Luiz Inácio Lula da Silva was sworn as the new president of Brazil on 1st January. Lula, who had already served as the nation’s president from 2002 to 2010, also served prison time for his direct involvement in corruption.

Apparently, the far-left leader won 50.90% of the vote and the conservative candidate, Jair Bolsonaro, received 49.10%. It would be an unexpected comeback for him. Writing for The Wall Street Journal, Mary Anastasia O’Grady comments:  

“The evidence against Lula was solid and his conviction had been confirmed by two appeals court. But the high court reversed its own precedents and annulled the decision. It knew that the statute of limitations didn’t leave time for a retrial. Lula was released but never exonerated”.[1] 

In 2021, the nation’s Supreme Court annulled all Lula’s criminal convictions on entirely technical grounds. This court did not say a word about Lula’s culpability – demonstrated in three court decisions, before nine judges, and in a series of criminal proceedings where there were numerous confessing witness, plea bargains and even the return of stolen money. Instead, the court simply stated that the former president should not have been prosecuted in the city of Curitiba, but rather in Brasilia,[2] thus restoring Lula’s political rights that enabled him to run for this year’s presidential election.[3]

Accordingly, millions of Brazilians have been protesting Lula’s alleged victory since October 30. The spontaneous mass-movement has spread around the nation and has no defined national leaders. Many demonstrators are elderly, with a significant presence of young people and families.[4] In this context, thousands of Brazilians have occupied this Sunday their country’s Congress to protest against the presidential elections and inauguration of far-left candidate Lula da Silva. Thousands of others have gathered outside the presidential palace and the Supreme Court. They are calling for the immediate cancellation of the presidential election.[5]

Fair and transparent elections invariably require paper-based voting, so that voters can see people counting the ballots. This is why most developed countries still use paper ballots and physical ballot boxes made of canvas, plastic, and other non-electronic materials.[6] With the current electronic voting system, however, there is no absolute guarantee that Brazilians’ votes were exactly what they have cast in the ballot box, and simply because there is no actual physical register for each vote cast electronically. In other words, the Brazilians are unable to confirm whether their votes were cast properly.

Of course, if the Brazilian elections were done on paper ballots, then counting of votes would be made public via the direct participation of electoral inspectors and voluntary delegates, so that any suspicion of possible electoral fraud would be dramatically reduced. However, on August 10, 2021, the Brazilian Congress failed to pass a constitutional amendment that required the printing of physical ballots that can be checked by the voter.

Unfortunately, that important proposal was rejected in great part due to the strong political lobbying of the then top electoral judge, Luís Roberto Barroso, who is also a Supreme Court judge and ardent defender of voting machines. He managed to convince enough MPs to reject these reasonable amendment proposals.[7] As a result, voters in Brazil were forced by the establishment to continue using voting machines that are similar to self-service touchscreen devices found at fast food-restaurants. 

Brazil has a Superior Electoral Tribunal (TSE) where its electoral judges create rules, decide on disputes, and even supervise the finances of electoral campaigns. Composed of seven members, three are elected by secret vote from among Supreme Court justices and two others are elected by secret vote from among judges of the Superior Court of Justice (STJ), Brazil’s second highest court. The remaining two are appointed by the President of the Republic among six lawyers nominated by Supreme Court justices.

Curiously, some of these top electoral judges campaigned openly and ferociously against one of the candidates -- President Jair Bolsonaro. On February 19, for example, the then president of the electoral tribunal, Luis Roberto Barroso, spoke at the Texas University Law School on the rather peculiar topic of “Ditching a President”.[8] A few months later, he was a speaker at Oxford University where he got interrupted by two Brazilian Oxford students when speaking about the supposed reliability of electronic voting machines, on June 25. [9]

Like millions of other fellow citizens, those two students suspect that electronic voting machines are not entirely reliable and just wanted to see a physical register for each electronic ballot -- a sheet of paper that could be printed so that citizens could confirm whether their votes were cast properly.[10] Arguably, the electronic machines used in the presidential election may not be as secure as paper-based systems. According to Aviel Rubin, director of the Information Security Institute at Johns Hopkins University, and author of several books on information technology and cyber security, the use of electronic voting machines is “flawed and easy to manipulate”.[11]

Deconstructing ScoMo

On November 9, 2022, the nation’s Defence Ministry sent to the Superior Electoral Court (TSE) its long-awaited report on the electoral process. Produced by the technical team of the Brazilian Armed Forces, the report did not reject the possibility of electoral fraud.[12] The report indicated important aspects that required further clarification from the Supreme Electoral Court. [13] Basically, “the accurate work of the team of military technicians in the supervision of the electronic voting system … does not exclude the possibility of fraud or inconsistency in electronic voting machines and the electoral process of 2022”.[14]

According to the Ministry of Defence, “it is not possible to ensure that the computer programs that have been implemented at electronic voting machines are free from malicious insertions that alter their functioning”.[15] As a result, the Ministry of Defence requested the Superior Electoral Tribunal “to conduct an urgent technical investigation into what happened in the compilation of the source code and a thorough analysis of the codes that were executed in electronic voting machines”.[16]

Unfortunately, the request from the Ministry of Defence was completely ignored by Justice Alexandre de Moraes, president of the Superior Electoral Court. He has also rejected any voter fraud claims from Bolsonaro’s political party (Liberal Party) in November. Moraes described the legal filing as “bad faith” litigation and fined the plaintiffs $4.3 million for daring to ask the court some questions about the transparency of the electoral process.[17]   

Justice Moraes was appointed as the nation’s top electoral officer in August 2022.[18] Prior to this, he was appointed by President Lula to join the first composition (biennium 2005-2007) of the National Council of Justice (CNJ). From 2002 to 2005, he served as the Secretary of Justice and Defense of Citizenship of São Paulo state under Geraldo Alckmin, the candidate for vice president on Lula's presidential ticket, and who had previously served as the Governor of São Paulo from 2001 to 2006, and then again from 2011 to 2018.

Moraes also held the post of Public Security Secretary under Governor Alckmin, from 2014 to 2016. As reported by the French daily Le Monde, seven years ago he was at the centre of a controversy when the daily Estadão[19] published an investigation showing that he had intervened as a lawyer in at least 123 legal cases to defend a corporation (Transcooper) suspected of being linked to Brazil’s main drug trafficking group, the First Command of the Capital (PCC).[20]

Justice Moraes has ordered social networks to remove thousands of posts and arrested numerous supporters of former President Jair Bolsonaro without a trial for posts on social media that he claims “attacked Brazil’s institutions”, namely his own court.[21] In addition to sending some of former President’s Jair Bolsonaro’s friends and supporters to jail, Moraes has ordered the confiscation of their electronic devices and the freezing of their personal bank accounts.[22] As stated by congresswoman Bia Kicis: 

We are living in dark times of brazen attack on democracy. Don't forget the people who are celebrating the abuses of authority and undemocratic acts by Justice Alexandre de Moraes against journalists, comedians, businessmen and any other common people. They are accomplices of the dictatorship. I have never been silent against tyranny or opponents.[23]

At this moment hundreds of judicial arrests are taking place across the country. The judiciary has now moved on to a new phase of political activism, and the federal police keep carrying out the arrest of people on solely ideological grounds. my heart goes to the brave Brazilian people. Over the last 40 days I was fortunate enough to visit cities across the nation and to witness the great love and passion of Brazilians for their inalienable rights and freedoms. To be frank, it is distressful to see that even the most basic rights of the Brazilian citizen have been so grossly violated.

In a televised address on Sunday, newly inaugurated President Lula has authorised federal intervention in the Federal District until the end of January. This is how dictatorships start. Lula also tweeted a statement calling those who stormed Congress “fascists”.[24] Curiously, the controversial far-left politician is enthusiastically supported by the local oligarchic power leadership and all the globalist forces of the world. Writing on Twitter, President Macron, reacting to the protests in Brazil, said that Lula could count on France’s “unfailing support”.[25]

To conclude, Brazilians have the lawful right to resist and fight for their democratic rights. Under Article 1 of the Brazilian Constitution all power belongs to the people, who exercise such power by means of their elected representatives or directly. This right is also protected under Article 5, IV of the Constitution, which communicates the free manifestation of political thought. Accordingly, Brazilians have expressed their democratic concern that Lula may well finish the job he had previously started of transforming Brazil into another Cuba or Venezuela, and have taken the streets of all the major cities across the nation to protest against what they also regard as the biggest electoral fraud in the country’s history.

The latest events in Brasília are the result of a spontaneous democratic reaction against an obscure electoral process that millions of Brazilians perceive as being completely lacking in transparency and credibility.[26]

[1] Mary Anastasia O’Grady, ‘The Return of Lula and the Judicial Threat to Brazil’s Democracy’,
The Wall Street Journal, 25 December 2022

[2] J.R. Guzzo, ‘Fachin agiu como um militante político empenhado em servir a Lula e ao PT’, Jovem Pan, 13 March 2021, at J.R. Guzzo, ‘Fachin agiu como um militante político empenhado em servir a Lula e ao PT’, Jovem Pan, 13 March 2021

[3] Igor Carvalho, ‘Understand the decision that annuls Lula’s sentences and the Brazilian political game’, Brasil de Fato, 9 March 2022

[4]Protestos nos quarteis e tiros de guerra ganham carater de vigilia pro-Bolsonaro’, UOL Notícias, 7 January 2023

[5]Pro-Bolsonaro protesters storm Brazil’s government buildings’, ABC News, 8 January 2024

[6]Brazil é o único país com urna eletrônica sem contraprova física’, Convergencias, June 15, 208

[7] Frederico Rocha Ferreira, ‘Urnas Eletrônicas sem impressão do voto são um risco à democracia?’, Jusbrasil

[8] Gustavo Maia, ‘Barroso participa de evento nos EUA sobre com se livrar de um presidente’, Veja, 18 February 2022

[9] Ashley, ‘Media Talks in Oxford, Barroso defends the professional press and is attacked by a print vote’, June 25, 2022

[10] Simone Preissler Iglesias and Andrew Rosati, ‘Jair Bolsonaro wages Trump-like campaign to sow doubt over voting in Brazil’, The Japan Times, 13 July 2021

[11] Aviel D. Rubin et al, ‘An Analysis of an Electronia Voting System’, John Hopkins University, February 27, 2004

[12] Ministério da Defesa, ‘Relatório Técnico – Fiscalização do Sistema Eletrônico de Votação Pelas Forças Armadas’,
Governo Federal, 9 November 2022

[13]Relatório das Forças Armadas não excluiu a possibilidade de fraude ou inconsistência nas urnas eletrônicas’, Ministério da Defesa, Governo do Brasil, 10 November 2022

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Sheri Walsh and Joe Fisher, ‘Brazil court reject outgoing President Bolsonaro’s election fraud claim’, UPI, 24 November 2022

[18] Alexandre de Moraes, ‘Ministro Alexandre de Moraes toma posse como presidente to TSE’, Agência Brasil, 16 August 2022

[19] Edgar Maciel and Marcelo Godoy, ‘Novo secretário de Alckmin defende cooperative de van’, Estadão, January 9, 2015,1617265

[20]Brésil: le juge Alexandre de Moraes, bête noire de Bolsonaro’, Le Monde, 15 October 2022

[21] Jack Nicas and André Spigariol, ‘To Defend Democracy, Is Brazil’s Top Court Going Too Far?’, The New York Times, September 26, 2022

[22]Bolsonaro Pardons Silveira One Day After His Conviction’, MercoPress, 22 April 2022

[23] Augusto Fernandes, ‘Censura, ditadura e vergonha: bolsonaristas reagem a ação da PF’, Correio Braziliense, 27 May 2020

[24] Lia Timson, ‘Bolsonaro supporters storm Brazil Congress in act Lula calls barbarism’, The Age, 9 January 2023  

[25] ‘Live Updates: Rioters Protesting Brazil Election Storm Government Officers’, New York Times, 9 January 2023.

[26] Iolanda Fonseca, ‘Amid allegations of a stolen election, Brazilians have been protesting in the millions in over 300 locations nationwide’, The Rio Times, 7 November 2022

Dr Augusto Zimmermann PhD, LLM, LLB, DipEd, CertIntArb is a well-known expert in Brazilian law, and the author of numerous books and articles on Brazilian Constitutional Law, including Direito Constitucional Brasileiro – Tomes I & II (Rio de Janeiro/RJ: Lumen Juris, 2014), and Curso de Direito Constitucional (4th ed., Rio de Janeiro: Lumen Juris, 2006). He is also co-author of the book Deconstructing Scomo. He is Professor and Head of Law at Sheridan Institute of Higher Education in Perth, WA, and Professor of Law (Adjunct) at the University of Notre Dame Australia, Sydney campus. He is President of the Western Australian Legal Theory Association (WALTA), and former Law Reform Commissioner with the Law Reform Commission of Western Australia, from 2012-2017. Dr Zimmermann was chair and professor of Constitutional Law at Murdoch University from 2007 to 2017.

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