Fux suspends indirect election rules in RJ and imposes a setback to the law for buffer mandates

Minister Luiz Fux, of the Federal Supreme Court (STF), suspended sections of the law approved by the Legislative Assembly of Rio (Alerj) that regulates the indirect election for a possible buffer mandate in the state government. The decision responds to an action by the PSD and imposes a setback to the hastily designed model given the possibility of the position becoming vacant in the coming weeks.

Fux granted an injunction to block two main points of the rule: the provision of open voting in indirect elections and the deadline of just 24 hours for candidates to be incompatible. In the minister’s assessment, there is plausibility in the thesis of unconstitutionality raised by the PSD, especially with regard to the protection of parliamentarians’ freedom to vote and the need for compatibility with national ineligibility rules.

“As a summary, I understand that the relaxation of the ineligibility deadlines provided for in federal complementary law does not fall within the state legislative competence to regulate indirect elections to choose Governor and Vice-Governor in the event of double vacancy”, said the minister in the decision.

One of the pillars of the decision is the rejection of the open voting model. Although the STF has favorable precedents for advertising in legislative votes, Fux made a distinction based on the reality of Rio de Janeiro, marked by the activities of criminal organizations and episodes of political violence.

“I believe that these considerations must gain greater weight in an environment of proliferation of organized crime, as unfortunately only occurs in the State of Rio de Janeiro, with the expansion of drug trafficking groups and armed militias, including penetration into the political environment”, he states.

According to the minister, in this context, the secret vote becomes an essential guarantee to avoid undue pressure on state deputies. He states that it is not possible to assume “complete freedom of choice” in a risky environment, in which parliamentarians may be targets of retaliation.

“In a scenario like this, it is not possible to conceive a scenario of full freedom of choice by members of the local Parliament in indirect elections with open scrutiny, as they would be subject to violent retaliation and all sorts of external constraints,” he wrote.

Another point considered problematic by the STF minister was the attempt by state law to drastically reduce the period for non-compliance. The rule allowed public office holders to leave just 24 hours after a possible vacancy in the government to contest the indirect election.

For Fux, the rule violates the Constitution by making criteria defined in complementary federal law more flexible, which establish longer deadlines precisely to avoid the use of the public machine for electoral benefit. The minister assessed that such a short interval “is clearly incapable of preserving equality of chances” between candidates.

“I understand that the deadline for disqualification of a mere 24 (twenty-four) hours before the election is clearly incapable of preserving equality of chances in the electoral event,” said the minister.

The urgency of the decision, according to the minister, is directly linked to the political scenario in Rio. He mentions that there is an expectation of a vacancy in the command of the state Executive as early as April, which would require an indirect election to be held by Alerj. The injunction will still be analyzed by the Supreme Court plenary. Until then, the sections that provided for open voting and the reduced deadline for non-compliance are suspended.