Minister Floriano de Azevedo Marques opened a disagreement, this Thursday (12), in a judgment by the (Superior Electoral Court) that can establish jurisprudence, through electoral donations, for white candidates.
He defended an understanding contrary to the rapporteur of the case, Minister André Mendonça, who had been against the punishment in the case analyzed, understanding, among other points, that it would be disproportionate. Azevedo Marques argued that, in the case of funds allocated to affirmative action, the criterion for applying punishment does not depend on the amount
This Thursday, the trial was suspended after a request for review (more time for analysis) by Minister Ricardo Villas Bôas Cueva. According to the votes in the physical plenary, the trial is tied at 1 to 1.
The process had begun to be judged in the virtual plenary in February, when Mendonça voted, but was sent for in-person analysis after a request for prominence by Minister Azevedo Marques.
In the virtual plenary, Mendonça was accompanied by the minister, president of the TSE. She can still, however, change her position when voting in the physical plenary. When announcing the request for review, she asked the other ministers if they wanted to vote or if they would wait for the case to return to trial, and then declared that she would wait like they did.
What is on the agenda at the TSE now has as its backdrop the debate as to whether it is appropriate to punish with impeachment, and in what situations, a self-declared black candidate who receives , then counted as a quota, and passes on part of it to white candidates (who are also debating whether punishment would be appropriate).
In the appeal analyzed by the court, referring to 2024 in the municipality of Barroquinha, in Ceará, the city’s current mayor, Jaime Veras —self-declared mixed race— received R$155,000 for his campaign. After the first round, which was , he donated part of that amount to the campaigns of six candidates for city councilor, two of whom were white.
When voting, Mendonça had denied the opposition’s appeal. He understood that the percentage transferred to white candidates irregularly by Jaime Veras —which would be 8.7% of the resources received by him, reaching just over R$13 thousand— would not be enough to justify the revocation of the self-declared brown mayor’s mandate.
He also said that the revocation of an elected black candidate, in the specific case of the case, “would constitute a real contradiction, given that the purpose of the rule is, in essence, to guarantee the effective occupation of spaces of power by historically underrepresented groups”.
Furthermore, he 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, in turn, argued that taking into account the relevance of the value would go against what was established in the 2024 TSE resolution.
According to this rule, the severity of the misuse of public resources allocated to female candidates does not depend on the amount diverted. Simply demonstrating that they were not employed 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.
“When the recipient of these funds doubly violates the protected legal asset, he takes resources away from applications that need them and defrauds the logic of the public financing system guided by equal representation”, he stated.
He also denied the need to demonstrate collusion and refuted that the fact that the transfer was made after the first round would rule out illegality. According to him, 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.”
After the dissenting vote, Mendonça reiterated the position he had adopted in the virtual plenary and brought precedents from the TSE in the sense 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 gravity.
The opposition 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. At the moment, what is being analyzed is a new appeal from the opposition, which aims to reestablish the conviction handed down by the second instance.
In the same process, the cases of two councilors who transferred resources to two councilors are also questioned.
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.
