Two years after Bongbong Marcos filed the electoral protest and accused Leni Robredo of cheating in the May 2016 vice presidential elections, the recount, which officially began last March, is now ongoing. The recount covers 5,418 precincts in three pilot provinces which were chosen by Marcos, namely: Camarines Sur, Iloilo, and Negros Oriental. If Marcos gains sufficient votes in these provinces, the Presidential Electoral Tribunal is expected to expand the recount to other provinces, including those where Robredo has filed a counter-protest.
The fight between the contending candidates now focuses on which shading threshold to apply to determine how far ballots should be shaded to be considered valid. The dispute is whether the Presidential Electoral Tribunal should apply the 25-percent ballot shading threshold which is being pushed by the Robredo camp, or the 50-percent ballot shading threshold being espoused by the Marcos camp.
From one point of view, this does not matter. Robredo might lose votes (that is not at all certain as the votes set aside are not yet necessarily voided) in the pilot provinces that are her bailiwicks but she could gain them back easily in the provinces where she lost to Marcos. I assume that the same number or proportion of Marcos voters would have shaded ballots at less than 50 percent even if that is the threshold proposed by Marcos.
The use of the 50-percent threshold will produce absurd results. Imagine millions being disenfranchised only because they did not shade 50 percent of the ovals in the ballots and not 100 percent as instructed? These ballots have been accepted and recognized by the counting machines and found to be regular by the election officers. Why reject them based on some dubious technicality two years after the elections?
The 100-percent shading requirement is the instruction all over the world for this way of voting, but electoral agencies have always been liberal in interpreting what votes count. As always, whether automated or not, giving effect to the will of the people and the intent of the voters is imperative. A more liberal approach must therefore be applied which means going for the 25 percent rather than the more stringent 50 percent shading threshold, the former being more in keeping with the spirit of our electoral laws. A contrary view will end up frustrating the will of the electorate.
As reported by Rappler, former Comelec chair Sixto Brillantes also believes that 25 percent is the way to go. Although an avowed Marcos supporter, the brilliant Briliantes (pun is intended) nonetheless believes that the Comelec has opted for the 25-percent shading threshold. According to him, it would be “abnormal” for the Supreme Court to uphold a 50-percent ballot shading threshold in the vice-presidential recount. He believes that Comelec had set the ballot shading threshold at 25 percent for the 2016 polls. “In the May 2016 nationwide elections, the Comelec opted to use another shading threshold—25 percent. While the same was not announced prior to the elections, the 25-percent threshold was used in the random manual audit and is being used in all the protest cases in all the elected positions,” said Brillantes. “It will therefore be very inappropriate and abnormal that in reference to the protest case for the vice-presidential position, the PET will still avail of the old [shading threshold],” he added.
To the former poll chief, this means the 25-percent shading threshold was programmed to apply to all the positions included in the 2016 ballot. “It would therefore be most abnormal to have a different threshold for the vice-presidential protest distinct from the threshold for all the other elected positions in the same ballot,” he added. He explained that in the 2010 presidential race, the Comelec had set the threshold at 50 percent. This meant the precinct count optical scanner machines used at the time reverted ballots that had ovals that did not meet the 50-percent shading threshold. Voters concerned were then allowed to correctly shade the ballot ovals to meet the 50-percent shading requirement. But it was “time-consuming process,” which led the Comelec to lower the ballot shading threshold to 20 percent during the 2013 midterm elections. “The effect of the reduced 20-percent threshold was such that if the voter shades 20 percent or more, the ballot is accepted and counted. If, however, the shade is less than 20 percent, the ballot is still accepted by the machine but the vote is not counted,” he explained.
Following Brillantes, if the 50-percent threshold is upheld, we would have an absurd situation where the 2016 elections was conducted using a 25-percent threshold for President, Senators, representatives, and all local positions at stake, while prescribing a stricter standard of 50 percent for vice president.
The PET justified its denial of Robredo’s position by saying that it is “not aware” of any resolution issued by the Comelec that states the applicability of the 25-percent minimum threshold for the 2016 polls. The High Court said it has “no basis,” therefore, to impose a 25-percent threshold for the ballot recount. But the Robredo camp is insisting that Comelec has issued a resolution dated September 6, 2016 recognizing the 25-percent shading threshold.
In my view, both Robredo and Marcos will lose votes if the 50-percent threshold is retained. But the biggest loser will be the disenfranchised voters. That is the outcome we do not want.
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