O abuso do poder no direito eleitoral: uma necessária revisitação ao instituto

Abstract

The present work proposes a revision of the institute of the abuse of power in electoral campaigns. Initially, it was demonstrated that the institute of abuse of power, on the grounds of protecting the legitimacy of elections, often ends up subverting it, for disrespecting the will of the majority and provoke the cassation of mandates in face of facts that did not impact on the elections results. Thus, the institutes of the abuse of economic power, abuse of political power and abuse of media power were analyzed, re-reading them based on the idea of the severity of the conduct and popular sovereignty. Afterwards, it was discussed the idea that defends the existence of atypical forms of abuse of power in elections, not expressly provided by law, but which should be repressed by electoral justice. It was understood that such forms, unless they are understood as a new type of typical forms, cannot be repressed by the courts, because it would represent a violation of fundamental political rights, so they need to be provided by law. Finally, it was analyzed the concepts of abuse of religious power and abuse of the use of big data in electoral campaigns, in order to conclude that electoral law repudiates abuse of big data, but still lacks legislative innovation to repress abuse of religious power. The conclusions reached were based on bibliographical, legislative and jurisprudential review.