Electoral reforms: between the democratic rule of law and its erosion

September 1, 2021

Constitutional Erosion . Democratizing

On August 10, the House of Representatives approved, by 339 votes to 123, part of the basic text of the Proposal for Amendment to the Constitution (PEC) 125/11, which provides for profound changes in the Brazilian electoral system. A week later, the proposal returned to the plenary and was approved in a second round, being sent for deliberation in the Senate.

PEC 125/11, also called the electoral reform PEC, establishes important changes in the rules that regulate the electoral process in Brazil. Among the planned changes are the return of coalitions for campaigns for proportional positions, such as city councilors and state deputies, which had already been extinguished in 2017. In addition, the PEC also provides for double counting of votes given to women and black candidates, as well as changing the date of inauguration of presidents and governors from January 1 to the 5th and 6th of the same month. It also provided for a change to the so-called “districting” and preferential voting for president, but these points were not approved by the House of Representatives.

Specific changes in the electoral rules are common since the re-democratization, but no reform project has covered so many points and themes as the Legislative Branch has been aiming for in the year 2021. It is important to pay attention to its peculiarities in order to understand what is at stake with the modifications foreseen by this proposal and whether these new projects are compatible with the Democratic Rule of Law inaugurated by the 1988 Constitution.

Discussions in the Legislative Branch

PEC 125/11 was only partially approved by the House of Representatives. According to the text approved by the House, parties may again make alliances to compete in elections, thus being able to add radio and television advertising time and unite to reach the maximum number of candidates, up to twice the number of seats in dispute. Basically we will have the return of coalitions, which were completely forbidden in proportional elections only in the last 2020 elections. It will also be possible again for the voter to vote directly for the party or coalition.

TRE/RJ – Electronic Ballot Box/Creative Commons 4.0

Other changes approved by the House are: the reduction to 100,000 of the number of signatures required to propose a Bill of Popular Initiative; starting with the 2016 elections the inauguration of the President would take place on January 5th, and of the governors on January 6th; the election of women and blacks would be double counted for the calculation of the sharing of the Electoral Fund between the parties; and there would be other changes in the minimum criteria for access of the parties to the Party Fund and to free advertising time on radio and TV.

However, it is important to highlight some controversial points that ended up not being approved in the House: the district system (also known as distritão) and the preferential vote for President.

The distritão would represent a substantial change in the Brazilian electoral system. In summary, the voter could no longer vote for every candidate running in that constituency for the positions that until now are filled by the proportional system, but only for the candidates of his or her electoral district. Thus, each electoral district would elect a single representative for the office in dispute. We can use as an example the municipal elections for councilmen, in a municipality with 20 councilmen. In this case, the municipality would be divided into 20 areas (or electoral districts) – which may or may not coincide with the city’s neighborhoods – and each district would elect one councilman.

The truth is that this model would only create new problems related to the deficit of representation and would not solve any of the existing issues. Since it would transform all elections into majoritarian elections, it would make it more difficult for minority groups to access elective positions, it would make elections more expensive, it would make it more difficult to renew the political environment, and it would eliminate the current policy of reserving seats in proportional elections.

On the other hand, the preferential vote proposal presented by Congresswoman Renata Abreu (Podemos-SP), for the elections of president, governor and mayor, would put an end to the second round of voting, since the voter would indicate up to 5 candidates for these positions, in descending order of preference. Thus, the candidate who obtained an absolute majority of the first choices of the voters would be elected. Under the argument of reducing the polarization of the electoral environment, this system would greatly favor the election of center candidates and would reduce the ease of understanding by the voter as to whom he is actually electing.

Despite the fact that some of the most questionable points of the electoral reform were not approved by the House of Representatives, the attempts to change the current electoral system are not over. Last week, the president of the Chamber of Deputies, Arthur Lira (PP-AL), put the proposal of a new Electoral Code (PLC 112/2021) on the September 2nd agenda.

Under the argument of the need to systematize the current electoral legislation, this proposal for a new Electoral Code is being presented without any public debate and democratic discussion. Lira claims that the code would be the result of a commission that began its work in February. However, the final text, containing more than 900 articles, was only released four weeks ago, which makes it impossible to have a broad public analysis and discussion with collectives and civil society organizations (especially in a context of deep economic and health crisis that Brazil is experiencing).

Among the changes brought by the PLC 112/2021 it is possible to highlight the relaxation of the use of the party fund; the presentation of documents by the candidates through a Federal Policy system, and no longer through the Electoral Justice system, which would make its work more difficult; and the non-direction of specific resources for the campaigns of women and blacks, which changes the current understanding derived from decisions of the TSE and STF. Thus, it is possible to perceive, behind a discourse of facilitated access to electoral norms, attempts to halt advances achieved by minority groups, especially those resulting from court decisions. There is also an attempt to curb the role of the Electoral Court, which currently has administrative functions as well as those of a specialized court.

It is important to point out that, following the principle of electoral annuality, the reforms that are still in progress must be approved by October of this year so that they can be applied to the 2022 elections.

Electoral changes and the Democratic Rule of Law? Is there such a possibility?

The 1988 Constitution does not prohibit the possibility of legislative reforms regarding the electoral system in Brazil. To think of an absolute prohibition would be to walk against the complexity and the possibilities of new interpretations and new projects that may arise in the Brazilian legal community.

However, the Constitution establishes measures that cannot be changed in the sense of any tendency towards abolition. This is what is found in art. 60, § 4 of the Constitution, called the stony clauses. It is because of this institute that the Constitution gains the character of rigidity or super-rigidity.

In particular, art. 60, §4, clause II (the direct, secret, universal and periodic vote), is directly aimed at the electoral system in Brazil. But one cannot dispense with a teleological and systematic reading of the entire Constitution. The electoral field is not only made up of the stony clauses.

Among its main concerns we can highlight popular sovereignty (art. 14) and political plurality (art. 1). These are values and principles that can only be achieved through elections, with adequate political representation and with the construction of adequate public policies.

It is based on these concerns that the measures put on the Legislative Branch’s agenda do not seem adequate to the democratic constitutional projects concerned with the electoral system.

The case of districting, for example, shows how legal minorities can be less represented in public spaces (and the current scenario is not the best), leaving plural political representation aside, reducing the complexity of the demands (in)arising in the Brazilian social body at all times.

Another important example is the attacks and dissemination of false news about Brazilian electoral tools. The debate about the printed ballot in the National Congress is the most recent demonstration of how society can be victim of regressions and democratic erosion, specifically, by dissemination of false information: one of the most secure electoral systems in the world put in doubt by several fallacious, ignorant and arrogant remarks.

We are not denying the importance of the stony clauses, we are just reiterating how necessary it is to remain critical in the face of a scenario of attacks on democracy, whether in the formal or informal public space.

Critical stance of citizens 

Citizens should remain critical and reticent to measures presented as “special” solutions to all social problems and ills. The Legislative Branch’s haste is an indication of private interests in the year 2022, in view of the principle of annuality (art. 16).

The need for debate about electoral institutes, measures and systems is not denied. The dialogical posture and the adequate creation of the Citizen Constitution in the paradigm of the Democratic State of Law must be taken into account. As Vírgilio Afonso da Silva points out in his “Curso de Direito Constitucional Brasileiro”, we are inserted between new and old challenges: inequality, corruption, new technologies, political representation, multinational corporations, etc. These new challenges, whether in the electoral system or in democracy in general, must be made in line with the democratic project, with coherent, serious and precise solutions.

When electoral reforms are presented, the need to broaden the debates as much as possible becomes even more evident. This is because it is through electoral regulations that the democratic system is operationalized, in practical terms. After all, it is elections that allow Brazilians to interfere in the political system and express their will. Therefore, a new Electoral Code cannot be approved without ample popular debate.

Shallow and fallacious debates are part of political projects against democracy. Democratic Brazil cannot succumb to these erosions.

By Jessica Holl [1], Lucas de Souza Prates [2], Lucas Perrone Camilo [3] .

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[1] PhD candidate in Law at Goethe Universität Frankfurt am Main (Germany). Master’s and Bachelor’s Degree in Law from UFMG. Lawyer. Legal Coordinator of Associação Visibilidade Feminina. Researcher at the Center for Studies on Transitional Justice (CJT/UFMG).

[2] Undergraduate student of Law at the Federal University of Ouro Preto (UFOP). Researcher and extensionist at the Center for Transitional Justice Studies (CJT/UFMG) and at International Law without Borders (DiSF).

[3] Undergraduate student in Law at the Federal University of Ouro Preto (UFOP). Researcher and extensionist at the Center for Studies on Transitional Justice (CJT/UFMG).