Neither fraud-proof nor error-free

AN E-MAIL tsunami flooded last Sunday’s “No-proc nightmares.” One common concern is the intrinsic value and inherent danger of automating our 2010 election. In response, let me say that computerization hastens the counting and canvassing of the votes but it is not fraud-proof or error-free. Neither will it eliminate “guns, goons and gold.” Public vigilance, via the National Movement for Free Elections (Namfrel), Parish Pastoral Council for Responsible Voting (PPCRV) and other watchdogs, is still absolutely needed.

Trust, not speculation. The Supreme Court, in “Information Technology Foundation vs Comelec” (Jan. 13, 2004), warned that reckless computerization could bring “the grim prospect of election fraud on a massive scale by means of just a few key strokes.”

I will not speculate on what technological defects could bug the electronic machines or software that the Comelec is procuring, or their vulnerability to computer viruses and determined hackers. Like all well-meaning citizens, I can only trust that the officials and advisers of the commission will duly perform their jobs and that the computers will flawlessly work.

Neither am I ready at this time to pass upon the claim of TransparentElections.org.ph, led by former Comelec Chairman Christian Monsod, that the more expensive automation system adopted by the Comelec – the Optical Mark Recognition (OMR) – lacks transparency and, thus, is vulnerable to fraud.

Rather, let me discuss something real: (1) our experience with our first automated election in 1998, and (2) the presidential contest in 2000 between George Bush and Al Gore, which nearly plunged the United States into chaos.

Loong vs Comelec. The May 11, 1998 election in the Autonomous Region in Muslim Mindanao (ARMM) was our first experiment with automation. Similar to the OMR currently adopted by the Comelec, voters at that time did not write the names of the candidates. Instead, ballots with the pre-printed names of the candidates were handed to the voters who simply shaded the oval spaces opposite the names of their chosen candidates.

The ballots were then fed to an optical scanning machine that counted the votes and printed out the tallies. The process took away the discretion of the board of election inspectors in appreciating the ballots, thereby eliminating human intervention. Unlike the manual system, the automated ballots were not counted at the polling places. They were brought to a designated center where the counting machines were located.

On May 12, 1998, Comelec officials noticed that, in three ballots, the oval space opposite the name of a candidate in Pata, Sulu (a part of the ARMM) was shaded but the machine did not count them because the ovals had not been properly aligned to the candidate’s printed name. In reaction, the Comelec ordered the stoppage of the automated counting in the entire province of Sulu, not just in the voting center where the defect in the three ballots was detected. To cut the story, all the ballots cast in the entire province were brought to the Comelec headquarters in Manila, where they were manually counted.

In “Loong vs Comelec” (April 14, 1999), the Supreme Court upheld the Comelec’s manual count of the automated ballots. Since the automation law “did not provide a remedy for errors that were not machine-related,” the Comelec could not be prevented from “levitating above the problem,” because the law “did not prohibit manual counting when machine count did not work.”

I dissented from the majority mainly because there were no rules on how to manually count electronic ballots. The rules on manual counting could not be used in appreciating automated ballots. These rules were peculiar to hand-written votes, not to merely shaded ballots. They were good, for instance, in determining whether a ballot was written by one hand or two hands, but not in appreciating the voter’s intent via the mere shading of pre-printed ballots.

Bush vs Gore. A similar question arose during the 2000 US presidential election. The electoral votes in all US states – except Florida – showed Al Gore slightly ahead of George Bush. Under their automated system, Florida voters indicated their choices “through ballots to be perforated (not shaded) by a stylus but which either through error or deliberate omission, had not been perforated for the machine to count them. In some cases, a piece of the (ballot) – a chad – was hanging by two corners. In other cases, there was no separation at all, just an indentation on the ballots.” So the machines did not count them.

Should these imperfectly punched ballots be manually counted? If so, Gore’s victory would be sealed; if not, Bush would win. To Gore’s jubilation, the Florida Supreme Court decreed a manual count. But on appeal, the US Supreme Court, in “Bush vs Gore” (Dec. 12, 2000), reversed the verdict, holding that “the use of standard-less manual recounts violated the equal protection clause.”

Despite widespread media howling and despite winning the popular vote (but not the electoral college), Gore accepted his close 5 to 4 loss in the US Supreme Court thereby averting a chasmic crisis in the world’s only super power. On Feb. 9, 2006, during my watch as chief justice, Gore told me during a private visit here that democratic institutions were more important than his victory. “The Supreme Court had spoken. Though I disagreed with the decision, I had a duty to respect and obey it,” he calmly said.

Heaven forbid, but should a similar electoral aberration occur during our 2010 presidential elections, I wonder what would happen. No-proc?

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