STF resumes judgment on the calculation of electoral surpluses on August 25 – News of Brazil

The Federal Supreme Court (STF) is due to resume, as of Friday (25), the judgment of the actions of parties that question the calculation of the last phase of distribution of the so-called electoral surpluses – the account used to fill remaining vacancies in elections of deputies and councillors.

The Court had already begun to analyze the case in April, but a request for a review by Minister Alexandre de Moraes paralyzed the trial.
The analysis is being carried out in the virtual plenary of the STF, a format in which there is no debate between ministers, who present their votes in an electronic system. The resumption is scheduled for the session from August 25th to September 1st.

Before the stoppage, there was only the vote of the rapporteur, Minister Ricardo Lewandowski (now retired). He voted in favor of the requests filed by parties and understood that the calculation of the last phase of the electoral leftovers should be changed to take into account all the acronyms in dispute in the proportional election.

This position would have the potential to change the composition of the Chamber of Deputies by at least seven seats, four of them in Amapá. The minister, however, understood that the change should take effect from the 2024 elections, when mayors and councilors will be defined in Brazilian municipalities.

Because he has already cast his vote in the case, Lewandowski’s position will remain valid at trial. Thus, his successor, Cristiano Zanin, does not vote at this time. Zanin will be able to participate in the judgment of eventual appeals, for example.

The actions question changes in the Electoral Code that altered the rules for distributing electoral leftovers, in addition to an excerpt from a resolution by the Superior Electoral Court (TSE) on the same topic.

The norm established that only parties that reached at least 80% of the electoral quotient can compete for vacancies in the last phase of the distribution of surpluses.

One of the actions of unconstitutionality was filed by the Rede Sustentabilidade party, another by Podemos and PSB, and the last by the PP.
Lewandowski voted for changes only in 2024
For Lewandowski, the 80% barrier for filling seats left over in the last phase of vacancy distribution “is not compatible with the letter and spirit of the constitutional text, as all associations that obtained votes in the election should participate in this phase” .

The rule applies to proportional elections, which defines the choice of state, district, federal deputies and councilors.

The magistrate cited this filter as a kind of obstacle to political pluralism and likely to disregard voters’ votes, by making it possible to elect the least voted candidate as long as the party has reached the minimum percentage.
“In effect, any and all norms that have the scope to restrict the plurality of political parties, limiting the election of their representatives, notably in the proportional system, violate the foundations of our Democratic State of Law”, he declared.
“I consider, at this point, to be unacceptable that the Federal Supreme Court endorses the interpretation of the norm that allows such contempt for the vote, especially in favor of a candidate with very low representation and, according to the criteria used in the second phase, belongs to the association already favored by the current form calculus”.

In his vote, the minister also considered unconstitutional another section of the Electoral Code that governs the election of deputies and councilors if no party reaches the electoral quotient. According to the norm, if this happens, the candidates with the most votes will be elected.

For Lewandowski, this device “sets up a surreptitious and flagrantly unconstitutional way of implementing a majoritarian system, similar to the well-known ‘district’”.

The minister proposed that, should no party reach the electoral quotient, the rules for the second and third phases of seat distribution should be applied. There was doubt on the part of the parties about the real impact of a decision favorable to the change in the calculation of surpluses.

Understand the electoral quotient and the leftover seats

The discussion of deputies’ mandates takes place in the so-called proportional system, responsible for defining the election of state, federal and district deputies and councilors.

The proportional system does not only take into account the absolute number of votes that a given candidate received to determine who will be elected. The voter’s vote is counted for an association, whether party or federation.

To define which deputy or councilor will be elected, you need to make two calculations. The electoral quotient, which defines the number of votes a party needs to elect at least one deputy; and the party quotient, which defines how many seats each party will have the right to occupy in a given Legislative House.
• Electoral quotient: the total number of valid votes is divided by the number of vacancies in dispute;
• Party quotient: the number of votes for each party or federation is divided by the electoral quotient.

It turns out that not all chairs are filled only with these criteria. This is because not all acronyms reach the electoral quotient. Then come the leftovers.

Leftover vacancies can only be disputed by parties that achieved at least 80% of the electoral quotient. For candidates, there is a minimum of votes of 20% of the electoral quotient that they need to have obtained in the elections to dispute the remainders.

The vote for each group is divided by the number of seats obtained in the previous phase plus one. The party or federation with the highest average elects the candidate.

If there are still seats to be filled, the last distribution phase considers the parties with the highest averages, without restriction to candidates who did not reach the minimum individual vote.

It is this last phase of distribution that is being questioned. The parties ask the STF that all acronyms can participate in the last phase.

The TSE resolution on the subject understood that only parties that obtained at least 80% of the electoral quotient can participate.

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