A COMMENTARY: A PET VICTORY FOR VP LENI
By Sen. Leila M. de Lima
3 October 2018

The 18 September 2018 PET Resolution amending Rule 62 of the PET Revisor's Guide, to the effect that the physical count of the votes during revision shall be based on the election returns, is a fair resolution of the controversial shading threshold issue.

Protestant Bongbong Marcos argued for a 50% shading threshold. Protestee VP Leni Robredo contends that the shading threshold to be applied should be the one used by the VCM on election day, i.e., 25%. In its Resolution, the PET recognized that the shading threshold applied by the VCM was 20-25%, as clarified by the COMELEC. However, in applying this threshold during the revision, the PET was confronted by technical issues raised by the COMELEC in using the VCMs for purposes of verifying during the revision proceedings whether or not a vote passed the 20-25% threshold.

Since the use of the VCMs during the revision proceedings raised a host of complicated technical problems, the PET decided to sidestep the use of the VCMs in the determination of the physical count during the revision, by simply ruling that the figures in the election returns shall serve as the basis for the physical count of the votes.

By definition, this does not constitute a revision physical count as we have known the term to be when elections were still manual. A revision physical count is different from the results as recorded in the election returns. In manual elections revision proceedings, a physical count is basically a recount of the ballots. This recount may or may not coincide with the results as recorded in the election returns, depending on the accuracy or inaccuracy of the counting and tabulation of votes by the Board of Election Inspectors at the precincts on election day.

As a rule, assuming the integrity of the ballots were preserved, a revision physical count in manual elections is bound to be more reflective of the vote count than that recorded in the election returns, simply because of the human factor. BEI teachers are bound to be more prone to mistakes and inaccuracies in the counting and tabulation of votes that is immediately conducted after the close of the polling stations, after they have already supervised the casting of votes the whole day without rest. On the other hand, a revision proceeding physical count is conducted under more comfortable and less stressful conditions, without the pressure experienced by BEI teachers to finish the counting at the polling precinct as soon as possible.

These conditions for discrepancies between the election day count as recorded in the election returns and the physical count during revision proceedings no longer exist in an automated elections. The VCM does not get tired on election day. It counts the votes as the ballot is cast, i.e., fed into the machine, and tabulates at the end of the day at the touch of a button. And it does a lot more things than that. It appreciates the ballot based on its programming and counts accordingly even fractions of a shade in an oval, in this case, 20-25% shading. Most importantly, it takes a digital image of the ballot itself, which is as good as the original ballot cast, and encrypts the image, thereby making it virtually invulnerable to future tampering, which was the opposite experience with ballots cast in manual elections.

Simply put, the PET Resolution is not only fair, it is technically sound and reasonable as well. This is because in automated elections, the election return count is as good as any revision physical count can get. There is virtually almost no difference, so long as the parameters of the VCM, like the shading threshold, are duly considered during the revision proceedings. Also because of this ruling, made effective through an amendment of the PET rules, a revision physical count has basically become a redundancy.

By ruling that the election returns shall serve as the basis for the revision physical count, the PET will be merely affirming the election day count, at least in so far as the revision stage of the election protest is concerned. This is as good as applying the 20-25% shading threshold used in the VCM.

Consequently, this will arrest the loss of Robredo votes, which was previously the case during the application of the 50% shading threshold, when Robredo votes that did not meet the 50% threshold were rejected from the physical count. The greater advantage to Robredo is that now she will spend less time defending claimed ballots one by one during the appreciation of the ballots, as she will have less rejected ballots, together with the benefit of the presumption that the votes segregated for her in the physical count are indeed valid votes.

The remaining caveat of course is in the final stage of the election protest, i.e., the appreciation by the PET of the objections and claims to contested ballots. Whether the PET will still make an issue out of the 20-25% shading threshold during the appreciation stage is almost unlikely, given its categorical disposition of the controversy in the 18 September Resolution. What we can be sure of is that despite this significant victory for VP Robredo in this election protest, she still cannot let her guard down.

The fact remains that the election protest filed against her by Bongbong Marcos remains to be a political, rather than a legal battle. And with the sights of the Duterte Administration set right dead center on her simply because she is next in the line of succession to the presidency, she can never rest easy that one PET Resolution can stave off the ugly clamor of Duterte sycophants and fattened cronies to remove her from office. Unfortunately, these are the same people who will be lobbying for candidates in future appointments to the Supreme Court.