Attorney General of the Republic issues opinion on vote tally questioned in the Federal Supreme Court – News of Brazil
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Paulo Silva
Policy Editor
The Attorney General of the Republic, Augusto Aras, issued an opinion for the partial validity of the direct action of unconstitutionality (ADI), with a request for a precautionary measure, proposed by the political parties Podemos and the Brazilian Socialist Party (PSB) regarding the retargeting of votes according to the 20% cutoff criterion. The ADI is being processed by the Federal Supreme Court (STF) and its rapporteur is the minister Richard Lewandowski.
Augusto Aras opines favorably just to give an interpretation according to the Constitution to item III and paragraph 2 of article 109 of the Electoral Code, so that, once the political parties and party federations with 80% of the electoral quotient and candidates with nominal votes are exhausted of 20% of that quotient, the eventually vacant seats are distributed to all parties and federations, according to the highest averages, waiving both the requirement of the minimum individual vote and the requirement of reaching 80% of the electoral quotient.
The decision of the STF in the judgment of the direct action of unconstitutionality may cause changes in the composition of the Amapá bench in the Chamber of Deputies.
Podemos and PSB argue that “Law 14.211/2021 promoted profound reforms in the electoral system and, among the various changes promoted, the distribution of vacancies of the leftovers stands out”. They allege that the law provided for two “exclusion clauses” so that a political party could participate in the distribution of surpluses: a) reaching at least 80% of the electoral quotient; b) existence of a candidate with a minimum individual vote of 20% of the electoral quotient.
According to defend “if the party does not meet, cumulatively, the two clauses, it cannot, in theory, participate in the distribution of the leftovers”. The parties question “how to distribute the (…) last vacancies from the leftovers when no party meets, cumulatively, the two requirements of a party with 80% of the electoral quotient and a candidate with 20% of the electoral quotient”. The answer would be in item III of article 109 of the Electoral Code, a device that, in the interpretation carried out by the applicants, determines that the seats be allocated to the political parties that present the highest averages, “without any restriction”. It turns out that this was not the interpretation of the TSE (Superior Electoral Court). In the caput and in paragraph 4 of article 11 of TSE Resolution 23.677/2021, it was defined that, when there are no more candidates with a minimum vote of 20% of the electoral quotient, the seats would be distributed to the parties that present the highest averages, among those that obtained 80% of the electoral quotient.
The authors of the ADI consider this interpretation to be wrong, saying that, “if the norm wanted to assign this restriction in this phase of article 109, item III, of the Electoral Code, it would only have removed the requirement of a minimum nominal vote, and would not make express reference to the removal of the two cumulative requirements: parties that have obtained at least 80 % of the electoral quotient + candidate with a minimum nominal vote of 20% of the electoral quotient”.
They argue that, “Based on political pluralism, equal chances and voting as equal value for all, in the literal sense of article 109, III, an interpretation must be given in accordance with paragraph 4 [do art. 11] of TSE Resolution 23.677/2021 to declare that, if there are vacancies and there are no other parties that meet the cumulative rule of 80/20, all parties must participate in the distribution of the remainders, with vacancies being awarded to the party that reaches the highest averages ” .
They argue that this interpretation “benefits the small associations that obtained significant votes in the election (…) and honors the popular will expressed in the ballot boxes”. It is, according to the applicants, “a criterion for distributing remaining vacancies that promotes more equal access for minorities participating in the election process (principle of equal chances)”. This because, “By considering in the calculation of the electoral surplus all the parties that participated in the election, it is allowed that smaller associations, generally linked to the defense of demands of socially minority groups, have parliamentary representation, preventing that well-voted candidates from acronyms that did not reach the electoral quotient are left out of the calculation”.
They also point to the violation of the principles of legality, separation of powers and electoral annuality. They argue that Resolution TSE 23.677/2021 is an innovative rule, which created “restrictions of rights or exclusion clauses not provided for by law”. Furthermore, “any regulatory innovations brought [pela Resolução TSE 23.677/2021]which are not provided for by law, can only be applied in the 2024 election, as the said rule was published less than a year before the 2022 election”.
Finally, they require the origin of the request “to grant interpretation in accordance with the Constitution of the Republic, allowing that in the third phase of the distribution of the remainders in the calculation of the highest averages, all parties that participated in the election are contemplated, regardless of the electoral quotient achieved, in compliance with the principles established in the Constitution”.
For Augusto Aras, the requirement that political parties and party federations reach 80% of the electoral quotient and a candidate with a nominal vote of 20% of that quotient, in order to participate in the distribution of remaining seats, shall not be applied in the third stage of seat distribution in the legislative house ( “leftovers”), under penalty of interdicting the access, in an already significantly reduced space, of the small subtitles in the proportional system, in affront to the multi-party system and to the principle of equality of chances.
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