On Monday, January 29, former senator and losing vice presidential candidate Ferdinand “Bongbong” Marcos Jr held a press conference, where he reiterated his accusation of cheating against the Commission on Elections (Comelec), Smartmatic, and Vice President Leni Robredo. 

You will recall that on August 29, 2017, the Presidential Electoral Tribunal dismissed his earlier claims that Robredo cheated him by rigging the transmission of votes to the Comelec Transparency Server. This time, he claims that Robredo cheated him through SD cards, which were supposedly formatted in secret hubs surreptitiously authorized by the Comelec. According to him, the rigged SD cards instructed the vote-counting machines (VCM) to count in favor of Robredo regardless of the actual vote fed into them. 

To prove his allegation, Marcos presented what he called “shocking” evidence: 5 ballot images. Three of them purportedly show a case of “overvotes,”or where the voters erroneously cast multiple votes for vice president yet the machines counted them in favor of Robredo. The two other ballots showed shades for Marcos but were not counted by the machine. Marcos also questioned the presence of boxes in the ballot images and the fact that the ovals in the original ballots have disappeared in the scanned images.

READ ALSO: What Marcos Jr should do to prove election fraud

To determine if these marks on the ballot images are anomalous, we should first understand basic concepts in our automated election system.

What are ballot images? 

Ballot images are scanned copies of the physical ballots used during elections. Every time a voter feeds his ballot to the VCM, the latter scans it, encrypts the scanned image for security, and stores the image on the SD card. Later, the SD cards containing the images are backed up and stored in a secured Comelec facility.

Why is there a need for ballot images? 

Ballot images are a security feature of the automated election system. It prevents the old-school cheating scheme where losing candidates would tamper with the original paper ballots, file an election protest before courts, and “prove” their case using the doctored ballots. This was prevalent in manual elections, as the paper ballots were not only the primary evidence of the votes, but the only available evidence. 

With ballot images, however, losing candidates may tamper with the physical ballots all they want, but the Comelec retains scanned copies of the originals. Thus, the poll body will be able to detect and debunk any post-election tampering by comparing the images with the physical ballots.

Since their introduction in 2010, ballot images have been successfully used to expose post-election fraud. Even the Supreme Court, in a string of jurisprudence, has elevated their reliability to a level not just equal, but even higher than, the physical ballots.

What is this threshold?

In the topmost portion of the ballot, the voter is instructed, using the official marker provided by the Comelec, to fully shade the inside of the ovals corresponding to the chosen candidate. The instruction shows an example of the proper shade that the VCM will admit as a valid vote. 

The Comelec, however, anticipates, as it should, that not everyone will comply with the instructions or even read them. This where the so-called “threshold” comes in. The threshold refers to the minimum amount of shade in the oval which the VCM will admit as a valid vote. 

What percentage of shade is considered the minimum threshold? Republic Act Number 8436, as amended, is silent on this. The determination of the shading threshold is, however, deemed included in the general authority given by Congress to the Comelec to use an automated election system. So far, the percentage of the threshold has varied and been continuously adjusted by the Comelec every automated election. In 2010, the threshold set by the Comelec was at 50% of the oval; in 2013, it was significantly lowered to 20%; in 2016, it was slightly increased to 25%.

Why does the Comelec keep on changing this? It must be understood that setting the threshold too low would cause the VCM to interpret dirt, spots, and accidental marks as valid votes. On the other hand, if set too high, there is a risk that the machine will not count those shades which are less than full, and this could lead to disenfranchisement. Like Goldilocks finding her perfect porridge, the Comelec settled at 25% in 2016.

How does this rule on threshold play out?

If the shade in the oval reaches the 25% threshold, it is considered a valid vote by the VCM and counted in favor of the corresponding candidate. A shade less than the 25% threshold is not considered a valid vote and therefore disregarded as stray or a vote not credited to any candidate. 

In a single slot position – say, for the position of vice president – when two shades satisfy the threshold, the VCM will interpret it as a double vote. A double vote is considered a stray vote and, thus, the vote will not be credited to either of the candidates.

If this is the rule, then why were the ballots presented by Marcos showing apparent overvotes credited to Robredo, and not considered as stray votes? A closer look will show that the shades for Robredo satisfy the threshold, while the shades for Marcos did not. Clearly, the VCM interpreted the compliant shades for Robredo as valid votes and disregarded the others as stray. While there are two conflicting manifestations of intent to vote, of the two, the one with the fuller shade can be safely deemed as the clearer manifestation of the voter’s intent to vote, thus taking precedence.

Why are there ‘boxes’ around the shades?

The boxes on the ballot images are one of the improvements introduced in the 2016 elections, a feature not present in the 2010 and 2013 ballot images. The boxes are intended as visual indicators that a particular shade has passed the 25% threshold requirement.

Why is there a need to adopt this feature? The boxes around the shades are the VCM’s way of telling revisors – or those who manually count the physical ballots in recount proceedings – which among the shades passed the 25% threshold (boxed) and those that fell below (no box).

The human eye may see shades in the oval, but it can never be certain as to its exact amount. The VCM, on the other hand, has the technological capability to determine with precision whether a shade satisfies a threshold, be it set at 1%, 99%, or 25%. Thus, following the 25% threshold in the 2016 elections, a 24% shade will be rejected by the VCM being below the minimum, a level of precision and sophistication which the human eye does not have. This VCM versus human eye appreciation of shades can present confusion during the recount proceedings, especially in how to treat apparent double votes. But this is a more complicated issue deserving its own article. 

Why are ovals in the original ballots not visible on printed ballot images?

The explanation for this is very simple. The ovals in the original ballots are deliberately printed in red precisely for them to be invisible to the VCMs. Why print in red and not in black so they can be seen on the ballot images? The VCM scanner sees in black and white. When the ovals are printed in black and are detected, it can affect how the machine measures whether a shade satisfies the threshold or not.

In the end, all of these “shocking” anomalies pointed out by Marcos are not evidence of cheating but are just new features or improvements in the automated voting system, which Marcos unfortunately did not understand.

It must be recalled that the 2016 VCMs are entirely new machines, different from the precinct count optical scan (PCOS) machines used in the 2010 and 2013 elections. All of these changes, including the new format of the ballot images, have been reviewed by political parties and independently reviewed by United States-based company SLI Global Solutions (SLI) as required by RA 9369. The features should not have come as a shock to election observers.

However, to prevent surprises in the future or to prevent anyone from mistakenly crying foul over nothing, the Comelec should completely, patiently, and publicly disclose all changes to the voting system down to that innocent red oval or that innocuous box. Most Filipinos now, especially millennials, are tech-literate and can easily grasp these concepts. With the public being well- and fully-informed of the voting technology and its intricacies, it is easier to arrest any misinformation or disinformation thrown around to discredit the electoral system or any winning candidate. – Rappler.com 

Emil Marañon III is one of the election lawyers consulted by the camp of Vice President Leni Robredo, whose victory is being contested by former senator Ferdinand Marcos Jr. Marañon served as chief of staff of retired Comelec Chairman Sixto Brillantes Jr. He graduated from the SOAS, University of London, where he studied Human Rights, Conflict and Justice as a Chevening scholar.