SolGen asks court to junk 25% ballot-shading scheme

THE ongoing recount of the votes in the 2016 vice presidential elections heats up as Solicitor General Jose Calida and the camp of Vice President Maria Leonor “Leni” Robredo filed separate petitions on the conduct of the recount.

Solicitor General Jose Calida on Friday asked the Supreme Court, sitting as the Presidential Electoral Tribunal ( PET), to dismiss Robredo’s petition to consider the 25-percent shading scheme.

Robredo, through her lawyer, Romulo Macalintal, asked the court to compel the camp of former senator Ferdinand “Bongbong” Marcos, Jr. to disclose the names of revisors who were aware that a colleague had brought a magnifying glass — a prohibited item – in the recount area.

The PET, however, has yet to rule on Robredo’s motion for reconsideration on the 25- percent threshold.

Marcos, who was leading Robredo early in the count during the 2016 elections, ended up losing to her by 263,473 votes, prompting him to file a protest for alleged massive fraud involving pre-shaded ballots, pre-loaded Secure Digital cards, misread ballots, malfunctioning VCMs (vote counting machines), and an “abnormally high” number of unaccounted votes/undervotes.

Marcos sought a recount in Camarines Sur, Iloilo and Negros Oriental where, he said, the PET discovered irregularities in the ballots.

In his protest, Marcos said 36,465 of the 39,221 clustered precincts should be subjected to a manual count and judicial revision while the votes coming from 2,756 others should be nullified.

In its petition before the high court, Calida said: “The Solicitor General as the People’s Tribune consequently prays for the Honorable Tribunal: (to) Affirm its resolution dated April 10, 2018 declaring that it has no basis to impose a 25 percent threshold in determining whether a vote is valid.”

“The motions [for extension] were filed, not to delay the proceedings in favor of one or the other party, but to study whether the Solicitor General should file a comment on behalf of the Comelec (Commission on Elections), or act as the People’s Tribune.”

The OSG argued that there was no truth to the claim of Robredo’s camp that voters would be disenfranchised if the 50-percent shading threshold would be used and not 25 percent.

“On the issue of what threshold will be used in the consideration of votes, the PET has already made such determination. In Rule 43, Paragraph

( l) of the 2010 Rules of the PET, it is stated that marks or shades that are less than 50 percent of the oval shall not be considered as valid votes,” the OSG said.

Rule 43, Paragraph (1) of the 2010 Rules states:

“In looking at the shades or marks used to register votes, the RC (Revision Committee) 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. Furthermore, the votes thereon are presumed to have been made by the voter and shall be considered as such unless reasons exist that will justify their rejection. However, marks or shades, which are less than 50 percent of the oval shall not be considered as valid votes. Any issue as to whether a certain mark or shade is within the threshold shall be determined by feeding the ballot on the PCOS machine, and not by human determination.”

The OSG said that the Comelec Random Manual Audit guidelines that applied the 25 percent threshold were not applicable for PET election protests, stressing that an audit and poll protest are different and observe different rules, as well.

The OSG chief also said that the high tribunal was the sole authority over the vice election protest, not the Comelec, and must make a strong stand on the 50 percent threshold.

“The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice- President, and may promulgate its rules for the purpose.”

“The power of the PET as the sole judge of all contests relating to the election, returns, and qualifications of the President and Vice-President, to promulgate rules and regulations relative to matters within its jurisdiction, including the determination of the threshold to be used in the recount, is beyond dispute,” Calida said.