On May 10, 2010, Filipinos will cast their ballot for president, vice-president, senators, congressmen, governors, mayors and other key offices in their national and local election. For the first time ever, over 50 million voters will vote using new technologies nation-wide– specifically, optical scan voting machines – at its 76,340 precincts.
The public thirst for rapid and objective results has increasingly led countries to adopt new technology to improve electoral processes. Automation is often a complicated process, especially in countries with limited infrastructure, and frequently the attention of decision-makers gets overwhelmingly focused on technical aspects. Technology, however, impacts all aspects of elections, including those that might at first seem immune, and may lead to unintended consequences. One of the areas that is often most affected by transitions to new technologies is the system of legal complaints and adjudication.
Since 1998, IFES has been in the Philippines lending its expertise to the COMELEC in a variety of different electoral issues. In the Philippines, the need for new rules on protests weighs heavily upon the Commission on Elections (COMELEC), and some civil society stakeholders have endeavored to provide assistance in the drafting and crafting of these rules. IFES helped arrange two programs to support the COMELEC as it updates its legal infrastructure to better respond to the changes presented by the new technology.
The first program involved having consultations, roundtable discussions and focus group sessions with lawyers and officers from the COMELEC and electoral tribunals, the Supreme Court, and top private law offices. These events were spearheaded by LIBERTAS, a democracy and human rights civil society organization with the technical support of IFES and financed by USAID. Based on the result of these sessions, LIBERTAS submitted to COMELEC the Proposed Interim Rules – a compilation of recommendations on how to handle election adjudication cases under an automated system – on September 30, 2009. This proposal became the draft upon which the COMELEC and the electoral tribunals drew up their new rules.
To further inform and enrich the knowledge-sharing process, IFES and the American Bar Association (ABA), with funding support from USAID, brought two of the foremost legal experts on election adjudication from the US – Minnesota Supreme Court Justice Paul H. Anderson and election law expert John Hardin Young – to Manila. Both Justice Anderson and Mr. Young have experience litigating and adjudicating cases using Precinct Count Optical Scan (PCOS) systems, which are similar to those which will be used in the Philippines.
For an entire week, from February 8 to 12, Justice Anderson and Mr. Young shared their judicial and legal experiences before a varied audience composed of COMELEC commissioners and lawyers, justices of the Supreme Court and Court of Appeals, prominent legal academics of the Philippine Judicial Academy (PHILJA), staff of the electoral tribunals and the Department of Justice, lawyers from political parties, civil society groups—such as the Legal Network for Truthful Elections (LENTE) and LIBERTAS—and top law firms. On separate occasions they met with the Supreme Court Chief Justice, the Senator and Chairman of the Joint Congressional Oversight Committee, and other COMELEC commissioners and Senior Staff.
Justice Anderson was able to share his experience adjudicating the recent bitter recount for the Senatorial seat in Minnesota, which was eventually won by Al Franken. Mr. Young shared his experience as a Recount Lawyer for Al Gore in the 2004 US presidential race. Both emphasized the primary importance of adhering to the international standards of rule of law, due process, and fairness, and establishing the rules of adjudication well in advance to ensure they provide a proper framework for disputes.
A separate issue of interest was “voter intent,” an important consideration in election disputes that involve appreciating contested ballots. Mr. Young shared with all audiences the Virginia state ballot appreciation pictograms as examples for determining “voter intent.” In the end, everyone called on the COMELEC to promulgate rules according to international standards and release them at the soonest possible time before Election Day.
At a separate event for civil society, Justice Anderson and Mr. Young recognized and emphasized the important role of watchdog organizations in monitoring the process and educating voters, as well as preventing fraud in the different stages of the elections that could possibly lead to election disputes. This audience was interested in processes such as recount, evaluation of preprinted ballots, and random manual audit. In a separate visit to the LENTE headquarters, Mr. Young urged lawyers and paralegals to remember 3 key things: observe the opening of polls to check for zero sums, check the counting results and finally, submit a report.
Consequently, focused discussions with pertinent officers of the COMELEC, PHILJA and LIBERTAS were conducted to clarify issues specific to the drafting of the COMELEC rules and the drafting of a training module for judges under PHILJA. The speakers pointed to the difference between a random manual audit for the purpose of checking the PCOS machine and the random manual audit for the purpose of a recount of votes. Considering that ballot appreciation is done according to particular shading standards by the machine, a recount using different appreciation standards (such as voter intent) would yield different results. Both speakers emphasized the urgency of deciding on appreciation standards for any manual counts to be conducted.
When introducing new technology to the electoral system, electoral commissions must not only look at technical implementation issues, but also take into consideration the systemic impact on the entire election process. IFES hopes to remain a resource to the COMELEC to provide advice as requested on the challenges they continue to address.