatory for parties to establish a commission of this type or provide guidance on how they should be formed.
A Sheet asked the TSE why it did not include the proposal, but there was no response.
The objective of the commissions is to prevent people who are not black or indigenous from taking advantage of affirmative actions. The (National Council of Justice) and the CNPI (National Council of Indigenous Policy), linked to the Ministry of Indigenous Peoples, recommended the adoption of mechanisms of this type by the Electoral Court.
According to current rules, at least 30% of the public campaign funds received by parties must be allocated to the campaigns of black people – as well as 30% for women. Furthermore, a new feature in this election is that indigenous candidates must receive funding proportional to their representation in the party.
The “Protocol for Judgment with a Racial Perspective”, published by the CNJ in 2024, encourages regional electoral courts to create their respective commissions to further evaluate black candidates. He also points out that there could be use of the commissions of the local Courts of Justice – created for competition purposes.
“The effectiveness of affirmative actions requires institutional verification mechanisms in order to preserve their constitutional purpose”, says Karen Luise de Souza, counselor at the National Council of the Public Ministry (CNMP), who was part of the group that prepared the document. She points out that this type of commission “will avoid distortions that undermine racial inclusion policies.”
In the case of indigenous candidacies, a 2025 CNPI resolution suggested to the TSE procedures for verifying ethnic belonging within the scope of TREs. It also added, in the event of the proposal being unfeasible or impertinent, that this process should take place within the parties, but guided “by the Electoral Court”.
This document also recommended that, in the case of parties, these commissions were mandatory. The TSE draft, however, maintained wording that foresees the measure as optional to the acronyms.
In a note, União Brasil states that only after the approval and consolidation of the TSE rules will it evaluate “in a responsible manner, the need and format of possible internal mechanisms, including whether in person or not”.
He also says that he recognizes the importance of mechanisms that guarantee the effectiveness of affirmative action policies and argues that any model, whether led by the parties or by the Electoral Court itself, “must observe objective criteria, transparency, contradiction and broad defense, avoiding arbitrary or unfair decisions”.
Tiago Soares, PT’s national secretary of combat, defends that the TSE provides for mandatory hetero-identification commissions by parties. He states that the party has not yet decided whether or not this type of commission will be created for 2026. Quenes Gonzaga Payayá, national coordinator of the PT’s indigenous sector, is also in favor of making the measure mandatory and says that the party has not yet made a decision on the matter.
Experts consulted by Sheet They are not unanimous regarding how the TSE should handle the issue.
Bianca Maria Gonçalves e Silva, lawyer and researcher at LiderA – IDP electoral observatory, defends the adoption of this type of mechanism by itself. “To make affirmative action effective, it needs punishment first and control second,” she says.
Lawyer Lucas de Santana Módolo, author of the book “Racial Quotas and Anti-Fraud Control Methods” and doctoral candidate in State Law at USP (University of São Paulo), believes that the ideal is for the commission to be the responsibility of the Electoral Court, which would allow greater social control over the criteria used in the analysis.
It reinforces the importance of preventive control of fraud, as self-declaration data influences the distribution of resources for campaigns.
The general coordinator of Abradep (Brazilian Academy of Electoral and Political Law), Sidney Sá das Neves, understands that the ideal path would be to force parties to establish this type of commission.
Likewise, electoral lawyer Hélio Freitas da Silveira states that it would be positive for such an obligation to fall on the parties. As for the Electoral Court, he believes that it would be impossible for there to be enough time for such an analysis. In either scenario, however, he says that this forecast would depend on Congressional approval.
Tainah Pereira, political coordinator of the Mulheres Negras Decidem movement, argues that the measure should be mandatory for parties. She highlights, however, another measure that she sees as fundamental: the requirement for a declaration signed by the candidate himself about his self-declaration — to face the problem of those who say that the filling was done by the party.
In the case of indigenous candidacies, the CNPI document advocates the presentation of documents of ethnic belonging, signed by leaders of the respective people.
According to an amendment to the Constitution approved in 2021, until the 2030 election, votes given to black candidates will be counted twice when calculating the electoral fund to be received by each party.
History of rules
- As of 2020, following a decision by the TSE, parties were obliged to make transfers from the Electoral Fund in proportion to the number of black and white candidates
- Subsequently, a constitutional amendment approved by Congress in 2024 provided amnesty to parties that had not complied with this rule, avoiding punishments such as fines. This same text predicted that, instead of being proportional to the number of candidates, funding for black candidates would be at least 30%.
- In parallel with the transfers below the expected values, there were reports about potentially irregular self-declarations. One of the focuses of attention in the public debate were candidates who changed their racial self-declaration between one election and another — a change that does not necessarily represent fraud, but which may also be due to a change in the person’s perception of themselves or even incorrect filling out by the party
- In the last election, in relation to this specific point, the TSE included a rule providing that, in the event of a change in the self-declaration, the candidate and the party would be summoned to speak out to confirm the change.
