Unanimously, the (Superior Electoral Court) decided that the rules set out in the Anti-Faction Law do not apply to the 2026 elections.
This is because the law was sanctioned in March this year and, as a result, does not meet the so-called principle of annuality provided for in the Federal Constitution. According to this rule, laws that change the electoral process do not apply to the next election if they have come into force less than a year before the dispute.
and sanctioned by the president, the Anti-Faction Law made two changes to the Electoral Code, providing that pre-trial detainees cannot register as voters. It also established that, for those who have already enlisted, provisional arrest is grounds for canceling their title.
The analysis of the process, carried out by the court at an administrative (and not judicial) level, had started last week, with a vote from the rapporteur Antonio Carlos Ferreira, but was interrupted with a request for a review (more time for analysis) from the minister.
This Thursday (23), when the case was resumed, Mendonça followed the rapporteur’s position. Ministers Kassio Nunes Marques, Ricardo Villas Bôas Cueva, Estela Aranha, Floriano de Azevedo Marques, as well as the president of the court, Cármen Lúcia, also voted.
“Although there are some legally controversial aspects about the constitutional validity of these innovations, for administrative purposes, the biggest controversy lies in the incidence of the principle of electoral annuality,” said Mendonça. “This is a guarantee aimed at the stability of the electoral process, legal security, the predictability of the rules that govern political participation”, he added.
The TSE analyzed the issue after questioning from the Regional Electoral Inspectorate of São Paulo as to whether there would be a need for registration and the installation of voting stations in prisons, given the changes in the law.
Minister Estela Aranha even mentioned in her vote that there are actions questioning the constitutionality of the rule in the (Supreme Federal Court).
At the end of February, the Chamber of Deputies approved the Anti-Faction Law providing for restrictions on votes for pre-trial detainees, an item that, given the understanding that the section could be considered unconstitutional.
According to article 15 of the Constitution, the loss or suspension of political rights depends on a criminal conviction that has become final, that is, when there are no further appeals possible.
The new law, in turn, says that “people confined to a prison establishment cannot register as voters while the deprivation of liberty continues, even without a definitive conviction.”
