Brazil’s 2022 Election is Void! Lawyer Points Out Irregularities at the Superior Electoral Court (TSE), and Mainstream Media Ignores Them…

The 2022 presidential election, which brought Luiz Inácio Lula da Silva back to the Palácio do Planalto, may have been conducted with serious legal flaws. At least, that’s what lawyer Tiago Pavinatto claims, having identified irregularities in how the electoral process was managed by the Superior Electoral Court (TSE). The core issue? Key resolutions on combating disinformation were published outside the legal deadline, potentially violating fundamental constitutional principles. Let’s dive into the details of this claim, which could reopen debates about the legitimacy of the most recent election.

What Are TSE Resolutions 23.714 and 23.715?

To grasp the gravity of the situation, we first need to understand what these resolutions represent and why they matter.

Resolutions No. 23.714 and 23.715 were tools created by the TSE to regulate the fight against disinformation during the 2022 electoral process. In practice, they established rules about what could or couldn’t be shared on social media, defined which content would be considered “fake news,” and outlined the punishments for violations.

Content of the Resolutions:

Resolution 23.714:

• Established criteria for identifying disinformation
• Defined procedures for content removal
• Set deadlines for digital platforms to act
• Created punishment mechanisms for non-compliance

Resolution 23.715:

• Regulated the role of digital platforms during elections
• Established responsibilities for social media and messaging apps
• Defined protocols for communication between the TSE and big tech companies
• Created transparency obligations for businesses

The Timing Issue: Why the Publication Date Matters?

Here lies the crux of the legal challenge raised by Pavinatto: these resolutions were published too close to the second round of the election, violating the principle of electoral anteriority.

What Is the Principle of Electoral Anteriority?

The Federal Constitution, in its Article 16, establishes a fundamental principle to ensure legal certainty in electoral processes:

This principle exists for very clear reasons:

• Predictability: Candidates and parties need to know the rules of the game in advance
• Equality: Last-minute changes can benefit some while harming others
• Legal Certainty: The electoral process cannot be altered during its execution
• Legitimacy: Elections are only democratic when rules are clear and stable

When Were the Resolutions Published?

According to the claim, the resolutions were enacted shortly before the second round of the 2022 election, held on October 30. This temporal proximity would be incompatible with the constitutional principle of anteriority.

If it’s confirmed that the rules were changed within the period prohibited by the Constitution, there would be a serious formal flaw in the electoral process.

The Legal Argument: Why Could This Nullify the Election?

Pavinatto’s legal argument follows a logical sequence that deserves detailed analysis.

Chain of Arguments:

• Direct Constitutional Violation: If the resolutions were published within the timeframe prohibited by Article 16 of the Constitution, it constitutes a direct breach of constitutional law
• Rule Changes Mid-Game: Candidates began the campaign under certain rules, only to see them change mid-process
• Material Impact: The resolutions weren’t mere formalities—they directly affected how candidates could communicate with voters
• Impossibility of Adaptation: With rules changing so close to the vote, candidates didn’t have adequate time to adjust campaign strategies
• Break in Equality: Different candidates were impacted differently by the new rules

Why This Could Lead to Nullification?

In Brazilian electoral law, serious formal flaws that affect equality among candidates and the legitimacy of the process can indeed result in the nullification of elections.

Historical precedents show that the judiciary has annulled elections for procedural irregularities, especially when they involve violations of fundamental constitutional principles.

The 2022 Context: A Controversial Election

To fully understand this issue, it’s necessary to contextualize the environment in which the 2022 election took place.

Elements of the Scenario:

• Extreme Polarization: The contest between Lula and Bolsonaro was marked by deep societal division
• Censorship Debate: Constant accusations that the TSE was censoring legitimate political content
• Role of Social Media: Digital platforms became the primary electoral battleground
• TSE’s Active Role: The court took a more proactive stance in monitoring and removing content
• International Pressure: Big tech companies faced a dilemma between Brazilian legislation and freedom of expression principles

Emblematic Cases During the Campaign:

During the 2022 campaign, several content removal incidents sparked controversy:

• Videos of candidates removed from platforms
• Channels of influencers penalized
• Debates over what constitutes or doesn’t constitute disinformation
• Questions about moderation criteria
• Accusations of unequal treatment among candidates

All these events occurred under the umbrella of the resolutions now questioned for their formal legality.

Legal Precedents: What Do Previous Cases Say?

Brazilian electoral law has a history of strict adherence to formalities and deadlines.

Relevant Cases:

• Annuled Municipal Elections: Various municipal elections have been annulled for procedural irregularities less severe than the alleged constitutional violation
• 1997 Reelection: The Constitutional Amendment on reelection nearly couldn’t be applied in the 1998 elections due to anteriority challenges
• Clean Record Law: Intense debate arose over whether it could be applied immediately after approval or only in subsequent elections
• 2015 Mini-Electoral Reform: Several changes couldn’t be applied in the 2016 elections due to the anteriority principle

These precedents demonstrate that the Brazilian judiciary traditionally takes temporal rules in electoral matters seriously.

The TSE’s Likely Defense

Although the TSE has not yet specifically addressed this claim, it’s possible to anticipate the arguments it might use in its defense.

Possible Counterarguments:

• Regulatory Nature: The TSE could argue that the resolutions didn’t alter laws but merely regulated the application of existing legislation
• Normative Power: Claim that the court has constitutional authority to issue norms on electoral processes
• Urgent Necessity: Argument that combating disinformation required immediate action to protect the democratic process
• Equal Application: Defense that the rules were applied equally to all candidates
• International Precedents: Reference to similar measures adopted by established democracies

The Jurisdiction Question: Who Judges the TSE?

A fascinating aspect of this situation is the question of which body would have jurisdiction to judge potential irregularities committed by the TSE itself.

Institutional Dilemma:

• Supreme Federal Court (STF): The natural instance for constitutional issues, but many STF justices have close ties to the TSE
• TSE Self-Regulation: The TSE could review its own decisions, but this would present an obvious conflict of interest
• National Congress: Technically could legislate on the matter, but this would trigger an institutional crisis between branches
• Public Opinion: Ultimately, democratic legitimacy issues depend on popular judgment

Practical Implications: What Would Happen If the Argument Succeeds?

Let’s explore a hypothetical scenario where Pavinatto’s argument is upheld by a competent authority.

Possible Consequences:

• Institutional Crisis: Nullifying a presidential election after inauguration would cause unprecedented instability
• Power Vacuum: There’s no clear legal provision for what to do if an election is annulled post-inauguration
• New Elections: A new vote might be required, at a cost of billions
• Public Reactions: Mass protests from both sides of the political spectrum
• International Intervention: Possible involvement of international organizations concerned with stability

Why It’s Unlikely:

Despite the legal argument, practical reasons make it unlikely that this thesis will result in actual nullification:

• Institutional Stability: The system tends to preserve consummated decisions
• Reversal Difficulty: Nullifying an election after inauguration is legally complex
• Political Considerations: Involves factors beyond strictly legal issues
• Lack of Mechanism: No clear procedure exists for such a situation

The Disinformation vs. Freedom of Expression Debate

Underlying this entire discussion is a fundamental philosophical and political debate.

The Two Perspectives:

Need to Combat Disinformation:

• Fake news distorts public debate
• Voters need reliable information
• Democracy requires a healthy informational environment
• Platforms have a social responsibility

Risk of Censorship:

• Who defines what is “disinformation”?
• Authorities can abuse this power
• Freedom of expression is fundamental
• An “official truth” is a dangerous concept

This dilemma has no easy solution and represents one of the greatest challenges for contemporary democracies.

International Comparisons

Brazil isn’t the only country grappling with these issues. Let’s see how other democracies handle the topic.

United States:

• First Amendment: Robust protection of free speech limits regulatory capacity
• Self-Regulation: Platforms set their own moderation policies
• Intense Debates: Polarization over the role of big tech in democracy

European Union:

• Digital Services Act: Comprehensive regulation of digital platforms
• Balance: Seeks to balance free expression and disinformation combat
• Heavy Fines: Significant penalties for non-compliant platforms

Australia:

• News Media Bargaining Code: Requires platforms to pay for journalistic content
• Transparency: Emphasis on clarity regarding algorithms and moderation

The Role of Big Tech

Tech companies find themselves in a delicate position in this debate.

Challenges Faced:

• Multiple Jurisdictions: Must comply with different laws in each country
• Contradictory Pressures: Governments demand censorship; users demand freedom
• Legal Responsibility: Can be punished for third-party content
• Practical Impossibility: Moderating billions of daily posts is technically unfeasible

Lessons for the Future

Regardless of the legal outcome of this specific claim, the case offers important lessons.

What We’ve Learned:

• Early Clarity: Electoral rules must be established well in advance
• Respect for the Constitution: Political urgencies don’t justify overriding constitutional principles
• Transparency: Decision-making processes should be open and subject to scrutiny
• Balance of Powers: No institution should hold power without proper checks
• Social Dialogue: Sensitive issues require broad debate, not unilateral decisions

Conclusion: Between Law and Political Reality

Lawyer Tiago Pavinatto’s claim about the potential nullity of the 2022 election raises serious legal issues that deserve careful analysis.

From a strictly legal standpoint, the argument has solid foundations: if the resolutions were indeed published within the timeframe prohibited by the Constitution, it constitutes a violation of a fundamental principle of Brazilian electoral law.

Between acknowledging a formal irregularity and nullifying a consummated presidential election lies a chasm of practical, political, and institutional considerations.

The most likely outcome is that this discussion serves as a warning for the future: electoral processes must be conducted with absolute respect for deadlines, procedures, and constitutional principles. The legitimacy of democracy depends not only on the ballot results but also on the integrity of the path leading to them.

Democracy strengthens not by hiding problems but by confronting them transparently and with a commitment to fundamental principles. This case, regardless of its legal resolution, should serve as a call to vigilance regarding respect for the rules of the democratic game.

Sources:

• TSE – Superior Electoral Court
• Agência Brasil – Politics
• Estadão – Politics

Official and journalistic sources on the Brazilian electoral process and allegations of irregularities in 2022.