Political Rights: Voting, Eligibility and Ineligibility

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

Political rights guarantee citizens a role in public life, whether by voting or by running for elected office. Knowing the rules on eligibility and ineligibility helps you avoid surprises when you register as a candidate.

What Political Rights Are

Political rights are set out in Articles 14 to 16 of the 1988 Federal Constitution. They make up the set of prerogatives that allow citizens to take an active part in democratic life. They range from the right to vote (active electoral capacity) to the right to be voted for (passive electoral capacity), and they include the right to propose legislation by popular initiative, and the rights to plebiscites and referendums. We see situations every day in which ignorance of these rules puts a citizen’s effective political participation at risk.

Popular sovereignty, a fundamental principle stated in Article 1º, sole paragraph, of the Constitution, is exercised precisely through these rights. All power comes from the people and is exercised by elected representatives or directly, as the Constitution provides. We note that this provision places citizens at the center of the Brazilian state, as the ultimate holders of all public authority.

The Right to Vote: Active Electoral Capacity

In Brazil, voting is mandatory for people over 18 and optional for people who are illiterate, people over 70, and young people who are at least 16 but not yet 18. Registering to vote and casting a ballot are therefore civic duties for most of the population. This requirement comes directly from Article 14, §1º, of the Constitution, which reinforces the participatory character of Brazil’s democratic system.

Foreigners cannot register as voters, and neither can conscripts during compulsory military service. The vote is direct, secret, universal and periodic, and these features are among the entrenched clauses of the Constitution. Any attempt to change this arrangement by constitutional amendment would be held unconstitutional by Brazil’s Supreme Federal Court, because it would strike at the essential core of representative democracy.

Plebiscite, Referendum and Popular Initiative

Besides the vote, the Constitution provides three mechanisms of direct democracy. A plebiscite is held before a law or administrative act is adopted. A referendum is called afterward. And popular initiative allows citizens themselves to submit bills to the National Congress, as long as the bill is signed by at least 1% of the national electorate, spread across no fewer than five states. We note that these tools are still rarely used in the country, but they are an important counterweight to a purely representative democracy.

Eligibility: Who Can Run for Office

To run for office, a citizen must meet the eligibility conditions of Article 14, §3º, of the Constitution: Brazilian nationality, full exercise of political rights, electoral registration, electoral domicile in the relevant district, party membership, and the minimum age for the office sought. The age varies by office: 35 for president and vice president, and for senator; 30 for governor and vice governor; 21 for representative, mayor, vice mayor and justice of the peace; and 18 for city council member.

Ineligibility is not a punishment. It is a mechanism that protects the integrity of public administration and the normal conduct of elections, as Brazil’s Supreme Federal Court has repeatedly recognized.

Party membership deserves special mention. In Brazil, independent candidacies do not exist. Anyone who wants to run in any election must belong to a duly established political party, within the minimum period set by electoral legislation. In this field, the guidance is that missing any one of these conditions leads the Electoral Courts to reject the candidate’s registration.

Ineligibility: Who Cannot Run for Office

Ineligibility prevents a person from being elected, even if that person technically meets the other conditions. The Constitution addresses the subject in Article 14, §§4º to 9º, and leaves the regulation of additional cases to statute. Today that statute is Complementary Law 64/1990, as amended by the so-called Clean Record Law (LC 135/2010). Among those who are ineligible are people who cannot register to vote, people who are illiterate, and the president, governors and mayors who seek a third consecutive term in the same office.

There are also cases of derivative ineligibility (inelegibilidade reflexa), which affect the spouse and the blood or in-law relatives, up to the second degree, of the head of the executive branch, within the territory under that official’s jurisdiction. The Clean Record Law went further and extended ineligibility to people whose mandate was revoked, people convicted by a collegiate court of crimes against public administration, and people who resigned from office to avoid removal proceedings. We note that Brazil’s Supreme Federal Court has already recognized these rules as constitutional, reasoning that they protect administrative probity and the integrity of the electoral process.

Loss and Suspension of Political Rights

Article 15 of the Constitution prohibits the revocation of political rights, but it allows their loss or suspension in a closed list of cases: cancellation of naturalization by a final judgment, absolute civil incapacity, a final criminal conviction (for as long as its effects last), refusal to perform an obligation required of everyone or the alternative service, and administrative misconduct. Loss is permanent, while suspension is temporary and lasts as long as its cause persists. To learn more about related constitutional guarantees, see the firm’s website content on constitutional law.

Frequently Asked Questions

Is voting mandatory in Brazil?

Yes. Voting is mandatory for literate Brazilians between 18 and 70. For young people aged 16 and 17, people who are illiterate, and people over 70, voting is optional. Failing to vote without a justification can result in a fine and other administrative consequences, such as being unable to obtain a passport or to register for a civil service examination.

Can I run for office without belonging to a party?

No. The Federal Constitution requires party membership as a condition of eligibility. Brazil does not allow independent candidacies. Anyone who wants to run for any elected office must belong to a political party duly registered with the Superior Electoral Court, within the minimum period set by law.

Is the Clean Record Law constitutional?

Yes. Brazil’s Supreme Federal Court upheld the constitutionality of Complementary Law 135/2010, ruling that the clean record requirement does not violate the presumption of innocence. Ineligibility is not a penalty. It is a requirement of integrity and probity for holding elected office.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.