STF overturns change in electoral surpluses, but maintains deputies elected in 2022

The Federal Supreme Court (STF) overturned, by majority vote, the change that restricted parties’ access to “electoral leftovers”. By 7 votes to 4, the Court considered this Wednesday (28) that the restriction is unconstitutional. The surpluses are the seats that remain after division by the electoral quotient, an index calculated by dividing the valid votes of a state by the seats available for the contested House.

In 2021, a new rule established that only parties that reach at least 80% of the electoral quotient can compete for unfilled vacancies, and candidates must have received votes equivalent to at least 20% of this quotient. The law provided that even the seats distributed in the third phase, the so-called “leftovers”, should include parties that reached 80% of the electoral quotient. Before the 2021 changes, all parties could compete for electoral surpluses.

Ministers Ricardo Lewandowski (retired), Alexandre de Moraes, Gilmar Mendes, Nunes Marques, Flávio Dino, Dias Toffoli and Cármen Lúcia voted to overturn the change. Ministers André Mendonça, Edson Fachin, Luiz Fux and Roberto Barroso defended the maintenance of the law.

Despite the decision that resumed the previous understanding about surpluses, the Court determined that the rule should not be retroactive and will only be applied from the next elections onwards. As a result, seven deputies elected in 2022, who would be replaced by parliamentarians who were not elected, will remain in office.

According to calculations by the Brazilian Academy of Electoral Law (Abradep), the deputies who would lose their mandate would be: Augusto Pupio (MDB-AP); Gilvan Máximo (Republicanos-DF); Lázaro Botelho (PP-TO); Lebrão (União Brasil-RO); Professor Goreth (PDT-AP); Sílvia Waiãpi (PL-AP) and Sonize Barbosa (PL-AP).

Ministers Ricardo Lewandowski (retired), Edson Fachin, André Mendonça, Luiz Fux, Cármen Lúcia and the president of the STF, Luís Roberto Barroso, argued that the rule should not apply to the 2022 elections.