Clarity from Comelec

Finally, clarity from the Commission on Elections. Its decision to uphold the 25-percent shading threshold on ballots in the electoral protest case filed by former senator Bongbong Marcos against Vice President Leni Robredo should settle, once and for all, the issue, and remove any excuse for the Supreme Court, sitting as the Presidential Electoral Tribunal (PET), to opt for the 50-percent threshold it had been insisting on.

To recall, claiming “massive cheating” by Robredo’s camp in the 2016 election where he lost by a slim margin of 263,473 votes, the son of former dictator Ferdinand Marcos had asked the PET for a manual recount of votes in selected precincts specifically using the 50-percent shading threshold.

The Robredo camp objected, saying that such a standard would lead to the “massive disenfranchisement” of voters whose poll choices had been machine-read using the lower shading threshold. But the PET junked Robredo’s protest and sided with Marcos Jr. According to the tribunal, it has “no basis to impose a 25-percent threshold in determining whether a vote is valid,” because “The Court is not aware of any Comelec Resolution that states the applicability of a 25-percent threshold; the Tribunal cannot treat the Random Manual Audit Guidelines and Report as proof of the threshold used by the Comelec.”

But there is, in fact, a Comelec document to that effect. The Comelec en banc had recognized the 25-percent shading threshold in a resolution issued on Sept. 6, 2016, four months after the May polls. Not only that. The resolution also stated that Comelec Commissioner Luie Guia had written a memo to lawyer and PET clerk Felipa Anama informing the PET that the vote-counting machines were configured in May 2016 to count as valid votes all ovals with at least a 25-percent shading. “In other words, when a mark covers at least 25 percent of the oval, said mark is supposed to be considered a vote by the system,” said Guia.

So the PET had been told of the original shading threshold set by the Comelec. Why was it seemingly changing the rule midway through the recount?

Solicitor General Jose Calida, as the government lawyer representing the Comelec, further muddied the waters with his shabby decision to abandon his client and support, instead, the Marcos position.

Calida was among the leaders of the Alyansang Duterte-Bongbong that campaigned for the tandem of then Davao City Mayor Rodrigo Duterte and the younger Marcos in the 2016 campaign, so his unembarrassed partiality was perhaps not surprising. In his manifestation to the PET filed on July 6, Calida denied that votes would be disenfranchised in any way if the higher threshold were to be applied, since, he said, the electorate was told that “for their votes to be counted, they should fully shade the oval space.”

The Comelec’s 13-page manifestation to the PET this week should decisively put an end to this tussle. In no uncertain terms, the Comelec reaffirmed that it did decide on a 25-percent shading threshold, and warned that using a different benchmark now in the vote recount instead of the standard used when the election was conducted “would be erroneous and may result (in) unnecessary questions on the legitimacy of all elected officials, from the President down to the last Sangguniang Bayan member.”

It had originally set the oval shading threshold at 25 percent, the Comelec said, “to guarantee that the votes are not wasted due to inadequate shading or that no accidental or unintended small marks are counted as votes.”

How much is at stake in this argument? Former chief justice and Inquirer columnist Artemio Panganiban did the math and noted the “unintended  peril” of the PET suddenly imposing a new benchmark for the recount. His point is worth quoting at length:

“Using… 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.”

Exactly what the Comelec has now said, loud and clear.