Was the Brazilian presidency was stolen?

19 min readNov 25, 2022

The following 11 topics are not an opinion, per se. It’s a list of information put together so anyone can begin to understand the political and judicial crisis evidenced in Brazil. If you read this in an open-minded way, even if you don’t agree with my conclusions, I’m sure you’ll understand most of what half of this country is feeling right now.

Protests in Brazil on November 15th, 2022

1. The first and most important thing you must know: Lula has not been acquitted, nor declared “not guilty”

Lula was never considered “innocent” or “not guilty” by the Brazilian Supreme Court (STF). Both major lawsuits involving Luiz Inácio Lula da Silva, notably the triplex apartment case and the Atibaia ranch, were nullified and restarted by one Supreme Court member, following a minor procedural issue, considered by many a very questionable technicality.

What amazing loophole made that possible? None, it was nothing special: the court member decided that these cases should have been conducted in Brasília, DF instead of Curitiba, PR as they were (despite the fact that it was conducted by the federal justice).

Therefore, Lula allegedly regained the “presumably innocent” status given by the constitution (a person is considered innocent until proven otherwise). Then, this situation has been used politically to lead people in mistakenly infer that Lula was not considered guilty.

Know fact, Lula was convicted on a first instance court, then he was unanimously considered guilty on a second instance court by 03 different judges, and later 05 superior judges denied him a habeas corpus. No, it was not just Sergio Moro, despite him being later declared “partial” on these cases (by the Supreme Court itself).

As a result of these lawsuits being cancelled, Lula was made eligible again. Also, besides being restarted, the mentioned cases expired their time allowed for prosecution.

2. As much important: how are the Supreme Court members defined?

In Brazil, Supreme Court members are defined by the president. Yes, members of an institution trusted to be the most unbiased are designated by a politician. The name of every new member suggested by the president then has to be approved by the Senate. Given the support a government may or may not have inside the Congress, a polemic nomination might or might not be approved.

The constitution has a somewhat vague requirement for this position. As a result, some ministers are accomplished and experienced judges, with master’s degrees and PhDs, while some might be lawyers or prosecutors with a dated bachelor’s and not as much to show for.

A key point here is: the Worker’s Party occupied the presidency for 14 consecutive years. By the time Lula’s lawsuits were cancelled , 7 out of 11 Supreme Court ministers had been defined by either Lula himself or by Dilma Rousseff , his successor.

I’ll be naming just two:

Dias Toffoli: used to be a lawyer (legal advisor) of the Worker’s Party itself. And later he was the Lead Union Lawyer (advogado-geral da união) inside Lula’s government. Regardless of his know-how, Toffoli’s academic history is just the regular Law school diploma from 1990 and he has been criticized for failing twice the oficial exam to become a judge in the past and then still being nominated to this court.
Edson Fachin: nominated in 2015; has multiple academic titles; an accomplished lawyer and state attorney. Fachin is known for having publicly supported Lula da Silva and Dilma Rousseff and for interacting with entities connected to the Worker’s Party. In 2010, Fachin actively participated in Dilma’s campaign (presidential run).

I’m not saying that ministers nominated by either Lula or Dilma don’t act in an isonomic and impartial way. What I’m trying to communicate is:

Nomination of court members is usually advertised as a technical and pragmatic choice, but is widely seen as a political decision.
The majority of Supreme Court members today were defined by former presidents belonging to the Worker’s Party
The decisions that led to Lula da Silva being released and later being eligible were made in majority by ministers literally chosen by Lula or by Dilma.
The minister who chose to cancel Lula’s lawsuits was, by the way, Mr. Edson Fachin.

3. What is the so called Superior Electoral Court?

The TSE (Tribunal Superior Eleitoral) is both a special court and a government agency responsible for organizing and conducting every aspect of the election process (at federal level), while also judging every lawsuit or any submitted case involving the elections.

The main takeaway is:

The TSE has a generous budget, huge facilities, and the sole responsibility of taking care of elections, and still they are a target of many complaints, of a growing number of citizens that do not consider that they do a good enough job.
The president of the Supreme Court (STF) is, by definition, also the president of the Electoral Court (TSE). And two other STF ministers also make up the TSE court panel. This means that every difficulty the country may be facing regarding the Supreme Court is also transferred to the agency responsible for elections, which includes the risk of judicial politicization.

4. A very dirty campaign and a suspected court favoritism

This 2022 presidential run in Brazil was extremely “polarized”, and the only two candidates that ever stood a chance were Lula da Silva and Jair Bolsonaro. The amount of fake news from supporters of both sides was immense, unfortunately. And the official advertisements from each campaign also had many attacks to one another.

By the end of this presidential run, Lula had pledged 300+ claims at the Electoral Court asking to either take down posts considered offenses or to request “reply rights” on alleged attacks from other candidates. The court granted 100+ of these cases and ordered the removal of at least 85 posts, videos, etc. In contrast, Bolsonaro filed less than 10 complains at TSE, targeting only cases we could consider more serious. Most of Bolsonaro’s requests were granted.

While no unbalanced ruling can be seen by comparing numbers, we can note a few things:

opening judicial cases as much as possible was a clear strategy on Lula’s campaign.
The majority of web posts targeted by Lula’s complains, and granted removal by the TSE, contained obvious fake news, with many ridiculous attempts to add more scandals to Lula’s account.
But a significant number of removed content consisted on controvert subjects; some could be considered opinions; and, most importantly, many were related to the fact that Lula was convicted and considered corrupt.
A few days before the 2nd round of presidential elections, Bolsonaro’s team submitted a complaint containing serious indication that his advertisements were significantly less played on radio stations then Lula’s. He asked for an investigation and for proper measures regarding this problem. Alexandre de Morais, president of TSE, promptly rejected the case, accusing Bolsonaro of trying to create a fuzz near the election day, and even inverted the situation, registering new investigations against Bolsonaro regarding this request. The advertisement problem was not investigated, and a certain TSE employee was fired in the same day after pointing out that maybe there was indeed a problem regarding the distribution of this content.

5. Unconstitutional acts and the shadow of censorship

To contrast with the current approach adopted by both the Supreme Court (STF) and the Electoral Court (TSE), we can mention previous understandings of two ministers that make up the judge panel of these two courts:

In September this year, minister Cármen Lúcia have said (loosely translated): “the fundamental right of free speech exists not only to protect those opinions accepted as true, […] but also those considered dubious, exaggerated, reprehensible or satirical […] Wrong affirmatives are also protected by this constitutional right”. Read it here. She pronounced this while denying a request made by Bolsonaro’s party (PL) asking for the removal of content where Lula da Silva offended Bolsonaro with words like genocidal and fascist.
In 2018, minister Alexandre de Morais said (loosely translated) “if you don’t want to be criticized, if you don’t want to be satirized, stay at home! Don’t be a candidate, […] don’t offer your name for a political position […] Trying to avoid this […] violating the right of free speech is absolutely unconstitutional” while voting on a Supreme Court case. Watch it here.

During this year’s election the TSE panel voted an increase on its own powers to take down news and other media items considered fake, or “known to be untrue” or “seriously out of context”. It meant that in many cases the court could quickly and promptly decide on the matter (order the removal of content) without being called on a case.

The idea behind this could have been to hold down the spread of fake news, but in practice it weighed on a few ministers’ shoulders the responsibility to decide whether an information is true or false, which might be easier most of the time, but frequently is something very subjective.

We can take a look at two cases (of many) that happened between the 1st and 2nd round of 2022’s elections, both filed by Lula’s team and accepted by the TSE:

On October 18th the TSE ordered the retention of a documentary (scheduled for October 24th) produced by a known Brazilian streaming service covering the assassination attempt suffered by Jair Bolsonaro in 2018. The court didn’t request access to the material (nobody watched it) and this decision was seen as an act of clear censorship. Minister Cármen Lúcia said during her vote that she was against censorship, but this was a “very exceptional” situation, and voted in favor of the withhold. Turns out the documentary is just a journalistic investigation and it didn’t have any accusations against Lula or the Worker’s Party, for example, nor it had political propaganda in favor of Bolsonaro. But the court prohibited the video release without knowing it’s contents.
On the same week, the court prohibited the well-known TV and radio channel Jovem Pan of mentioning Lula da Silva’s situation regarding his lawsuits being cancelled, and many other statements considered supposedly untrue and offensive. Yes, remember the first topic of this article? It’s pretty much about it. Any and each reoccurance of these statements would result in a R$ 25,000 fine (around US$ 4,600).

Given many similar cases, the court has been accused of disguising these acts as a “war on fake news” while bringing back censorship to this country. It’s very difficult to see these decisions as impartial when there are repeatedly clear political entities benefited by them. Free speech is guaranteed on the Brazilian constitution and censorship is unequivocally forbidden.

Earlier this year, minister Alexandre de Morais ordered the arrest of a congressman due to offenses against the Supreme Court itself and other reprehensible declarations. This is seen as an incursion “on another state power”, because the action to prosecute a deputy for any misconduct is attribution of the Congress itself, and the constitution defines that parliament members are protected and entitled to express any opinion.

After election results, “anti-democratic” behavior was an alleged reason for the same minister to order the take down of entire social media profiles of a number of parliament members, like Carla Zambelli.

Another iconic example was prof. Marcos Cintra, that had his twitter account withheld after a post where he simply manifested worries about the voting system and suggested that possible problems pointed out by private audits (topic 9 bellow) should be investigated and cleared out by the TSE.

6. Why Supreme Court members are not questioned at all?

The only institution invested with power to promote an impeachment against any Supreme Court member is the Senate. The president of the Senate is responsible for accepting any impeachment requests.

Rodrigo Pacheco is the senator currently occupying the Senate’s presidency and, even when pressured by many of his peers to take action, he has various times denied impeachment requests opened against Alexandre de Morais, a STF minister since 2017. Morais has been a target of many popular complaints, including a manifest signed by more then 3 million citizens. Even the New York Times has questioned this situation.

It’s important to mention that senators, alongside a number of government and parliament positions, by definition, can only be judged on the Supreme Court. Which makes many people wonder: if you have something to be afraid of, something illegal you might be accountable for, or even if you don’t, would you dare raise your voice against those entitled to convict you? Or would you hide behind a “respect for the public institutions” and leave everything as is?

And it goes both ways: if you’re a court minister with terrible popular approval, how would you treat cases targeting senators, those who can vote your impeachment? It’s something to think about.

As we can conclude, the success or failure of impeachment requests like these depend almost entirely on the relationship and support one may have on the Congress. When former president Dilma Rousseff progressively lost support on the Congress, the head of parliament at the time simply accepted an impeachment request filed against Mrs. Rousseff (one of many), and this resulted on her actual impeachment back then.

7. The polemic involving electronic vote

First of all, we have to make justice to the proposition president Bolsonaro and many parliament members support regarding the so called “printed vote” and everyone needs to understand this once and for all. Regardless of political preference or whether you agree with the idea or not, Bolsonaro’s request on this has always been:

prepare the current electronic voting machines to print a copy of each vote, allowing the voter to check at the moment if the printed copy confirms the chosen candidate, and then this hard copy would be deposited on a traditional ballot box (automatically).
The printed copy of every vote would be held by TSE personnel, and this hard copy would act as a double check resource, a fail safe.

And it never has been:

go back to paper vote, as it was prior to 2000’s, or
provide any receipt, to be held by the voter, nor
end the anonymity of the vote

The major problem we face is lack of inspection and the impossibility of a re-count. In other words, the current electronic voting system is incapable of undergoing a thorough audit, to either properly and ultimately attest the strength of the technology involved and the safety of software code, but specially to inspect, after every election day, if everyone actually voted on the candidate the system tell us they did.

To make it worse, the constant refusal, on part of the Electoral Court (TSE), to try and improve the system only raises more suspicion. Recently, after polemic election results on this last October 30th, the president of TSE has been declaring, paraphrasing: that everyone who chooses to question the safety of the election and anyone demanding more transparency is acting in an “anti-democratic” way.

It’s important to note that the printed vote was proposed a few times by different entities and it has been approved by the Congress, but revoked by the Supreme Court (STF). Also, the original voting device project included the printing function. More recently, at the possibility of another approval on this subject, STF minister Roberto Barroso strongly advocated against it inside the Congress and the proposal eventually failed again.

8. Inaccurate and potentially biased election polls

During the presidential run, election polls from most polling institutes were consistently showing Lula ahead of Bolsonaro. This let many people puzzled, because Bolsonaro’s popular support was impressive. Also, one might think that a candidate with corruption records wouldn’t get the majority of vote intentions.

But well, Lula has always been very popular too, and all the public support given to Bolsonaro wouldn’t necessarily reflect or impact the real vote intention numbers. Nonetheless, this projections helped Lula sustain a “useful vote” idea, which in summary suggested that citizens whose intention was to vote for another leftist candidate available should instead vote for Lula, because (as the polling shows) he was the only one that could defeat Bolsonaro.

Less than a week before elections, many well-known polling institutes such as Datafolha, IPEC (formerly IBOPE) and Quaest were showing Lula way ahead, indicating clearly that he would win on the first round.

Election results came for this first round on October 2nd and then we saw that most of these institutes failed their projections way above the margin of error. Datafolha, one of the most famous in the field, have said that these two candidates would be 14 percentiles apart, and the difference was actually around 5.

It’s very unlikely that one candidate would tip the scales so greatly in the last day or two before the election. So we can conclude that one of these two possibilities must explain this scenario:

these mentioned companies were incompetent, either with a poor model, the wrong strategy, or in the way each polling was conducted
the polling was biased, tempered or forced in one direction, by either choosing a specific sample, or any other dubious method

In any case, this situation quickly rose the debate about whether these companies should better be made accountable for the polling results released to the public, because, I believe most people would agree, election polls can influence public opinion and vote intention.

9. Inconsistencies discovered by private audits

Final results came after the 2nd round on October 30th and the dispute was extremely tight. Lula da Silva won with 50.9% of valid votes against 49.1% given to Jair Bolsonaro.

Lula’s supporters were obviously happy, while most people that voted for Bolsonaro were incredibly disappointed, feeling forsaken and victim of an apparent joint effort to elect someone that shouldn’t even be a candidate if it wasn’t for polemic decisions in the Supreme Court, as we mentioned before.

A couple of days later protests started around the country. And in the same week emerged a report analyzing voting machine models and number of votes. This report pack was released by the Argentine consultant Fernando Cerimedo and it spread under the #BrazilWasStolen. There is also a website where you can find this content: https://brazilwasstolen.com/en. It claims basically that:

Machine models prior to 2020 had consistently more votes for Lula when compared with 2020 models in the same region, which should be more noticeable on small cities where the population is not so heterogeneous;
Many voting machines had 0 (zero) or very few votes for Bolsonaro, and this situation happened massively more times on older machines (prior to 2020 models).
It’s possible for a particular section to result in 0 votes for a candidate, but is really rare, specially on such a balanced, polarized election.
When representing total votes from new machine models (2020) and from older models (prior to 2020) side by side in a chart, is clear that uncommon characteristics discovered, specially these zero-vote machines, produce a graph on older models that’s not organic, that is, a pattern that would hardly happen naturally.

Here’s what I could confirm from these allegations: I downloaded the official data from the official TSE website and I’ve chosen to analyse just the 2nd round of this presidential election on one particular state as a sample. Using Node.js with read and write streams I’ve converted many files from .csv (as the TSE makes it available) to JSON and compiled the results to check the patterns. What I can say about the state of Minas Gerais (MG):

If you consider just new machine models (2020), Bolsonaro had more votes indeed (around 3.6% more). And considering just older models (prior to 2020) Lula won with 3.4% more votes.
In Minas Gerais there were 19,668 new machines (39.4%), counting 5,328,837 votes, and 30,313 older machines (60.6%), with 7,003,433 votes. Final results were Lula 50.2% and Bolsonaro 49.8%.
In the whole state there was 01 new machine with zero votes for Bolsonaro, while there were 08 older machines with zero votes for Bolsonaro. There were no machines at all with zero votes for Lula.
Generally speaking, new machine models were sent to major cities, like the capital and other bigger municipalities, while older machines were predominantly sent to smaller cities in the country side.
Unfortunately there were no cities with mixed machine models in MG to make a comparison like “new vs older”.

To finish this topic I will leave some considerations:

Quickly after these reports were released, the Electoral Court’s president published a note dismissing these allegations and stating that the elections occurred in a democratic and secure way.
Many press companies have published news saying that these reports are fake because the TSE had already dismissed them; and that Fernando Cerimedo openly supports Bolsonaro and rightist political views (which was already quite obvious) and these reports were based on false conclusions (I don’t know how they may have confirmed this).
Soon after the 1st election round we noticed that, in various states, some candidates that openly support Bolsonaro and his political view (rightist, conservatism, economic liberalism, etc.) received significantly more votes for positions such as governor and senator than Bolsonaro himself. How can governor candidates supporting Bolsonaro get more than 60% total votes and Bolsonaro get less than 45%, while the number of voters are exactly the same? In other words, who would vote Ron DeSantis for governor and Joe Biden for president, for example? I’m sure there is a logical explanation, but this is odd to say the least.
Another thing that could explain why Bolsonaro had more votes on new machines is the fact that new models were used in major cities and older models in smaller cities (at least in Minas Gerais), so one could interpret that Lula may have more support on the country side, which is not true for the state of São Paulo, for example, and on the other hand precisely raises the question: why were new machines sent to big cities and older sent to smaller ones?
It’s obvious that someone has to re-do all this work and analyse the data to either confirm or refute Mr. Cerimedo’s claims.
The word “inspection” is very generic, so when the TSE says that the electronic voting machines went through inspection, this can mean a great number of things. What I can confirm is: the Ministry of Defense recently published an official note saying that its analysts and technicians didn’t have proper access to the software code and other resources involved in the process and due to this fact it is impossible to guarantee the security of the voting system. Nor can we say for sure that the software code expected to run on these machines, even if it could have gone through minimal inspection, is the actual code that was in fact executed in the election day.
Nobody doubts the technology itself. TLS, certificates, hashes and all of this is very common today. When people question the system, they are usually afraid of human error and the immense political pressure involved in the process.

10. The role played by major press members

The most dangerous choice that many media companies made on this year’s election was: to treat Lula da Silva’s candidacy as normal and as a common presidential run like any other.

While some news channels were counting on the possibility to remind people that “remember this guy? That’s the one convicted by corruption and his party is that one responsible for Brazil’s worst recession and greatest corruption scandal”, many of the biggest TV channels decided to “let’s point out qualities of Lula’s previous governments, let’s compare them with Bolsonaro’s mandate, even though they happened in very different global contexts, and let’s forget the fact that one of them was arrested the other day”.

Major press companies are known to criticize the government, which is normal. Bolsonaro lost a lot of support during the p@ndem1c, and things that he said are usually reverberated very badly. Now while recovering from such a crisis, most perspectives for the Brazilian economy are quite good, comparing to other countries. But one thing many media outlets in Brazil have been criticized for are the frequent article titles that follow the pattern “this good thing happened in the government, BUT take a look at this other negative approach to it”.

This contrast made some press members that want to report positive developments happening in the government and to discuss problems involving the superior courts, among other similar topics, to be seen as “pro Bolsonaro” and to be repressed for not following a certain model.

A good example are the protests happening on the second and third week after the elections. While some channels like Jovem Pan are constantly covering the manifests and describing them as large and pacific, some other channels like CNN Brasil have chosen to mainly ignore these movements, and the few videos they released reporting this are stamped with adjectives such as “anti-democratic” and “golpistas” (pejorative way of saying “in favor of a coup”).

11. The massive protests after election results

Shortly after the 2nd round of this year’s elections, road blockades happened in several Brazilian states, mainly started by truck drivers and many other Bolsonaro’s supporters. After everything that’s been discussed in this article, these protesters didn’t believe that the election process was fair and they couldn’t find in their hearts a way of accepting the alleged result.

After a few days, the roadblocks gave way to a new kind of protest: pacific marches and people standing in front of military installations. So after all, are these people asking for a coup? It’s not as simple as that. Some people are asking for a militar intervention, many are asking for a federal intervention, but generally protesters are holding signs saying “S.O.S Armed forces”, or “Armed forces, please save Brazil!”.

So why are they in front of these military institutions? Simple: they don’t know where else to go. The military are the last resort in this call for help. They’ve completely lost faith in the Congress, and they know nothing will come from the judiciary, as many believe that the superior courts are in fact the pivot of this situation we’re facing.

Of course these protesters support Bolsonaro, and they don’t recognize Lula as a legitimate candidate, nor would they accept Lula’s government as legitimate, but that’s not exactly the problem or why they feel so insulted. If you ask them about this on the streets they will often say that the problem is much greater. If the election process had transparency and public trust, they would calmly accept the victory of a candidate other than Bolsonaro. What they are really contesting is the judicial activism and the way this whole election process was conducted.

Conclusion

The main request behind these protests is transparency for the election process and respect for the constitution. If Brazilian authorities could have given us a trustworthy voting system and a truly impartial treatment for all candidates, without such politicized decisions, we would never be facing this crisis.

It doesn’t matter that a system is secure if so many people don’t see it as such. It doesn’t matter that the technology employed is strong if so many links around it are weak.

Where is that majority that elected Lula? People ask… and many cannot see it. One could sustain that it was only possible due to a scandalous series of polemic decisions on the Supreme Court (STF), an apparent unbalanced ruling in favor of a candidate in detriment of the other, and, maybe the most cruel, a massive support from irresponsible press companies.

So was the presidency stolen? You tell me…
Way before the possibility of this voting system be or not be fraudulent, at the moment a restricted number of authorities decided to suspend Lula’s crimes, then millions of Brazilians already felt robbed. After that it was downhill all the way to this state of exception, whether a malicious technical interference was or not deemed necessary to make that happen.

The “slow cooking” effect

Looking at this trajectory I noticed how perplexed people were while watching this series of events described above. I can summarize this perplexity in the following sequence of thoughts and rhetorical “questions”:

“No, they won’t end prison after 2nd instance conviction and release dozens of cons including Lula (specially)”
“Ok, but they can’t end Lula’s lawsuits, it’s not possible. He’ll continue to respond for them”
“Alright, but I can’t believe they will make him eligible again”
“I see… but he won’t win, people remember all the corruption cases and economic crisis”
“And for sure the traditional press would never treat Lula’s candidacy as normal, not after everything that happened”
“No, of course not, the Electoral Court will not favor the Worker’s Party’s claims in detriment of Bolsonaro’s requests, they wouldn’t have that poker face”
“Alright, alright! Lula’s got the presidency. But that doesn’t mean he will again distribute high seats based on political interests only, nor greatly increase the number of ministries, or even break the government spending cap and things like that”
“Ok, he’s already doing it, even before taking office. But we cannot affirm that in a couple of years Brazil would be in such terrible economic situation as Argentina, for example”
Well… I wouldn’t be surprised

Some references (all in portuguese):