Dear Atty. Gab,

Musta Atty! I hope this email finds you well. My name is Ricardo Cruz, and I served as the campaign manager for a local candidate, Mr. Armando Reyes, in the recent May 2023 elections here in San Isidro, Nueva Ecija. We recently filed an election protest because the results seemed very suspicious in several precincts.

Mr. Reyes lost by a narrow margin of about 1,500 votes. We protested the results in 30 clustered precincts where we believed irregularities occurred. During the initial revision ordered by the Municipal Election Tribunal (MET), we focused on 8 pilot precincts. The physical recount of the paper ballots in these precincts showed a significant gain for Mr. Reyes – enough to potentially overturn the overall result if the trend continued!

However, the camp of the proclaimed winner is now arguing that the physical ballots might have been tampered with after the election, pointing to some allegedly loose seals on a few ballot boxes. They are asking the MET to disregard the physical recount and instead use the digital “picture images” of the ballots that were supposedly stored on the Compact Flash (CF) cards used in the voting machines (it was an automated election using optical scanners).

I’m confused, Atty. Can they really do that? I thought the paper ballot we voters actually filled out is the official vote. How can a digital picture stored on a memory card be considered the same, especially if we suspect the original cards might have also been compromised? We heard rumors during the canvassing about some CF cards being replaced. What is the primary evidence here? We believe the physical ballots show the true will of the voters in those precincts. What are our rights in this situation?

We would appreciate any guidance you can offer.

Respectfully yours,
Ricardo Cruz

Dear Ricardo,

Thank you for reaching out. I understand your concern and the anxiety that comes with navigating an election protest, especially when faced with arguments about the validity of different forms of evidence.

The situation you described touches upon a crucial aspect of modern elections conducted using automated systems. In essence, the law recognizes that in paper-based automated elections, like the one you described using optical scanners, the system captures digital images of the paper ballots. Under specific conditions and legal frameworks, these digital images can indeed be considered as evidence reflecting the voter’s intent, alongside the physical paper ballots. However, the integrity of both the physical ballots and the digital images (including the storage media like CF cards) is paramount. The election tribunal must carefully weigh the evidence presented regarding the condition and preservation of both forms to determine which source most accurately reflects the true will of the electorate, particularly when discrepancies arise.

Decoding the Vote: Paper Ballots vs. Digital Records in Automated Elections

The advent of automated election systems (AES) introduced new layers to how votes are cast, counted, and contested. Republic Act No. 9369, which amended election laws to accommodate automation, provides definitions crucial to understanding your situation. An automated election system (AES) refers to technology used in various stages of the electoral process, including voting and counting.

“Sec. 2(1) Automated election system, hereinafter referred to as AES – a system using appropriate technology which has been demonstrated in the voting, counting, consolidating, canvassing, and transmission of election result, and other electoral process.”(Republic Act No. 9369)

The system used in San Isidro, involving paper ballots fed into optical scanners, falls under the category of a paper-based election system. This is distinct from systems where votes are directly recorded electronically without a physical paper ballot marked by the voter.

“Sec. 2 (7) Paper-based election system – refers to a type of automated election system that uses paper ballots, records and counts votes, tabulates, consolidates/canvasses and transmits electronically the results of the vote count.”(Republic Act No. 9369)

Now, regarding your central question about the status of the paper ballot versus its digital image: R.A. 9369 provides a specific definition of an “official ballot” in the context of automated elections. It acknowledges that the vote exists both physically (on paper) and electronically (as data or an image).

“Sec. 2 (3) Official ballot – where AES is utilized, refers to the paper ballot, whether printed or generated by the technology applied, that faithfully captures or represents the votes cast by a voter recorded or to be recorded in electronic form.”(Republic Act No. 9369)

This definition is key. It suggests that the digital image captured by the scanning machine, if it “faithfully captures or represents the votes cast,” can also be considered a representation of the official ballot. This aligns with principles recognizing electronic documents or images as potential equivalents of original paper documents, provided their accuracy and integrity can be established. The picture images scanned and recorded by the machines, often stored in encrypted formats on devices like CF cards, are designed to be digital representations of the physical ballots.

Therefore, the argument to use the digital images is not automatically invalid. The election tribunal (MET in your case) has the authority to consider these images. However, this is not absolute. The critical factor becomes the integrity of the evidence. Just as you are questioning the integrity of the ballot boxes containing the physical ballots, the opposing camp must demonstrate the integrity of the CF cards containing the digital images, especially given your concerns about potential replacements or defects.

If there is substantial evidence questioning the preservation or integrity of the physical ballots (e.g., proven tampering with ballot boxes before revision), the tribunal might consider the digital images as a potentially more reliable source, provided the integrity of those images and the CF cards is also established. Conversely, if you can successfully challenge the integrity of the CF cards (e.g., by proving they were defective, replaced improperly, or tampered with), then the physical ballots, despite questions about the boxes’ seals after the election, might be deemed the better evidence.

The tribunal typically holds hearings to determine these preliminary issues. The burden of proof lies with the party alleging tampering or lack of integrity, whether concerning the physical ballots or the digital records. The MET will evaluate the evidence presented by both sides – testimonies, condition reports of ballot boxes and seals, logs regarding CF card handling, technical expert opinions, etc. – before deciding which evidence (physical count, digital image count, or even the original election returns if both ballots and images are compromised) best reflects the voters’ true intent in the contested precincts.

Practical Advice for Your Situation

• Document Everything: Meticulously record all observations regarding the condition of ballot boxes, seals, and any irregularities noted during the initial revision process. Photographic or video evidence is highly valuable.
• Challenge CF Card Integrity: If you have basis (like the rumors you mentioned or official records of replacements), formally challenge the integrity of the CF cards for the contested precincts. Request authentication procedures to ensure the data is genuine and unaltered.
• Present Evidence on Ballot Box Integrity: Counter the claims of tampering by presenting evidence that the ballot boxes were secure until the official revision, or that any perceived issues with seals occurred after the election or did not compromise the ballots themselves. Emphasize the findings of the physical recount.
• Highlight Discrepancies: Clearly present the significant discrepancies found between the physical count during the pilot revision and the results initially transmitted (presumably based on the CF cards/machine count). Argue that the physical recount reveals the true vote.
• Understand Burden of Proof: Recognize that the party alleging tampering or lack of integrity (whether of physical ballots or CF cards) generally bears the burden of proving it with substantial evidence. Prepare to meet this burden for your claims and challenge the evidence presented by the opposing party.
• Participate Actively in Hearings: Ensure your legal team actively participates in any preliminary hearings set by the MET to determine the integrity of either the ballots or the CF cards. Present your witnesses (poll watchers, officials) and documentary evidence effectively.
• Argue for Continuation (if applicable): Based on the favorable results in the pilot precincts, argue strongly that the physical revision should continue for the remaining protested precincts as it demonstrates a clear trend and reflects the voters’ will, provided you can defend the integrity of the physical ballots.

Navigating election protests in the automated era involves understanding the interplay between physical evidence and digital records. While digital images can be considered official representations, their reliability hinges on proven integrity, just like the physical ballots. The MET’s role is to sift through the evidence to find the most accurate reflection of the vote.

Hope this helps!

Sincerely,
Atty. Gabriel Ablola

For more specific legal assistance related to your situation, please contact me through gaboogle.com or via email at connect@gaboogle.com.

Disclaimer: This correspondence is provided for informational purposes only and does not constitute legal advice. For specific legal guidance tailored to your situation, please schedule a formal consultation.