Brazil goes to the polls this Sunday (02/10) in an unprecedented situation: it is not known what the reaction of President Jair Bolsonaro (PL) will be in case of defeat to former President Luiz Inácio Lula da Silva (PT) – candidate which leads the main electoral polls and appears with a chance of winning in the first round.
In democratic elections, the loser is expected to recognize the victory of the opponent as soon as the result is announced by the responsible authority – in the case of Brazil, the Superior Electoral Court (TSE).
Bolsonaro, however, has indicated that he may not do that, if his defeat is confirmed. When questioned in August during a Saturday interview with Jornal Nacional, for example, the president said that “the results of the polls will be respected as long as the elections are clean and transparent.”
The condition placed in the president’s response raises suspicion that he will not accept an eventual opponent’s victory. This is because he has already made it clear that he does not consider the Brazilian elections “clean and transparent” – an opinion that is contested by the TSE.
Since last year, Bolsonaro has intensified his questions about the security of the electronic voting machine, without presenting evidence that proves his allegations of possible fraud in the Brazilian voting system. For critics of the president, this stance aims precisely to prepare the ground for future challenges to the election result.
But how could Bolsonaro question the ballot box in the Electoral Justice? In theory, the president can try to initiate an action in the TSE alleging that there was some illegality in the vote.
The Elective Mandate Challenge Action (Aime) makes it possible for the elected candidate’s mandate to be questioned in case of abuse of economic power, corruption or fraud during the campaign. It can be presented at the Electoral Court within 15 days after the diploma is awarded, a ceremony that in this election is scheduled for December 19.
However, even if an action is brought, it would not prevent the inauguration of the president-elect. Its trial may take a few months or even years, during which time the successful candidate remains in office.
This is what happened, for example, in the election of the presidential ticket formed by Dilma Rousseff and Michel Temer. Actions presented by the PSDB questioning the legality of the PT campaign were only judged in 2017, when Dilma had already been impeached. The TSE ended up rejecting the action and kept Temer as president.
However, an eventual initiative by Bolsonaro if Lula is elected could not even advance in the Court, since the progress of an action would depend on the Bolsonaro campaign presenting concrete elements that support his accusation, evaluate experts heard by BBC News Brasil.
“An Elective Mandate Challenge Action must have solid pre-constituted evidence”, said the Attorney General of the Republic Silvana Batini, professor of electoral law at FGV.
In the view of the experts interviewed, it seems quite unlikely that the president will be able to cancel Lula’s eventual election by alleging some type of illegality in the electronic voting machine and in the counting of votes, since there has never been any evidence of fraud on a significant scale in the electronic voting system.
Eventual problems that may occur in one or another ballot box are not considered sufficient to impact the outcome of the elections, especially considering the presidential election, which involves more than 156 million voters.
Therefore, such actions are extremely rare. A well-known precedent occurred in 2006, when João Lyra, the defeated PTB candidate for governor of Alagoas, contested the victory of Teotônio Vilela Filho (PSDB) alleging alleged irregularities in electronic voting machines. His campaign, however, refused to pay a forensic examination to verify the charges. The TSE assessed that there was no evidence and fined Lyra for “litigation in bad faith”.
Any dispute may turn against Bolsonaro
Today, starting a lawsuit with false allegations against the electronic voting machine can have even more serious consequences than the fine imposed against João Lyra, explained to BBC News Brasil the general coordinator of Abradep (Brazilian Academy of Electoral and Political Law), Luiz Fernando Pereira.
He recalls that, in October 2021, the TSE revoked the mandate of the state deputy for Paraná Fernando Francischini due to unfounded accusations against the functioning of the polls. In addition to losing his mandate, he was declared ineligible for eight years.
The punishment was applied because Francischini made a live broadcast on Facebook during the 2018 vote pointing out alleged fraud in electronic voting machines that would not be registering votes for the then candidate Jair Bolsonaro. The allegation was that the voter typed 17 (Bolsonaro’s number in 2018, when he ran for the former PSL), but the face and name of the current president did not appear on the ballot box.
However, the investigation of the case identified that, in fact, these people were typing 17 at the time the ballot box was registering the vote for governor, and not for president, so it would be impossible for the vote to be registered for Bolsonaro.
Then, adds Pereira, a TSE resolution of December 2021 established that “the disclosure or sharing of facts known to be untrue or seriously decontextualized that affects the integrity of the electoral process, including the processes of voting, counting and counting of votes”, is prohibited.
Also according to that resolution, anyone who promotes this type of false allegation against the electoral process may face “criminal responsibility, abuse of power and misuse of the media.” This means that, in addition to being able to face a criminal investigation, such a person can be prosecuted in the Electoral Court.
“So, Bolsonaro could still be sued and eventually become ineligible if he attacks the electronic ballot box based on facts that are known to be untrue”, emphasizes Pereira.
Lawyer Vânia Aieta, professor at Uerj and specialist in electoral law, has a similar reading. In theory, she says, Bolsonaro may try to question Lula’s eventual election with shares in the TSE. In practice, evaluates the professor, it is the president who faces the greatest risk of being punished after the election for having, in her opinion, illegally used the federal public machine in his favor.
“The only candidate who is committing real legal aberrations, especially in the field of prohibited conduct of public agents, violating the Elections Law, is him (Bolsonaro), with the use of a machine never seen before”, says Aieta.
“Every government uses the machine. That’s a premise. Now, the dosimetry of use is what will generate the possibility of future problems”, he said.
As an example, she cites the use of the Independence bicentennial ceremony, on September 7, as an electoral campaign space.
The campaigns of Lula, Ciro Gomes (PDT) and Soraya Thronicke (União Brasil), including, have already presented actions accusing Bolsonaro and his vice-presidential candidate, General Braga Netto, of political and economic abuse and misuse of the media. , since the president’s speech was broadcast live and in full throughout the country on TV Brasil.
In this case, the appeal team used is the Electoral Judicial Investigation Action (Aije), which can be presented until the candidate’s graduation date to investigate conduct that affects equality in the dispute. Like Aime, Aije can take months or years to be tried.
Based on the actions presented on the 7th of September, the TSE adopted an injunction that prohibited the Bolsonaro campaign from using the images of the Independence ceremony in its electoral propaganda.
The Court is yet to assess whether “the conduct practiced was serious enough to give rise to the revocation of the registration or diploma and the declaration of ineligibility of politicians and others involved”, explained the minister of the court and general inspector of Electoral Justice, Benedito Gonçalves, in the preliminary decision.
Audit of polls in 2014
In addition to trying to question Lula’s eventual election through action, Bolsonaro may try to question the outcome of the polls through an administrative procedure similar to what the PSDB requested, after the defeat of Aécio Neves in 2014.
In that election, Dilma won by a small margin in the second round. She obtained 51.64% of the valid votes, against 48.36% for the toucan candidate.
After that, the PSDB claimed that there were questions in society about the “smoothness” of the election and defended an audit of the voting system, which ended up being authorized by the TSE.
“It is precisely with the aim of not allowing the credibility of the electoral process to be questioned by the Brazilian citizen that we address at this moment the presence of Your Excellencies to respectfully request Your Excellency to allow an audit process to be carried out in the voting systems and the totaling of votes, by a committee of experts formed from representatives appointed by political parties, through the following procedures”, read the PSDB’s request.
According to a former minister of the TSE heard by the report, the Court decided to accept Aécio’s request in order to give more transparency to the electoral process. Today, however, jurists assess that it may have been a mistake for the Court to have accepted the request, insofar as that audit process seems to have contributed to the distrust of the electronic voting machine.
At the end of the audit, which lasted about a year, the PSDB concluded that there was no evidence of fraud, but the party also said that it was not possible to audit the system independently of the Court.
“It may appear (a request for an audit by Bolsonaro) as a repeat of 2014, on a different scale. But that will not prevent, as it did not prevent the presidential succession last time either”, emphasizes Silvana Batini, from FGV.
“The court was very liberal in granting this (the PSDB audit request) and they set a bad precedent. Because the idea is that the person asking for a recount of votes must have a solid basis for it”, he said.
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