## Facts

- In May 2006, Brazil enacted Law No. 11.300/2006, an electoral “mini-reform” that changed rules on campaign advertising, campaign funding, and accountability in campaign spending, by amending Brazil’s election law (Law No. 9.504/1997).
- The law was enacted months before Brazil’s October 2006 national elections and amid political corruption scandals involving the president and the president’s political party.
- Three political parties—the Social Christian Party (PSC), the Democratic Labor Party (PDT), and the Christian Labor Party (PTC)—filed separate direct actions of unconstitutionality in the Supreme Federal Court (STF) challenging Law No. 11.300/2006; the actions were consolidated for judgment.
- The parties argued that applying Law No. 11.300/2006 to the October 2006 elections would violate Article 16 of the Brazilian Constitution, which requires that a law that changes the “electoral process” take effect at least one year before the election in which it will be applied.
- The case also addressed the constitutionality of Article 35-A (added to Law No. 9.504/1997 by Law No. 11.300/2006), which prohibited publication of electoral opinion polls by any means of communication during the 15 days preceding election day.
- Related questions arose about the reach of the challenge to implementing rules issued by the Superior Electoral Court (TSE) for the 2006 electoral cycle and whether STF justices who participated in TSE rulemaking could sit in the abstract constitutional review.
- The STF (sitting en banc) issued a unanimous merits decision granting the challenges in part.

## Issues

1. Whether Law No. 11.300/2006, enacted less than one year before the October 2006 elections, impermissibly altered the “electoral process” under Article 16 of the Constitution and therefore could not apply to the 2006 elections.
2. Whether Article 35-A’s 15-day prohibition on publishing electoral polls violated constitutional guarantees of freedom of expression, freedom of communication, and the right to free and plural access to information.
3. Whether any finding of unconstitutionality required invalidation of related implementing norms (including electoral-court instructions) that depended on the invalid statutory provision.
4. Whether participation by STF justices involved in the adoption of related electoral-court instructions barred them from deciding the abstract constitutional challenge.

## Decision

- The STF granted the consolidated actions in part and denied them in part.
- The Court rejected the claim that Law No. 11.300/2006 violated Article 16’s one-year rule, holding that the mini-reform did not alter the electoral process in the constitutional sense and could apply to the 2006 elections.
- The Court declared unconstitutional Article 35-A of Law No. 9.504/1997 (as inserted by Law No. 11.300/2006), which imposed a blackout on publishing electoral polls during the 15 days before the election.
- The Court kept the remainder of Law No. 11.300/2006 in force and limited any knock-on invalidation to implementing norms only to the extent they relied on the unconstitutional poll-publication ban.
- The Court held that STF justices were not disqualified from participating in the abstract review merely because they had taken part in adopting related electoral-court instructions.

## Legal Principles

- Article 16’s one-year rule applies when a new law changes the electoral process in a way that affects equality of participation among parties and candidates, the normal conduct of elections, or introduces a disruptive or case-specific change designed for a particular contest; procedural rules may fall outside Article 16’s reach.
- Changes focused on campaign propaganda rules, campaign funding, and campaign accounting may be treated as procedural regulation rather than a change to the electoral process itself, permitting application in the next election even if enacted within one year.
- Freedom of expression and the right to free and plural information protect access to politically relevant information during the pre-election period, including publication of opinion polling.
- A blanket ban on publishing electoral polls for a fixed period immediately before an election is an excessive restriction on political communication and violates constitutional guarantees of expression and information.
- In abstract constitutional review, disqualification rules designed for ordinary disputes do not automatically bar justices from deciding the validity of norms, even if those justices previously participated in institutional rulemaking linked to election administration.
- When a statutory rule is invalidated, implementing norms fall only to the extent they depend on the invalid rule; independent provisions remain effective.

## Conclusion

The Supreme Federal Court upheld Law No. 11.300/2006 against an Article 16 anteriority challenge, treating most of the mini-reform as procedural regulation that could apply to the 2006 elections, but unanimously struck Article 35-A’s 15-day ban on publishing electoral polls as an unconstitutional restriction on freedom of expression and the public’s right to free and plural information.


Social Christian Party, Democratic Labor Party, Christian Labor Party v. President of the Republic and National Congress, Direct Action of Unconstitutionality no. 3741-2 (2006)