The abuse of religious power: a case study of the judgment of REspEl 8285/GO by the Brazilian Superior Electoral Court

Abstract

This case study analyses the ruling handed down by the Brazilian Superior Electoral Court in Special Electoral Appeal no. 8285/GO, reported by Justice Edson Fachin and decided on 2 October 2020, in which the Court overturned the lower-instance decisions that had revoked the mandate of a city councillor elected in Luziânia, Goiás, for abuse of religious power in the 2016 election. It discusses whether abuse of religious power constitutes an autonomous category of electoral wrongdoing or whether it depends on being framed within the forms already set out in Complementary Law no. 64/1990. The research combines a review of case law — five rulings of the Superior Electoral Court decided between 2017 and 2021 — with a review of specialised electoral scholarship, and also examines Complementary Bill no. 112/2021, which seeks to regulate the matter. It argues that the absence of a specific rule defining abuse of religious power generates legal uncertainty and divergent interpretations, in tension with the freedoms of religion and expression guaranteed by the 1988 Federal Constitution. It concludes that, until specific legislation is enacted, the repression of such abuse must rest on the application of general electoral rules, subject to evidence demonstrating that religious leadership was used to obtain votes unlawfully.