EXPLAINER: Audit of vice presidential votes? Here are the hurdles

Should the Comelec grant the request for a 'special audit,' the Marcos camp can use it to delay and block some returns from being canvassed in Congress

Emil Marañon III

1:0:0am May 21, 2016

6:41:22pm May 20, 2016

Everyone expected that Rodrigo Duterte’s phenomenal rise and eventual victory would be this election’s biggest story. What stole the show was the oft-neglected 15th letter of the Filipino alphabet, the now infamous “Ñ.”

As widely reported, Smartmatic “cosmetically” changed the script of the Transparency Server to correct the spelling of candidates’ names with the letter “Ñ” – for some reason, the system did not recognize the character and so it appeared as “?” each time.

Senator Ferdinand Marcos Jr pointed out that after the change in the script was introduced, his lead in the vice presidential race started to diminish, and he was eventually overtaken by Leni Robredo. 

Despite not having any proof of actual vote discrepancy, Mister Marcos and his supporters kept on pounding on the issue and tying the same with his presumptive loss, with a string of cases concertedly filed left and right.

Lawyer Jose Amorado, head of Marcos’ legal team, on May 18 filed before the Commission on Elections office in Intramuros his letter requesting the Comelec to allow his team of IT experts and programmers to conduct an audit of the Transparency Server and the Central Server.

After that, Mata sa Balota Movement, through its convenor Father Robert Reyes, filed “electoral sabotage” charges before the Ombudsman. It accused Smartmatic project manager Marlon Garcia and Parish Pastoral Council for Responsible Voting (PPCRV) chair Henrietta de Villa for altering a script in the Transparency Server.

Then Representative Jonathan dela Cruz, Marcos’ campaign adviser, on May 20 filed another case with Comelec against Smartmatic’s Marlon Garcia for allegedly violating Section 28 of Republic Act Number 9369.

Shaky grounds

There are 3 hurdles to these complaints filed over the election results as reflected on the Transparency Server:

The biggest hurdle: neither of the complainants, Marcos’ team and Mata sa Balota Movement, has shown an actual and verified discrepancy in the unofficial counts stemming from the Transparency Server. Not even a single vote discrepancy.

The second hurdle: the “count” that they claim to have probably been tampered with is not even official. The votes reflected on the Transparency Server do not bind the National Board of Canvassers. The server results cannot even be used to question the NBOC count owing to its unofficial nature. 

The 3rd hurdle: the official count has yet to begin on May 23. Not a single vote has been counted at this point, despite the fact that most provincial board of canvassers have transmitted their results to Congress.

In light of these 3 hurdles, the cases of Marcos’ team and Mata sa Balota Movement stand on shaky grounds.

What is 'electoral sabotage'?

Father Reyes’ complaint was filed on the pretext of tampering with the Transparency Server, which is the source of the different unofficial counts. His group claims that the respondents committed “electoral sabotage,” which, under Section 42 of Republic Act Number 9369, has been defined as the “tampering, increase and / or decrease of votes,” which acts “adversely affect the results of the election to the said national office to the extent that losing candidate is made to appear the winner.” 

The most obvious flaw of his complaint is that “electoral sabotage” can only be committed during an ongoing canvassing. It can only be committed by a “person or member of the board of election inspectors or board of canvassers.” Other categories of individuals – say Smartmatic or PPCRV personnel – can also commit it, but only when in “conspiracy or in connivance with the members of the BEIs or BOCs involved.” Again, it presupposes an actual canvassing.

More importantly, the nexus of the offense is the numerical alteration in the canvassed votes, which the complainants have yet prove exists, even using the unofficial data.

The more tenable allegation among the complaints is the alleged violation of Section 28 of Republic Act Number 9369, which provides:

“The following shall be penalized as provided in this Act, whether or not said acts affect the electoral process or results:

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(c) Gaining or causing access to using, altering, destroying or disclosing any computer data, program, system software, network, or any computer-related devices, facilities, hardware or equipment, whether classified or declassified;

While the act of tampering with the script of a transmission server software could neatly fall under this provision of the law, there is the question of which “program or system software” the law refers to. Does the provision cover any and all kind of election software or program used by the Transparency Server containing unofficial transmitted results, or only those directly related to the official count?

Randon Manual Audit ongoing

As regards the Marcos camp's call for a special audit, the question is of the purpose it would serve. Comelec and Smartmatic have admitted that the hash codes were altered, so that fact doesn’t need to be further proven.

As to the effect of this alteration on the transmitted results – as I previously pointed out – there is no need to even go that far because a simple comparison of the printed election returns with the transmitted results would prove any discrepancy. (READ: EXPLAINER: What Marcos Jr should do to prove election fraud)

If the Marcos camp wants to check the accuracy of the vote-counting machines (VCM), the Comelec itself, in compliance with Section 24 of Republic Act Number 9369, is currently conducting the mandatory Random Manual Audit (RMA).

In the RMA, auditors pick random precincts following statistical sampling methodologies, and manually count the votes there. They then compare the results of the manual count with the results of the electronic count to test the VCM’s accuracy in appreciating the ballots.

Marcos’ party can simply ask to observe these proceedings – that is, if they are not yet part of it, as candidates and political parties are allowed to send representatives. This two-pronged auditing mechanism should already help Mister Marcos clear up his doubts about the system.

Reminders to Comelec

The Comelec, for its part, should remember that, while it is tempting to make the special auditing immediately available to Marcos to remove the public’s doubts in its integrity, the law only allows it in an election protest and only after proclamation. There, all these issues can be threshed out in full detail.

The Comelec should also consider that the NBOC will start its official count on May 23, and will exercise exclusive authority to canvass the votes for president and vice president. Thereafter, an election protest case is expected to be filed before the Presidential Election Tribunal (PET) owing to the very slim lead margin, raising the same grounds and pursuing the same arguments.

It will be prudent for Comelec to show restraint and defer these matters to the discretion of these impartial 3rd-party tribunals – the NBOC and later the PET.

Should the poll body grant the request for a “special audit,” the Marcos camp can possibly use it to delay and block some returns from being canvassed in Congress on the claim that there is still a prejudicial question before the Comelec that would need to be resolved first. I am sure the Comelec doesn’t want to be pitted with the NBOC. – Rappler.com 

Emil Marañon III is an election lawyer who served as chief of staff of recently retired Comelec Chairman Sixto Brillantes Jr. He is currently studying Human Rights, Conflict and Justice at SOAS, University of London, as a Chevening scholar.