Who won the ‘shading’ controversy?

Both Vice President Leni Robredo and former senator Bongbong Marcos claimed victory in the unanimous Sept.  18, 2018, resolution of the Supreme Court, acting as the Presidential Electoral Tribunal or PET, that decided their “shading” dispute. The resolution was penned by Justice Alfredo Benjamin S. Caguioa.

With due respect, I think it is the electorate that won. A little complicated, but let me explain in my limited space.

For the factual details, please refer to my columns titled “Unintended peril in VP electoral protest” (6/17/18) and “VP ‘shading’ ready for ruling—finally” (7/8/18). Briefly, however, the issue is: How should the automated ballots be “revised”?

Leni argued that they should be revised using the 25-percent “shading” threshold, because this was how the vote-counting machines (VCMs) were calibrated by the Commission on Elections (Comelec) during the 2016 elections. In its comment dated July 18, 2018, the Comelec agreed that the VCMs were calibrated at 25 percent.

Au contraire, Bongbong, backed by Solicitor General Jose Calida, insisted that the threshold should be maintained at 50 percent as provided under the PET Rules.

The resolution patiently explained that, indeed, the PET Rules originally allowed the 50-percent threshold because the Comelec calibrated the VCMs at 50 percent for the 2010 elections. Further, the Tribunal denied Leni’s first motion to change the threshold to 25 percent because, at the time it resolved the motion, it had not been advised of a new calibration for the 2016 polls.

But now, after having been officially advised by the Comelec via its comment dated July 18, 2018, that the VCMs were calibrated at 25 percent during the 2016 polls, the PET expressly set aside “the use of the fifty-percent (50%) threshold…”

Moreover, the PET observed, “The submissions of the Comelec and protestee show that, during the 2016 elections, instead of a single numerical threshold, what was applied was a threshold that ranged from twenty percent (20%) to twenty-five percent (25%) of the oval space in the ballots.”

More significantly, the PET held that the “purpose of the revision process is simply to recount the votes of the parties; and this is implemented by mimicking (or verifying/confirming) how the VCMs read and counted the votes during the elections.” (bold types in original)

To achieve this “mimicking,” the PET required the Comelec to provide it with 50 VCMs to which the ballots would be “re-fed.” However, the Comelec replied that “making said units operational… poses many serious technical challenges” involving the SD cards.

In lieu of this “re-feeding,” the Comelec proposed the use of “the decrypted and printed digital ballot images to determine if a particular shade was read by the VCM as a valid vote or not.” However, the PET found this to be “extremely tedious… it would entail going through all the printed ballot images to find the one that matches the ballot in issue, and then inspecting such printed ballot image to determine if there is a square that indicates that the shade in the ballot in question was read by the machine.”

Finally, to hasten the proceedings and to avoid the difficult task of manually determining whether the ballots fall within the 20-25 percent threshold, the PET directed the head revisors (HRs) to refer to the “Election Returns (ERs) generated by the VCMs.” The HRs “shall be guided by the number of votes indicated in the ERs. In this way, the reading of the VCM is mimicked and verified/confirmed.”

Example: if an ER shows that a candidate got 395 votes but a physical count shows 398, the “HR shall reflect 395 in the Revision Report.” The candidate may claim the three “stray” ballots, and the Tribunal shall resolve the claim later during the “appreciation stage, taking into consideration the intent of the voters.”

In sum, the PET veered away from using numerical thresholds. Instead, it directed the HRs to report to it the vote results reflected in the ERs, because this was how “the VCMs read and counted the votes during the elections.” Thereafter, the PET shall appreciate the “stray” ballots “taking into consideration the intent of the voters.” Ergo, the electorate won. And truth and logic, too!

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