TSE maintains mandate of female deputy without fraud in quota

The Superior Electoral Court (TSE) decided, by 6 to 1, that proof of gender quota fraud cannot automatically terminate the mandate of an elected candidate without participation in the irregularity. The trial took place on Tuesday and analyzed the case of state deputy Zeneide Costa, elected by Podemos in Amapá in 2022.

The decision changes the previous understanding of the Court, which provided for the dismissal of all the plate when the fraud was found. Now, the punishment must be individualized, preserving those who did not have involvement with the fictitious candidacies.

Understand the case tried by TSE

The case was handled under the report of Minister André Mendonça. In his vote in June, he acknowledged that there was gender quota fraud in the specific case based on low voting, absence of bank accounts and campaign acts.

The legislation requires parties to reserve at least 30% of each gender’s nominations in proportional elections. In Amapá, Podemos registered 25 candidates in the 2022 elections, of which 17 were men and eight were women, or 32% of the candidates were women.

Three of the women, however, were considered fictitious candidates: Albanita Castilho, with 5 votes; Raquel Deuquino, with 5 votes; and Silene Corrêa, who did not get any votes. Thus, the percentage would fall to 22.73%.

Member of Parliament did not participate in the fraud

The problem is that Podemos also elected a state deputy who did not participate in the fraud. Zeneide Costa, currently affiliated with the PT, received 11,547 votes in the 2022 elections and won the only seat obtained by the legend in the Legislative Assembly of Amapá.

By the previous understanding, the recognition of fraud caused the cassation of the certificates of the party and the annulment of the votes of the party, regardless of the individual participation of the candidates. In this way, Zeneide could also lose the mandate.

The ministers noted that the result would be that a rule created to expand women’s participation in politics could, in its practical application, remove an elected woman from office.

Divergence between TRE-AP and TSE

The case reached TSE through two appeals against a decision of the Regional Electoral Court of Amapá (TRE-AP). The body’s decision of June 14, 2024, was that the inexpressive vote and lack of campaigning were not sufficient evidence of fraud.

For most magistrates, the inexpressive vote and the absence of campaign acts were not enough to prove that the candidacies were fictitious. The three women could have given up the dispute in the face of financial, political and documentary difficulties.

Thus, the majority of the TRE-AP considered that it was not sufficiently proven that the female applications were fictitious from the outset, rather than having been abandoned during the campaign.

Defeated vote and rapporteur's position

The score was 6-1, defeated by Minister Estela Aranha. To close one’s eyes to proven fraud when one has a case of benefit and to preserve mandates by fraud mechanism means rewarding those who have circumvented the law.

Despite the divergence, the majority followed the understanding that the punishment should be proportional to the participation of each candidate. The decision does not rule out the possibility of cassation of those directly involved in the fraud, but it protects those who did not have any responsibility.

The trial represents a milestone in electoral jurisprudence and should guide similar cases across the country. The thesis set by TSE will be applied to other disputes involving gender quota.

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