By Renan Ramalho
The president of the Superior Electoral Court (TSE), Alexandre de Moraes, is expected to send this week to the Federal Supreme Court (STF) lists of lawyers nominated to assume two new vacancies in the Electoral Court.
The STF will confirm the nominations, which will then be sent to President Luiz Inácio Lula da Silva (PT), who can choose two names of his preference.
Those chosen will replace the current Justices, Carlos Horbach and Sérgio Banhos.
The composition of these lists is the object of dispute and apprehension in Brasília since the new Justices are expected to participate in the trial of a lawsuit that could make former president Jair Bolsonaro (PL) ineligible for the next 8 years.
Moraes is interested in appointing allies to ensure a majority against the former president and continue to influence the Court when his term ends in June 2024.
The TSE has seven full members who vote on the main trials and seven substitutes who act in the absence or impediment of the full members.
In each group, three are Justices of the STF, two are Justices of the Superior Court of Justice (STJ), and two are lawyers.
In the current formation, the seven Justices voted to remove the mandate of federal congressman Deltan Dallagnol (Podemos-PR).
The decision was produced quietly, quickly, and discreetly among the Justices.
As seen in the session, there was no discussion among them, and there was already a prediction from the president of the Court that there would be no divergence.
Voting for ineligibility were the rapporteur, Benedito Gonçalves, Cármen Lúcia, Kassio Nunes Marques, Raul Araújo, Sérgio Banhos, Carlos Horbach, and Alexandre de Moraes.
The vacancies reserved for the Justices are filled on a rotating system: the oldest Justice, who has not yet been a member of the TSE, enters as a substitute and then takes over as the holder of another Justice who has finished term, which lasts two biennia.
The lawyers are chosen by the President of the Republic from a list composed by the president of the TSE and then ratified by the STF.
These nominations are hotly disputed in Brasília and usually involve lawyers close to the ministers of the STF.
In the current dispute, Moraes has been articulating the formation of lists with lawyers close to him who will be decisive in convicting or acquitting Bolsonaro in actions of the PT and PDT, mainly that want to make him ineligible for the 2026 elections.
Today, the president of the TSE has no guaranteed majority for conviction.
VOTES AT TSE ON BOLSONARO’S INELIGIBILITY
Behind the scenes, it is taken for granted that there would be only three votes against Bolsonaro: the rapporteur of the cases, Benedito Gonçalves, from the STJ, Carmen Lucia, from the STF, and Alexandre de Moraes.
Justice Raul Araújo, from the STJ, has already cast favorable votes for the former president during the 2022 election campaign.
Banhos and Horbach, in turn, are considered independent and decide case by case in a technical manner.
Bolsonaro chose both for the TSE and is unlikely to have Lula’s sympathy.
Banhos is in his second two-year term and is obliged to leave the TSE.
Traditionally, his position should be filled by his substitute, Maria Cláudia Bucchianeri, also chosen by Bolsonaro.
Everything indicates that she will not be on Moraes’ list for the STF and will be assigned to Lula.
In last year’s campaign, she also voted against punishing Bolsonaro – in a case involving posts linking the PT to the PCC and then on the use of presidential palaces for recording live broadcasts.
Horbach, in turn, could stay on for another two years, as he is at the end of his first biennium.
Last week, aware that he is likely to be passed over, he announced that he was leaving the court.
He drew attention in 2021 for voting against the cassation of state congressman Fernando Francischini (União-PR).
This decision is crucial to Bolsonaro’s case because it established the understanding that casting suspicion on electronic ballot boxes on social networks constitutes an abuse of political power and misuse of the media.
The most advanced lawsuit against Bolsonaro in the TSE is from the PDT, which accuses him of these same offenses because of a meeting he held in July 2022 with ambassadors at the Alvorada Palace to question the security of the ballot boxes and the impartiality of the TSE.
The PDT says that the event was part of a campaign by the former president to generate distrust in the result in case of defeat.
During the process, the rapporteur, Benedito Gonçalves, incorporated as evidence Bolsonaro’s previous manifestations against the ballot boxes and events that occurred after the elections, such as the invasion and depredation of the headquarters of the Branches of Power on January 8.
The PT has a similar action to remove the former president from the elections for the next 8 years.
In total, there are 16 actions against Bolsonaro for ineligibility.
Alexandre de Moraes only stays at the TSE until June 2024.
There would be enough time to judge these actions, but not necessarily a majority for conviction.
That is why there is interest in securing votes against the former president as soon as possible.
Among the lawyers close to the minister who may be indicated are Floriano Azevedo Marques Neto and Fabricio Medeiros.
In 2026, the year of the next presidential elections, Kassio Nunes Marques will be in charge of the TSE.
Bolsonaro appointed him to the STF with the support of the Centrão.
Besides him, Justice André Mendonça, also nominated by the former president, will also be in charge.
The third member of the STF in the Electoral Court will be Dias Toffoli, nominated by Lula but who had a good dialogue with Bolsonaro during his mandate.
From the STJ, the one who will be at the TSE is Justice Isabel Gallotti, who has an independent profile.
In theory, it would be possible for Bolsonaro to reverse a TSE conviction by going to the STF.
There is already a lawsuit in the Supreme Court to cancel fines imposed on the former president because of the meeting with ambassadors, with the same defense argument: that it was a legitimate discussion convened by a head of state within the limits of freedom of expression.
BOLSONARO’S ALLIES ARE CONSIDERING SCENARIOS FOR 2026
Bolsonaro’s close allies believe that an eventual conviction can be reversed, especially if the former president maintains his popularity and if the current Lula government fails in the economy and collapses in popularity.
But if he really stays out of the 2026 election, the PL could bet on a natural heir of his votes, such as his sons Flávio Bolsonaro (PL-RJ), senator, or Eduardo Bolsonaro (PL-SP), federal congressman.
“If they want to stop Bolsonaro, make him ineligible, that is impossible. Why? Because he has not committed any crime. Nobody can condemn a former president of the Republic and make him ineligible because he commented on this or that.”
“This does not exist on the planet. Another thing: if they do this to him, make him ineligible, he will increase his transfer power by 30%, you can write it down,” said the president of the PL, Valdemar da Costa Neto, in a video distributed to the party’s supporters.
Former chief of staff of Bolsonaro and opponent of Lula in the Senate, Senator Ciro Nogueira (PP-PI), has mentioned the possibility of the right to launch as opponents of the PT in 2026 the governors Tarcísio de Freitas (Republicans-SP), Romeu Zema (New-MG), Claudio Castro (PL-RJ) or Ratinho Júnior (PSD-PR) if the former president becomes even ineligible.
Still, he believes that the former president is still the strongest name in opposition to Lula.
“If it were up to him [Bolsonaro], maybe he would hang up his cleats. But he can’t do that; he has no right to lose his leadership. Only he leads.”
“Tarcísio does not lead, Zema does not lead, Ratinho does not lead, Ciro does not lead.”
“The one who leads is Jair Bolsonaro.”
“People believe in him, believe in his life story.”
“You can be sure: he will be the biggest voter in 2024 and 2026 if he is not a candidate”, he said in an interview with Jovem Pan radio.
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