The Manila Times - Robbing democracy, stealing an election

24 October 2019

By Antonio Contreras | The Manila Times

THE resolution of an election protest should go beyond personalities. It shouldn’t matter who the protestant and protestee are. Unfortunately, people cannot get away from their political biases. They see an election protest from the lens of political idolatry or hatred. This is what corrupts the clarity of the intent to uphold democracy and safeguard the right of the people to have their votes counted properly and according to the rules.

Many would weigh not the substance of the protest but the fact that it is a fight between surnames, where one is edified while the other is demonized. It is simply frustrating that we have intelligent people, who at other times mouth the liberal mantras of rights and justice, but who now can’t see beyond the fact that this is a Robredo vs Marcos fight. These people suspend their advocacies pursuing truth, fairness, justice and rights, even the right to due process, and would rather dwell on their biased and convenient narratives. The protestant is a Marcos, who they see as an heir to a blighted family name, descendant of a president who for them was the devil-incarnate himself, violator of rights, plunderer of national wealth. And the protestee is a Robredo, who they edify as an heir to good governance, widowed by a husband who died from a mechanical equipment failure but is nevertheless seen as a hero in a country so badly in need of heroes.

What is lost in this entire Manichean drama of good versus evil is an appreciation of the fact that something bigger is messing up our democracy. It is being stolen from us by a flawed system of rules that presented itself when we automated our elections but with our rules and institutions remaining in the hands of outdated procedures, election lawyers and bureaucrats.

There is something fundamentally wrong when people are repeatedly instructed to fully shade the ovals that appear in the ballots, only to be told that in the end even dot-like marks and check marks, as long as they show intent, are counted during election protests. There is a fundamental flaw in a system where machines are programmed objectively to instill obedience to a system of rules, where only sufficient shades are considered as valid votes, and where other markings will invalidate a vote, only to be negated during the appreciation of ballots by tribunals in election protests

Retired Senior Associate Justice Antonio Carpio wanted to dismiss outright the protest filed by former senator Ferdinand “Bongbong” Marcos Jr. simply because it is, to his mind, what Rule 65 of the Presidential Electoral Tribunal (PET) commanded. Yet, the same PET ignored Rule 43 (1), which directed that ballots with shades under 50 percent should be considered as invalid votes. In fact, not only did the PET accept the Comelec’s 25-percent rule, it even considered markings such as shades much lower than this minimum, and even check marks and dots. The main duty of the PET, according to Carpio’s dissent, is to determine voter’s intent. Thus, as long as the voter is consistent in using dots and check marks, then such votes are considered as valid votes, notwithstanding the published rules on proper voting.

This smacks of unequal treatment of voters and candidates. It is simply vexing that justices of the Supreme Court sitting as the PET could become a party to a patently discriminatory act. The justification given why these improper and insufficient markings are counted as valid votes is allegedly to prevent voter disenfranchisement. But it behooves us to point out that disenfranchisement was the consequence of not following instructions. These improper markings were not counted by the vote counting machines (VCMs) during the regular elections. Hence, to count these as valid votes during a protest is patently discriminatory, as it privileges some kind of voters and candidates over another. It enfranchises some voters of candidates embroiled in a recount who failed to follow instructions, but disenfranchises all other voters for other candidates for all other positions who failed to do the same during the election proper.

Even more galling is that those who failed to follow instructions, who have technically disenfranchised themselves due to their own fault or carelessness, are now the ones that would potentially influence the outcome of an election protest. It is an assault on sensibility, as revealed in the results of the pilot recount, that Vice President Maria Leonor “Leni” Robredo even widened her lead over Marcos when ballots that had ambiguous markings, in addition to those rejected by the VCMs and with over-votes, were considered valid by the PET. Had there been no protest, the voters who had cast those ballots would have been disenfranchised without question for not following instructions.

Even more fundamentally wrong is when the system overlooks the fact that considering improper markings, such as dot-like marks, as valid votes during election protests opens the floodgates for fraudulent gaming by election operators. Pre-shading operations done hastily can now rely on the efficacy of merely marking spurious ballots with insufficient shades, or even dots or check marks, knowing that these will be counted during a recount.

Intent of the voter is an expression that is not devoid of context. A voter frames that intent in the context of rules and norms. The mind of the voter is already conditioned that votes will be counted only when ovals are marked by full shades, not by dots, and never by check marks. To reward those who did not follow instructions, and who did not take seriously their duties with the privilege of being enfranchised, to decide the fate of an electoral protest — after already being disenfranchised by the VCMs, in accordance with the rules known to the public — is neither just nor fair. Enfranchising them could entrap us into unknowingly participating in a grand plan hatched by seasoned cheaters to rob democracy and steal the election.