When do we see the Comelec in court?

The automation of the 2010 polls had many other benefits, which the Philippine electoral management body failed to appreciate. The efficiencies that could be had in using machines, instead of having humans do, to count ballots and consolidate results were many and strategic, and easy and cost-effective to implement. Yet they were not capitalized on. In migrating from the manual to the automated process, the metrics of performance have changed. The inability to tap the efficiencies inherent in the modernized process, that could have been used to improve the administration of the elections, is an inefficiency. For this, we are penalized.

Let me just use the current ballot recount process (discussed in first three parts of this four-part piece) to reveal some of the burden upon the various election actors that the Commission on Elections (Comelec) themselves have caused.

Because the actual accuracy of the precinct count optical scan (PCOS) machines significantly differed from that which the Comelec had committed, it egged election contestants to call for a recount. The random manual audit done by the Comelec showed that the machine was accurate to only 99.6 percent as against the 99.995 percent promised. Even the number of individual ballots counted, which is a basic test of accuracy, differed. The protester in the recount for mayor of Manila cited unreliability of the PCOS as reason why they had asked that the ballots be reviewed manually.

The impact is that there are close to 100 election protest cases questioning the results before the Comelec and before the House of Representatives Electoral Tribunal.  There are surely others with the trial courts.

Each protester provides a list of 20 percent of the polling stations in her/his jurisdiction, a sample number with which after the recount, to prove that a total recount would be merited. If there are over a thousand polling stations, 200 would be the maximum sample size. The protester bears all the recount cost, including honoraria for the recount committees. The protestee, too, as as result is penalized because s/he has to pay for his/her own representatives in the recount committees, as well as for her/his counsels.

There is no logic behind the 20 percent-of-polling stations recount sample because fewer precincts could have achieved the purpose using statistics. The Comelec could use a random sample of less than five percent of polling stations to establish cause for a jurisdiction-wide recount. Unfortunately, Comelec sees the recount as a fight between contestants even if they themselves had provided the raison d’etre for such fight. This is inefficiency and neglect of responsibility.

Because the automated system failed to make a report on the rate of over votes, no votes (abstentions), under votes and rejected ballots, election contestants and and others are deprived of crucial information. Without this information, the non-winner who has reason to believe that s/he might have won, is better off calling for a recount to play safe. If the Comelec had provided these pieces of information, the contestants would have been able to apply basic tests of statistics to determine if there is indeed a chance to recover votes and change the results. These pieces of information would have been easily captured by the PCOS if Comlec had really appreciated what automation was capable of doing. Who, therefore, pays for this inefficiency? Everyone does.

Because the automated election system used by the Comelec does not have a 100 percent accuracy, then, there should be an automatic recount when the difference between winning and losing is outside of the committed accuracy rate. In this case the Comelec should pay for the cost of the recount. By not having an automatic recount provision, the Comelec is neglectful of the fact that they are responsible to verify results that fall outside of the accuracy rate of the system that they commissioned.

It looks like there are a lot that the Comelec needs to be made accountable for. They do contribute to unnecessarily increasing the cost of getting elected.  So, when do we see them in court?

Earlier posts are: Recount Redux, Circular Reference Error and Rule Change, and Tangibles and Intangibles of Poll Recount.

Tangibles and Intangibles of a Poll Recount

We did not expect to lose and we do not know why we lost. This was what lawyer Romulo Macalintal, of Manila mayoral candidate Lito Atienza, said when we spoke last Friday at the Commission on Elections (Comelec). April 1st marked the third day of the recounting of ballots from the 200 clustered precinct-sample (of over 130,000 ballots) of the 1,441 clustered precincts in Manila, which the Atienza camp brought before the Comelec. The recount is estimated to be completed in seven more days.

The Atienza camp had asked for a recount because they suspected that pre-determined results may have been programmed into the ballot-counting machines before the voting took place on May 10, 2010. Adding to their suspicion, according to Macalintal, were the two-digit variances that were shown when the machine count was checked manually through the post-election random audit. In last year’s contest, candidate Alfredo Lim (with 395,910 votes) bested Atienza (181,094 votes) by over 214,000. (Philippine Daily Inquirer, http://bit.ly/hjqRh3)

In the resolutions it passed last year (discussed in the previous blog at: http://telibert.blogspot.com/2011/03/recount-redux.html), the election management body specified that the precinct count optical scan (PCOS) machines were to used in recounts. These machines counted the ballots from each of the over 76,000 clustered precinct (composed of between five and seven precincts in cluster or an average of over 600 voters per cluster) throughout the country in the May 2010 polls. However, protester Atienza objected to their use because they suspect that the machines may not have counted accurately; and as Macalintal cited, the evidence that they hope to come out with can only be obtained through a manual review of the votes on each ballot. On 16 March 2011, the Comelec passed resolution 9164 (http://bit.ly/fjVXjx) completely making the recount a manual process.

Contributing to their resistance against the PCOS, according to Macalintal, were the Comelec’s charges of PhP700,000 (USD16,000) for rental of the PCOS, and PhP300,000 (USD7,000) for the purchase of IT equipment and to pay for IT experts.

Ballots inside a just-opened box.

At the recount, Macalintal pointed out that the PCOS machines, had they been used, would have rejected many ballots. This is because some ballots were crumpled while inside the ballot boxes during storage, and some were stuck to each other crumpled and soiled when they dried after being water-logged. With the manual counting shading on the ovals to show votes were clearly appreciable.

Section 3 of Comelec resolution 8804 (http://bit.ly/dVP8KR) puts the recount expenses at PhP1,424 per clustered precinct. However, it has charged PhP500 per precinct; and the protesting camp has reportedly made a cash deposit of PhP10 million (USD232,000) to the Comelec. The media reported last week that the Atienza camp is expecting to recover a portion of that deposit because they have been erroneously charged by the precinct instead of by the clustered precinct.

My estimate is that Atienza and sitting mayor Lim expend between PhP25,000 and upwards to PhP35,000 for each day of the recount. From the information gathered from their representatives present at the recount, each revisor (in the recount committee representing the contesting parties) are paid at least PhP1,000 per day, and each lawyer at least PhP5,000 daily. There are 10 recount committees working each day, so each camp needed to field 10 revisors. Alongside them are between three and five lawyers on each camp who are on standby for any issues that may arise, and ready to take the place of any revisor just in case s/he could not make it that day. This cost excludes the amount that their counsels charge for handling the case.

Recount committee sorting ballots before examining each vote.

During my observation a revisor pointed out that a group of ballots did not contain the same signatures of the chair of the board of election inspectors (or polling station committee). In the Philippines, the poll station chair affixes his/her signature on the ballot right in front of and before it is handed to the voter to attest that the ballot was given at the polling station on the day of the voting. These ballots, which were not listed in the resolution as among those that can be contested, will be submitted to Comelec en banc for them to rule on.

Guidelines for appreciating the vote.
This sheet is posted on each of the recount committee tabletop.

Early signs indicate that the process is going smoothly and neither party sees any issues associated with it. One of lawyers commented that the Comelec recount committee members of seem to know what they are doing.

It is certainly good to note that the recount process is going well. But like many other processes the monetary costs are not all there is to it. There are indeed other underlying and intangible costs of the recount. The cost of getting elected, if one includes the cost to bear a possible recount, as this is a form of redress guaranteed in the election law, seems to become more and more unaffordable to ordinary individuals even if s/he is more qualified than others to serve for elective office. Looking at the elections in a systemic manner, it is obvious that the contests are meant only for the rich. Inefficiencies in the system continue to extract significant costs, not just to the candidate, but also to the voter, whose taxes are eventually taken away from other services in order support the conduct of (inefficient) elections.

(This is the penultimate article of a four-part series. Earlier posts are at: http://telibert.blogspot.com/2011/03/recount-redux.html and http://telibert.blogspot.com/2011/03/circular-reference-error-and-rule.html.)

Circular Reference Error and a Rule Change

Recently the new chairperson of the (Philippine) Commission on Elections (Comelec) said that a manual recounting procedure would be “‘in uniform’ with the system already put in place by other courts” and tribunals handling election protests. (Philippine Daily Inquirer) The Comelec has the details of this new procedure in resolution 9164, passed on March 16, 2011.

The officers of the Philippine Judicial Academy, in my meeting with them in mid-March 2010, said that they were then awaiting Comelec’s guidelines in order to train judges on handing disputes in the automated election system. It is interesting that the Comelec’s most recent guidelines on recounts is the one now being presented as consistent with those that were in place with the courts.

If this form of argument were in an electronic spreadsheet there would be a prompt saying "circular reference error".

While some argue that the presidential (PET), senatorial (SET), and the house of representatives (HRET) electoral tribunals are independent of the Comelec and may promulgate their own rules, it will be untenable to have a situation where one loses in the Comelec count but wins in the tribunals’ own by virtue of difference in the rules.

Therefore, did the Comelec avert a potential contentious situation with the latest revision of the recount rules? Looks like they did indeed. Instead of being the ones to set the rules, it looks though that the tribunals had instead prevailed upon them.

To my knowledge, the first ever recount of protested ballots in the 2010 polls will be conducted next week or 10 months after the winners have been proclaimed. Contestant Lito Atienza sought a recount of ballots of the May 10, 2010 election won by Alfredo Lim in the mayoralty race for the city of Manila. Recounting will start on March 29 for ballots coming from 200 polling stations. I look forward to observing this one and the National Citizens' Movement for Free Elections' (Namfrel) request for an observer status has been sent to the Comelec.

But before then the question becomes, what orientation or training did the Comelec give to the members of the recount committee and candidates’ representatives to ensure proper and uniform appreciation of the ballot and the votes?

Item (h) of Rule 15 of resolution 9164, distinguishes between “voting marks” and “identifying marks.” The former are “markings placed beside the ovals that may appear to show intent of the voter to vote for a party,” while the latter is supposed to be “intentionally placed to identify the ballot or the voter”. Voting marks may be subject to claims, while identifying marks could be subject to objections. Does the Comelec have clear guidelines on these for the recount participants?

The precinct count optical scan (PCOS) machines were not programmed to read voting marks outside the ovals unless that mark smudges the timing tracks or the bar code on the ballot. In both cases the machine will reject the ballot because it can neither locate the mark on the oval nor authenticate it.  Accidentally smudging or soiling any other part of the ballot, however, will not cause it to be rejected and the voter will not be disenfranchised.

In the same news article (above), the Comelec chairman said that a manual recount of the ballots “will be a tool to validate the results of the PCOS count last May, if they are correct or not“.

By allowing voting marks to be possibly counted as a vote, using the principle of honoring voter intent, when this could not have been determined with the use of the PCOS machine, the Comelec has changed the rules.  Therefore, expect different results between the count of May 10, 2010 and that of the recount. Whether issues concerning voting marks will be many enough to change the result would be anybody's take though.

(Part 2 of 4. Link to Part 1 is at: http://telibert.blogspot.com/2011/03/recount-redux.html.)

Recount Redux

That there is a strong indication to suspect that errors in the counting process are many enough -- and when corrected would change the results of the election -- is the reason why a losing party would seek a recount. Right?

In the May 2010 local and national elections in the Philippines, machines were used to “read” voter marks on the ballot and aggregate polling station results. Voters were presented with paper ballots that had names of all candidates pre-printed on them and they voted by shading the oval beside the name of each of the candidate they chose. They fed their ballots into the machine that read all the shaded ovals and tallied the votes. The results were known when the polls closed and the machine printed copies of the results.

Precincts (with 200 voters each) were clustered and one machine was allocated for every 1,000 voters. The precinct count optical scan (PCOS) machines were manufactured by Smartmatic and the software that “read” the shading on the ovals was reportedly provided by Dominion.

On March 22, 2010, nine weeks before the elections, the Commission on Elections (Comelec) passed resolution 8804 titled, Rules of Procedure on Disputes in an Automated Election System in Connection with the May 10, 2010 Elections. Item l of Section 6, Rule 15 states, “...marks or shades which are less than 50% 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 [sic] determined by feeding the ballot on the PCOS machine, and not my human determination”. Counting would be manual unless the recount committees are unable to determine if a shade meets the 50 percent mark or not, then ballot would be fed into the PCOS.

At the end of November, six months after the polls, the Comelec passed resolution 9104 titled, Rules of Procedure for the Recount of Ballots Subject of Election Protest Cases Filed with the Comelec. Amending Section 6, Rule 15 in the previous resolution, it entirely uses the PCOS in the recount. If there is a discrepancy between the original and recounted results, the original ballots images generated in 2010 from the compact flash (CF) card would be compared against the ones just generated at the recount.

However, more than 10 months after the election, on March 16, the Comelec yet again passed another resolution numbered 9164, Reinstating and Reimplementing Comelec Resolution 8804 with Amendments. This reverted the recounting to manual and the PCOS only to be used, if at all, to authenticate the ballots because Comelec could decide on other methods of checking the bar code and the ultra-violet ray code on the ballot. Determining whether an oval the size of a pencil eraser head is shaded 50 percent or more is a now entirely up to humans.

What could explain the corrections made by the Comelec and what might be the impact?

I can think of three and all point to the uncertainty of the accuracy of the machine. Complainants do not want the “suspect” PCOS to do the re-counting (first and second resolutions); change in Comelec chairpersonship; and failure to appreciate new context brought about by automating the vote appreciation process.

Comelec specified in the bid documents that machines should have a certified accuracy of 99.995 percent. This means that the machine may miss a mark for every 20,000 that it has read, or an error rate of 0.005 percent.

Assume 650 voters in a clustered precinct and 73% came out to vote. This yields 475 voters. Assume further an average ballot fill-up rate of 60% (there are between 26 and 32 positions for election on each ballot, but let’s assume 28; and voters only fill up 60% of that, meaning they opted not to vote for some positions). These are 17 marks on every ballot. Multiplied by the number of voters, the number of marks read by the machine in this case is 8,075. So there is a possibility of eight erroneous reads. Whether there will actually be eight or one error or whether there will be any errors at all are all in the realm of probability and statistics.

But the random manual audit commissioned by the Comelec recorded an accuracy of 99.6% or an error rate of 0.4%; or one in every 1,000 marks (Center for People Empowerment and Governance). The National Citizens’ Movement for Free Elections’ (Namfrel) also reported accuracy rates of just 99.56 percent and 99.53 percent in the random manual audits they had witnessed.

Another startling discovery is that there was a discrepancy between the number of ballots counted by the machine and the ones counted by the random manual audit committee. I wrote in the Namfrel report that in Precinct Cluster 8 composed of Precincts 32-A, 33-A, 34-A, 35-A and 36-A at the San Perfecto Elementary School (San Juan, metro Manila) the PCOS machine counted 616 ballots although there were only 614 in the box (Namfrel Report 2010). The committee checked and rechecked to ensure that they themselves counted correctly. How could the machine guarantee accuracy in the counting of votes when it could not guarantee accuracy in counting the number of ballots?

A snapshot of the polling station result (known as election return) from the random manual audit of Cluster 8 of San Perfecto Elementary School in San Juan, metro Manila.

The polling station result (known as the election return) prepared at the random manual audit to check the accuracy of the precinct count optical scan machines. This return is from Precinct Cluster 8 of the San Perfecto Elementary School in the city of San Juan in metro Manila. The machine recorded 616 voters but the ballots actually found inside the box was only 614.

Indeed there is reason to suspect the accuracy and reliability of the PCOS. The Comelec is caught between a rock -- reliability of judgment and consistency of human appreciation of degrees of shading of ovals; and a hard place -- the recorded inaccuracies of the PCOS. What to do?

(Part 1 of 4)