The (Superior Electoral Court) ruled, this Thursday (23), on situations in which quotas of the electoral fund allocated by parties to black candidates are diverted, through electoral donations, to white candidates.
The position of Minister André Mendonça, rapporteur of the case, was the majority, who was against the punishment of revocation of the mandate in the case analyzed, as he understood that it would be disproportionate in view of the amounts transferred.
For him, the percentage irregularly transferred by the self-declared black mayor elected to white councilor candidates — which would be 8.7% of the resources received by his campaign and reaching just over R$13,000 — would not be enough to justify the revocation of the mandate.
He was accompanied by the minister and president of the court, Cármen Lúcia, and by ministers Kassio Nunes Marques and Estela Aranha, reaching 4 votes.
Minister Floriano de Azevedo Marques, who had opened the divergence in a session in March, had defended the impeachment of those involved, stating that, in the case of funds allocated to affirmative action, the punishment does not depend on the amount diverted.
A third position, presented this Thursday, achieved another two votes. Minister Ricardo Villas Bôas Cueva, who had requested a review (more time for analysis) in the last session on the case, resumed the trial presenting an intermediate position and was followed by minister Antonio Carlos Ferreira.
He defended that neither the mayor nor his deputy should be impeached, but rather, part of the councilors who benefited from the diversion, given that the amount received would have financed a substantial or entire portion of their campaigns.
In the case analyzed by the court, referring to the 2024 elections in the municipality of Barroquinha, in Ceará, the city’s current mayor, Jaime Veras —self-declared brown— received R$155,000 from the PSD for his campaign. After the first round, in which he was elected with 50.26% of the votes, he donated part of that amount to the campaigns of six candidates for city councilor, two of whom were white.
The illicit contribution made to the two white councilors would correspond to more than 90% of their campaigns. With just under 15 thousand inhabitants, Barroquinha had a spending ceiling for the councilor campaign of R$16 thousand in 2024.
The opposition had requested the revocation of the mandate of the mayor and elected councilors — a request granted, in part, by the TRE-CE (Regional Electoral Court of Ceará). As a result, new elections would be held in the municipality last year, which was revised by decision of the minister.
What was being analyzed by the TSE was a new appeal from the opposition, which aimed to reinstate the conviction handed down by the second instance. In the same process, the cases of two councilors who transferred resources to two councilors were also questioned.
When voting, Mendonça had denied the appeal filed by the opposition. According to him, the disqualification of an elected black candidate, in the specific case of the case, “would represent a true contradiction, given that the purpose of the rule is, in essence, to guarantee the effective occupation of spaces of power by historically underrepresented groups”.
He further argued that the illegality must be capable of compromising the normality and legitimacy of the elections to apply the revocation, in addition to there being proof of its severity.
Azevedo Marques, who had opened the disagreement in the last session on the case, argued that taking into account the relevance of the value would go against what was established in the TSE’s 2024 resolution.
According to this rule, the severity of the misuse of public resources allocated to female candidates does not depend on the amount diverted. It is enough to demonstrate that they were not used for the benefit of the application in question. The minister even added that the rule was updated for this election, including explicit mention of black and indigenous people.
For Azevedo Marques, taking into account the candidate’s attributes, such as skin color, to assess whether punishment is appropriate could create a type of immunity for misappropriation of funds, and could also generate a systemic incentive for fraud.
Villas Bôas Cueva argued that, for some of the candidates for councilor who benefited in the case, the transfers were not just of an accessory or residual nature, and therefore the revocation would be justified. As for the mayor, as a donor candidate, on the other hand, he concluded that there would not have been enough legal relevance to legitimize the revocation.
According to current rules, parties must transfer a minimum of 30% of the funds (from public resources) to both black and female candidates. Black and female candidates could only transfer resources in the case of expenses used for their benefit, which was not proven in the process in question.
There was another point of divergence. While Mendonça argued that it would be essential to prove a minimum of collusion between those who donated the funds and those who received them, Azevedo Marques defended the position that there would be no need for this proof to apply the penalty, endorsed by Villas Bôas Cueva.
Both also refuted Mendonça’s position that the fact that the transfer was made after the first round would rule out illegality. According to Azevedo Marques, this understanding would allow white candidates to change the payment date of their contracts to after the election. “It would open the door for deliberate planning of diversion with the sole purpose of evading sanction.”
