Five Percent Electoral Threshold Case, Brazilian Communist Party and Others v. National Congress and the President of the Republic

Direct Action of Unconstitutionality no. 1351 and 1354 (2007)

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Five Percent Electoral Threshold Case, Brazilian Communist Party and Others v. National Congress and the President of the Republic

Brazil Federal Supreme Court
Direct Action of Unconstitutionality no. 1351 and 1354 (2007)

Facts

Certain Brazilian political parties (plaintiffs) filed a direct action of unconstitutionality challenging Article 13 of Statute No. 9.096/1995. The challenged provisions established a 5 percent threshold for parliamentary representation and provided that the 5 percent of votes not counted under the electoral threshold were distributed among one-third of the Brazilian states. The challenged provisions also affected the money made available to candidates and parties under the national Party Fund and the time available for party advertisements. While the legislature enacted these provisions in 1995, the challenged provisions established that the rules would impact the legislature starting in 2007. The political parties noted that of the 29 parties registered as political parties with the Superior Electoral Court in 2006, only seven would qualify for seats in the legislature under the 5 percent threshold rule. As written, Article 13 of Statute No. 9.096/1995 would grant the seven parties that achieved 5 percent or more of the vote 100 percent of the funds within the Party Fund. Article 13 would also limit the access to state and national broadcasting time to the seven parties who reached the 5 percent electoral threshold. Based on these facts, the political parties argued that these provisions violated the Brazilian constitution.

Rule of Law

Issue

Holding and Reasoning (Aurelio, J.)

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