Opinion: Brazil’s Electoral College?

Opinion, by Michael Royster

RIO DE JANEIRO, BRAZIL – The Superior Electoral Court (TSE) in Brazil is investigating whether the 2014 Dilma/Temer ticket should be disqualified for prohibited electioneering practices. Defendants in the Lava-Jato investigations have mentioned Temer as involved in the scheme. A recent opinion poll indicates that 63 percent of Brazilians want Temer to resign.

In other words, the “Fora Temer” movement seeking to oust Temer from the Presidency has some chance of being successful. It’s therefore worth considering how Brazilian law would determine who becomes President in this case.

Article 81 of the Constitution says that if the offices of President and Vice President both become vacant, the President of the Chamber of Deputies becomes interim President, and elections must occur within ninety days. Temer has no Vice President, so if he is ousted, resigns or (heaven forfend) dies, elections must happen.

What kind of elections? If Temer is ousted in 2016, the election must be direct, just like that of 2014 — people go the polls to vote for the candidates proposed by political parties. If no candidate gets a majority, a run-off election is held. Simple, really.

But we’re already nearing the end of 2016, so it seems likely that Temer will remain in office until 2017. In that case, everything changes. The first subparagraph of Article 81 provides that if the office becomes vacant during the second half of the presidential term, the election must occur within thirty days, and must be indirect.

Indirect elections? You mean—like the US Electoral College?

Almost exactly like it, in fact. In the U.S., the number of Electoral College electors equals the number of Senators and Representatives combined. In Brazil, the number of electors is that of the Senators and Deputies combined. The main difference is that in Brazil, it’s the actual members of Congress (513 Deputies, 84 Senators) who vote, sitting together.

What are the rules for the indirect presidential election? The Constitution says only that they shall be conducted in accordance with statutory law. Unfortunately, the only statute on the books is Law 4.321 of 1964, enacted during Brazil’s military dictatorship.

That statute calls for secret, paper ballots, to be deposited in boxes. A majority of the menbers of the National Congress (299 votes) is required for the first two rounds of the election, but in the third round, the candidate with the most votes wins, regardless of whether there is a majority or not. If there’s a tie vote, the eldest candidate is elected.

Law 4321 is definitely lost in a time warp, so there have been proposals in Congress to pass a new law which would consider open electronic voting, identifying who votes for whom, and only one run-off election if the first round does not produce a majority winner. Those proposals have been stalled for months.

Given the current political activism of Brazil’s Supreme Court, it seems likely that it would be called upon to write a new set of rules for the indirect election, and that it would willingly agree to do so.

The Curmudgeon does not wish to hazard a guess as to what procedures the STF would invent.