Saturday, March 26, 2011

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:


  1. I must again comment on your excellent post, my friend and idol.

    Primarily, I do not know which rules were supposedly changed by COMELEC in "allowing voting marks to be possibly counted as votes, using the principle of honoring voter intent, when this could have been determined with the use of the PCOS machine." The basic and fundamental rule remains unchanged - that is, the voting marks on a ballot are to be counted as votes of a voter. THE MACHINE IS SUPPOSED TO READ THEM AS VOTES. If the machine failed to read them as votes, then the machine was wrong. On the other, if the machine correctly read the marks as votes, then the machine was correct. If a machine rejects a correctly accomplished ballot, then the machine is wrong, and the votes on the ballots should be counted.

    A hand count or a visual count of the votes is a valid process of validating election results produced by machines, in the same way as a correctly done Random Manual Audit is. Should the audit or a recount show a different result, I really do not see anything wrong with giving more credence to the hand counted results. Let the real winner, the one who obtained the highest number of votes, be proclaimed. The basic rule remains unchanged.

    The PCOS machine is just a tool to make recording and counting of votes supposedly more efficient and accurate. If it fails to perform that function, then the machine is wrong.

    The assumption of course is that the ballots used by voters during the election are the same ones to be recounted.

    I am not saying, however, that manual or hand count is the only acceptable recount procedure in an election contest. The use of PCOS machine, or even another kind of machine certified to count the same set of ballots used in the elections, can do the recount, depending on what was alleged in the protest. I just find it too sweeping to say that a manual count is outrightly unacceptable in validating a machine count, as that would outrightly deny a remedy for those questioning the PCOS count.

    What COMELEC was obviously remiss about was that they failed to come up with voter intent rules earlier enough to enable its recount or revision personnel to be trained. Comelec was also wrong to change the rules in November 2010, when it suddenly limited recount to the use of PCOS while protests were already pending.

    In any case, my take is that there is not going to be any substantial change in the results, except in close local contests.

    Usap tayo sir ha.


  2. Hi Telibert. Let me qualify some points in my earlier comment. The voting marks referred to in the resolution are those placed in the ovals. Marks outside the ovals are not voting marks and should not be counted. It is therefore wrong for them to be counted whether manually or by the PCOS machines.

    The voting marks I referred to in my earlier comment are those put by voters on the ovals, which should obviously be counted.

    On another matter, the first rules of recount was contained in resolution 8804 dated March 2010, which was the basis of the Rules for the trial courts issued by the SC and the rules of the PET. Comelec changed its rules last November, which made them different from the court and PET rules. The HRet ignored the COMELC changes and came up with its own rules. COMELEC reso. 9164 restored essentially 8804 kaya sabi ni Brillantes consistent ulit.

    HRET pala naunang nag recount in the protest involving the congressional contest in Paranaque. Tapos na ata last week or two or three weeks ago. The lawyer for the protestant said that the manual count gave the same result as the machine count.

    Lots of other points to discuss sir. Kwentuhan na lang tayo.