Following up the analysis of electoral crimes, we will now make some considerations regarding crimes of retention of electoral title and electoral disorder.
The crime of retention of electoral title is typified in the rule of art. 295, of the Electoral Code ( withholding electoral title against the will of voter , with detention penalty of up to two months or payment of 30 to 60 days fine).
The legal right that is the object of tutela consists in the freedom of the elector, under the aspect of the free exercise of the right to vote.
It falls within the concept of lower offensive potential (article 61, of Law 9,099 / 95), and the criminal transaction is admissible. The conditional suspension of the process is also applicable (article 89, of Law 9,099 / 95). Because it is an infraction of less offensive potential, even in cases of final judgment, there is no need to speak of ineligibility (article 1, § 4, of LC 64/90).
Electoral Title and Electoral Crimes
It is a common crime, which does not require any specific quality of the active subject. Therefore, any person can be an active subject of the crime, retaining the electoral title of another, against his will.
Like all electoral crimes, their practice is only admitted in the fraudulent mode, requiring the specific purpose of withholding, it is intended that the voter who had his or her retained title does not exercise the right to vote.
Thus, the pure and simple retention of the electoral title is atypical conduct when the voter with the title unduly retained exercises the right to vote. Because of this, the effectiveness of the incriminating rule is currently very low, since it is not essential that the voter, in order to exercise the right to vote, present the electoral title (it is enough to present another document with a photo, the CNH).
As far as the crime of electoral disorder is concerned, the incriminating rule is affirmed in art. 296, of the Electoral Code (to promote disorder that damages electoral work , with detention of up to 2 months and payment of 60 to 90 days).
The definition of the legal good of the criminal type under analysis is quite difficult, especially considering the fluidity of the concept of ” electoral order “. This is so true that, in doctrinal terms, legal objectivity is linked, for example, to the tranquility and security of electoral services . The uncertainty regarding the conduct incriminated by the criminal type, as a corollary of the principle of legality, implies recognizing the unconstitutionality of the incrimination.
However, in spite of the criticism, if one understands by the constitutionality of the incriminating rule, some considerations are opportune.
It falls within the concept of lower offensive potential (article 61, of Law 9,099 / 95), and the criminal transaction is admissible. The conditional suspension of the process (Article 89 of Law 9,099 / 95) is also applicable. Because it is an infraction of less offensive potential, even in cases of final judgment, there is no need to speak of ineligibility (article 1, § 4, of LC 64/90).
It takes care of common crime, which does not require special quality of the active subject.
As regards the subjective element of the type, it is a crime that only admits the malicious modality, requiring, in addition to the generic malice of causing disorder, the specific fraud – or special purpose of acting – in the sense that this disorder has the necessary purpose to affect the electoral work  .
It’s stuff crime, which requires the occurrence of the disorder in electoral work, so that “the material is a result derived from the disorder that will reflect detrimentally to the progress of the electoral service.” 
As the rule does not specify which electoral works are subject to criminal protection, it has been understood that any stage of the process and of the electoral works affected by practices that generate disorder constitute criminal conduct. Even if one could think of rogue practices outside the electoral period, in order to cause disorder to the electoral works, in the casuistry the jurisprudential discussions are limited to the electoral period.
In this sense, for example, there are precedents recognizing that the ban on the marketing and consumption of alcoholic beverages on the day of the election is a measure that aims to safeguard the order of the electoral works and, thus, guarantee the effectiveness of art. 296 EC:
EMENTA – SAFETY OFFICER – CONSUMPTION OF ALCOHOLIC BEVERAGES ON THE DAY OF THE ELECTION – HOWEVER YOU VISA TO ENSURE THE ORDER OF THE ELECTORAL WORK – LIMINAR INDEFERIDA. The measure determined in the judicial act has already been incorporated by customs and aims to ensure order in terms of art. 296 of the Electoral Code, which considers electoral crime to promote disorder that undermines electoral work. (TRE / PR-MS 259, Rel. Gisele Lemke, DJ 13.10.2008)
On the other hand, it was recognized the atypical conduct of the candidate who, on the day of the vote, greets voters in the streets:
CRIMINAL APPEAL. ARTICLE 296. PROMOTE DISORDER TO PREJUDGE THE ELECTORAL WORK. (…) 1. Insufficient evidence. 2. The atypical conduct of the candidate who simply compliments voters. 3. No prohibition on the presence of candidates in the vicinity of polling places. 3. Appeal devoid. – gn – (TRE / PE – REL 3.934, Rel. Alberto Nogueira Virgínio, DJE 10.10.2014)
It was also considered as atypical the conduct of distributing leaflets and campaign information material with severe criticisms addressed to another candidate:
Related searches Preliminary statement of absence of abandonment of the case. Not knowledge. Crime of promoting disorder. Article 296 of the Electoral Code. Distribution of booklets with criticism of mayoral candidate. This fact does not constitute a criminal offense. (…) II – Publicize booklets that convey material with strong criticism to candidate for Mayor, by itself, does not have the condicion of disturbing the electoral process, not characterizing the crime of promotion of disorder provided in art. 296 of the Electoral Code. III – Appeal provided.