Brazil’s Superior Electoral Court rejects Defense Ministry proposals for 2022 elections

RIO DE JANEIRO, BRAZIL – The proposals were not adopted. According to the Court, contributions to the election process can only be made until December 17, 2021. The recommendations of the Ministry of Defense were sent on March 22 of this year. The deadline for amending the election regulations was March 5.

The letter with the responses was sent to all members of the CTE (Election Transparency Commission) and OTE (Election Transparency Observatories).

The TSE established the commission in September 2021 to advise on election transparency and security. The Ministry of Defense is part of it.

“Aware of and fulfilling its constitutional mission over the past 90 years, this court will continue to act decisively to ensure electoral peace and security, improve the electoral process, disseminate quality information and, above all, urge respect for the election results as a prerequisite for the possibility of a democratic rule of law and a free, fair and cohesive society under the Constitution,” Fachin said.

The recommendations of the Defense Ministry concern seven issues. They are:

1 – Confidence level of the ballot box integrity test;
2 – Random sampling procedures for the selection of ballot boxes used for integrity test;
3 – Counting of votes
4 – Monitoring and auditing;
5 – Public security audit
6 – Verification of irregularities in the integrity test;
7 – Double abstention and voting.

Here are the full DOD recommendations and TSE responses.

The response states that the defense miscalculated and confused terms when it pointed out the risks in the integrity testing of electronic ballot boxes. As a result, it declined to change the selection of ballot boxes used for testing and the scope of the devices tested.

“Considering that the sample of ballot boxes that will be subjected to integrity testing in the 2022 elections has already been significantly increased and today operates at a confidence level of more than 99%, the Superior Electoral Court has not found any technical reasons that support the adoption of the present proposal,” the court said.

The TSE also again denied the existence of an alleged “secret room” where the vote count was to be conducted.

“There are no secret rooms, nor is there the slightest possibility of changing votes along the way, as any numerical discrepancy would be easily detected since it is not possible to change the result of a sum without changing the parts of the sum,” the court said.

RESPONSES

The TSE has responded to each of the DOD proposals. Read a summary of the proposals and the Court’s comments on each:

1 – Confidence level of the integrity test

DOD stated that the sample of ballot boxes used for the integrity test had a low confidence level. It suggested that the TSE create two types of samples of the devices, one for state elections and one for federal elections.

The TSE said that the sample of ballot boxes that will be subjected to integrity testing in the 2022 elections has been “significantly increased” and that the confidence margin of the process is over 99%.

“On the other hand, the adoption of multiple sampling plans compromises the assumption of independence in the selection of sampling units, since the selection of an electronic ballot box selected in a national sampling plan changes the probability of selecting all other ballot boxes in an eventual sample in each of the UFs.”

2 – Sampling procedures of the sections and ballot boxes selected for the integrity test

The defense recommends that ballot boxes used for the integrity test be drawn randomly from all ballot boxes used for the election process.

TSE says it has adopted a “more complete and legitimate” criterion for the control process.

3 – The counting of votes is done centrally at the TSE and by the TREs

The defense calls for maintaining the centralized procedure at the TSE, but also for applying the previous method with counting in each TRE (Regional Electoral Tribunal).

TSE said the submitted proposal contains “ambiguities” about the method of counting. According to the Court, centralization was “only a tool”.

“Strictly speaking, it is inaccurate to say that the TREs do not participate in the count: on the contrary, the TREs continue to direct the counts in their respective units of the Federation.”

4 – Monitoring and auditing

The defense points out that a TSE resolution would limit the scope of auditing activities and that the Court would not distinguish between the terms “audit” and “monitoring,” thus preventing an independent audit of the electoral process.

The Court stated that the cited standard “establishes sequential steps that constitute and ensure the verifiability of the election and the monitoring of the electoral process by interested parties.”

5 – Public Safety Test

The defense proposes a specific test of public safety with 2020 model ballot boxes.

According to TSE, the 2020 ballot box has a security architecture that is compatible with that of 2015, as well as “important improvements that make it more secure than the 2015 and previous models.”

The last edition of the test in November 2021 used 2015 model ballot boxes.

6 – Normative procedures for the hypothesis of testing irregularities in integrity tests

The defense said that the tools used by TSE in the event that irregularities are found in the integrity testing of electronic ballot boxes are “manifestly inadequate.”

The TSE responded that it is “constantly improving and developing the electoral system” and that it will continue its studies “in search of best practices and technical and normative solutions that can further strengthen the monitoring and auditing methods.”

7 – Double abstention and voting

The defense recommends the disclosure of reports on abstentions “to increase the ability to control the electoral process,” as well as data on deaths.

TSE stated that in an initial analysis, “it is not appropriate to disclose these reports because they contain personal data and have limited access.” The Court also found that the proposal may violate the principles of the LGPD (General Law for the Protection of Personal Data).

BACKGROUND

In February, the TSE responded to a series of technical inquiries from the armed forces. However, on March 22, new questions and proposals were raised by Defense. The GAO notes that the recommendations were submitted after the deadline set by the CTE and that it is no longer time to make “changes in the election process.”

On May 5, Defense Secretary Paulo Sérgio Nogueira requested the TSE to make the recommendations public. The general justified the request on the grounds that the documents were of public interest.

In his response the next day, Fachin stated that he had no objection to disclosure. However, he explained that there are documents that are classified by the Defense Department itself.

“I notify that the documents forwarded by the Ministry of Defense to the Supreme Electoral Court can be disclosed to the public without objections from the Electoral Court,” Fachin said.

On Monday, the TSE issued a notice that it would respond to the ministry by Wednesday (May 11). A few hours later, the responses were posted on the court’s website.

With information from Poder360