Nunes Marques asks to see a trial that could annul the election of four federal deputies from Amapá – News of Brazil

On the afternoon of this Wednesday (21), the plenary session of the Federal Supreme Court (STF) once again analyzed three ADIns that contest the third phase of the distribution of electoral surpluses. Current legislation requires compliance with an electoral quotient for political parties to compete for these vacancies. The trial was suspended following a request from Minister Nunes Marques and will resume next Wednesday (28). The final result of the trial could influence the mandate of seven federal deputies, six from the Northern Region, including four from Amapá.

Before the interruption of the trial, in the virtual plenary, the rapporteur, retired minister Ricardo Lewandowski, and ministers Alexandre de Moraes and Gilmar Mendes had voted in favor of the thesis that all candidates have the right to participate in the distribution of surpluses, regardless of whether they reach the demands of 80% and 20% of the electoral quotient, that is, they understood that the current rules are unconstitutional.

Today, Wednesday, the trial resumed with the vote of minister André Mendonça, who opened a divergence and voted for the constitutionality of the questioned rules, invalidating only article 111 of the Electoral Code.

Minister Nunes Marques requested to see the files due, according to him, to the complexity of the topic, highlighted by this afternoon’s debates.

Minister Edson Fachin decided to advance his vote and took a stand for the validity of the questioned provisions.

Minister Cármen Lúcia made an appeal for the Supreme Court’s decision to be given by March 5, before the renewal of TSE resolutions. Thus, these can be produced with legal certainty. The continuation of the trial was scheduled for next Wednesday’s session (28).

Check out the score so far:

Is the rule for the third phase of distribution of electoral surplus constitutional?

So far, ministers Gilmar Mendes, Ricardo Lewandowski and Alexandre de Moraes have voted for the unconstitutionality of the distribution of electoral surpluses. Ministers André Mendonça and Edson Fachin consider them to be constitutional. Ministers Cármen Lúcia, Nunes Marques, Luiz Fux, Dias Toffoli and Luís Roberto Barroso have not yet voted.

View vote

Minister André Mendonça, when presenting his opinion, cited several judgments related to the topic of performance clauses voted on in the Supreme Court (RMS 21.329, RE 140.386, ADIns 5.920, 5.947, 5.577, 6.657, 5.420). He highlighted that for more than 50 years, since the promulgation of the Electoral Code, a more restrictive parameter was in force, without the STF understanding why it was invalid, despite there being no lack of opportunities.

In this sense, he voted for the dismissal of ADIns 7,325 and 7,263 and for the validity, in part, of ADIn 7,228 to declare the invalidity of article 111 of the Electoral Code, and, by extension, of article 13 of the TSE resolution, applying the principle of the annual fee provided for in article 16 of the federal Constitution.

Successive performance clause

When recapping his vote, minister Alexandre de Moraes clarified the importance of the discussion, as, depending on the result, the difficulties in guaranteeing democratic plurality could be worsened. According to the minister, the current law created a successive performance clause, favoring the large parties.

He highlighted that in the cut made by the electoral quotient, large associations are favored. So, according to Moraes, the role of the Supreme Court will be to assess whether in the electoral surplus small parties will be extinguished, their formation will be made difficult, or whether new parties and ideologies will be given a chance.

The unconstitutionality, for the minister, lies in the creation by law of an 80/20 performance clause for the distribution of surpluses, which prevents the participation of all parties, harms democratic pluralism and popular sovereignty.

Moraes, in reference to the TSE’s technical note, pointed out that seven federal deputy seats would be at risk depending on the plenary’s decision.

Legislator’s will

Minister Edson Fachin, when delivering his vote, affirmed the relevance and authority of the National Congress and respect for the principle of separation of powers.

According to Fachin, party minorities participated in Congress’s decision, so there was no reduction in inclusive democracy, nor any violation of legality by the TSE when it produced its resolution.

Furthermore, the minister stated, when defining electoral rules, the parties intended to reduce party fragmentation and, thus, improve political representation. In the end, he voted to dismiss all ADIns.

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