Electoral polls play a crucial role in the democratic process. They help voters to evaluate who they will vote for and for investors to project future scenarios. In Brazil, electoral polls are regulated by Resolution 23,600/19 of the Superior Electoral Court (TSE). The rule establishes rules and procedures to be followed by polling institutes, including with regard to the mandatory use of the Electoral Poll Registration System (PesqEle).

In this article, we briefly address some aspects of the performance of polling institutes and the dynamics that involve the defense of electoral polls in the face of possible challenges.

Overview of research institutes

The expression "research institute" usually refers to entities that carry out electoral research. However, Brazilian electoral legislation does not treat this expression as a legal category.

Research institutes do not have a specific legal nature and can be incorporated under different legal entity formats. Whatever the scenario, the corporate purpose of the institutes must make some reference to conducting public opinion surveys aimed at identifying respondents' preferences on topics of the political-electoral scenario.

There are some specific options in the National Classification of Economic Activities (CNAE) about this type of activity. One can mention CNAE 7220-7/00, which encompasses research and development carried out in the scope of the social sciences and human sciences and in interdisciplinary areas of these sciences. There is also CNAE 7320-3/00, which covers the conduct of public opinion surveys to collect the population's assessment of political, economic and social issues, as well as the provision of statistical analysis services of the results of the surveys.

Some institutes are organized in the Brazilian Association of Research Companies (Abep), a non-profit entity that brings together companies in the market research, opinion and media sector. This includes large, medium, and small research companies, which operate in different segments and areas of expertise in the field of research, including election surveys.

Registration and dissemination of electoral polls

In the case of electoral polls, the acts of registration are different from the acts of disclosure of the results in the media.

Registration consists of the mandatory provision of information that entities or companies that carry out public opinion polls related to elections make to the Electoral Court.

Among the information to be provided are the methodology used, the questionnaire with the questions asked to the interviewees, the start and end date of data collection, the cost of carrying out and the contractor of the survey, among others. The objective is to ensure the transparency and fairness of electoral polls. All this information must be entered in PesqEle and must be proven by documents.

The dissemination of electoral research, in turn, deals with the presentation of the results of the survey to the general public, through the communication vehicles of the research institute itself or third parties. It must also follow specific rules established in electoral legislation, such as the obligation to indicate the margin of error of the survey, the number of interviewees, the date of the work, the contractor, among other requirements.

In summary, the registration of electoral research is the prior and mandatory procedure that informs the Electoral Court about the conduct of the survey and opens up to interested third parties the possibility of controlling and supervising the survey. Disclosure, on the other hand, deals with the presentation of the results to the public, in accordance with the rules established by electoral legislation.

Registration does not necessarily imply the disclosure of the results. Paragraph 2 of article 10 of TSE Resolution 23,600/19 clarifies that, although the registration of polls is mandatory, polling institutes are not required to disclose the results. They have the autonomy to publish or not.

Regardless of the decision, candidates, political parties, coalitions and federations may submit a request to the Electoral Court to obtain access to the system of control, verification and inspection of the data collection of research institutes, in order to check data that may be published.

Electoral representations

In the period between the registration and the disclosure of the polls, there is the possibility of candidates and parties presenting challenges to the electoral polls in the Electoral Court.

If they identify any technical deficiency or evidence of manipulation of the survey, there is even the possibility of obtaining a court decision with precautionary effect to determine the suspension of the dissemination of the survey.

The electoral process applicable to representations is essentially provided for in the Elections Law (Law 9,504/97), in the Electoral Code (Law 4,737/65) and in TSE Resolution 23,608/19.

Despite the subsidiary application of the Code of Civil Procedure in electoral matters, the rules differ from those laid down for civil proceedings. Due to the specificity of the matter, the deadlines are shorter than in the ordinary process – usually 24 to 48 hours for the production of a certain procedural act, including the presentation of a defense and appeals – and are counted in calendar days.

In addition, there is a specific dynamic of the Electoral Court to carry out subpoenas. It is the publication on the so-called Electronic Wall, a tool available on the electronic portal of the Electoral Justice, created to ensure even more speed to the process.

In this very dynamic scenario, the performance of legal teams to ensure the compliance of research with legal requirements is fundamental. This support gives research institutes the security that they will be able to disseminate the results.

Among the irregularities usually pointed out in electoral representations on the matter, several issues involving technical and legal aspects of the polls stand out. Some examples:

• Regularity in the Regional Statistical Councils (Conres) – As provided for in article 2, IX, of TSE Resolution 23,600/19, it is necessary to present in the survey record the name of the Statistics professional responsible for the survey, as well as the number of his registration with Conre.

The Resolution of the Federal Statistical Council 367/24 requires that the statistician and the company be registered with the Conre of their jurisdiction and in all regions in which they intend to operate. Thus, although it is not expressly provided for in the electoral legislation, it is recommended that the company itself is also duly registered in all Conres of the states in which it will apply the questionnaires. This contributes to giving credibility and transparency to the research, in addition to demonstrating the commitment to quality and compliance with good statistical practices.

• Correction of technical aspects of the surveys – Although there are several questions about the technical aspects of the surveys carried out, the Electoral Court does not have the competence to evaluate specific aspects of the science of statistics.
  
  The jurisprudence of the TREs and the TSE itself is quite clear in this regard. It is possible to highlight Statement 28 of the Regional Electoral Court of Santa Catarina, according to which "it is not up to the Electoral Court to analyze the method, the formula (mathematical or statistical), the margin of error or the specification of the parameter or variable used in the preparation of the electoral survey, but only to guarantee to the legitimate parties the supervision of compliance with the sampling plan".

This highlights the need for challenges to be based on legal and normative parameters, which do not describe aspects of methodology, but require that it be indicated in the records made. The electoral rules aim to ensure compliance with the formalities provided for the act of registration. To contest statistical errors, it is necessary to produce technical evidence, to be paid for by the plaintiff, otherwise the representation will not be known.

• Compliance with the General Data Protection Law (LGPD) – Research institutes must also comply with the LGPD, as they store, process, and obtain personal data from the citizens interviewed. However, it is important to note that the competent forum to analyze issues related to the LGPD is the National Data Protection Authority (ANPD).
  
  Several times the mention of the violation of data protection is just rhetoric, with generic references to the privacy of the interviewees. This situation, correctly, is identified and removed by the Electoral Court.
  
  If any irregularity is in fact characterized, it is up to the challenger to indicate, objectively and precisely, the grounds that prevent the dissemination of the research. In addition, there is no possibility of reversal of the burden of proof in these cases. It is necessary to prove that there was a concrete violation of the LGPD, if this is the basis used to prevent the disclosure of results obtained.

Legal performance

It is noted, therefore, that the issues involving electoral polls are complex and comprehensive. It is necessary to observe the technical and legal requirements and also act dynamically and quickly to comply with the rite and the specific deadlines of the Electoral Court.

Legal action in this segment plays a strategic role, whether in supporting the conduct of electoral polls or in defending against requests for impeachment.

In addition to the prevention of litigation, the legal services provided help guide research institutes so that they can carry out transparent, judicious and law-compliant work, capable of meeting the expectations of voters and informing investors about the country's political-electoral scenario.