The problem with Comelec’s idea of replacement ballots

Emil Marañon III

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The problem with Comelec’s idea of replacement ballots
A projected scenario where only '75% will vote and 25% will not vote' is at best speculative. You don't draw a policy on the basis of such speculation.

After earning criticisms for the “bib vest” fiasco and the controversial plan to transfer the senatorial canvassing from the Philippine International Convention Center to the plush Manila Hotel, the Commission on Elections (Comelec) came out with another last minute tweaking of the election rules. The new rule – on when to issue replacement ballots – is inviting criticisms again from many election observers. 

On April 12, 2016, the poll body promulgated Resolution Number 10088, which amends Section 42 of Resolution Number 10057 (February 11, 2016). The amended rule now reads:

SEC. 42. Rejected Ballots; Procedure. — In case ballots are rejected by the VCM during the scanning, the BEI shall allow the voter to re-feed the ballot four (4) times in four (4) different orientations.

If the ballot is still rejected, the voter shall return the ballot to the chairman who shall:

      • Distinctly mark the back thereof as REJECTED;
      • Require all members of the BEI to sign at the back thereof; and
      • Place the rejected ballot inside the Envelope for Rejected Ballots.


No replacement ballot shall be issued to a voter whose ballot is rejected by the VCM except if the rejection of the ballot is not due to the fault of the voter.

This amendment abandons the old Section 42, which allowed replacement ballots only for “invalid ballots” or where the voter was not given the “correct ballots” assigned for that clustered precinct.

As to the other cases, no replacement was allowed. All rejected ballots were instead to be stored in a separate envelop and could be claimed later on by any candidate should they materially affect the result of the elections.

The latest rule allows replacement of ballots in all cases of rejection, except when the rejection is due to the fault of the voter.

NEW RULE. The Commission on Elections allows voters to get replacement ballots if the vote-counting machine rejects their ballots and it's not their fault. File photo by Alecs Ongcal/Rappler

While it is easy to understand the need for the ballot replacement scheme, the problem is that it was adopted without correspondingly changing the allocation of the ballots. The Comelec is allowing the replacement of ballots for a host of reasons while maintaining the 1:1 ballot-to-voter ratio – or printing the same number of ballots as the number of registered voters.

The Comelec believes that this is possible as “voter turnout is not 100%,” thus “there would be spare ballots.” It cited the 2010 presidential election’s turnout, which was only at 75%. 

This premise, however, is flawed. It failed to consider that the 75% turnout was the national average. This does not account the fact that while there are clustered precincts that had turnouts lower than 75%, there were also those which had higher turnouts. In fact, there were many precincts that registered a 100% turnout in past elections.

In the instance where everyone shows up to vote, allowing even a single replacement of ballot means there’s another person who wouldn’t get a ballot and therefore deprived of his or her right to vote.

While I concede that a 100% turnout is exceptional, it is inconceivable either for the Comelec to open a possible scenario where anyone’s right to vote is jeopardized. The most prudent thing to do is to presume that all of those who registered will vote, and that presumption should be made to stand until the poll closes, when the voters’ intention to abstain becomes definite.

A projected scenario where only “75% will vote and 25% will not vote” is at best speculative. For a policy to be drawn on the basis of such speculation, especially when the same affects a fundamental human and constitutional right, is a new low for Comelec.

The right to vote, in the context of the Philippines, includes the right to be assured that there is a ballot reserved to anyone who has registered to vote, and that reserved ballot is available to the voter up to the end of the polls. Such right cannot be made uncertain in any way or its exercise made contingent on chance.

Even the new instruction is so vague that it will surely raise confusion among the teachers serving as the Board of Election Inspectors (BEI). For one, the criteria for replacement – that is absence of fault on the part of the voter – is in itself problematic. It has to be recognized that rejection of ballots can be for wide-ranging reasons from marks affecting the ballot’s barcode, serious creases, etc. But who should decide if it is the voter who is at fault or it is the system? How is this determined? Do the BEI members have the technical knowledge to decide when it is a systemic defect or not?

If the voter is not satisfied with BEI ruling where can the voter go to question it? Is there a limit on how many times can you change your ballot? These basic questions have to be anticipated, and there should be definite guidelines to lessen any arbitrary exercise of discretion on the part of the BEI. Unfortunately, the amended “General Instructions” contains none. 

While it is admirable that the Comelec is trying hard to refine and make the voting procedure more transparent, it is difficult to understand is why all of these changes are happening only less than a month before elections, and only after the completion of the BEI trainings. The Comelec chairman, who admitted to have made this suggestion, was appointed in May of 2015. Why did he not suggest it earlier if he thinks it is the right thing to do?

Clearly, this has not been thought-out well – like the other “improvements” Comelec had tried to introduce at the last minute, only to take it back again. It was obviously an afterthought and hastily adopted without the necessary foundational preparations. (READ: Comelec junks P26M ‘bib vests’ for teachers and Comelec junks planned canvassing in Manila Hotel)

If the poll body was dead serious about this scheme, it should adopted and planned it early on. Contingency ballots could have been increased or the ballot allocation doubled to serve as buffer; teachers could have been trained on how to resolve accompanying issues; and polling precinct procedure should have been adjusted in anticipation of the issues that may arise.

While transparency is indeed important, everyone’s right to vote is equally, if not more, important. Comelec lately has been seemingly obsessed with superficial and cosmetic reforms to enhance the agency’s public image. In the process, it loses its focus on the important and the critical matters. It should channel its energy on ensuring the timely delivery of voting machines, conducting voter education, and retraining teachers, especially on the contingency procedure and on the security situation in the polling areas. Definitely not among them should be prescribing bib vest uniforms for teachers, canvassing the votes at the Manila Hotel, and now this last-minute changing of rule on ballot replacement. –  

Emil Marañon III is an election lawyer who served as chief of staff of retired Comelec Chairman Sixto Brillantes Jr. He is currently studying Human Rights, Conflict and Justice at SOAS, University of London, as a Chevening scholar.  

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Emil Marañon III

Emil Marañon III is an election lawyer specializing in automated election litigation and consulting. He is one of the election lawyers consulted by the camp of Vice President Leni Robredo.