Bolsonaro, Trump election cases share similarities, but not rulings

The similarities are striking, though the legal outcomes were different.

A far-right, law-and-order populist, Jair Bolsonaro was dubbed by journalists as the “Trump of the tropics” for his tone and style as well as his policies. The one-term Brazilian president lost his re-election bid in 2022, insisting that voting machines were rigged. His supporters stormed Brazil’s Congress on Jan. 8, 2023, to protest what they called a stolen election.

Last June, Brazil’s electoral court blocked Bolsonaro from running for elections for eight years for publicly denying the legitimacy of the vote, and he is being investigated for his alleged role in plotting a coup to remain in power.

The U.S. Supreme Court recently ruled that states cannot bar Donald Trump from running for another term, overturning a decision in Colorado that allowed officials there to kick the former president off the primary ballot due to his role in the Jan. 6 insurrection. Justices ruled that the 14th Amendment does not empower states to make such decisions about presidential candidates.

The Gazette interviewed Jean Vilbert, former Brazilian judge and law professor and Harvard doctoral candidate, about the power of the Brazilian electoral court, the nation’s election laws, and lessons learned from the Bolsonaro and Trump cases. This interview has been condensed and edited for length and clarity.

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Former Brazil’s president Jair Bolsonaro was barred from running for office by Brazil’s electoral court. How did this happen?

Bolsonaro became president in 2019, two years after Trump, and their paths to power were very similar. Like Trump, Bolsonaro used strong rhetoric and a populist discourse by inciting fear and anger to reach out to the rich and the poor alike, and like Trump, Bolsonaro promised to bring back order and law.

But where their paths differ is, of course, in the fact that Bolsonaro was barred from running for office. In Bolsonaro’s case, when he realized he could lose his re-election bid in 2022, he claimed that the electronic voting machines were rigged. According to Brazil’s election officials, Bolsonaro’s attacks on the integrity of Brazil’s voting system were a violation of Brazil’s election laws, and consequently, they barred him from seeking office for the next eight years, until 2030.

Can you explain how candidates in Brazil can be disqualified from running for elections?

First, a bit of context. When Brazil rewrote its Constitution in 1988, the memory of the military dictatorship that ruled our country for 21 years [1964-1985] was still fresh. One of the goals was to make the judiciary powerful enough to counterbalance both the Congress and the executive and build institutions that can react to threats to democracy.

Brazil’s Superior Electoral Court, the highest body of the Brazilian electoral system, charged Bolsonaro with abuse of political power because of his false claims against Brazil’s electronic voting system and for the misuse of public funds to spread disinformation.

The court said Bolsonaro met with a group of foreign ambassadors in the middle of his campaign where he claimed that the voting machines were rigged without presenting any evidence. The court also said that since the meeting was broadcast on public television and social media, it was spreading disinformation about the elections.

According to the ruling by Brazilian election officials, what election laws did Bolsonaro break?

The electoral court has said that it is interpreting the Constitution, Article 14, Paragraph 9, which states that politicians can be banned from running for office if they don’t protect values of probity and morality. The court also said they’re also considering a complementary law from 1990, which in its article 19 stipulates the possibility of punishment for candidates for specific electoral transgressions, such as acts against the “normalcy” or “legitimacy” of elections.

In their interpretation, when Bolsonaro criticized the integrity of the voting system by spreading false claims about a possible electoral fraud, he was acting against the legitimacy and the normalcy of elections.

The decision by Brazil’s Electoral Court has been controversial. Some were in favor, and others are saying it was an overreach. What is your opinion?

Some people in Brazil applauded the decision to bar Bolsonaro because they said he was undermining Brazil’s democracy with his false accusations and his claims of electoral fraud. Others are worried that the judiciary has become a superpower, that it has gone too far and can also represent a threat to democracy.

Personally, I find that the judges are stretching their interpretation of the laws, and they might be doing it in an attempt to protect our young democracy. Election officials have barred politicians from running for elections before Bolsonaro, yet this time the court applied quite abstract norms to disqualify someone for criticizing Brazil’s voting system.

But as we speak, Bolsonaro is being investigated by the federal police for plotting a military coup to remain in power after his electoral defeat in September 2022 to Brazil’s current president, Luiz Inácio Lula da Silva. But that is another story, and that is an ongoing investigation.

To protest Bolsonaro’s electoral defeat, his supporters stormed Brazil’s Congress, the Supreme Court, and other official buildings on Jan. 8, 2023. Has Bolsonaro’s support changed since then?

It seems that he has lost some support. He had at least 40 percent of popular support when he was in power. But according to recent polls, he still keeps a sizable popular support — between 20 and 30 percent may be called Bolsonaristas, the staunch supporters.

Brazil is divided about the decision to bar Bolsonaro from running for elections. Some say he is not fit for office and had to be prevented from running. Others say that it’s the voters, not the courts, who should decide the candidate’s fate in the voting booths.

But one lesson most Brazilians have learned from all this is that we don’t want to go back to living under a dictatorship, and we need to preserve our democracy. When the Jan. 8 riot took place, the army, left-wing and right-wing politicians, businessmen, and the vast majority of Brazilians denounced it as an attack on democracy.

It has been a learning process for Brazil since its return to democracy in 1989. We know what it is like to live under a dictatorship; we know what is at stake. Everybody banded together to defend democracy because if we don’t, we have too much to lose.

What do you think of the U.S. Supreme Court’s ruling restoring Trump’s place on Colorado’s primary ballot? 

From a legal standpoint, the decision is all about federalism. The Colorado Supreme Court had accepted the argument that the 14th Amendment of the Constitution disqualified Trump for his role in the Capitol riots, categorizing it as insurrection.

The SCOTUS did not evaluate whether Trump had committed insurrection or not. Rather, it examined the procedural aspect of Colorado’s ruling. The core issue was whether a state’s judiciary could disqualify candidates for federal offices. For the justices, the answer is no. According to them, only Congress has the authority to apply Section 3 of the 14th Amendment against candidates for federal offices. States can only disqualify individuals running for state offices.

Even though there are multiple cases pending against Trump, the U.S. does not have an equivalent to Brazil’s “Ficha Limpa,” a federal law that stipulates that convictions for specific offenses result in ineligibility to run for office. So, ineligibility follows directly from a conviction, with criminal and administrative laws detailing ex ante the relevant offenses that may lead to ineligibility.

This gives us predictability, maintains the judiciary’s reputation for avoiding political entanglements (focusing instead on legal issues), and appears to strike an equilibrium between defense of democracy and judicial nonintervention in political matters (something also difficult to define).

The balance between defending democracy through judicial means and upholding democratic principles is a fragile one. There is a risk in granting federal courts the authority to disqualify a candidate. It is a matter of debate if a democracy would be better off allowing nonelected individuals to determine case by case, without specific laws, who can run for public office.