RESPONSIVE SUPERIOR ELECTORAL COURT?

JUDICIAL STRATEGIES INSIDE AND OUTSIDE THE COURTS IN THE 2019-2022 ELECTORAL CYCLE

Abstract

This article examines the judicial strategies adopted by the Brazilian Superior Electoral Court (TSE) both inside and outside the courts during the 2019-2022 electoral cycle. Using Rosalind Dixon's "Responsive Judicial Review" as a theoretical framework, we assess whether the TSE's response to attacks on the electoral system can be characterized as responsive. The article answers this question in four steps. First, we characterize the judicial model of electoral governance, which concentrates the roles of adjudication, rulemaking, and administration of national elections in the TSE, as a precondition that establishes a toolkit to be mobilized by judicial actors. Second, we describe the attacks from the governing coalition on the electoral system, particularly the repeated and evidence-free accusations of fraud in the electronic voting system, as measures that attack the "democratic minimum core" and consolidate risks of political power monopoly and the elimination of institutional checks and balances. Third, we present, as an example of the TSE's responsive judicial decision-making, the interpretive choice that limited the freedom of expression of political agents and defined the act of discrediting the electoral system as an electoral crime. Fourth, we present, as an example of the TSE's extrajudicial action, the implementation of two successive programs during the presidencies of Ministers Roberto Barroso and Edson Fachin to build external support for the TSE and the electoral system within civil society and the international community. We conclude by outlining the contours of the TSE's responsive action and asserting how the Brazilian example demonstrates that the theory of judicial responsiveness can extend beyond the courts' traditional role in judicial review, even reaching the role of judges acting outside the courts to protect democracies under threat from authoritarian projects.