No wholesale disenfranchisement

The recent US presidential election has shown that US courts at all levels have consistently dismissed all attempts by President Donald Trump’s lawyers to disenfranchise wholesale tens of thousands of voters on allegations of election irregularities. The underlying rationale in these court decisions is that in a democracy every vote is sacred and must be counted. Any allegation of election irregularity must not only be proven but the irregularity must also be so grave that it prevents ascertaining the intent of the voter.

In the Philippines, this underlying rationale is embodied in both our law and jurisprudence. Under the Omnibus Election Code, any action to declare a failure of elections on the ground of “violence, terrorism, fraud, or other analogous causes” must be alleged and proved. The remedy in case of failure of elections is to hold special elections within 30 days from the cessation of the cause of the failure of elections. The electorate must always be allowed to vote and they can never be disenfranchised on any ground that causes a failure of elections.

Philippine jurisprudence has clearly delineated the power of the courts to annul election results in election contests. In the 2016 case of Abayon v. House of Representatives Electoral Tribunal, the Supreme Court laid down two “indispensable” conditions that must “concur” before election results can be annulled. First, “the illegality of the ballots must affect more than fifty percent (50%) of the votes cast in the specific precinct or precincts sought to be annulled.” Second, “it is impossible to distinguish with reasonable certainty between the lawful and unlawful ballots.”

The first condition can only be satisfied by a physical examination of every ballot in every contested precinct to determine if the ballots are tainted with illegality or not. The second condition can only be satisfied if lawful ballots cannot be distinguished from unlawful ballots. Both conditions must concur before the election results can be annulled. If there is no physical examination of every ballot, the election results cannot be annulled. If in a precinct there is any lawful ballot that can be distinguished from the unlawful ballots, the election results cannot be annulled and the lawful ballot must be counted. All unlawful or illegal ballots, like fake ballots, cannot be counted.

The Supreme Court has set the bar very high in annulling election results because the intent of the voter must always be respected. This underlying rationale is embodied in the Intent Rule that the House of Representatives Electoral Tribunal, the Senate Electoral Tribunal, and the Presidential Electoral Tribunal have uniformly adopted. The Intent Rule provides that in interpreting what the voter has written or marked on the ballot, the objective is to ascertain and carry into effect the intent of the voter if it could be determined with reasonable certainty.

The Intent Rule of the Presidential Electoral Tribunal states: “In examining the shades or marks used to register the votes, the Head revisor shall bear in mind that the will of the voters reflected as votes in the ballots shall, as much as possible, be given effect, setting aside any technicalities.” Thus, in the 2016 elections, the PCOS machines were calibrated to detect and count ovals with not less than 25 percent shading. However, in the revision and appreciation of ballots even a small dot or a single line on the oval of a ballot must be counted as a valid vote to give effect to the intent of the voter.

In its 2019 Resolution in Tolentino v. De Lima involving the 2016 senatorial elections, the Senate Electoral Tribunal explained the Intent Rule as follows: “Even shades or marks placed outside the oval were counted as votes under the Intent Rule. Thus, votes which were considered ambiguous during revision were counted (during appreciation) in favor of the parties. These cover instances like uniform encircling outside the oval; uniform shading of less than 25 percent, uniform manner of voting by encircling the names of candidates or shading the numerals beside the names of the candidates. The key word is ‘uniformity’ which shows the voter’s clear intention.”

The intent of the voter can only be ascertained by a physical examination of every ballot, foreclosing any wholesale annulment of election results in election contests.

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