THE NORMATIVE INCONSISTENCY IN THE REPRESSION OF GENDER QUOTA FRAUD: THREE DOGMATIC ANTINOMIES IN THE JURISPRUDENTIAL CONSTRUCTION OF THE SUPERIOR ELECTORAL COURT

Abstract

This article examines three structural normative inconsistencies in the legal regime for the repression of gender quota fraud, as constructed by the Brazilian Superior Electoral Court through Precedent No. 73 and Resolution No. 23,735/2024. The first antinomy concerns the limits of the Court's regulatory power: Article 105 of Law No. 9,504/1997 and Articles 1, sole paragraph, and 23, IX, of the Electoral Code authorize the issuance of instructions for the faithful execution of electoral legislation but prohibit innovation in substantive law, a limit strained by the dispensation of the subjective element in Article 8, § 4, of Resolution No. 23,735/2024 and by the open-textured typification consolidated in Precedent No. 73. The second antinomy concerns the judicial creation of a sanctioning modality not codified in statute: the cancellation of the Statement of Party Acts Compliance (DRAP) through Electoral Judicial Investigation Action and Action for the Annulment of Elective Mandate, with material effects of annulling the proportional slate, recalculating electoral and party quotients, and attributing eight-year ineligibility. The third antinomy reveals an internal contradiction within the jurisprudence itself: the political party is held to lack passive standing in AIJE proceedings, yet the DRAP (the legal act being cancelled) is held by the party. The article frames these three tensions in dialogue with the doctrine of the executive regulation, with the principle of legality of electoral sanctions, and with substantive due process, and argues that the normalization of the current regime requires, at minimum, legislative mediation.