Direito Eleitoral defensivo: operacionalização da democracia militante pelo Poder Judiciário

Abstract

Constitutional democracy faces profound challenges in the 21st century: citizens’ connection to their local communities has waned, state institutions struggle to function effectively, and political actors often prioritize personal agendas over the common good. Consequently, in several countries, anti-democratic forces have exploited national political and electoral processes to subvert democratic structures and advance their own power agendas. This phenomenon, initially identified by Karl Loewenstein during the emergence of Nazi fascism in Europe in the 1930s, sparked discussions on militant democracy, a concept that has been revisited by contemporary scholars as a potential tool for safeguarding democracy. Despite the growing scholarly interest in militant democracy, the connection between militant democracy and Electoral Law remains unexplored in Brazilian academic discourse. This thesis aims to address this gap by critically examining the concept of militant democracy in the context of 21st century constitutional democracy. It argues that the concept must evolve to align with the realities of contemporary democratic governance. The thesis proceeds by analyzing the roles of the Federal Supreme Court and the Superior Electoral Court in Brazil during the recent democratic crisis. It demonstrates how both institutions have embraced the principles of militant democracy to defend democracy and uphold national stability. By assessing the historical foundations and legal provisions of the 1988 Constitution, the study reveals that the constitutional framework inherently adopts a defensive stance in support of the democratic regime, extending its protective reach to the electoral domain. In conclusion, without ignoring the existing risks, which are duly addressed, the thesis proposes the implementation of militant democracy principles through Electoral Law, termed defensive Electoral Law. This approach advocates for the interpretation and application of electoral laws within a defensive logic of constitutional democracy, particularly in response to threats against core democratic principles such as the integrity of democratic institutions, the fair conduct of electoral processes, and the free and informed expression of citizens’ voting rights. The proposal delineates two key axes: (i) firstly, a responsive strategy for addressing acute crisis and imminent risks to democratic institutions, wherein unconventional measures may be justified under the principles of the 1988 Constitution to safeguard constitutional democracy, and (ii) secondly, a proactive framework for the consistent application of defensive measures against tangible threats posed by antidemocratic actors.