Was the Smartmatic election system rigged?

On Nov. 3, 2022, Eliseo Rio Jr., Augusto Lagman, and Franklin Ysaac filed a “politically neutral urgent petition” in the Supreme Court alleging that it was “highly improbable if not impossible” to count over 20 million votes within the first hour—from 7 p.m. to 8 p.m.—after the polls were closed in the May 9, 2022, presidential election. Since then up to now, traditional and social media have furiously raised this intriguing question in various forms and shades: Is the Smartmatic election system procured by the Commission on Elections (Comelec) vulnerable to rigging, hacking, cheating, fraud, and/or preloading of data?

DURING THE SAID ELECTION (AND MANY OTHERS), voters shaded the ovals near the names of the candidates in printed paper ballots. The filled-up ballots were then inserted into vote counting machines (VCMs) that automatically tabulated the votes cast and printed the election results (ERs) that were distributed to the Comelec and other election entities.

After the polls closed at 7 p.m., the VCMs were supposed to electronically and seamlessly transmit the results to three canvassing points. Invented by Smartmatic, the system produced almost instantaneous results, but voters could not witness the counting of the votes and the transmission of the results.

Petitioners claim that it was simply impossible for the VCMs to have counted and transmitted in just one hour over 20 million votes to the transparency servers (which, in turn, were the source of the public tabulation of the results), implying that the results have been rigged or preloaded in the VCMs.

Petitioners prayed for (1) a temporary restraining order (TRO) “enjoining the respondents to cease and desist from [performing] any act that may modify/erase/delete any part or whole of the historically-important subscriber/cyber traffic data log integrity/call record details … transmitted from 7 p.m. to at least 9 p.m. of 09 May 2022;” (2) “After due hearing before 9 November 2022,” the issuance of “an ancillary writ of preliminary mandatory injunction …” directing the Comelec and private respondent telcos (Smart, Globe, and Dito) “to deliver faithful copies of their respective records/details of the said historically-important data directly and exclusively to the Honorable Supreme Court; and (3) After due hearing, a final writ of mandamus … directing the respondents to preserve for posterity the said historically-important data.”

FROM THE FOREGOING, THESE CONCLUSIONS APPEAR INDUBITABLE: (A) The petition has become moot and academic because, by its own allegations, the remedies prayed for are time-bound. Prayer 1 asks for an instant TRO which under prayer 2—“after due hearing before 9 November 2022”—should be followed by a “preliminary mandatory injunction.” The petitioners wanted instant action within six days from its filing on Nov. 3 to 9, 2022. I can’t blame the Court. It was on its regular All Saints’ Day leave and Nov. 5 and 6 were Saturday and Sunday, respectively. From the filing of the petition up to this writing, the Court has been silent, implying, IMHO, a denial of the two prayers.

(B) On prayer 3, the petition had not shown that the preservation “for posterity of the said historically-important data” is a ministerial or mandatory duty of the Comelec and of the private telcos. Under the Rules of Court (Rule 65, Section 3) mandamus can be availed only if the respondents “unlawfully neglect the performance of an act which the law specifically enjoins as a duty …”

THOUGH, IMHO, THE FUTURE OF THE PETITION IS DARK, yet I can see three rays of light: First, the Court may, at its sole discretion, relax the Rules of Court and require the Comelec and the other respondents to comment on the petition, without necessarily giving due course to it.

Second, the trio can amend their petition, or better still, withdraw it and file a new one for prohibition to stop the Comelec from using the Smartmatic system in future elections because it is vulnerable to rigging, hacking, cheating, fraud, and/or preloading of data. The new petition must be BACKED UP BY FACTS AND TRUTHS, not by mere allegations, suspicions, or speculations. I say this because of an alleged POST FACTO admission by the Comelec—an admission that was made via media only recently and thus not included in the original petition—that the 20 million votes in question were not transmitted through the telcos, as the petitioners and the public were made to believe, but through a “single, private, internet protocol address”

Third, withdraw it and let Congress start an inquiry into the IP mystery in aid of legislation to amend our election laws to prevent possible rigging, hacking, cheating, fraud, and /or preloading of data.

To be clear, I do not doubt the election results particularly the more than majority votes obtained by President Ferdinand Marcos Jr. and Vice President Sara Duterte. Precisely, my three suggestions are intended to clear up the doubts created by the media frenzy and to put to rest, if possible, the continuing objections to the Smartmatic system. If indeed it is vulnerable, let Comelec change it to a better system.

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