Bolsonaro may be ineligible for just 3 elections – 06/19/2023 – Power

The main consequence of the action being processed at the TSE (Superior Electoral Court) against Jair Bolsonaro (PL), 68, whose trial begins this Thursday (22), has as its main consequence eight years of ineligibility.

According to current legislation, if convicted, the former president will be able to run again in 2030, at the age of 75, thus staying away from three elections until then (one of them being the 2026 national).

The investigation at the TSE focuses on the meeting between Bolsonaro and ambassadors from several countries at the Alvorada Palace in July last year, when he discredited the electoral system and attacked ministers of the STF (Federal Supreme Court) without presenting evidence.

According to the Electoral Public Prosecutor’s Office, on that occasion Bolsonaro allegedly committed abuse of political power, misuse of purpose and misuse of the media.

The then candidate for re-election allegedly took advantage of presidential authority and made use of public resources such as Alvorada, the official government networks and TV Brasil for his own benefit —the broadcast was also disseminated on Bolsonaro’s personal social networks, used for the campaign of the politician.

In this sense, the former president can be convicted of abuse of political power or prohibited conduct – actions prohibited for interfering with the fairness and balance of elections, which may affect equality of opportunities among candidates.

According to prosecutor Rodrigo López Zilio, Bolsonaro can only be held responsible for abuse of political power if it is recognized that his action had repercussions in the electoral process.

In the case of prohibited conduct, it is enough to prove that the action was carried out with electoral interest, as in the already recognized use of the public administrative structure.

This is because the context is sufficient to characterize the break in the balance between the candidates, without the need for the former president to mention his candidacy at the time of the meeting, says Luiz Carlos Gonçalves, regional attorney of the Republic and co-author of the book “Commentários às Sumulas of the TSE”.

“What we call prohibited conduct almost always means ‘use of the public machine in favor of a candidacy’. For that there is no need for an explicit request for votes or for an announcement of the candidacy.”

Although they have specificities, the two irregularities have as their main punishment eight years of ineligibility. There may still be accumulation of sanctions. In that case, Bolsonaro could also be sentenced to pay a fine of up to R$100,000.

According to TSE precedents 19 and 69, the period begins on October 2, 2022, the date of the election, and ends on “the day of the same number in the eighth following year”. In this case, October 2, 2030.

Held on the first Sunday of October, the first round of the 2030 elections should take place on the 6th, four days after Bolsonaro is considered clean again. For specialists, this is enough for the former president to run for election on that date.

According to TSE summary 70, “the end of the ineligibility period before the election day constitutes a supervening fact that removes the ineligibility”, that is, if the ineligible candidate is able to run on the day of the electoral vote, this fact guarantees its participation in the election.

In this sense, unless the electoral legislation is changed in the coming years, the former president will be prevented from participating only in the municipal elections of 2024 and 2028, and the general elections of 2026, and may be elected as early as 2030.

“This is the analysis of what we have today as legislation and jurisprudence”, observes Irapuã Santana, doctor of law and former minister’s advisor at the TSE and the STF.

Prosecutor Zilio cites as an example the case of the 2020 municipal elections, postponed to November 15 due to the Covid-19 pandemic.

At the time, candidates who would have been ineligible on the first Sunday of October, but who had a clean record until the new election date, had their candidacy records deferred in a decision by the TSE.

“If Bolsonaro asks for registration, he will probably be rejected during the candidacy registration period, but he can appeal. [de outubro]he can present a petition at the Electoral Court, and he must receive the registration of candidacy”, says the attorney Gonçalves.

According to him, the former president would not even be harmed in the electoral race, since, even being ineligible, the legislation would not prevent him from presenting himself as a candidate and campaigning, leaving only the validity of the votes attributed to him conditioned to the approval of his registration by higher authority.

The experts consulted by Sheet argue that the restriction on the right to candidacy would be more egalitarian if it took effect on the first day of the year following the election, which would make the exclusion from four elections common to all politicians covered by the legislation.

“At the moment, [um político] stays longer or shorter [inelegível] by luck or bad luck. It’s kind of crazy,” says the promoter.

“Two candidates who have committed the same type of abuse will have their fate defined by the calendar. Depending on the date on which the election takes place, he can run or not run. If you set the first day of the following year as a criterion, makes everyone equal”, says the attorney.

From this perspective, Bolsonaro’s punishment would begin on January 1, 2023, making the former president ineligible in two municipal and two general elections, and he could only be elected from 2032 onwards.

For this to happen, however, it would be necessary for the electoral legislation to undergo changes in the next seven years.

In the opinion of Isabel Mota, a lawyer and professor of electoral law, the candidate’s eligibility must be assessed at the time of candidacy registration and be valid throughout the election. Being ineligible at this stage, Bolsonaro should maintain the status until the end of the 2030 elections, she argues. She says, however, that predicting how the Electoral Justice will act in relation to the politician is an exercise in “futorology”.