Gender Quota Fraud from the Perspective of Electoral Sanctioning Law

Abstract

To encourage female participation in politics, art. 10, § 3o, of Law 9504/97 imposes that political parties must present a minimum of 30% of women candidates in the elections. However, this advance to promote gender equality was not accompanied by monitoring mechanisms to prevent parties from bending the rule nor legal provision to punish non-compliance. Jurisprudence has worked to fill this gap, and deviant practices – such as appointing candidates to comply with the quota who were not actually running, the so-called “non-viable candidates”– started to be investigated as fraud or abuse of power. Nevertheless, the most problematic issue concerns the scope of the punishment, i.e., whether restricted to those directly involved, the political party, or the electoral coalition. Brazil’s regional electoral courts have debated this issue, and the dominant understanding is that the whole coalition should be punished. The Superior Electoral Court (TSE) accepted this theory in the judgment of RESPE 19392/PI. Thus, an objective liability formula was established, without analyzing subjective elements to characterize the conduct and with no assessment of the causal link, which has led to the removal of legitimately elected female candidates. This study examines whether the formula adopted and the scope of the punishments were compatible with the due process, considering the exercise of the state’s jus puniendi, which is qualified as an electoral sanctioning right. The study concluded that the accountability for committing these frauds could not go beyond those who directly participated in the deviant practice, exceptionally reaching members of the party that institutionally contributed to distorting the affirmative policy. Based on these findings, we understand that the TSEs decision incurs the malpractice of the democratic and constitutional pillars and may lead to autophagy of affirmative politics.