An unintended peril lurks in the “50-percent shading rule” imposed by the Supreme Court, acting as the Presidential Electoral Tribunal (PET), in the ongoing election protest filed by former Sen. Bongbong Marcos against VP Leni Robredo.
To understand this rule, recall that, during the 2016 elections, the automated ballots contained blank ovals that the voters had to shade to show their choices. The automated voting machines were calibrated by the Commission on Elections (Comelec) to recognize ballots that were shaded by at least 25 percent.
In other words, the ovals did not have to be shaded completely. Even if a ballot was just crossed with lines or marked with dots covering at least 25 percent of the ovals, the machine would count it, because the voter had already shown his/her intent to vote for the candidate concerned.
In contrast, the higher 50-percent threshold would disenfranchise voters who shaded their ballots between the “25- and 50-percent gap.”
Thus, a ballot shaded partially to the extent, for example, of 40 percent would be tallied by the automated machines during the counting in the precincts and the canvassing, but NOT during the manual ballot revision at the PET where they would not be counted.
Let us examine the arithmetic. The PET Rules require the parties to identify the “pilot provinces” where they had been allegedly cheated the most. If the manual recount of the ballots therein would show a significant difference from the canvassed results, the PET would order a manual recount of the rest of the protested provinces.
As the “protestant” or plaintiff, Bongbong identified three “pilot provinces” that had been canvassed under the 25-percent threshold with very unfavorable results to him: Camarines Sur, Bongbong — 41,219 votes, Leni — 664,190; Iloilo (excluding Iloilo City), Bongbong — 94,411 votes, Leni — 573,729; Negros Oriental, Bongbong — 66,506 votes, Leni — 255,598.
While both Leni and Bongbong would definitely be affected, we do not know at this point exactly how many ballots would fall within the “gap.” But let us assume that 5 percent would, and therefore would be junked.
Thus, Leni would lose 33,209 in Camarines Sur, 28,686 in Iloilo, and 12,780 in Negros Oriental, or a total of 74,675. Bongbong, meanwhile, would lose 2,061 in Camarines Sur, 4,721 in Iloilo, and 3,325 in Negros Oriental, or a total of only 10,107. Subtracting 10,107 from 74,675 will result in a 64,568 net loss for Leni.
Given that Leni’s lead over Bongbong in the canvassed results was only 263,473, this net loss would be significant or substantial and could constrain the manual recount of the 22 remaining protested provinces with about nine million votes.
Using again the 50-percent threshold, the total recount could — repeat, could — have the unintended consequence of overturning Leni’s lead, not because of cheating but because of a mere shading loophole that disenfranchised proportionately many more of her voters than of Bongbong’s.
To stress, the election protest was lodged because of alleged election cheating. But the 50-percent rule could deprive Leni of her mandate because of the disenfranchisement of her voters. This is certainly unfair not only to her but more so to the electorate.
The obvious remedy is to use the 25-percent threshold. Otherwise, the victory of the winners in the last elections from the president down to the last town councilors would be put in serious doubt.
The better remedy, in my humble opinion, is just to rerun the secured data cards or SD cards that contain digital copies of all the ballots in the protested and counter-protested precincts.
These are in the possession of the Comelec and have been used in election contests in which the ballots have been destroyed, mutilated, rained on or otherwise could no longer be read manually, as in the 2010 mayoralty protest (Tinga vs Cayetano) in Taguig City.
This latter remedy would also be cheaper, as it will avoid paying the 50 revisors of each party at P1,500 per day per revisor. It will also be fairer and faster, given that the manual revision of the pilot precincts alone will last about seven months, while the rest of the nine million protested ballots will take years.
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