[OPINION] Releasing fake or incomplete election surveys can send you to jail

 

The press release claims: “In the latest Social Weather Stations survey, conducted February 25-28, 2019, Go received the approval of 47 percent of the respondents to claim solo third place, from  his 5th to 6th place finish in the survey conducted last January 23-26, 2019.” 

In response to the supposed “surge” in survey rankings, Bong Go thanked the people saying, “Nakakataba ng puso at nakakawala ng pagod, laolong-lalo na po kung dumarami ang naniniwala sa inyo. From bottom before, unti-unting (tayong) umangat.” (It is heartwarming and makes the hard work worth it, especially if more and more people believe in you. From the bottom before, we've slowly risen.)

On the same day Go issued the statement, MindaNews ran a story on the survey, but carried a disclaimer from SWS president, Dr Mahar Mangahas: “It is unethical for you to use anything that is not on our website…Do not gratify propagandists who cannot back up their claims. Ask whoever released it to justify the release; whoever publishes something is legally bound to conform to Comelec full-disclosure rules on election survey publication.” 

PhilStar.com and Interaksyon ran stories on the survey as well, and also carried SWS' announcement that the public should rely only on survey results the polling firm posts on its website. The two news sites took down their stories without explanation. 

SWS didn't release any preference survey from that period, although Pulse Asia released its February 24-28 survey showing Go has risen to 3th to 5th slot

Regardless of whether Pulse Asia eventually confirmed candidate Go's improving performance in the campaigns, a person or political camp – presumably Go's – committed an election offense for leaking an unauthenticated table or incomplete survey results from another polling firm.  

Potent campaign tool 

As we have seen in recent years, survey trends have become a most potent campaign tool. Along with other factors, like popularity and media exposure, they can catapult a candidate to victory. This strategy cashes in on the so-called “bandwagon effect” or that herd mentality that make individuals alter their opinions to conform to the majority view, such as political outcomes. With the “bandwagon effect,” voters will want to be on the winning side, so they will more likely vote for candidates who are likely to win.

This voting tendency was the subject of the 1994 study “The Vanishing Marginals, the Bandwagon, and the Mass Media” by Robert K. Goidel and Todd G. Shields involving 180 students at the University of Kentucky. The study confirmed that electoral expectations play a significant role in individual-level vote choices, even transcending partisan and ideological identification. The study yielded these interesting conclusions:

While no formal study has been conducted in the Philippines, experience gives you reason to believe that this “bandwagon effect”could have a more potent effect here, given our very weak political party culture, personality-driven elections (rather than platform or ideology), low political maturity, and poor literacy rate. 

Recognizing the potency of surveys in shaping electoral choices, Congress passed in 2001 Republic Act No. 9006 or the Fair Election Act, which regulates election surveys. It mandates that, during the election period, no person, natural as well as juridical, candidate, or organization is allowed to publish a survey without disclosing the following attendant information: 

(a) The name of the person, candidate, party or organization who commissioned or paid for the survey 

(b) The name of the person, polling firm, or survey organization who conducted the survey 

(c) The period during which the survey was conducted, the methodology used, including the number of individual respondents and the areas from which they were selected, and the specific questions asked

(d) The margin of error of the survey 

(e) For each question for which the margin of error is greater than that reported under paragraph (d), the margin of error for that question

(f) A mailing address and telephone number, indicating it as an address or telephone number at which the sponsor can be contacted to obtain a written report regarding the survey in accordance with Subsection 5.3. 

The law also mandates that the survey, together with its supporting raw data, should be made available for inspection, copying, and verification by the Commission on Elections, a registered political party, a bona fide candidate, or by any Comelec-accredited citizen's arm. 

The main purpose of this regulation is not only transparency, but verifiability of the information released. Violation of any of these rules on surveys is an election offense punished with imprisonment of not less than one year but not more than 6 years and shall not be subject to probation. 

Rules cover candidates, political parties too

Now, did Bong Go violate any of these rules on surveys and thus can be subject to imprisonment? The regulation applies not only to survey firms like SWS, but covers candidates like Bong Go and registered political parties like PDP-Laban and Hugpong ng Pagbabago where he belongs.

To be clear, the provisions of the Fair Election Act do not seem to cover the act of releasing or using fake or falsified surveys. However, an election offense is committed when the survey is released by a candidate or camp without the required truthful and relevant information, like the methodology, the areas covered, the specific questions asked, and the margin of error, among others.

Can Bong Go be held liable if he only issued a press release about his alleged rating or surge in ranking, but not the supposed leaked survey table? Yes. The “survey” that is subject to regulation is mere “measurement of opinions and perceptions of the voters as regards a candidate's popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters' preference for candidates or publicly discussed issues during the campaign period.”

Thus, claims of popularity or surge in preference purportedly on the basis of survey is undeniably covered and comes within the purview of the law. Thus, Go's press release should have complied with the Fair Election Act. 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.