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The Gender Gap in Brazilian Politics and the Role of the Electoral Court

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The Gender Gap in Brazilian Politics and the Role of the Electoral Court Politics & Gender, (2019), page 1 of 29 The Gender Gap in Brazilian Politics and the Role of the Electoral Court Luciana de Oliveira Ramos Sa˜o Paulo Law School of Fundac¸a˜o Getulio Vargas Virgı´lio Afonso da Silva University of Sa˜o Paulo Like many other countries, Brazil has adopted gender quotas in elections for legislatures at all levels of the federation. However, Brazilian gender quotas have been ineffective at increasing women’s participation in politics. Authors usually point to reasons related to the electoral system and party structure. This article analyzes a variable that is rarely considered: the role of the Electoral Court. We argue that the quality and intensity of the control exercised by an electoral court, when called upon to decide on the enforcement of the gender quota law, can influence the efficacy of this policy. We show that, in general, the Brazilian Superior Electoral Court tends to foster the participation of women in politics. However, based on two divides — between easy and difficult cases and between cases with low and high impact — we argue that in the realm of gender quotas, this court takes a rather restrained stance in those cases considered both difficult and with high impact. Keywords: Gender quotas, electoral courts, Brazil, women in politics, gender equality Early drafts of this article were presented and discussed at a seminar of the research cluster Constitution, Politics & Institutions (University of Sa˜o Paulo, Brazil); at the seminar Resisting Women’s Political Leadership: Theories, Data, Solutions (Rutgers University); at the research workshop of the FGV Direito Sa˜o Paulo (Getulio Vargas Foundation, Brazil); and at the XIII Congreso Iberoamericano de Derecho Constitucional (UNAM, Mexico). We would like to thank the organizers for having invited us and all the participants for their valuable comments, as well as friends and colleagues that read the drafts in different occasions, especially Mona Lena Krook, Marta Rodriguez Machado, Vitor Marchetti, Rafael Mafei, Jennifer Piscopo, Diogo Rais, Ligia Pinto Sica, Adriane Sanctis, Guilherme Klafke, Livia Gil Guimara˜es, Isadora Almeida, Carolina Marinho, and Artur Pe´ricles Monteiro. Published by Cambridge University Press 1743-923X/19 $30.00 for The Women and Politics Research Section of the American Political Science Association. # The Women and Politics Research Section of the American Political Science Association, 2019 doi:10.1017/S1743923X18000879 1 Downloaded from https://www.cambridge.org/core. Instituto De Biociencias, on 08 Mar 2020 at 00:27:55, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1743923X18000879 2 LUCIANA DE OLIVEIRA RAMOS AND VIRGI´LIO AFONSO DA SILVA omen make up more than half the Brazilian population (51%) and a W majority of the electorate (52%). But very few have seats in legislative bodies, at all levels of the federation. In the 2016 municipal elections, among the 57,862 legislative seats to be filled, only 7,812 (14%) women were elected. In the 2018 general elections, of the 513 members of the Brazilian Chamber of Deputies (Brazil’s lower house), only 77 women were elected, corresponding to 15% of the total. The Federal Senate has 13 women senators, accounting for 16% of the total 81 senators. In the state legislatures, 161 women were elected, representing 15.5% of the total number of 1,035 seats.1 These data clearly show that women are underrepresented in elected positions in Brazil. Contrary to what one might imagine, this underrepresentation does not result from a lack of policies aimed at increasing the participation of women in the Brazilian legislative branch. Like many other countries, Brazil has adopted electoral gender quotas in elections for the Chamber of Deputies and for state and municipal legislatures. As is widely known, electoral gender quotas are affirmative policies that have spread around the world since the 1990s with the goal of increasing the proportion of female candidates for political office. As a matter of fact, gender quotas are a worldwide phenomenon that have spread to more than 100 countries in recent decades (Baldez 2006; Franceschet, Krook, and Piscopo 2012; Krook 2006a, 2006b). South American countries typically have adopted legal quotas — that is, electoral gender quotas established by law that provide for minimum and maximum percentages of candidates of each gender.2 In the 1990s, most quota laws provided for a minimum percentage of 20% to 40% of candidates for the underrepresented gender, but the current trend is to establish gender parity by determining that the number of female and male representatives correspond to 50% of candidates. In societies where women traditionally have not participated in politics, gender quotas frequently prove to be an effective means for changing the political landscape, considerably increasing the number of elected 1. The data were collected from the Superior Electoral Court’s website, http://www.tse.jus.br/eleicoes/ estatisticas/estatisticas-eleitorais-2016/resultados (accessed July 2017). 2. In addition to the so-called legal quota, there are two other types of gender-based electoral quotas: voluntary party quotas and reserved seats. The party quotas are voluntarily adopted by political parties, whereby they decide to include a given percentage of women on the party list. Reserved seats establish a minimum number of women within the legislative body rather than among the candidates. See, for instance, Norris (2004) and Krook (2009). For a dual classification that excludes reserved seats, see Dahlerup (2006). Downloaded from https://www.cambridge.org/core. Instituto De Biociencias, on 08 Mar 2020 at 00:27:55, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1743923X18000879 THE GENDER GAP IN BRAZILIAN POLITICS 3 women. In some countries, such as Rwanda, Argentina, Senegal, South Africa, Uganda, and Costa Rica, gender quotas have led to historic leaps in the number of women holding seats in parliaments. The world average of the percentage of women in parliaments has increased in recent decades. According to the Inter-Parliamentary Union, the world average of the percentage of women in single or lower houses as of January 1997 was 12%. This percentage had increased to 23.4% 20 years later. In the Americas, the average percentage of women in parliaments increased from 12.9% in 1997 to 28.2% in 2017.3 These data show that the adoption of electoral gender quotas in this region contributed to significant increases in the representation of women in politics: their presence in parliaments is meaningful, with rates exceeding 40% in Bolivia, Costa Rica, and Mexico. In some countries, however, despite the implementation of gender quotas, the number of men both in political parties and in legislatures has remained much higher than that of women. The case of Brazil is quite peculiar. Even though a law establishing a minimum percentage of women candidates in proportional representation elections was passed in 1997, Brazil is one of the few countries in which there was a decrease in the number of women in its lower chamber in the first elections following the introduction of gender quotas.4 Moreover, it is still a country with one of the world’s lowest rates of women in legislatures. According to the Inter-Parliamentary Union, Brazil ranks 134th out of 190 countries — last among South American countries, along with Paraguay.5 These data inevitably lead to the question of why Brazilian gender quotas have been so ineffective at increasing women’s participation in politics. Political scientists and sociologists have delved into this issue in the past two decades and usually point to three main reasons: (1) peculiarities of the Brazilian electoral system, an open-list proportional representation system (Wylie and Santos 2016)6; (2) the absence of sanctions for political parties failing to meet the minimum percentage of female candidates (see Gray 2017; Schwindt-Bayer 2009); and (3) the 3. According to data available at http://www.ipu.org/wmn-e/world.htm (accessed November 2018). 4. A similar result occurred in Poland in 2011. For an analysis of this outcome, see Go´recki and Kukołowicz (2014). 5. Considering data updated in October 2018, available at http://www.ipu.org/wmn-e/classif.htm (accessed November 2018). 6. See, however, Schmidt (2009). See also Gray (Gray 2017, 362): “In Latin America the distinction between open or closed lists is less important than placement mandates and enforcement.” Downloaded from https://www.cambridge.org/core. Instituto De Biociencias, on 08 Mar 2020 at 00:27:55, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1743923X18000879 4 LUCIANA DE OLIVEIRA RAMOS AND VIRGI´LIO AFONSO DA SILVA political party structure and the candidate selection mechanism (see, e.g., Arau´ jo and Alves 2007; Dahlerup 2006; Htun 2002; Jones 2004; Krook and Childs 2010; Miguel 2008; Wylie and Santos 2016). Undoubtedly, these are the main electoral reasons for the low representation of women in the Brazilian Chamber of Deputies. This article, however, aims to analyze a different variable that is rarely considered in this debate: the role of the Electoral Court. We argue that, in addition to the aforementioned variables, the quality and intensity of the control exercised by an electoral court, when called upon to decide on the enforcement of the gender quota act, can also influence the efficacy of this policy. In the Brazilian context, this is especially true because all lists must be registered before the court before elections take place. The Electoral Court thus controls the compliance of all lists with the gender quota legislation and rejects those lists that fall short of compliance.
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