• Electoral Governance in Brazil

    The Role of the Judiciary as the Election Guarantor and Promoter of Participation

  • Brazil is the fourth largest democracy on the planet organised as a Federative Republic. Its last democratic cycle took place at the ending years of Cold War and just after an autocratic regime in the country. Although support for democratic system is currently dominant, public confidence in institutions, especially on Legislative power and political parties is plunging at a level of nearly 30%. Recent protests have been demonstrating a lack of confidence in the existing democratic institutions for representing citizens.


    Brazil’s electoral institution is at the centre of the debate and criticism regarding the limits of its constitutional prerogative as well minor electoral processes on the management of the election, the last which are currently escaping the democratic scrutiny on the legislative. The implementation of the voting process and mobilisation of citizens to get out the vote runs by unclear standards of success by the electoral institution with a steady growing budget but stagnated results. For nearly a century the rules of the electoral game had their application and adjudication guaranteed by a relatively independent actor. The unsuccessful implementation of street-level bureaucracy on the application of the elections might have impacts on the operation of the Brazilian democratic system.

    Although Brazil is a federative republic, the election process is deeply centralised on the federal government. The federation rules and manages the electoral system with a bureaucratic insulated institution of the Judiciary, called Superior Electoral Court (TSE). Amongst political actors and civil society there are no organised movements to bring the control over election rules nor its management to a local level government. However, the current political landscape in Brazil requires policies not currently performed by the TSE. As Mozaffar and Schedler (2002) highlight, "The nature of formal political institutions will shape, for example, the nature of the party system (Cox, 1997), the nature of economic policy (Bates, 2001), and the very responsiveness of government policy to public opinion (Powell, 2000)".

    The history of the court dates from the Constitution reform of 1934. It was deeply influenced by the revolutionary movement and the hegemony struggle present in Brazil at the time. As Alencastro (2014) underlines, "The Revolution of 1930 had as one of its principles the electoral reform. The Liberal Alliance Program Manifesto included the moralisation of the electoral system through the punishment of fraud, the implementation of the secret ballot and the proportional representation system". Mozaffar and Schedler underline that this fraud could determine the results of close elections in systems where partisan officials were no longer responsible for organising and certifying election results. According to Assis Brasil, a Brazilian politician and diplomat at the time, the creation of the court was a movement to insulate the election process from the executive and legislative branches of government and bring an era of "representation and justice".

    According to Mozaffar and Schedler (2002) the electoral governance is divided within three different levels: rule making, rule application and rule adjudication. The rulemaking should encompass the discussion of terms of dispute between different political actors, usually performed by democratically elected bodies. The second level considers the application of the rules previously agreed by the political actors regarding the electoral game, such as the execution of provisions to implement the elections. Rule adjudication is the third level, usually monopolised by the Judiciary or electoral commissions, and acts when requested by political actors to investigate and enforce the countermeasures in case of policy breach. According to the Brazilian political scientist Vitor Marchetti, the electoral institution in Brazil is responsible for the second and third levels of electoral governance. It can be divided into three categories: subordinated to the executive power; independent from it, or a hybrid system of two electoral institutions. On a hybrid system one institution is responsible for the application of the second level and the other for the third level of electoral governance.

    Currently TSE is an independent institution that unifies the application of second and third levels of electoral governance and struggles with the legislative on the first level of rulemaking. The Parliament emphasises the natural role of TSE on the third level of electoral governance, but raises concerns regarding the court's attempts to act on rulemaking. The role of an organisational body on the second level on electoral governance goes from registering parties, candidates and voters; providing material condition for the implementation of elections (such as the distribution of ballots across the territory) and publicising the electoral process, through educational campaigns. According to Charles de Montesquieu, "there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression".

    The Economist Democracy Index States the electoral system in Brazil has high standards of reliability since the first edition of the study in 2006. In terms of rule application - equal opportunities to run for office, political participation and electoral process transparency - the current system has an unwavering rate of 9.58 - the same rate of United Kingdom. However, the study overlooks some elements that are relevant to understand the Brazilian context, such as the role of the Judiciary as the bureaucratic body responsible for elections. Since the beginning of the new democratic cycle, the legislative and the judiciary powers have been questioning the constitutionality and the limits of TSE rulemaking. Members of Parliament consider it to be out of the Judiciary boundaries to legislate, specially on electoral matters. In recent years Brazil witnessed institutional crisis lead by monocratic decisions on the TSE regulating electoral activities. Perspectives in favour of this proactive stance on the Judiciary claim that the rulemaking through the courts are necessary to avoid gridlock on Parliament. Alongside the debate over the proactiveness of the judiciary on the elections, there is an overlooked element regarding rule application on TSE, especially public policies to engage voters and boost higher standards of public participation. As the executive body to enable political representation and stimulate democratic culture, the Court is required to have a proactive engagement, putting it's agenda on society's scrutiny and even lobbying for resources on the national budget to achieve these goals. According to the Constitution, the judiciary must not act unless requested by a social actors. Political actors that advocate for the current stance on the judiciary claim the main concern is to insulate the electoral process from political and partisan influence.

    Implementing an election present complex challenges. The amount of candidates in Brazil is growing exponentially - around half a million candidates on the municipal elections of 2016 and thirty thousand candidates on the general elections of 2018. It's a social phenomenon that provides more options and proportionally the better possibility of representation, but it comes with the challenge of having one centralised office handling an enormous amount of information and making it efficient for the public. Constituents on large electoral colleges as the state of São Paulo have to deal with nearly two thousand candidates for the House of Commons without an adequate and reliable source of information. Organisations from Civil Society and the media struggle to make this process accountable due to the difficulty in accessing the data and its lack of verification. An indicator that raises concern on the efficiency and the availability of organised information for citizens is the amount of voters who forgot their vote on the previous election. According to Idea Big Data Institute, 79% of Brazilians voters do not remember their vote for the House of Commons on the previous election cycle and 87% do not feel represented by Parliament. This seems to indicate that voters are not being properly engaged by TSE election campaigns, and that information is not being adequately provided in this context where hundreds or even thousands of candidates dispute. In the past ten years, the budget execution specifically for the election management grew 102%. There are means to ensure the logistics and security of the election process. Nevertheless, there is a lack of programs to engage and educate voters about the elections, as well as to create a more transparent process for information management.

    Proportional elections emphasise the challenge for the TSE to manage, the imperfect civic education about the political offices and the role of the election process. TSE’s main duties include launching periodically campaigns to provide political awareness about basic aspects of representative democracy such as the institutions, their roles and the offices being elected. Vox Populis Pool asked about the responsibilities of the legislative branch, on its most basic level, the city councillor. Although the vast majority pointed to the role of the legislative to propose the discussion over legislation and to limit the Executive branch's power, a considerable number had indicated other types of obligations. Electoral propaganda for the legislative branch highlight these perceptions when candidates make promises without plausible connections with their roles, most commonly with legislator candidates focusing their campaign on aspects of the executive branch. According to another Pool, made by Ibope during the last decade the credibility of the election process plunged nearly 20% making the process reliable to only one third of the public interviewed. Political Parties and the Parliament are following the same trend, having their credibility as low as 17%. Interestingly, the same index regarding the judiciary indicates 50% credibility. Meanwhile, other important social institutions absent democratic scrutiny have far better credibility rates than the Legislative, Elections and political parties. For example, the Armed Forces the Catholic Church and the Fire Department would enjoy credibility rates above 50%.

    Although actions to publicise the election process are constant on the Court's budget, the pattern evolution for this action is inconsistent on the past decade, but a proportional analysis highlights a proportional rise on expenditure on non election years, due to the drop on other actions expenditure. While the budget for the elections management as a whole more than doubled there is a stagnation for this specific actions, with rare exceptions, the amount spent in 2018 in rigorously the same of 2008. Such goals, to bring civic education about the election process is on the agenda of Chief Electoral Justices, as the court responsibility. Consequently there is a steady number of third percent of citizens that decide not to cast a vote on the elections in a country where voting is mandatory: "the extent and scope of political participation are important - perhaps even decisive - criteria for assessing the quality of democracy" (Deth, Oxford Research Encyclopedia of Politics, 2016, p.2).

    The role of the Judiciary on the elections in Brazil varies from its natural prerogative of rule adjudication and mediation of conflicts between political actors on electoral matters, but it also plays an important function as the guarantor of isonomy and a limitator of political hegemonic dominion. TSE has been instituted almost a century ago in Brazil and across different political regimes, the only constant was its existence and the belief amongst political actors of its role as a guarantor. It entrusts a technical institution with the task of mediate political dispute and struggle for power on the election process, exhorting all actors to abdicate violence and trust the proper roles of political dispute. It aims for the constant building of regime legitimacy by making and guaranteeing the electoral process is transparent and fair. According to The Economist Index, as well as the alternance of power between political actors during the last democratic cycle, the purpose to guarantee the election isonomy has been carried out efficiently by the Electoral Institution, although improvement is required on publicising and educating the public about the election's purpose and processes.

  • Luis Kimaid