VVPAT and other electoral reforms

In Bagumbayan vs Comelec (March 8, 2016, written by Justice Marvic M.V.F. Leonen), the Supreme Court, voting 14-0, ordered the Commission on Elections (Comelec) to implement the “Voter-Verified Paper Audit Trail” or VVPAT (say “vivi pat” for easy recall) in the May polls.

Short background. Instantly, the Comelec filed a motion for reconsideration saying that the VVPAT was unnecessary and would just delay the casting of ballots. Worse, the elections may have to be postponed for two weeks, from May 9 to May 23, because the source code has to be reconfigured.

Given its urgency, the motion was heard on oral argument on March 17. After the hearing, the Court speedily denied the motion with finality, again voting unanimously, 13-0.

To understand the VVPAT, let me rewind a little bit. During the 2010 and 2013 elections, the Comelec implemented the automated election system via the now famous (or “infamous”?) precinct count optical scan (PCOS) machines.

To answer the call for a more reliable system for the 2016 elections, the Comelec opted to use the vote-counting machine (VCM), a “paper-based automated system” reported to be “seven times faster and more powerful than the PCOS because of its updated processor,” with more memory and security features to boot. It is allegedly “capable of producing the VVPAT, in the form of (a) a printed receipt and (b) a touch screen,” both of which would show the votes counted by the VCM.

The VCM allegedly provides the electoral safeguards required by Republic Act No. 9369, among them, (a) a “voter verified paper audit trail,” (b) “system auditability” which includes “supporting documentation for verifying the correctness of reported election results,” and (c) a system that allows the voter to “find out whether or not the machine has registered his choice.”

Arguments pro and con. Petitioner Bagumbayan led by former senator Richard Gordon (who authored RA 9369) argued that, with the VVPAT, “the voter can verify if the choices on the paper record (or receipt spewed out by the VCM) match the choices that he or she actually made [on] the ballot. The voter can confirm whether the machine had actually read the ballot correctly.” Should there be any doubt, “the electronically generated results … [could] then be audited and verified through a comparison … with these paper records.”

The Comelec countered that (a) the receipts could be used for vote buying since they constitute proof of how the voter actually voted, (b) the voting on Election Day would be delayed by a total of “five to seven hours” and, (c) the paper receipt is a “surplusage” because the VCM already provides “numerous audit trails of the votes cast … specifically: (1) the paper ballot (that the voters shade to make their choices), (2) the ballot image, (3) [the] storage media cards, and (4) the on-screen verification functionality.”

The poll body further explained that the voter’s receipt is required only in a “direct recording electronic election system” in which the voters input their votes on the machine’s monitor without having to shade a paper ballot. It added that since the VCM already uses a paper ballot, a printed receipt would be unnecessary.

Court’s ruling. Resolving the motion, the Court held that the “law is clear… The paper ballots cannot substitute for the voter’s receipt.” As provided in the text of RA 9369, the “phrase ‘voter verified’ modifies the ‘paper audit trail[,]’ which means that the voter himself or herself must verify the paper trail… The paper ballots may be a form of a paper audit trail, but they are not voter-verified… While the paper ballot assists in preventing electoral fraud, it does not provide the security to the voter that the machine has correctly recorded his or her vote.” (Italics in original)

Moreover, the “on-screen verification is not the VVPAT because it is not paper-based.” Also, the “digitized ballot images by themselves cannot fulfill the VVPAT requirement because … the VVPAT must allow the individual voters to verify whether the machines have been able to count their votes, and that the verification at minimum should be paper-based.”

To prevent their illegal use in buying votes, the “receipts should be deposited in a separate ballot box and not taken out of the precinct.”

The Court was convinced that, despite some delay during the casting of votes, the Comelec is “capable of fully implementing the VVPAT”; i.e., the VCMs are capable of printing simple receipts without reconfiguring the source code. Additional security features like the precinct and ballot numbers may be printed on the receipts in future elections. Thus, the 2016 elections need not be postponed. In fact, the poll body has no power to postpone the elections.

Other reforms. Apart from implementing the VVPAT, the poll body would be well-advised, in the interest of ensuring credible elections, to undertake other electoral measures, which—like the VVPAT—were not addressed adequately by past Comelec officials, like:

(1) Proclaim the winners only after a complete, correct and credible count of the official certificates of canvass (COC). During the 2013 elections, senatorial candidates were proclaimed winners based merely on the Comelec’s so-called “group canvass report,” even if only 72 out of the 304 COCs had been duly canvassed. For details, see my columns on May 19 and 26, 2013.

(2) Allow a thorough review of the source code. True, it has been deposited in the Bangko Sentral vault. Nonetheless, questions still linger because it was not reviewed prior to the deposit.

(3) Implement the random manual audit strictly in accordance with law.

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