August 28, 2026
Titan, News, South America, Experts, Regional Studies

The Referee Nobody Elected: How Judicial Seniority Shapes Brazil’s Elections (And Why Foreign Investors Should Care)

By Med Brazão

Nobody votes for the judge who runs a Brazilian election. The presidency of the Superior Electoral Court (Tribunal Superior Eleitoral) is inherited through a seniority queue among Supreme Court justices, each originally placed on the bench years earlier by a president of the Republic pursuing entirely different goals. Understanding Kassio Nunes Marques’s hold on that seat going into October 2026 means understanding that inheritance first, and the man second.

How the TSE Presidency is Filled

The Superior Electoral Court (Tribunal Superior Eleitoral in Portuguese) has no career members of its own. Its seven seats are filled on loan: three sitting Justices of the Supreme Federal Court (STF) and two ministers of the Superior Court of Justice, each group chosen by secret ballot from among their own members, plus two lawyers appointed by the president of the Republic from two three-name shortlists the STF plenary prepares for that purpose.

The presidency and vice-presidency are reserved for two of the three STF-sourced members, chosen by the court’s own plenary in an internal vote and by long-standing custom the rotation follows seniority: whichever of the three STF justices sitting on the TSE has waited longest without having served takes the chair next (Poder360, 2026). Mandates run roughly two years, meaning each Brazilian general or municipal election is presided over by whoever’s seniority happened to line up with the calendar, not by someone chosen with that specific election in mind.

That detail matters more than it looks. Because the presidency passes by STF seniority rather than by election-specific appointment, the ideological character of any given cycle’s leadership is really a residue of who a president of the Republic nominated to the Supreme Court years, sometimes over a decade, earlier.

Five of the last six TSE presidents trace back to a center-left nomination (Lula or Dilma Rousseff); one to a centrist nomination (Temer); and only one to a nomination from the right: Nunes Marques, the man currently in the chair (Migalhas, 2023; Infomoney, 2025). That imbalance is not unique to the TSE; it mirrors the same nomination math that shapes the STF bench. But on the TSE, it lands differently, because this presidency doesn’t just decide cases. Every two years, it also holds the pen on part of the rulebook itself.

A Rulebook that Resets Every Two Years

Under Article 105 of the Elections Law, the TSE must issue “all instructions necessary” for that year’s election by March 5, and a resolution published after that date does not apply to the election immediately ahead (Ambito Jurídico, 2021). In practice, that means Brazil doesn’t have one stable set of electoral rules amended at the margins; it has a rulebook substantially rebuilt every two years, on a hard deadline, by whoever is presiding at that moment. The last three cycles show how much actually changes:

2018 – Resolution n.º 23.551/2017 was the court’s first attempt to regulate paid political advertising on social media, permitting it for the first time but only under strict disclosure rules and limiting who could contract it to parties, coalitions, and candidates themselves (TSE, 2017).

2022 – Resolution n.º 23.610/2019 extended paid-boosting rules into the pre-campaign period and introduced a blackout on paid electoral ads in the 48 hours before and 24 hours after runoff voting, a restriction the court adopted on its own initiative after concluding paid boosting was distorting close races (TSE, 2019).

2024 – Resolution n.º 23.732/2024 banned AI-generated deepfakes outright and mandated labeling of synthetic campaign content, a rule with no legislative precursor at all, written by the court itself under its Article 105 power (TSE, 2024).

None of these were minor technical updates, and none of them started life as a bill in Congress or a constitutional amendment. Each one changed what campaigns could legally do online, and each one was locked in months in advance by a small rotating group of justices who answer to no electorate.

Two Readings of Nunes Marques’s Mandate

Nunes Marques was nominated to the Supreme Court by Jair Bolsonaro, and many observers still label him a right-wing figure on the bench. But growing institutional resistance to far-right extremism over the past few years has produced something closer to a cross-ideological consensus around protecting democratic guardrails, one that has, on at least one major occasion, run through Nunes Marques himself. In April 2024, the STF ruled unanimously in ADI 6457 that Article 142 of the Constitution does not permit the Armed Forces to act as a “moderating power” arbitrating disputes among the three branches, an interpretation long advanced by defenders of military intervention. All eleven justices, including Nunes Marques, followed rapporteur Luiz Fux’s opinion (G1, 2024). That vote frames the two ways of reading what his TSE presidency might mean for 2026.

The first one is that the institution is bigger than the individual. Every ruling from both the Supreme Court and the TSE is passed by a plenary majority, not by presidential initiative; Moraes needed four other votes to bar Bolsonaro, not just his own (Justiça Eleitoral, 2023), and the Article 142 case shows Nunes Marques joining a unanimous bench even on a question with direct implications for the coup-adjacent rhetoric of his own nominator’s allies. Nunes Marques cannot unilaterally reverse the TSE’s AI resolution or the 2023 ineligibility ruling; he would need to build a majority among six colleagues who have so far shown little appetite for it. For investors pricing 2026 political risk, the more useful metric isn’t the president’s individual record; it’s the voting margins on the TSE’s pre-election resolution package, published each January and February. A 7–0 or 6–1 pattern signals institutional consensus surviving the change in leadership; a narrowing margin signals real slippage.

The other possible reading is that the presidency still carries meaningful, narrower discretion. A TSE president sets the docket, assigns rapporteurs, casts tie-breaking votes, and rules on individual injunctions and appeals without waiting for the full bench, all of which happened repeatedly in Bolsonaro’s own appeals of his ineligibility, each one rejected by the sitting president alone rather than referred back to the plenary (Agência Brasil, 2023).

Nunes Marques dissented in the original 2023 vote, arguing the ambassadors’ meeting didn’t rise to the threshold for ineligibility, so the open question for 2026 isn’t whether he can reverse that ruling outright (he can’t, alone), but whether he uses docket control and injunction power to slow-walk enforcement of the AI and disinformation rules at the margins, in ways that are individually defensible and cumulatively consequential. That is harder to quantify than a vote count, and precisely because it’s harder to quantify, it deserves closer case-by-case monitoring rather than a single up-front risk score.

Both readings are likely true at once: the institution is sturdier than any one presidency (Nunes Marques’s own vote on Article 142 is evidence of that), but the discretion built into that presidency is real, and worth pricing separately from the institution itself.

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