Who is in the running after all? Brazilian electoral uncertainty and the timing to define the regularity of political candidacies

Brazil’s 2018 Presidential election was marked by serious doubts on the eligibility of the front -runner candidate, Luiz Inácio Lula da Silva. Almost a fortnight into the beginning of the campaign period had passed before Lula was considered ineligible and was barred from the race by the Superior Electoral Court (TSE), forcing his Worker’s Party (PT) to launch a new candidate. The dramatic development of that election highlighted an aspect of Brazilian electoral governance that has been largely overlooked: its apparent tolerance for campaign scenarios where it is unclear which candidates are lawfully able to compete. Apparently, that is a common issue in political campaigns since it is estimated that, on the eve of the 2020 local vote, 13,000 candidates’ registrations were not yet defined by the Electoral Justice, body that concentrates the roles of Electoral Management Board – EMB and Electoral Dispute Resolution Body – EDRB in Brazil. Since electoral legitimacy relies on the promotion of procedural certainties (MOZAFFAR; SCHEDLER, 2002), the paper aims to investigate how the Brazilian electoral governance model balances the tension between the protection of eligibility rights and, on the other hand, the deleterious effects caused by prolonged electoral uncertainty regarding who is lawfully in the running. It argues that the set of rules that discipline the electoral process in all the three spheres of government in Brazil’s federation demands complex, time-limited analyses, of the legal viability of candidacies. At the same time, it allows the continuity of contested candidacies until a final decision by the Electoral Justice, which decision body is mostly comprised of “borrowed” members of the Judiciary, who accumulate workload. This scenario enhances situations of electoral uncertainty that harms voters’ decisions, the chances of rival candidacies and, ultimately, the election competition itself. In order to better understand how the factors listed above interact, the paper analyzes the Electoral Justice decision-making time of candidacies applications for mayor in the State of Rio de Janeiro’s election of 2020. The analysis focus on the municipal sphere, since it is the closest sphere to the electorate and presumably more accessible to political candidates. Also, the electoral rules’ incentives on the Electoral Justice decision-making benefits from the theoretical perspective that judges are rational agents, whose self-interested behavior follows similar logic to that of other people in a work context (EPSTEIN; POSNER; LANDES, 2013). Preliminary findings shows that 40% of the mayoral disputes on 92 municipalities of Rio de Janeiro State involved some kind of discussion on the eligibility of a candidate. In those cases, most of the existing legal deadline for defining the list of candidates was consumed by a first-degree analysis. Since Brazilian electoral law requires a higher electoral court ruling to exclude candidates from the ballot, that means that elections occurred in scenarios of uncertainty.