Ineligibility: law provides for at least 16 situations in Brazil – 06/22/2023 – Power

There are at least 16 ways to become ineligible in Brazil, which makes the country one of the record holders for restrictions on electoral candidacies among Western democracies.

In almost all cases, ineligibility, or temporary suspension of the right to vote, is a secondary consequence of another type of punishment, such as impeachment or certain convictions by a collegiate body.

“The only hypothesis of an action that has ineligibility as its own penalty is the electoral judicial investigation action for abuse of political, economic power or improper use of the means of communication”, says the lawyer Fernando Neisser, president of the Commission of Public Law and Electoral of the Institute of Lawyers of São Paulo.

This is a type of action that seeks to guarantee equality of conditions between candidates in a dispute. And this is exactly the process that former President Jair Bolsonaro (PL) is facing at the TSE (Superior Electoral Court).

The PDT, the party that filed the lawsuit against Bolsonaro, argues that he abused political power and misused the media at the meeting in which he told lies about electronic voting machines to ambassadors in July last year, at the Alvorada Palace.

If convicted, Bolsonaro will not be able to run for eight years, a period that, since the enactment of the Clean Record Law (2010), has become common to almost all ineligibility. The only difference is when this punishment starts to be considered.

For the abuse of political power, for example, the eight years count from the day of the first round of the election in which the facts occurred. In impeachment, the person is already ineligible for the remaining time of the mandate and only then the eight years begin to be counted.

The complete list of ineligibility can be found in article 1 of law 64/90. It is an extensive list, which includes not only punishments but also cases in which the person does not have the right to be voted for other reasons, such as lack of literacy or the need to comply with quarantine after leaving certain positions.

According to Neisser, some of the most common ineligibility are those related to the loss of elective mandate, either in the case of impeachment, or in the case of impeachment of a deputy or councilor – a punishment that also applies to those who resign from their position during the process.

Ineligibility arising from conviction by a collegiate body is also frequent, which is the best-known effect of the Clean Sheet.

Before, the legislation foresaw the suspension of the right to stand as a candidate for any person who had, for certain types of crime, a final conviction – that is, against which there is no longer any appeal. The ineligibility lasted three years after serving the sentence.

With Ficha Limpa, this period increased to eight years. In addition, the law expanded the crimes that can generate electoral restriction.

Thus, crimes against public administration and drug trafficking, among others, were added, for example, to environmental crimes, money laundering, crimes against sexual dignity and those committed by criminal organizations, gangs or gangs.

Other known situations of Law 64/90 are the rejection of accounts related to the exercise of public offices or functions, which can also generate ineligibility, as well as intentional acts of administrative impropriety that result in damage to public property and illicit enrichment.

Not as frequent, but no less important, are cases like the lawsuit against Bolsonaro, which involve some action to unbalance the electoral dispute.

The law provides for punishments for those who commit abuse of political or economic power in favor of themselves or third parties. And, in the same spirit, it provides for the possibility of making ineligible those who buy votes, for example.

More recently, due to the now former federal deputy Deltan Dallagnol (Podemos-PR), a little-used hypothesis of the law gained the spotlight: the ineligibility of magistrates or members of the Public Ministry.

According to the law, punishment applies, among other situations, to those who have requested dismissal or voluntary retirement pending administrative disciplinary proceedings. The TSE understood that Deltan sought to circumvent this device and applied it, even if the former member of Lava Jato Operation did not fit the letter.