Brazilian Electoral Court obstructs investigation into alleged manipulation by polling institutes

The president of Brazil’s Superior Electoral Court (TSE), Alexandre de Moraes, decided on the night of Thursday, October 13, the overturn of the determinations to open an investigation made by the Administrative Council for Economic Defense (CADE) and by the Ministry of Justice (this one attended by the Federal Police) against polling institutes.

In the decision taken ex officio, i.e., without being requested to do so by the Justice, Moraes says that the inquiries by CADE and the Federal Police:

• “constitute an evident usurpation of the competence of the Superior Electoral Court to watch over the hygiene of the electoral process”;
• “are based, solely, on presumptions”;
• “seem to demonstrate the intention to satisfy the electoral will manifested by the president and candidate for reelection, and may characterize, in theory, misuse of purpose and abuse of power by its subscribers.”

Moraes also determined to investigate a possible practice of abuse of political power. He cited the possibility of “misuse of purpose in the use of administrative agencies to favor a particular candidacy, in addition to the crime of abuse of authority.”

THE CASE

On October 4, 2022, the Minister of Justice, Anderson Torres, sent a request to the Federal Police (PF) to open an investigation on the “performance of electoral research institutes”.

On Twitter, the minister said that the request “meets the representation” received by the Ministry of Justice “that pointed to ‘conducts that, in theory, characterize the practice of crimes committed’ by some institutes.”

On Thursday, October 13, the president of CADE, Alexandre Cordeiro Macedo, determined the opening of an administrative investigation against three research companies for possible “collusion” in the period of the 2022 elections.

The targets for trying to “manipulate” the election are Datafolha, Ipec (former Ibope), and Ipespe.

Alexandre Cordeiro Macedo’s request was sent to Alexandre Barreto e Souza, CADE’s general superintendent.

Cordeiro wrote that the results of the verified polls evidenced the “errors” and that the polls had results “beyond the margins of error” in the surveys.

According to the president of CADE, who is linked to Ciro Nogueira (Progressistas Party – PP, right), chief of staff minister and an ally of Jair Bolsonaro (Liberal Party – PL, right), the results of the polls in the first round of the presidential elections were “very different from those propagated by opinion research institutes.”

Cordeiro suggested that the errors are not “casuistic” but intentional “through an orchestrated action of the polling institutes”.

ANALYSIS OF THE ELECTORAL POLLS

The president of CADE said that he analyzed the performance of the candidates in the presidential elections.

He wrote that the vote for former president Luiz Inácio Lula da Silva (Workers’ Party – PT, left) was within the margin of error in nine polls.

When considering the 95% confidence interval of the polls, it found, it said, that at least ten other surveys would have misstated the final result of the election beyond the tolerance interval.

Regarding the votes for President Jair Bolsonaro (Liberal Party – PL, right), Alexandre Cordeiro said that 18 surveys got it wrong when considering the margin of error and the 95% reliability of the studies. Only one would have got it right.

“This type of evaluation demonstrates how there is a clear mismatch between the sample characteristics concerning the population, which should prevent the expected extrapolation in inferential statistics of the sample characteristics (statistics) to the population (parameters),” wrote the president of CADE.

He said that when many surveys fail simultaneously and in the same direction, it is “unlikely” that there is an error resulting from “mere chance.

ERROR AND MEGA-SENA

The president of CADE compares the errors of survey companies to the chances of winning the lottery.

“The chance of winning Mega-Sena with a single bet of six numbers is 1 in 50 million. This chance is substantially higher than the probability of being seven standard deviations away from a given average, which would be 1 in 390 billion,” he said.

“The value the survey distanced in some cases was 11.96 standard deviations from the mean. Such a value would be extremely improbable in itself and would represent the chance of winning the lottery several times,” he added.

Cordeiro concluded that it is “unlikely” that the survey sample was well designed. He pointed out that “several supposedly independent surveys” have the same type of error.

Cordeiro said that Ipec, Datafolha, and Ipespe presented identical results regarding the difference between the candidates, of 14%.

“The errors were not random; they all converged in the same direction,” he declared.

He published article 36 of the Law for the Defense of Competition:

“It constitutes an infringement of the economic order, regardless of guilt, the acts in any form manifested, which have the object or can produce the following effects, even if they are not achieved: I – limit, distort or in any way harm free competition or free initiation;”.

It stated that given the “unlikely coincidence”, one can conclude that there are indications of alleged coordinated or collusive conduct of the three research companies.

It asked CADE’s General Superintendence to open an administrative investigation.

According to the letter, if the practice is proven, the companies may also respond for crimes against the economic order.

WHAT THE COMPANIES SAY

Poder360 contacted Datafolha, Ipec, and Ipespe to ask if they would comment on the request from CADE’s president.

On Thursday, October 13, Ipec issued a note stating it “vehemently repudiates actions based on theories that want to confuse and induce society to misinformation”. It also says that it acts independently and without links to any other economic group or research company.

HERE IS THE FULL NOTE FROM IPEC:

“Ipec regrets yet another initiative against research institutes, which only fulfill their role of measuring the voter’s voting intention based on scientific criteria and on information collected at the time the polls are conducted.

“The variations between the polls and the result of the polls in the first round of the presidential election coinciding in almost all the institutes only demonstrates the adoption of statistical principles and models that support the research activity.

“In addition, Ipec is a private company that operates independently, without any connection to any economic group or any other research company, basing its professional and business conduct on ethical principles, which is why Ipec vehemently repudiates actions based on theories that want to confuse and induce society to misinformation, with the clear purpose of destabilizing the progress of research activities.”

There was no response from Datafolha and Ipespe as of the publication of this text.

WHO IS ALEXANDRE CORDEIRO

Alexandre Cordeiro was appointed president of CADE in July 2021. He is connected to the chief minister of the Civil House, Ciro Nogueira (PP).

He previously served as the body’s general superintendent since 2017 after being appointed by then-president Michel Temer.

At the time, Cordeiro and the current superintendent-general of CADE, Alexandre Barreto, had an exchange of chairs.

Cordeiro has degrees in economics and law, a master’s degree in constitution and society, and is pursuing a doctorate in law.

Besides CADE, he has worked at the Superior Court of Justice (STJ), the Office of the Comptroller General (CGU), the Brazilian Company of Urban Trains of Porto Alegre (Trensurb), the Ministry of Cities, and the Federal Senate.

With information from Poder360