Análise da sanção de cassação do registro ou do diploma prevista no art. 41-A da lei nº 9.504/97 à luz da jurisprudência do TSE

Abstract

It investigates the application of the penalty nullification of the registration or the degree for illicit capture of suffrage, established on the article 41-A from Law nº 9.504/97, according to Electoral Supreme Court jurisprudence. The illicit capture of suffrage was introduced by the Law nº 9.840/99, from popular initiative and, afterwards, converted for parliament initiative. Differently from others misuse power species, the penalty nullification of the registration or the degree for illicit capture of suffrage can be applied regardless of the presence of injurious potential or circumstances gravity. According to Electoral Supreme Court, although when it limits to only one voter, the candidate is subjected to the elective mandate loss. As it has a fundamental rights collision, it would be possible the application of proportionality. Analyzing the Electoral Supreme Court jurisprudence, it was possible to conclude that the proportionality is not applied to the illicit capture of suffrage due to legal asset protected by it be the free vote. Also, it was possible to conclude that the penalty nullification of the registration or the degree is the most efficient mean to protect the free vote, being in consonance with the purpose which it was created.