Electoral Thesis Approved with Distinction at USP

Conjur - The Superior Electoral Court and the Supreme Federal Court — under the pretext of regulating elections — are, in many cases, improperly replacing the National Congress. This was the doctoral thesis defended this week by lawyer Manoel Carlos de Almeida Neto in the Noble Hall of the Faculty of Law of the University of São Paulo (USP), under the title "The Normative Power of the Electoral Justice System".

Professor of Constitutional and Electoral Law, Manoel Carlos holds a master's degree in Public Law from UFBA and is an advisor to the vice-presidency of the STF (Supreme Federal Court). At the TSE (Superior Electoral Court), he served as chief advisor and secretary-general to the presidency between 2009 and 2012, experience used in the production of his thesis that applies legal theory to electoral practice.

Lembo, Temer, Manoel Carlos, Lewandowski, Mônica Hermann and Heleno Torres - 5/12/2013 [ConJur] The examining board was composed of notable figures such as the Vice-President of the Republic, Michel Temer; the Vice-President of the STF (Supreme Federal Court), Ricardo Lewandowski (advisor); former governor Cláudio Lembo; the president of the USP (University of São Paulo) Postgraduate Commission, Monica Herman Caggiano; and the coordinator of the Law Course, Heleno Torres. After a nearly 4-hour hearing, the thesis was approved with distinction, honors, and recommended for publication. In the photo to the side, from left to right: Michel Temer, Cláudio Lembo, Manoel Carlos, Ricardo Lewandowski, Monica Herman Caggiano and Heleno Torres.

The backdrop is the history of Brazilian electoral law. The study dissects the regulatory activity of the Electoral Courts, tracing their origins, defining their concept, typology, foundations, prerequisites for existence, validity requirements, and their parallels in comparative law.

As an example of interference, Manoel Carlos developed the theory of electoral nullities to criticize the treatment of votes annulled by judicial decision after the two-round majority election. The Electoral Court excludes them from the calculation of the electoral quotient, which should not be done, since the vote is relatively and not absolutely null. In other words: an illegitimate judicial activism is practiced by giving office to the unelected runner-up, that is, without the absolute majority of votes as required by the Constitution.

According to the argument, "the constitutionally required majority in the second round is also absolute, since the expressions 'absolute majority of votes, not counting blank and null votes' (Article 77, § 2) and 'majority of valid votes' (Article 77, § 3) are equivalent. Thus, based on these premises, it is concluded that, by considering the votes annulled after the majority election held in two rounds as absolutely null, the Superior Electoral Court violates the constitutional principles of popular sovereignty (Article 1, sole paragraph, combined with Article 14, caput) and majority (Article 77, §§ 2 and 3), since the majority found in the formula devised does not correspond to the true absolute majority that is imposed in the majority election."

Thus, "in the event of a double vacancy in the positions of Head of the Executive Branch, regardless of the cause being identified, the Electoral Court cannot disregard the application of the Constitutional parameter of election — direct or indirect — enshrined in Article 81 of the Republican Constitution or as established by the respective State Constitution or Municipal Organic Law, under penalty of transgressing the constitutional principle of popular sovereignty."

In another set of electoral resolutions and judicial decisions that encroach upon matters reserved for the Legislative branch are the decisions regarding the verticalization of party coalitions and party disloyalty as grounds for loss of mandate, both originating from electoral consultations that should not have any binding effect and, according to the argument, have taken on the characteristics of a Constitutional Amendment.

The work also argues for the unconstitutionality of successive electoral resolutions that modified the wording of Article 16-A of the Elections Law, following the jurisprudence of the Superior Electoral Court (TSE), to consider null and void, for all purposes, including for the party, the counting of votes attributed to candidates whose registrations were rejected after election day.

According to Manoel Carlos, "paragraph 4 of article 175 of the Electoral Code, which ensures the validity and counting of votes for the party or coalition when the decision of ineligibility or cancellation of registration was issued after the election, was solemnly ignored." Therefore, "the sole paragraph of article 16-A of the Elections Law does not conflict with paragraph 4 of article 175 of the Electoral Code. The provisions coexist and are complementary, since the first deals with candidates whose registration is denied and sub judice on election day, while the second concerns candidates whose registration is denied after the election."

Considered courageous by the examining board, the thesis also warns that the regulatory and normative power of the Electoral Court must be exercised within certain formal and material limits, since electoral regulations can only be issued according to the law (secundum legem) or to fill a normative gap (praeter legem). Outside these boundaries, when the Electoral Court innovates in legislative matters or contradicts a legal provision (contra legem), through a resolution, it exceeds its regulatory competence and is therefore subject to control of the legality or constitutionality of the act.

At the end of the public hearing, which lasted almost 4 hours, the president of the Postgraduate Commission of the USP Law School, Monica Herman Caggiano, recommended that the thesis be published as soon as possible, even before the 2014 elections, as it would serve as "a bible for those involved in the electoral process, due to the originality of the study, especially in the doctrine of electoral nullities and the regulatory power of the Electoral Court," a suggestion formalized by the judging committee.