The May 13, 2019, elections as seen on TV was almost apocalyptic, with lines snaking, people sweating under the summer sun, and complaints were reverberating from one precinct to another. And then, the VCMs or vote-counting machines in some precincts bogged down.

The Commission on Elections immediately pegged the numbers of “malfunctioning” VCMs at 800, but more reports could have reached it as the day progressed. This figure has to be understood in the context of how Comelec understands what malfunctioning VCM means – that it pertains to a hardware error or the problem attributable to the machine itself; it excludes problems those attributable to defective SD cards or memory cards. 

The number of SD cards with errors amounted to more than 1,600, resulting, of course, to additional non-functioning VCMs. The figures for the SD cards, however, does not necessarily translate to 1,600 non-functioning machines since each machine has two SD cards, and there could be instances where both two defective cards were for the same machine, not two different ones.

Putting these number together, we can estimate that around 2,000 to 2,400 VCMs didn’t function properly on Election Day. Hopefully, the Comelec can give us a definite number when the dust settles.

Now, should we dismiss 2,000 to 2,400 as statistically “acceptable,” given that there around 86,000 VCMs? (86,000-plus is also the number of clustered precincts nationwide. One machine is deployed to each clustered precinct.)

Even if we conservatively put it at 2,000 VCMs or at 2.3% of the total number of VCMs, the estimate represents around 1.44 million potentially affected voters, given the average of 720 voters per clustered precinct (61,843,750 registered voters/85,768 clustered precincts). It is still quite a huge number. 

We shouldn’t immediately interpret this, however, as 1.44 million voters being disenfranchised. Remember that even if a VCM breaks down, the Comelec has contingency rules to ensure that voting will still go on. We should also take note that the other 84,000 VCMs worked on Election Day.  

Tracing the problem to 2013

Much of the problem can be traced to how our automated election system was procured. In 2010, the AES and all its components (memory card, marking pen, ballot paper, and thermal paper, etc) were bidded out as a single package. The Comelec dealt with a single supplier, and accountability was easily traced.

In 2013, however, in response to the criticism that the 2010 elections was fully ran by a “foreign” entity, Smartmatic, and with the intention to open up the components to more bidders and hoping that prices would go lower, Comelec unbundled the components. Smartmatic, despite having provided the machines, was made to compete with the rest of the bidders for all the components, winning some and losing in others. Comelec ended up with multiple suppliers as procurement law forces it to get the lowest bid, opening itself to the risk of component mismatch.

For example, in 2013, there was mismatch between the marking pen and the ballot paper, causing absorption issues. Where instead of the ink being absorbed by the ballot paper, a pool of wet ink settled on the ballots, messing up with the machines’ lens. When the question of accountability arose, the marking pen supplier blamed the paper supplier and vice versa. Smartmatic ended up blaming both. Now, who is to penalize? 

Despite this experience, Comelec for the 2019 elections continued unbundling the AES components. There was again the case of marking pen and ballot paper incompatibility – this time the paper absorbs the ink too well and too fast that ink seeps or blots through the other side. Comelec as a precaution ended up recalling around more than one million marking pens weeks before May 13.  

Comelec, complying with bidding laws, also ended up with what it described as “cheap” SD cards that easily breaks, triggers configuration errors, or perhaps have compatibility issues with Smartmatic’s VCMs. 

Considering what has happened, it is time to seriously consider reforms not just in Comelec’s approach to acquisition but in government’s procurement as a whole – Congress should revisit that. Should we risk the integrity of our elections by tying Comelec’s hand and forcing it to go for the cheapest SD cards, rather than the best performing ones? Should Comelec consider rebundling all components once again just like in 2010? 

Here are my recommendations: 

First, the Comelec should seriously consider rebundling AES components into one single lot for the 2022 polls. Doing so will not only ensure compatibility of components but also give the sole supplier no excuses to pass the blame onto other suppliers. Rebundling will exponentially increase the contract amount so that very few suppliers will attempt to bid. It will lessen competition – which is undesirable in principle – but it will also weed out small, inexperienced and fly-by-night companies which can threaten the integrity of the elections by “diving” contracts and end up short-changing the Comelec. 

Second, Congress should study the possibility of exempting Comelec’s AES from our bidding’s laws, which require that awards be made on the basis of the lowest calculated bid, but with emphasis on quality and compatibility of the components. Alternative modes like negotiated procurement can be explored. To avoid abuses and corruption, auditing safeguards can be put in place and a fully transparent process be required from Comelec.

Third, the election budget of Comelec should be released by Congress two years ahead of the elections, not one year before, as has been the practice. The public must understand that, without an approved budget for the AES components, Comelec is not allowed by law to start the procurement process.

Bidding election components are way complicated than the usual bidding for government office supplies not only because of the magnitude of the money involved, but the special nature of the goods. Most of the time, it takes multiple biddings to procure an AES component due to successive failures that delays procurement until the 11^th hour. This would mean that that there is no sufficient time for thorough verification of the delivered items and no sufficient buffer for replacement if problems are found.

There is also no chance for rebidding of supplies or change of supplier if massive problems are detected. Releasing Comelec’s budget two years in advance gives Comelec more time for procurement. At the same time it gives interested parties time to sue questionable procurements or decisions if warranted by the circumstances. 

Countless criticisms have been hurled at Comelec, its field personnel, and the poor election workers, these criticism should be taken with due consideration that our elections are the most massive, most complicated, and most-challenging single-day project in the country – and perhaps one of the biggest in the world. It involves almost 62 million registered voters voting within 12 hours in 85,768 clustered precincts scattered throughout 7,000-plus islands.

Given this magnitude, there will always be operational lapses, mishaps, and even abuses, but this should rather be taken as a jump-off point towards improvement, rather than the cause to abandon it and go back to the manual elections, which is far worse. – Rappler.com 

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, whose victory is being contested by former senator Ferdinand Marcos Jr. Marañon served in Comelec as chief of staff of retired Comelec Chairman Sixto Brillantes Jr. He is a partner at Trojillo Ansaldo and Marañon (TAM) Law Offices.