JUDICIAL ACTIVISM AND ELECTORAL JUSTICE IN ITS NON-JUDICIAL FUNCTIONS: A CRITICAL ANALYSIS

Abstract

This paper seeks to analyze to what extent the traditional concept of judicial activism can be considered to understand the non-judicial activities of Brazilian Electoral Justice, especially the resolutions and consults of the Superior Electoral Court. The Regional Electoral Courts were not studied since each Brazilian state holds one. This fact would amplify the data and complexity of the research, making it impossible to reach a conclusion. The paper uses both juridical-descriptive and analytical methodologies, and bibliographic and documental research techniques were used. It was made a literature review, especially by the data from Law and Political Science post-graduation programs in Brazil, as well as by journals specialized in Electoral Law, always comparing the information gathered to the resolutions and consults answered by the Electoral Superior Court. The research aims to differentiate judicial activism from the judicialization of politics; discuss the functions of the Electoral Justice and its peculiarities; as well as studying how activism has impacted the resolutions issued and consults answered by the Superior Electoral Court. The resolutions identified as innovative in the legal system were chosen based on the academic repercussion pointed out in other researches, especially the ones carried out by Salgado (2010) and Coelho (2014). The Resolution No. 23610/2019 was also analyzed. The consults, in turn, were chosen based on the judgments of the year 2020. Sixty one (61) surveys filed at the Superior Electoral Court were analyzed, of which 48 were not known. Thus, the merit of 13 consultations was studied, pointing out two more relevant in the results.