Da destinação dos votos dos candidatos das proporcionais que tiveram seu registro, diploma ou mandato cassado após às eleições em razão de cometimento de ilícitos eleitorais

Análise a partir de decisum do TRE/SP

Abstract

This article addresses the issue of the destination of votes of candidates in proportional elections in Brazil who had their registration, diploma or mandate revoked after the elections due to the committing of electoral illicit acts. The study is based on the writ nº.060153871 judged by the Regional Electoral Court of São Paulo, which denied the order to annul the votes of the candidate for councilor in the municipality of Franco da Rocha and not allow the use of them for his political party, given that the registration was rejected on the basis of the practice of electoral illicit. This is a topic of great discussion in the jurisprudence, which is why we delved into the TSE judgements' history, evidencing its understanding in terms of taking advantage of the votes for the political party, as long as the candidate's registration has not been rejected in the first instance. However, in one of the resolutions referring to the 2020 elections edited by the TSE itself, a different understanding from its last judgments in order to predict the impossibility of using the votes by the party of the candidate whose registration, mandate or diploma was revoked due the committing of electoral illicit acts. With this in mind, supported by the doctrine's positions on the subject, an analysis is carried out on whether or not political parties can take advantage of the votes of their candidates who have committed electoral illicit acts.