On March 6, Senator Vicente “Tito” Sotto III gave a privilege speech, accusing the Commission on Elections (Comelec) and Smartmatic of electoral fraud, which he claims would constitute “a case of electoral sabotage.”

His cheating allegation came after losing vice presidential candidate Bongbong Marcos also accused the Comelec of electoral fraud on the basis of squares and missing ovals on the ballot images, which later turned out to be just the new features of the 2016 vote counting machines (VCM). (READ: What Bongbong Marcos should understand about ballot images)

The accusation from the Marcos camp triggered public exchanges with the camp of Vice President Leni Robredo, prompting the Supreme Court to issue a gag order on both parties.

Senator Sotto claimed in his speech that “a concerned and impecably reliable source” handed him confidential information on certain irregularities that transpired during the May 9, 2016, national and local elections, which allegedly “altered” the results. He alleged that:

• There was an early transmission of votes – before the elections even started.
• The election server was accessed remotely.

In his followup privilege speech on March 14, Sotto made two more allegations:

• There were 4 “queueing servers” through which transmissions from vote-counting machines went instead of going straight to the consolidating canvassing system (CCS).
• The Comelec Transparency Server received only 96.14% of election returns, and that there were “untransmitted” 3.86% of election returns, equivalent to 1.7 million votes. He said this would be “very crucial to ongoing electoral protests.”

Let me address the points the senator raised. 

Untransmitted results

It is already 2018, and Senator Sotto is still talking about 3.86% of election returns not transmitted to the Comelec Transparency Server. This issue has long been answered by the Comelec.

First, it bears reiterating that the votes transmitted from the VCMs straight to the Comelec Transparency Server are unofficial – they were not used in and has no bearing on the official count. The official results are those that go up the “ladderized system” of canvassing: starting with the VCM to the Municipal Board of Canvassers (MBOC), then to the Provincial Board of Canvassers (PBOC), and ultimately to the National Board of Canvassers (NBOC).

Second, the Comelec has been repeating in the last two years that 100% of the votes cast during the 2016 elections have been accounted for and credited to the right candidates. Sotto’s “impeccably reliable source” should have advised him that while it is true that 3.86% of clustered precincts were not able to transmit electronically, this does not mean that they have not been transmitted at all.

Under the contingency plan laid down by the Comelec in Resolution Number 10101, it provides that “[i]f the transmission fails, the [Boards of Election Inspectors] shall transport the VCM to the canvassing center for manual uploading of data from the main SD card to the CCS laptop.” This means that those 3.86% untransmitted electronically were nonetheless manually uploaded to the CCS laptops of the Municipal Board of Canvassers and thus accounted for.

Early transmission of votes

Sotto also alleges that there were “early transmission of votes” by certain VCMs to Municipal Boards of Canvassers (MBOC). He specially mentioned that there was early transmission activity on May 8, 2016 (a day before the elections), involving the Consolidated Canvassing System of the municipality of Libon, Albay, and in the morning of May 9, 2016, election day, in the CCS of the municipality of Angono, Rizal.

It is very important to note that while he claims that there were “early transmission of votes,” the senator has not shown a single vote that has prematurely been transmitted. In fact, this could never have happened. Senator Sotto and his “impecably reliable source” may have missed the presence of a “firewall” on the servers, acting like a flood gate, that prevents the reception of results before the closing of the polls in the evening of May 9, 2016.

This feature has been added to prevent that experience in 2010 elections, where many Boards of Election Inspectors (BEI) accidentally sent Final Testing and Sealing (FTS) information, causing the server to subsequently reject the actual vote results, since the CCS laptops had been programmed to receive results only once.

Comelec nonetheless admitted that the “transmission activities” in Libon and Angono flagged by Senator Sotto may have indeed happened. The commission, however, explained that these are just FTS activities, where the connectivity of the VCMs to the server was being tested and that there was nothing anomalous about them. The senator, however, dismissed the explanation, claiming that the “the last official testing was made on April, 23, 2016,” and thus the ones transmitted on May 8 and the morning of May 9 could not have been from the FTS activities.

Although the date mentioned by Senator Sotto was inaccurate, it still deserves some clarification. Under Comelec Resolution Number 10057 or the “General Instructions for the Boards of Election Inspectors (BEI),” the date set for the Comelec for the testing and sealing of the VCMs was between May 2 and 6, 2016, on the date chosen by the Election Officer. So why were there activities detected in Libon, Albay, on May 8, when all FTS activities should have been completed by May 6, 2016? Or in the morning of May 9 in Angono, Rizal, when the VCMs are supposed to be offline during voting hours?

The reason can easily be explained. There are 92,509 VCMs that were used for the 2016 elections and all of them had to undergo final testing sealing ideally between May 2 and 6, 2016. However, considering the sheer number of the machines and our complex geography, there were cases where the FTS were not conducted on the designated schedule. Logistical and technical problems could exist where the VCMs were not delivered before the FTS dates, were broken, or when they malfunctioned. For any of those reasons, FTS may not be completed within the May 2 to 6 schedule, and replacement parts or intervention had to be wait. In anticipation of that eventuality, the Comelec issued Resolution Number 10101, laying down a contingency plan, one of which was to mandate and to authorize the BEI to still conduct the FTS even outside the designated dates but before the actual election.

Understandably, Senator Sotto may dismiss this explanation as well since it has become clear by now that the thrust of his “bombshell” is to paint a really bad picture of the last election, with the senator even claiming “electoral sabotage.” 

This exposé interestingly came after the February 13, 2018, “gag order” issued by the Supreme Court, directing the camps of Vice President Leni Robredo and losing candidate Bongbong Marcos  to refrain from discussing their respective poll protests in public. What is more interesting is the allegations came from a sitting senator and the exposé was made through a “privilege speech” in the halls of the Senate, clearly to take advantage of parliamentary immunity.

Was there electoral fraud?

People must understand that electoral fraud, or sabotage for that matter, is all about the numbers. Following the definition in Section 42 of Republic Act Number 9369, the essence of fraud is increasing (vote padding) or decreasing (vote shaving) the votes received by a candidate such that it adversely affects the results of the election and a losing candidate is made to appear the winner. Now, did Sotto claim any changes in the number of votes that favored any elected official?

Read both privilege speeches of Senator Sotto, and see that, while he has thrown in all those technical jargons and whatnots, he failed to show any increase or decrease in the votes of any candidate caused by those early transmission activities, by the alleged remote access to the Comelec server, or by the presence of the supposed 4 “queueing servers.”

How to detect election fraud during transmission?

As I have been repeating for the longest time, if someone claims that votes have been padded or shaved in the transmission phase either by early transmission, remote access, or mysterious queue servers, then there’s a simple yet most effective trick to detect fraud. We only need to compare the election results generated at the precinct level with the results received on the other end of the transmission chain, starting with the MBOC, then the PBOC, and ultimately the NBOC. If one can show discrepancy in the numbers, even a single vote, then that is proof of election fraud.

If it is this easy to confirm to fraud, then why not do this?

In every precinct, there are 30 copies publicly distributed, including to the parties of Senator Sotto and former Senator Marcos. The same case at the level of the boards of canvassers. In other words, the very documents that Sotto or Marcos would need are already in their possession. (READ: What Marcos Jr should do to prove election fraud)

To me, the only reason they have not shown any discrepancy in the votes is because there was none. Despite the rabid attacks thrown against the 2016 automated elections, no one has yet to show any discrepancy between the precinct results and the transmitted results as received by the MBOC, PBOC, or the NBOC – not even Marcos, who also claimed transmission fraud in the Transparency Server in 2016, only to find himself eating his words.

In the end, we should be wary of Senator Sotto’s accusations. Even if miserably unsubstantiated, they have an overreaching consequence on the public’s perception of the election system. Elections are founded on the people’s trust in the electoral system. Every accusation that can erode the people’s faith in elections has to be answered and explained adequately by the Comelec. This is also a call for greater transparency and for wider and deeper engagement with the public and external stakeholders as regards the technical side of the automated election.  

This is also a call for prudence on the part of government officials like Senator Sotto: before making wild accusations, they have to vet their information and their informants very carefully; otherwise, they end up “burnt,” just like losing vice presidential candidate Bongbong Marcos and the many fearmongers before him. – 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.