The plenary of the Superior Electoral Court (TSE) decided today (28), unanimously, to reject the revocation of the ticket that elected President Jair Bolsonaro and Vice President Hamilton Mourão. The court, however, established the thesis that the mass firing of messages can be framed as an abuse of economic power.
The understandings were reached in the judgment of two actions that deal with the mass firing of messages via the WhatsApp application during the 2018 campaign, a conduct then prohibited by electoral rules.
The trial had begun on Tuesday (26), when three ministers voted against the impeachment – Luís Felipe Salomão, rapporteur; Mauro Campbell and Sergio Baths. The case was resumed on Thursday with the vote of Minister Carlos Horbach, who followed the same understanding, forming the majority.
Ministers Edson Fachin, Alexandre de Moraes and Luís Roberto Barroso also denied the impeachment. All considered that it was not proven that, even if existing, such a message firing scheme had sufficient gravity and reach to compromise the legitimacy of the 2018 presidential election.
Although the revocation of mandate was rejected, the majority of the TSE plenary acknowledged, by five votes to two, that it was proven that in fact there was an illegal scheme of mass shooting of false news against opponents of the Bolsonaro-Mourão ticket, in 2018.
Due to this understanding, the majority of ministers approved, by six votes to one, the establishment of the legal thesis to make explicit that there is an abuse of political-economic power if a candidate comes, from now on, to benefit from the mass shooting of fake news through the Internet.
Wishes
For Minister Carlos Horbach, the first to vote on Thursday, it was not even proven the existence of a scheme aimed at firing messages with false information against opponents of the Bolsonaro-Mourão ticket in 2018, according to the initial petition that gave rise to the actions , filed by the PT in the year of the election.
The minister stated that, throughout the procedural instruction, none of the parties was able to prove “the content of the messages, the way in which the content reverberated to the electorate and the scope of the shots”. For this reason, he voted to completely dismiss the two electoral judicial investigation actions (Aije) in trial.
The minister aligned himself with what minister Sérgio Banhos had already understood. Both diverged from the majority. For the other five ministers of the TSE, despite not having been proven serious enough to justify the rescission of mandate, the evidence in the file managed to demonstrate that there was, in fact, an illegal scheme of firing messages with false information about opponents.
“This judgment is extremely important, despite the absence of such evidence that would be necessary for the specific case, but to affirm that there was a mass shooting. There was undeclared funding for these shots. The lapse of time may be an impediment to a conviction, but it is not an impediment to absorption by the Electoral Court of the modus operandi which was carried out and will be fought in the 2022 elections”, said minister Alexandre de Moraes.
Reporter
In the end, the vote of the rapporteur, Minister Luís Felipe Salomão, who is also the General Inspector of the Electoral Justice, prevailed.
On Tuesday (28), Salomão said that the firing of messages with the aim of undermining opposing candidacies was explicit. “Countless evidence of a documentary and testimonial nature corroborates the assertion that, at least since 2017, people close to the current president of the Republic acted permanently, broadly and constantly in the digital mobilization of voters, having as modus operandi attack on political opponents, on candidates”, said the minister.
He added, however, that there is a lack of evidence on the scope of the shots and the repercussions for voters. “There are no elements that allow us to safely affirm the seriousness of the facts, an essential requirement for characterizing the abuse of economic power and the misuse of the media,” said the rapporteur at the time.
This was the last vote given by Solomon in the TSE. This week the minister of the Superior Court of Justice (STJ) leaves the post of Inspector General of Electoral Justice, being replaced by Mauro Campbell.
Thesis
In his vote, the rapporteur proposed, and the plenary approved, the establishment of a legal thesis to support future judgments on the subject, according to which “the use of digital instant messaging applications, aiming to promote mass shootings, containing disinformation and untruths to the detriment of opponents and to the benefit of the candidate, it may constitute abuse of economic power and/or undue use of the means of social communication”.
The TSE plenary also approved, by a majority of five to two, several criteria to delimit, from now on, the conducts considered illegal. One of these criteria, for example, defines that “in order to configure the abusive act, ‘the potential for the fact to change the election result’ is not required, but ‘the gravity of the circumstances that characterize it’, in a broader sense”.
Minister Alexandre de Moraes, who will preside over the TSE during next year’s presidential election, praised the initiative. “Electoral justice is not a fool. We can absolve here for lack of evidence, but we know what happened, we know what has been happening, and we will not allow that to happen again,” he warned.
Moraes also stated that “if there is a repetition of what was done in 2018, the registration will be revoked. And people who do so will go to jail for attacking elections and democracy in Brazil”.
