[OPINION] The shading threshold in Marcos v. Robredo

When the Filipino people voted on election day of May 9, 2016, they voted by shading an oval next to the name of the candidate they chose to vote for. Most of us fully shaded those ovals. Some, for one reason or another, shaded the ovals only 75%, 50%, or even 25%. 

For those who shaded their ovals to cover at least 50%  of the oval, there was no problem. Their vote was counted by the Vote Counting Machine or VCM. In fact, there was also no problem for those who only shaded 25% of the oval. The VCM for the 2016 elections was programmed by the Comelec to read and count a 25% shaded oval as a valid vote. During the 2010 elections, the shading threshold was 50%. However, for the 2016 elections, the shading threshold was lowered to 25%. 

The Comelec has specified to Smartmatic that marks which cover at least 25% of the area of the voting oval be read as a vote. There was a technical reason for the decision of the Comelec to lower the shading threshold from 50% to 25% in the 2016 Elections.

For the 2016 elections, the Supreme Court ordered the Comelec that the  VCM should be able to give the voter a “receipt” of his votes, or a “voter’s verifiable audit paper trail.” This is the sheet of paper that comes out of the VCM after the ballot is read by the machine. It contains the names of the candidates the voter voted for. This is handed to the voter who verifies the names of the candidates printed on the “receipt,” then the voter gives it back to the BEI. 

To enable this feature on the VCM and to comply with the Supreme Court directive, Smartmatic had to deactivate another feature on the machine. The feature that Smartmatic chose to deactivate was the one that prompted the machine to return the ballot to the voter if there are undervotes or ambiguous marks. To compensate for the loss of this feature, the Comelec just decided to ensure that the chances of a mark would be read as a vote by lowering the shading threshold from 50% to 25%. This is how the VCM read the ballots in the 2016 elections. It considered a 25% shade or mark on the oval automatically as a valid vote.   

In the election protest case filed by Bongbong Marcos against Vice President Leni Robredo, the Supreme Court decided that for purposes of the physical count – or the manual counting of votes before claims and objections on the ballots are made by the parties and ruled upon by the Court – the 50% threshold should be observed. This means that in the manual counting of votes in the Marcos election protest, any shade less than 50% shall not be counted, even when the VCM was programmed to count votes with shades of less than 50%, at least up to 25%. This would mean that there is sure to be a discrepancy between the election day VCM count as recorded in the election returns, and the election protest physical count, as votes with less than 50% shading are now automatically eliminated from the physical count. 

The election protest starts with the revision of a 25% pilot precinct standard test, where Marcos should be able to prove a significant recovery of votes that would impress upon the Court that his protest is meritorious, and that there is ground to continue with the revision of the rest of the 75% of the protested precincts. A big discrepancy between the election protest physical vote count and the election return count, arising from the application of an increased shading threshold, will thereby impress upon the Court that indeed there is something wrong with the reported election returns. 

And since the protested precincts come from the bailiwicks of VP Robredo, it is almost certain that the discrepancy resulting from the application of the 50% shading threshold would refer mostly to her votes. While a 25% shaded vote for Robredo was counted by the VCM on election day, it would not be included in the physical vote count of the election protest. Robredo would have to claim it again during the revision, and convince the Court, ballot per ballot, that every single vote removed from the physical count is a valid vote for her. 

Undeniably therefore, the Court’s imposition of the 50% shading threshold would make the entire election protest a tedious process for VP Robredo, where now she has to fight and argue for votes that were already considered as valid votes by the VCM on election day. It opens her votes to more attacks, and to grounds for invalidation, where before there was none. The questioned ballots are therefore multiplied several times, by the mere expediency of applying a different threshold than that used by the VCM on election day.  

More importantly, the increase in the shading threshold also increases the Court’s discretion in ballot appreciation. Instead of determining voter’s intent at 25% shading in accordance with the VCM’s programming, the individual members of the Court, enough to comprise a majority, can throw in a new interpretation of the meaning of voter’s intent, and set it at the 50% shading threshold. If the voter’s intent was set by the Comelec on election day at 25% shading, can the Court, in a highly politicized election protest, increase the same to 50%?

After the wildly baseless decision of the Court in the case of Sereno v. Republic – where the Court chose to oust their own Chief Justice, against all constitutional deliberation records and jurisprudence on the removal of impeachable officials – judicial discretion has become a dangerous thing. The ruling of the Court imposing the 50% shading threshold in reviewing election results that were determined on a 25% threshold might therefore be a portent of things to come. It forecasts how the Court intends to exercise discretion in Marcos v. Robredo.  

And as any election lawyer for a protestee would attest to, judicial discretion in election protests is not a good thing, because herein lies that window of opportunity where ballot appreciation can be as conservative as it should be, or as radical as the wind can carry it, especially in super politically-charged contests where judges, Comelec commissioners, or Supreme Court justices are never exactly insulated or immune from influence. – Rappler.com