How They Count Votes in Brazil by Augusto Zimmermann
https://quadrant.org.au/opinion/qed/2023/01/how-they-count-votes-in-brazil/
Presented with an opportunity to explain the current turmoil in Brazil, Australia’s establishment media once again took the easy, lazy course by rounding up the standard cliches and memes to present as informed ‘analysis’.
To see just how bad the coverage has been, start with Augusto’s account (below) of how politics is played in Brazil. — roger franklin
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THE second round of Brazil’s presidential elections was held on Sunday, October 30. The former president, Lula da Silva, who has served prison time for corruption, apparently won 50.90% of the vote and the incumbent, Jair Bolsonaro, received 49.10%. In other words, Lula was declared winner with less than 1 per cent lead over Bolsonaro. This is according to judges of the Superior Electoral Tribunal (TSE), Brazil’s top electoral authority. It was an unexpected comeback for the former president, who was directly responsible for the biggest series of corruption scandals in the nation’s history.[1] Lula is “back at the scene of the crime”, according to the description made not a long time ago by his own vice-president in the presidential ticket. According to J.R. Guzzo, one of Brazil’s most accomplished journalists, the 2022 election in Brazil has been “a legal and political fraud as we have never seen in this country”.[2] In an article entitled De Volta à Cena do Crime (Back at the Scene of the Crime), he commented:
Lula returned to the presidency via the general collapse of the Constitution and Brazilian laws throughout the electoral process – the result of an unprecedented meddling of the judiciary, which was entirely illegal in each step of the process. The basic fact is that the judiciary, with Justice Alexandre de Moraes issuing orders and Lula in the role of its sole beneficiary, did everything it could for any neutral observer to conclude this was a rigged election … Basically, Supreme Court justices and its electoral arm, the Superior Electoral Tribunal, put together piece by piece a mechanism designed to favour the leftist candidate. The first step was for these unelected judges to simply overturn the four criminal convictions against Lula and, with it, perform the “magic” of disappearing with all the dirty record which precluded him from being a candidate.[3]
But there is a rather decisive international element in Lula’s victory as well. Just after a few outlets called the election in Brazil, U.S. President Joe Biden orchestrated a rapid international embrace of Lula. In a statement released immediately after the result was officially announced, Biden claimed that Lula had won “following free, fair, and credible elections”.[4] In short order, Canada’s Justin Trudeau, French President Emmanuel Macron, and British Prime Minister Rishi Sunak all released statements congratulating Lula. “The people of Brazil have spoken”, said Trudeau, writing within an hour and a half of the result.[5]
In August 2021, US National Security Advisor Jake Sullivan visited Brazil to issue the following warning to the Brazilian president: do not even dare even to question the reliability of your country’s electronic voting system.[6] A month earlier, in July 2021, the newly installed Biden sent his CIA director, William Burns, to travel to the country to meet with senior Brazilian officials. During that meeting, the U.S. delegation warned the Brazilian government that President Bolsonaro “should stop casting doubt in his country’s [entirely electronic] electoral process”.[7] Next, at the June 2022 Summit of the Americas in Los Angeles, the Biden administration notoriously repeated the same warning that the U.S. government would not tolerate Bolsonaro casting any doubt on the reliability and security of the nation’s voting machines.[8] Since these messages came before the outcome of the election, this was a clear warning of dire consequences should the Brazilian president contest the alleged fairness and transparency of the electoral process. [9]
Fair and transparent elections invariably require paper-based voting. This is why most developed countries still use paper ballots and physical ballot boxes made of canvas, plastic, and other non-electronic materials.[10] About seven years ago, two German citizens challenged the constitutionality of electronic voting before their nation’s Constitutional Court. The decision by the German Constitutional Court stressed the need for absolute transparency in the electoral process, which is not possible if the process is restricted to specialist technical knowledge. Therefore, the court concluded, the complementary examination by the electoral bodies and the general public can only be made possible through physical vote records in addition to electronic storage.[11]
With the entirely electronic voting system implemented in Brazil, however, there is no absolute guarantee that citizens’ votes are exactly what they have cast because there is no actual physical register for each vote cast electronically. In other words, Brazilians are unable to confirm whether their votes are cast properly. Of course, if their elections were conducted with paper ballots, then the 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, with the counting of votes done on-site and immediately after the voting booth’s closing time. The reintroduction of paper-based voting would make the counting of votes more time-consuming, but at least a manual process would deliver more confidence in the results than the electronic system presently adopted in Brazil.
However, on August 10, 2021, the National Congress failed to pass a constitutional amendment that required the printing of physical ballots to be marked 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, also a Supreme Court judge and both a “vociferous opponent of Bolsonaro”[12] and ardent defender of voting machines. He managed to convince enough members of the legislature to reject these reasonable amendment proposals.[13]
Democratic elections require independent verification that (a) all balloting choices have been recorded as intended and (b) vote totals have been reliably and indisputably created from the same material examined by the voters.[14] But if the process becomes entirely electronic accurate audits are practically impossible. Votes cast using electronic voting machines appear to contain numerous weaknesses in the safeguards designed to protect the system.[15] Apparently, touch-screen machines are susceptible to fraud due to their outdated technology. In Brazil’s case this was the seventh presidential election to use the same electronic voting machines, which are similar to self-service touchscreen devices found at fast-food restaurants. According to Ellen Theisen, CEO of the Vote-PAD Company, because the sensors in these touch-screen voting machines can be easily knocked out of alignment by shock and vibration, such machines may ultimately misinterpret and misrepresent a voter’s intent. As a result, touching candidate “Bolso” can see candidate “Louis” light up instead.[16]
Above all, electronic voting machines are not as secure as paper-based systems because there is always the potential for hackers to tamper with the results. This is why most developed countries still use analog voting and counting (i.e., paper ballots and physical ballot boxes) [17] Besides Brazil, the other countries that use similar electronic voting machines nationwide are Bhutan and Venezuela. As noted by Aviel Rubin, PhD, director of the Information Security Institute at John 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.[18] According to Rebecca Mercuri, PhD, president of Notable Software,
A Voter Verified Paper Ballot (VVPB) provides an auditable way to assure voters that their ballots will be available to be counted … Without VVPB there is no way to independently audit the election results. Equipment failures, configurations and programming errors have resulted in costly election recalls and disputes that could have been prevented with VVPB.[19]
There have been several reports in Brazil of problems with the nation’s electronic voting system, although these reports are typically disregarded by the relevant authorities. In 2012, for example, a hacker stunned an audience at the Society of Engineers and Architects of Rio de Janeiro by explaining how he rigged that year’s local elections by intercepting data fed into the vote counting system. He modified the results in the computer of the regional electoral tribunal in order to favor some candidates and did so without the fraud being detected. Using the codename “Rangel”, he explains how the ruse worked:
We accessed the electoral tribunal network when the results were being transmitted and after 50% of the data had already been transmitted, we struck. We modified the results, even when the counting was about to be closed.[20]
In the 2014 presidential election, electoral delegates from Porto Velho, the capital city of Rondônia state, discovered that only the number 13 for candidate Lula da Silva was appearing on the voting machine’s screen. According to delegate Evaldo Filho, who was monitoring the voting at the site, more than 20 people had complained that the machine would display only that specific number whenever the voter would type another candidate’s number. The problem was reported to the regional electoral tribunal by many members of that polling station and electoral delegates. As a solution, electoral judge Álvaro Káliz Ferreira explained: “After the first complaint about the machine was made, technicians examined the problem and the system was restarted, so there was no further problem”. “There was no need to change the equipment. Voting continued on the spot,” he added.[21]
Eight years ago the federal Department of Public Prosecutions relied on a comprehensive report by academic researchers from the University of Brasilía (UnB) to report that the nation’s electronic voting system was seriously “flawed and cannot guarantee confidentiality of voting and the integrity of election results”.[22] The report addressed numerous “vulnerabilities in the program used in those voting machines, with the potential effect of violating vote counting”. [23] Elaborated mainly by public prosecutor Pedro Antonio Machado, the official report informed that, due to restrictions imposed by the federal electoral tribunal, researchers were simply not allowed to undertake more conclusive tests, thus making it impossible for them to demonstrate the existence of any further vulnerabilities of the electronic voting machines.
According to cyber security professor Diego Aranha, of the University of Campinas (Unicamp), those researchers were given only five hours by the electoral tribunal to access the source code (program in computer language) of the voting software.[24] In 2018, electoral judges invited Professor Aranha to participate in official tests of these electronic voting machines. And yet, those judges required him to sign a confidentiality agreement prohibiting disclosure of any information he obtained regarding the results of that investigation. Aranha refused to sign such agreement, insisting those results should be publicly available. He did however, eventually, agree to participate as the tests’ researcher coordinator, subsequently explaining that numerous vulnerabilities were found in the electronic machines. At a public hearing convened by the Electoral Tribunal, to Professor Aranha’s astonishment, he watched electoral judges claim that at no moment during those tests were the secrecy or integrity of e-votes cast violated, an assertion he dbranded a “blatant lie”.[25] “The problems are far more serious than the TSE claims it to be”, he said.[26] Upon learning of that interview, the electoral tribunal issued a statement claiming that Professor Aranha’s disclosure of security flaws constitutes “a threat to democracy”.[27]
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 from among six lawyers nominated by Supreme Court justices. Curiously, some of these top electoral judges campaigned openly — indeed, ferociously — against President Jair Bolsonaro. On February 19, then-presiding judge of the senior electoral tribunal, Luis Roberto Barroso, spoke at the Texas University Law School on the topic of … ‘Ditching a President’.[28] Thirty days earlier, he delivered a talk at the University of Chicago where he described the actions of the electoral court as a “warfare operation”. According to Justice Barroso, this
was made possible through immediate responses to questions about the validity of the Brazilian electronic voting system, and by cooperating with major social media platforms to exert continuous monitoring of social media behavior in search for inauthentic behavior.
Also, the Superior Electoral Tribunal established alliances with major fact-checking companies in Brazil and traditional media outlets. Finally, social education was focused on addressing the issue of what is fake news, how to identify it, and how to avoid passing it along.[29]
On June 25, Justice Barroso addressed the Brazil Forum UK at Oxford University, where he expressed his displeasure that far too many Brazilians appeared to have WhatsApp as a primary source of information. According to him, the use of social media is not desirable because it causes the spread of “misinformation” which encourages a lack of faith in the voting system and is not filtered by “professional journalists”.[30] When he went on to advocate and endorse the purported transparency and reliability of Brazil’s electronic voting machines he was promptly interrupted by two visiting Brazilian students who consider these machines entirely unrealiable. Like millions of Brazilians, those students 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. On August 1, 2021, millions of people took to the streets of major cities in Brazil to protest against the apparent lack of transparency in the electronic voting system.[31]
Due in part to the fact that some unelected judges have taken political positions inappropriate and, indeed, inimical to the judicial function, an opinion poll by DataPoder360 and released on June 15, 2020, revealed that the vast majority of Brazilians consider the performance of the judiciary “bad or horrible”. These politically aligned judges are perceived positively by only 23 percent of the population.[32] That result demonstrated yet again that there is a near complete lack of public faith in the judiciary. Brazil in the eyes of those same protesters seems to be on the verge of serious democratic decay, with the failure of the judiciary a critical factor contributing to the declining faith in the rule of law.[33] Indeed, many Brazilians historically believe that some people, particularly judges and politicians, are never adequately punished for breaking the law, thus corruption and naked judicial partisanship continue to thrive .[34]
This appeared to finally have changed when, in 2017, Brazil’s former president Lula da Silva was sentenced to 12 years and one month in prison for widespread corruption and money-laundering. He spent only a year and a half in jail. In 2021, the Supreme Court annulled all these convictions on entirely technical grounds. No court said a word about Lula’s culpability, as demonstrated by three court decisions before a total of nine judges, and in a series of criminal proceedings where there were numerous confessing witnesses and plea bargains. Instead, the court simply stated that the former president should not have been prosecuted in the city of Curitiba, but rather in Brasilia,[35] thus restoring Lula’s political rights and enabling him to contest this year’s presidential election.[36] In a January 10 interview, Bolsonaro accused these judges of “wanting Lula to be president”. Then he asked rhetorically: “They might not want to vote for me, but do they want to return to office the man who robbed the nation for eight years?” [37]
Alexandre de Moraes is the Supreme Court justice who was appointed as the nation’s top electoral officer in August 2022 at a public ceremony before 2,000 guests in the court’s auditorium.[38] Prior to this, in April 2005, he was appointed by the then-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 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 important 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[39] 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).[40]
During the entire campaign this year, Justice Moraes, as the nation’s top electoral judge, ordered social-media networks to remove thousands of posts and jailed numerous Bolsonaro supporters without trial for posts that he claims “attacked Brazil’s institutions”, namely his own court.[41] He also issued numerous “monocratic decisions” against “misinformation”, in addition to sending some of Bolsonaro’s friends and supporters to jail, confiscating their electronic devices and freezing their bank accounts.[42] He seemed to take particular pleasure in censoring political supporters of the President, even to the extent of opening an inquiry concerning alleged “fake news”. One of the materials censored by Justice Moraes refers to a 2018 federal police inquiry into how hackers might have attacked the computers of the Superior Electoral Tribunal. “This is not fake news. One, even, stole the password of a judge”, Bolsonaro says.[43]
Bolsonaro relied on the Telegram app to reach his voter base.[44] He has more than a million followers on the platform and this could prove crucial to his electoral campaign. While the current president’s Telegram page has more than 1 million followers, former President Luiz Inacio Lula da Silva, the far-left candidate to October’s elections, has only 48 thousand. However, on March 18, Justice Moraes ordered the nationwide suspension of Telegram.[45] The ruling came after Telegram apparently ignored an earlier order to block the account of Allan dos Santos, a supporter of Bolsonaro who faced the standard accusation of “spreading “misinformation”.[46]
In his monocratic ruling suspending Telegram nationwide, Justice Moraes mentions its failing to remove “misleading” content from Bolsonaro’s own Telegram page.[47] As mentioned above, not only did Moraes shut down of the message app nationwide, he also ordered Apple and Google to introduce “technological obstacles” to block Telegram on their operating systems and withdraw it from their digital stores in Brazil.[48] On March 19, during the popular television program Os Pingos nos Is (‘Dot the I’s, cross the T’s) journalist Augusto Nunes accused this judge of several illegalities, including the abuse of authority and the violation of a cláusula pétrea (“stone clause”) in the Brazilian Constitution that makes freedom of expression an inalienable right.[49] Nunes also criticized the silence of politicians about Moraes’ “authoritarian decisions”, including the nationwide banning of Telegram.[50]
On May 27, 2020, Moraes ordered the federal police to launch an operation probing businessmen, bloggers and politicians allied to President Bolsonaro.[51] In the decision that authorised the operation, he determined the blocking of all their accounts on social media outlets such as Facebook, Twitter and Instagram.[52] The investigation conducted by him concerned more generally the dissemination of “misinformation” about the transparency of voting machines and the credibility of the electoral tribunal headed by Moraes himself. Special Advisor to the Presidency of the Republic for International Affairs, Filipe Martins, stated on the occasion that “journalists, comedians and ordinary citizens who act spontaneously were treated as criminals for daring to express opinions that displease the establishment”.[53] Among the targets of police actions ordered by Moraes were the national president of the Brazilian Workers’ Party (PTB), Roberto Jefferson, businessman Luciano Hang and congresspersons Douglas Garcia, Gil Diniz, Carla Zambelli, Bia Kicis, Junio Amaral, Filipe Barros and Luiz Phillipe Orleans e Bragança, and Daniel Silveira.[54] One of these parliamentarians, Carla Zambelli, said that “every person who respects the law has the obligation to repudiate these searches within the scope of an illegal and unconstitutional investigation.”[55] By the same token, another congresswoman, Bia Kicis, stated:
“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”.[56]
On August 23, Moraes directed the federal police to execute search warrants in five states targeting at least eight businessmen.[57] He ordered police to raid their homes, to access their bank accounts, and to suspend their social media accounts. These law-abiding citizens were investigated over a couple of messages posted in their WhatsApp group whereby some dared to say they would prefer another military regime to the return of the far-left candidate Lula da Silva to the presidency.[58] Justice Moraes then immediately ordered all their bank accounts blocked.[59] One of those targeted by the operation was Luciano Hang, the founder of retail chain Havan and a Bolsonaro supporter with millions of followers on social media. Although Hang categorically states that he has “never spoken of a coup” and he has “always defended democracy and freedom of expression”, Moraes still ordered the blocking of all his social media accounts, including Twitter, Instagram, Facebook, YouTube, WhatsApp, and TikTok.[60] Other businessmen who reportedly had their social media and bank accounts blocked include Meyer Joseph Nigri, chairman and former CEO of property developer Tecnisa; Jose Isaac Peres, founder of shopping mall company Multiplan; and Afranio Barreira Filho, owner of restaurant chain Coco Bambu.[61]
During his talk in the 9th Lisbon Legal Forum in Portugal, on November 16, 2021, Supreme Court justice Dias Toffoli commented that “presiding over Brazil is not easy ….[62] We already have a semi-presidentialism with a moderating power control that is currently exercised by the Supreme Court”, he said.[63] Of course, the system of government in Brazil, as per its Constitution, remains entirely presidential. This supposed “moderating power” is found only in the creative minds of such activist judges. It amounts, in practice, to a usurpation of government powers derived from the people by an unelected judicial oligarchy. On February 21, 2021, Justice Gilmar Mendes of the Supreme Court met the then-president of the House of Representatives, Rodrigo Maia, and ten other federal congressmen, to discuss what they should do about the Brazilian president. He told these politicians that ending any “kindness” towards the democratically elected leader was urgently required, with Justice Mendes proposing “a harsher attack” on President Bolsonaro. He wanted “zero tolerance” for the head of the executive branch.[64] To give another example, in May 2021, Celso de Mello, then the longest-serving member of the Supreme Court, sent a text message to his judicial peers comparing the Bolsonaro to Adolf Hitler. He informed his court colleagues that it was “necessary to fight Bolsonaro”.[65]
The process to appoint Supreme Court justices in Brazil is practically identical to that in the United States. These top judges are nominated to the court by the President and then must be approved by an absolute majority of the Senate after a confirmation hearing. However, the last four years in Brazil have been characterised by a remarkable rise of judicial activism. A question often raised is whether judges in Brazil are becoming an entrenched oligarchy devoid of any accountability.[66] In many cases, says an article in The New York Times,
Justice Moraes has acted unilaterally, emboldened by new powers the court granted itself in 2019 that allow it to, in effect, act as an investigator, prosecutor and judge all at once.[67]
says Marco Aurélio Mello, a former Supreme Court justice who last year reached the mandatory retirement age of 75, “It is an unprecedent role, turning the court in some cases into the accuser and the judge.” Of course, it would be incredibly unwise for Brazilians to return a notoriously corrupt politician to the presidency of their nation. It is very hard to believe they would be so morally bankrupt to reward a notorious far-left politician, Lula da Silva, who would then be able to finish the job he had started of turning Brazil into another Cuba or Venezuela.[68] So, was there a fair and transparent presidential election in Brazil? After all, as two U.S. journalists recently stated in The New York Times, “the court’s expanding influence could have major implications for the winner of the presidential vote”.[69]
Having been made aware all these extraordinary things, the violations of democratic propriety, who would dare call that Brazil’s election fair and transparent? The European Union for one, which released on Monday a statement praising Brazil for ‘the effective and transparent manner it conducted its constitutional mandate throughout all stages of the electoral process, demonstrating once again the strength of Brazil’s institutions and its democracy’.”[70]
Moreover, the US Senate has unanimously approved a resolution recommending the suspension of US-Brazil relations if there is any questioning of the security and transparency of electronic voting in Brazil, “otherwise the U.S. must consider its relations with the Brazilian government and suspend cooperation programs, including in the military area”, says the resolution.[71] No senator, including Republicans, opposed the text presented by senators Tim Kaine and Bernie Sanders.[72] According to Michael Kinley, former U.S Ambassador to Brazil (2017-2018), “[Brazilians] have built up strong electoral tribunals that supervise elections, work with state governments, state electoral officials in a centralized system that commands tremendous credibility”. That is “backstopped”, he continued, “by a Supreme Court that enforces the rules”.[73] As for how this Supreme Court “backstops” the enforcement of these rules, Newsweek’s journalist Jack Dutton comments:
One of the justices, Alexandre de Moraes, jailed the head of a party allied with the nationalist president as part of a probe on alleged online misinformation and anti-democratic threats. He also opened a probe on Bolsonaro for allegedly posting confidential material on social media to try and prove an allegation of election fraud. The other justice, Luis Roberto Barroso, has been a vociferous opponent of Bolsonaro’s fraud claims over the upcoming election.[74]
As can be seen, it will be hard to agree with the good ambassador about the “tremendous credibility” of electoral judges who command of the country’s electoral process. To the contrary, a question currently being raised in Brazil is whether or not its judicial elite has now become an entrenched political oligarchy devoid of any accountability. Of course, this goes without saying that the CIA and the U.S. military are justly notorious for undermining democratically elected governments in Latin America.
So, was there a fair and transparent presidential election in Brazil? I certainly have no reason to think so — nor do millions of other Brazilians turning out to protest.
Augusto Zimmermann is professor and Head of Law at Sheridan Institute of Higher Education, in Perth, Western Australia. He was born in Brazil and completed his LLB and LLM with cum laude at the Pontifical Catholic University of Rio de Janeiro. In January 2002, he emigrated to Australia, completing a PhD in Legal Philosophy at Monash University in 2006. In 2007, Dr Zimmermann was invited to join Murdoch University Law School where, among other things, he served as Director of Postgraduate Research (2011-2012 and 2015-2017) and Associate Dean, Research (2010-2012). During his time at Murdoch, Dr Zimmermann was awarded the University’s Vice Chancellor’s Award for Excellence in Research in 2012. He is a former Commissioner with the Law Reform Commission of Western Australia (2012-2017), and President of the Western Australian Legal Theory Association (WALTA). Dr Zimmermann is the author of numerous academic articles in books, including ‘Curso de Direito Constitucional’ (4th ed., Lumen Juris, 2006, 783 pp) and ‘Direito Constitucional Brasileiro – Volumes 1 & 2’ Lumen Juris, 2015, 1,000 pp).
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