Why the TSE, which has never condemned the president, tends to punish Bolsonaro

In the history of the TSE (Superior Electoral Court), no president or former president of the Republic has been condemned to ineligibility. Opportunities abounded. Recently, the ticket of Dilma Rousseff and Michel Temer left unharmed, even after the impeachment, with Temer already installed in the Planalto Palace. The ticket of Jair Bolsonaro and Hamilton Mourão was also acquitted, in trials held during their mandate.

Now, the TSE is preparing to judge 16 lawsuits against Bolsonaro for alleged deviations in last year’s campaign. The trend, according to the ministers of the court, is for the plenary to sentence the former president to eight years of ineligibility, as provided for in electoral legislation. If the prediction is confirmed, it will be the first time that the Electoral Justice condemns someone for acts committed in the Presidency of the Republic.

What changed for the TSE to lean towards condemning a former president? Compared to other presidents, Bolsonaro’s situation is more serious, due to some factors.

The first, and most important of them: during the campaign, Bolsonaro managed to breach several articles of the electoral legislation. The accusations are the most varied. He attacked the electoral system to an audience of ambassadors, tried to use the Federal Highway Police to boycott the vote, the draft of the coup appeared, a package of kindnesses was edited at the height of the campaign, motorcyclists were promoted.

“There were numerous acts carried out in a very gray area of ​​violation of the balance of the election”, summarized, in a reserved tone, a former minister of the TSE.

Another point that leaves Bolsonaro more vulnerable is the war he declared against the STF (Federal Supreme Court), the TSE (Superior Electoral Court) and other democratic institutions. The captain cursed ministers Alexandre de Moraes and Luís Roberto Barroso, in addition to the suspicion of having incited the invasions in Praça dos Três Poderes on January 8.

The fact that Bolsonaro was not re-elected – the only one, by the way, from Fernando Henrique to here – is another factor that drives the condemnation.

It is customary for the TSE to try to interfere as little as possible in the outcome of the elections. Removing the registration of the candidacy of a president elected by the people would be, in the view of some members of the Court, a way of delegitimizing the power of the ballot box. (Traditionally, the court has taken a less protective view of mayoral terms, but that’s another story.)

In Bolsonaro’s case, punishing a former president would carry less weight than condemning someone who holds office. Even more, in his case, a former president who didn’t have enough votes to stay in power – that is, with declining popularity.

In theory, the same reasoning could have been applied to Dilma Rousseff. She was no longer in power and, politically, she was weakened. The difference is that, when the TSE judged the case against the Dilma-Temer ticket, in 2017, the former president had already been impeached and had been spared by the National Congress from the penalty of ineligibility.

The TSE preferred not to wear out and, in a way, maintained the decision taken by the parliamentarians, without adding or reducing the punishment imposed on Dilma. Anyway, the score was on the beam: Dilma and Temer got away with four votes to three.

The following year, the TSE plenary rejected Lula’s candidacy request. The episode, however, does not constitute punishment. The court only analyzed Lula’s situation at the time of candidacy registration. As he had been previously convicted, he could not run as a candidate, as stated in the Clean Record Law.

In 1990, Complementary Law 64 was enacted, known as the Ineligibility Law, which provides for the AIJE (Electoral Judicial Investigation Action). The action can be filed by political parties, coalitions, party federations, candidates and candidates and by the Electoral Public Prosecutor’s Office still in the campaign period, until the date of the diplomation of the winners.

The AIJE seeks to investigate and prevent the practice of acts that may affect the equality of dispute between candidacies in an election, such as in cases of abuse of economic and political power or authority and misuse of the media. If convicted, the politician could lose his mandate and be declared ineligible for eight years.

Since 1990, most presidents have responded to AIJEs. Most of them are archived while still in the evidence production phase and do not get to be judged in plenary. The punishments that the TSE usually imposes on candidates for the presidency of the Republic are fines for improper electoral propaganda and other minor campaign problems.

Another factor may have triggered the change in behavior at the TSE in relation to Bolsonaro. Unlike the other superior courts, the electoral court is made up of ministers with a term of office of a maximum of four years. Ministers’ mandates alternate.

That is, the composition is always changing. Therefore, case law is more volatile. Therefore, the understanding applied to acquit a politician may not be recycled in a similar trial that takes place years later.

Bolsonaro was unlucky. The current formation of the TSE is mostly contrary to what the ex-president preaches. Faced with recurrent attacks on the Judiciary and the democratic system, most ministers consider it important for the court to take a firm stand to curb this type of behavior.

The latest Datafolha pointed out that 51% of respondents want the former president to be condemned by the TSE. On the other hand, 45% believe in his innocence and defend his acquittal. Another 4% could not answer. Bolsonaro must have been happy with the result of the poll. Even without the support of most respondents, the support rate is high.

Although judicial decisions are not immune to public opinion – on the contrary, as can be seen in the recent behavior of the courts in Brasilia – TSE ministers say, in a reserved manner, that, in Bolsonaro’s case, the rule does not apply. For members of the court, supporters of the former president do not have the power to turn votes in court now, due to the set of factors that weigh against him.

In 2012, when the STF was judging the monthly allowance case, Justice Ricardo Lewandowski was caught on the phone telling an advisor that the court was judging “with a knife in the neck”. The criminal action was aimed at a PT core dear to Lula and, even though the government command had already been changed, the case spilled over into the Dilma administration. The situation is now different in the TSE. With Bolsonaro out of Planalto, and having been replaced by his main political opponent, the pressure on court ministers is less.

There is a thesis in Brasilia that, once convicted, Bolsonaro can be raised to the status of a martyr. He could, therefore, return to the political arena even more strongly – like Lula, who spent 580 days and then was elected President of the Republic.

The two have in common the fact that they are popular leaders. Lula had two terms as President of the Republic in his luggage. Bolsonaro was only one period in office. In 2026, it seems, he may be prevented from contesting the elections. In 2030, it remains to be seen whether today’s supporters of the former president will still remember why they voted for him.

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