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Plenary reaffirms the need for new elections in case of rejection of registration of elected candidate


The Brazilian Federal Supreme Court (STF) declared the constitutionality of a provision of the Electoral Code that requires new elections to be held whenever the registration of a candidate winning a majority election is rejected, regardless of the number of votes then annulled. In Wednesday's plenary session (4), by unanimous vote, the Court dismissed the Extraordinary Appeal (RE) 1096029, filed by the Public Electoral Ministry (MPE), and upheld the Superior Electoral Court (TSE) decision.

In the judgment of the matter, which had general repercussion recognized (Theme 986), the following thesis was fixed: "The paragraph 3 of Article 224 of the Electoral Code (Law 4.737/1965) in the wording given by Law 13.165/2015, which determines the automatic holding of new elections regardless of the number of votes annulled whenever the candidate elected in the majority plea is disqualified by rejecting the registration of his candidacy due to withdrawal of the diploma or mandate, is constitutional".

Rejection of registration

The process that gave rise to the appeal deals with the rejection of the registration of José Nery's (MDB) candidacy to the City Hall of Cristiano Otoni (MG) in the 2016 elections, based on the rejection of the municipality's accounts for 2012. During that period, while leading the Executive, José Nery issued a budget supplementation decree without complying with the legislation, which caused ineligibility under article 1, clause I, item "g" of the Ineligibility Law (Supplementary Law 64/1990).

Competing with the pending registration, Nery was the most voted candidate, with 41.79% of the votes. The TSE, however, in maintaining the rejection of his registration, considered the impossibility of swearing in the second most voted candidate and determined the holding of new elections, as provided in paragraph 3 of article 224 of the Electoral Code, added by Law 13.165/2015. He also understood that, for the application of the provision, it is irrelevant that the municipality has less than 200 thousand inhabitants.

Peaceful Matter

The Chief Justice of the STF, Justice Dias Toffoli, rapporteur on the appeal, noted that the matter was pacified in the judgment of Direct Action for delcaration of Unconstitutionality (ADI) 5525, when the Plenary decided that it is constitutional to include in the Electoral Code the hypothesis of rejection of registration as a cause of holding a new election. Thus, it dismissed the extraordinary appeal to reaffirm this understanding and uphold the decision of the TSE.


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