Weak, but (very) Dangerous
The Bolsonaro Paradox
Those that follow Brazilian politics know that President Jair Bolsonaro is behind at the polls in his bid for re-election in the upcoming October elections. They also know that since 2021, he has consistently threatened not to accept a defeat at the ballot. In mid-July, Bolsonaro even called a meeting with dozens of diplomatic representatives of foreign countries to try to convince them that the Brazilian electoral system is currently not transparent or reliable, and that, if he is defeated, the result will not be legitimate. He rehashed false stories of fraud that have echoed among his followers for years, even after being debunked many times by judges and other public authorities, the media, and civil society organizations. After the meeting, the Superior Electoral Court (TSE) issued an official statement once again fact checking and debunking all of Bolsonaro’s claims. According to Bolsonaro, however, the electoral judges themselves are complicit in the frauds. He suggested to the diplomats that judicial-electoral authorities are working to favor Lula, who is leading the polls (in which the president does not believe). In fact, Bolsonaro believes that the voting system, the electoral judges, the press, and the pollsters all conspire to “steal” his election.
A Disaster Movie in Slow Motion
Bolsonaro has been repeating this script (minus the foreign officials) on a weekly basis for more than a year. Moreover, in his speeches, the president has linked distrust in the electoral system with armed resistance on the part of his supporters (expanding access to firearms has been one of the government’s main policies). This is a familiar pattern. In the U.S. 2020 elections, Donald Trump used claims of fraud to encourage his supporters to take matters in their own hands. To Brazilians, Bolsonaro’s borrowing from Trump’s playbook feels like watching a disaster movie we have seen before. But this time we watch it in slow motion, and the ending might be much worse, considering the role of the military in our national history and in the Bolsonaro government, as I discuss below.
Civil society has not been paralyzed. Many actors have been pressuring national institutions and international organizations to act. For example, a group of Brazilian legal scholars and political scientists ( “Demos”, in which I participate) petitioned to the U.N. Special Reporter on the Independence of Judges and Lawyers and to the Inter-American Commission of Human Rights, denouncing Bolsonaro’s disinformation, encouragement of political violence, and direct intimidation against electoral judges. There are many other examples of such reactions. The imminent danger is visible enough in Brazil and is becoming increasingly clear to international observers.
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Yet, Bolsonaro doubles down on his threats. How is it possible that this behavior would go unchecked? Shouldn’t a constitutional order have effective mechanisms to deal with explicit presidential threats to the most basic feature of electoral democracy – the peaceful alternation of power? How can a president repeatedly and publicly announce such intentions, egging his followers to join him in this pre-scheduled attack on electoral results, and get away with it?
The Bolsonaro Paradox
This question put us before a paradox. On the one hand, Bolsonaro is a weak president. The problem here is not one of “hyperpresidentialism” or “delegative democracy” – two concepts developed by observers of Latin American polities in which the chief executive is largely unchecked in his power to govern between elections. In terms of policy, the gap between what he would like to do and what he accomplishes is huge – and, during his tenure, the presidency itself lost important powers over the budget.
On the other hand, Bolsonaro is a threat to democracy. He already damaged it on many levels and has sowed uncertainty on whether elections will promote peaceful transferals of power.
How can such a weak president be so dangerous?
I believe we have a problem of “lopsided” horizontal presidential accountability, which might, in turn, jeopardize vertical (electoral) presidential accountability in the October elections. Bolsonaro’s formal measures have been significantly checked. However, he has never been – and probably will not be, until after the election – held personally accountable for any wrongdoing. No impeachment, no criminal lawsuits, no electoral sanctions imposing any relevant personal consequence or cost for his actions (such as removal from office or being declared ineligible for public office). For now, Bolsonaro is free to behave and talk to mobilize support against the voting system as much as he pleases, even though his power to enact policy and legislation is severely limited.
Scholars have been trying to map the mechanisms by which a president without a viable legislative coalition can still impact some policy areas. The disaster that passes as environmental policy in Brazil these days, for example, corresponds nicely to Bolsonaro’s ideas on the matter. I could not do justice here to the many important projects underway in this regard. What I call lopsided horizontal accountability is simply one part of the puzzle.
Bolsonaro’s measures have indeed been consistently checked by institutions, especially since the pandemic began. No other president since democratization has suffered so many defeats at the hands of judges. For example, the Supreme Court (STF) has suspended several of his decrees expanding access to firearms by the population, and the president was defeated in practically all cases in which he defended an explicit position regarding the covid-19 pandemic. The STF and the TSE have sanctioned several of Bolsonaro’s supporters (including members of Congress), who attacked or threatened judges in social media, defended a return of the military to power, or spread disinformation on the electronic voting system.
In September 2021, Congress rejected a constitutional amendment proposal to implement an individual, printed “receipt” for each vote cast – an impractical, simplistic proposal coming straight from the Bolsonaro camp and that the president presented as a sine qua non condition for the country to have the 2022 elections at all. Moreover, Congress did not endorse Bolsonaro’s attempts to impeach STF judges, approve court-curbing measures proposed by the president’s political allies, or used its constitutional prerogatives to protect bolsonarista legislators who had directly attacked STF judges.
Checked, but unaccountable?
However, judges may do a lot (as they have) and it might still not be enough. Bolsonaro himself is beyond judicial reach. Courts can strike down his legal measures, but Congress holds the keys to unlock presidential personal accountability. Both an impeachment trial (which is decided by the Senate) and a regular criminal trial (which is decided by the Supreme Court) would have to be authorized by a 2/3 majority of the House, and Bolsonaro clearly has enough votes to avoid them. Moreover, to begin with, criminal charges against the President can only be presented by the Attorney-General (AG). The current AG, Augusto Aras, was appointed by Bolsonaro in 2019 for a 2-year mandate. Bolsonaro has more than once indicated that Aras was on his list of potential appointees to the Supreme Court. Since his appointment, Aras has been seen as so lenient and passive towards Bolsonaro’s behavior (including his outright criminal handling of the pandemic) that even an otherwise discreet Supreme Court judge criticized him, in a decision, as the “Spectator-General of the Republic”.
Still, when Aras appeared before the Senate, in 2021, in his confirmation hearings to be re-appointed as AG, only 10 of the 81 Senators voted against him. Most opposition Senators voted to confirm him for another 2 years. Aras’s support in Congress, even amongst the opposition, was largely due to his critical views on the “Car Wash” corruption scandal and the ensuing criminal investigations against politicians, which have been highly controversial in Brazil. Whatever the Senators’ motives, however, it was obvious that re-appointing Aras reassured Bolsonaro he would not face a criminal lawsuit while in office.
For varied and conflicting reasons, a large congressional majority seems satisfied that no measures are taken to remove Bolsonaro from office. The core of his defensive coalition is an amorphous mass of center to right-wing politicians that protect him from impeachment in exchange for control of the budget and several areas of government. Patronage is part of politics, but these politicians jeopardize democracy to profit from exploiting a weak president, who desperately needed their support to stay in office and have a chance at reelection. It is not an exaggeration to say that central decision-making power in Brazil today is held not by Bolsonaro, but by the speaker of the Chamber of Deputies, Arthur Lira. Lira, like Aras, has not treated Bolsonaro’s mobilization of resistance to an electoral defeat as requiring any institutional measures. They help to lead the train towards the cliff – with open eyes and unchecked ambition.
The opposition has been divided over immediate personal accountability for Bolsonaro for different reasons. The Workers’ Party (PT) candidate, former president Lula, is ahead in the polls. Defeating Bolsonaro in the ballots would be ideal not just for the PT, but arguably for the country itself – the same Brazilian people who elected him in 2018 now saying he should go. However, the more the opposition bets on Lula’s electoral victory, the more Bolsonaro responds by challenging the electoral system and the electoral courts that make it work. The opposition’s strategy assumes that we will have elections in October, that they will not be affected by political violence, that their outcome will be respected, and that power will change hands peacefully in January 2023. As I write this, those things may be still more likely than unlikely – but, in the Bolsonaro era, they are far from certain.
Different (and even opposing) political calculations across the political spectrum, then, have made presidential accountability unlikely – some want Lula elected, some want electoral accountability through the vote, and some want this weak, disgraced president as an endless supplier of pork and power. While the former two positions are legitimate, all three are part of the scenario in which Bolsonaro can keep crossing all lines.
Until the election, Bolsonaro is virtually untouchable – and he knows it. With this unaccountable personal freedom, Bolsonaro is using his words and conduct to prevent his removal from office in case of a defeat in the October elections. He will continue mobilizing people against the electoral system, will not accept a defeat, and will look for ways of staying in office regardless of the elections – or even without them. Focusing just on electoral accountability makes horizontal (personal) accountability unlikely; in turn, the lack of personal accountability threatens the possibility of electoral accountability.
The Role of the Military
Bolsonaro’s plans and intentions are as clear as his words. But does he have the means to pull it off? Are his threats credible? In the U.S., Trump’s coup attempt failed. Will Bolsonaro simply claim that the election was stolen but then go home and lick his wounds?
Here, Brazil differs markedly from the U.S. Trump could not count on the military as a general matter. But the Brazilian military have been part and parcel of Bolsonaro’s government from day one (his Vice-President, for example, is a retired Army General) – and increasingly so. The number of military personnel in cabinet positions or bureaucratic posts has reached unprecedented levels. This, by itself, would be troubling in a democracy, but things took a turn for the worse in 2022. Military officers in the Bolsonaro government have supported the campaign against electoral institutions. The TSE invited the Army to participate in a commission for the transparency and improvement of the voting system. But, in their engagement with the commission, the army has basically echoed presidential challenges to the voting system. To mention just one such episode, the minister of defense, an Army General, appeared before the Senate a couple of weeks ago, basically replicating Bolsonaro’s views on the electronic voting system. Many high-ranking army officers have publicly enabled and legitimized Bolsonaro’s attacks on the voting system.
According to a journalist in a major newspaper, Bolsonaro’s meeting with foreign diplomats dissatisfied some active-duty generals, who would want to dissociate themselves from his coup-like discourse. However, the Army soon published a press release denying it. Whatever is happening inside the armed forces, Brazilian democracy cannot afford ambiguity on this issue. The military must stop endorsing any presidential attacks on the voting system, even if this means stepping away from the government itself. Bolsonaro must feel, and the public must know for sure, that the military will never support or enable any attempt to disregard electoral results.
Bolsonaro is currently weak, but free to openly mobilize support against accepting an electoral defeat. Since it seems too late for politicians to change their focus away from the elections and towards presidential accountability, we can only hope to make Bolsonaro’s threats not credible. Considering the armed forces’ deliberate entanglement with Bolsonaro, as well as the military’s role in several coups in Brazilian history, we need more than a few anonymous quotes from supposedly “legalistic” military officers. In the meantime, Bolsonaro’s threats must be taken seriously.
Diego Werneck Arguelhes, 22 July 2022
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In Germany using this kind of Voting Computers for federal elections are unconstitutional and forbidden, because public control of the voting process is impossible (BVerfGE 2 BvC 3/07, 2 BvC 4/07).
The Voting Computer is a blackbox. You cannot observe the counting of votes. There are no ballots proving the result.
You can’t prove to the loser of the election that he really has lost und there was no fraud. A candidate expecting defeat can very easily point out this weakness in the electoral system, warning of fraud stealing electoral victory from him. By construction this claim cannot be disproved.
The election in Brazil clearly shows these dangers of using voting computers.
The candidate and potential electoral loser can draw attention to the weaknesses of the electoral system well in advance and even propose improvements to the electoral system, such as paper trails, with the certainty that these will not be implemented.
The lesson of this election can only be not to use voting computers in the first place.