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ELECTION LAW

CHAPTER 1 GENERAL PRINCIPLES

Meaning of Suffrage – the right as well as obligation of qualified citizens to vote in

a. election of certain national and local officers of the government, and

b. decision of public questions submitted to it

Nature of Suffrage

Privilege – it is not a natural right, hence, it can be given or withheld by the lawmaking power subject to constitutional limitations upon the fulfillment or non-fulfillment of certain minimum conditions deemed essential for the welfare of society

Scope of Suffrage

Election –

a. means by which people choose

b. through the use of ballot

c. their officials for definite and fixed periods and to whom they entrust

d. for the time being as their representatives

e. the exercise of powers of government

o The term may refer to the conduct of polls including the list of voters, the holding of electoral campaign, and the casting and counting of votes

Object of Suffrage and Election Laws

Main object: continuity of government and the preservation and perpetuation of its benefits

2-fold object: Enable the people

1. To choose their representatives to discharge sovereign functions

2. To determine their will upon such questions submitted to them

Power of Congress to Regulate Suffrage and Elections

Congress has unlimited power, subject only to constitutional restrictions, to enact laws relative to right of suffrage including the power to:

a. Define the qualifications of voters

b. Regulate elections

c. Prescribe the form of official ballot

d. Provide for the manner in which candidates shall be chosen and the names that shall be printed upon the ballot

e. Regulate the manner of conducting elections

f. Suppress whatever evils may be incident to the election of public officers – pursuant to the exercise of police power

Prohibited Substantive requirements for Exercise of Suffrage

a. Literacy d. Sex

b. Property e. Taxpaying ability

c. Education

d. Taxpaying ability

CHAPTER 2 COMMISSION ON ELECTIONS

Purpose of Commission

An independent administrative tribunal, co-equal with the other departments in respect to the powers vested in it

Composition – Chairman and 6 Commissioners

Qualifications of Members

1. Natural-born citizens of the Philippines

2. At least 35 years of age at the time of appointment

3. Holders of a College degree

4. Must not have been candidates for any elective position immediately preceding elections

5. Members of the Philippine Bar who have been engaged in the practice of law for at least 10 years

Appointment and Terms of Office of Members

They are appointed by the President with the consent of the Commission on Appointments for 7 years with reappointment

Staggered term (7, 5, 3) for 2 years interval

Appointments or designation in temporary or acting capacity is not allowed

Disabilities of Members

1. Cannot hold other office or employment

2. Cannot engage in the practice of any profession or in the active management or control of any business

3. Cannot be financially interested in any government contract

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Constitutional Powers and Functions of the Commission

a. Executive or Administrative – to enforce and administer election laws

b. Quasi-legislative – to promulgate rules on all questions affecting elections and its rules of procedure

c. Quasi-judicial – to exercise original and appellate jurisdiction over certain election contests

d. Investigate – investigatory and prosecution power over election offenses

The COMELEC shall exercise the following powers and functions:

1. Enforce and administer laws relative to conduct of elections, etc.

2. Decide election contests

o This refers to the adversary proceedings by which matters involving the title or claim to an elective office, made before or after proclamation of the winner, is settled

o For barangay officials, it is restricted to proceedings after the proclamation of the winner

o Purpose: to ascertain the candidate lawfully elected to office

ELECTION CONTESTS

Regional, Provincial and City Officials COMELEC

Municipal and Barangay Officials RTC and MTC

SK Officials DILG

Congress SET or HRET

President and Vice President PRET (SC en banc)

3. Decide all questions affecting elections

o The Commission has no jurisdiction over questions involving the

a. right to vote which includes qualifications and disqualifications of voters

b. right of a person to be registered as voter

c. right to cast his vote

4. Deputize law enforcement agencies

o This must be done with the concurrence of the President

o The removal or suspension of such deputies may be recommended by the COMELEC to the President rather than directly imposed by the COMELEC

5. Register political parties, etc. and accredit its citizens arms

6. File petitions, investigate and prosecute

7. Recommend measures

8. Recommend removal or disciplinary action

o The President may or may not follow the recommendation of the COMELEC on deputization

9. Submit report

Power to punish for contempt

In the exercise of its administrative functions, COMELEC has no power to hold a person for contempt, hence, only in the exercise of its quasi-judicial power can it cite persons in contempt

Hearing and Deciding Election Cases

2-tiered organizational and functional structure of COMELEC:

1. Division of COMELEC

a. Disqualification

b. Election Protest

c. Quo Warranto

d. Pre-proclamation Controversy

e. Annulment of Proclamation

2. COMELEC en banc

a. Motion for Reconsideration

b. Failure of Elections

c. Postponement of Elections

d. Election Offense

e. Annulment of Book of Voters

Pardon, etc. of Violators of Election Laws

Not allowed if without the favorable recommendation of COMELEC and granted by the

Rendition of Decision and Judicial Review

Decisions, etc. of the COMELEC en banc, may be brought to SC by means of the special civil action of certiorari under Rule 65

A motion for reconsideration when not pro forma, suspends the running of the period to elevate the matter to SC

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Votes Required for Rendition of Decision

2 members shall constitute a quorum for the transaction of a Division

A case being heard by it shall be decided with the unanimous concurrence of all 3 Commissioners

Powers and Functions of the COMELEC under Omnibus Election Code

1. Exercise direct and immediate supervision and control over national and local officials or employees required by law to perform duties relative to the conduct of election

2. It may authorize CMT cadets, 18 years of age and above, to act as its deputies for the purpose of enforcing its orders

3. Require payment of legal fees and collect the same in payment of any business done in the Commission, at rates that it may prove and fix in its rules and regulations

4. Summons the parties to a controversy pending before it, issue subpoena and subpoena duces tecum

5. Issue warrant to arrest the witness and bring him before the Commission in case of failure to attend

6. When necessary, avail of the assistance of any national or local law enforcement to execute its final decisions, orders, instructions or rulings

7. Punish contempts – any violation of any final and executory decision, order or ruling of the Commission shall constitute contempt

8. Enforce and execute its decisions, etc.

9. Prescribe the forms to be used in the election plebiscite or referendum

10. Procure any supplies, etc. needed for the holding of the election by public bidding

11. Prescribe the use or adoption of the latest technological and electronic devises

12. Carry out a continuing and systematic campaign through any forms of media to educate the public and fully inform the electorate about all matters concerning the election

13. Enlist non-partisan groups or organizations

14. Conduct hearings on controversies pending before it

15. Fix other reasonable periods for certain pre-election requirements

CHAPTER 3 REQUIREMENTS BEFORE ELECTION

REGISTRATION (RA 8189)

Registration of Voters

Who may Register? [Constitutional Mandate]

a. A citizen of the Philippines

b. Not otherwise disqualified by law

c. At least 18 years of age – on the day of the election

d. Have resided in the Philippines for at least 1 year

e. Have resided for at least 6 months, in the place wherein he/she proposes to vote, immediately preceding the election

Election Registration Board

A body constituted to act on all applications for registration

Composition of the Election Registration Board

a. Chairman – Election Officer

b. Members

i. Public school official most senior in rank

ii. Local civil registrar, or in his absence, City or Municipal treasurer

Illiterate or Disable Applicants

Election officer or any member of an accredited citizen’s arm shall assist any illiterate person when registering

Change of Residence or Address

The application for transfer of registration shall be subject to the

a. Requirements of notice and hearing, and

b. Approval of the Election Registration Board

Notice and Hearing of Applicants

Duties of the Election Officer upon receipt of applications for registration:

a. Set a hearing

b. Notice of which shall be posted in the bulletin board and his office for at least 1 week before hearing

c. Furnish copies to the applicants, heads or representatives of political parties and other accredited groups

d. Receive such as evidence on the date of hearing

Challenges to Right to Register [ERB]

Form of Challenge:

a. In writing

b. Stating the grounds

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c. Under oath

d. Attached to the application

e. With proof of notice of hearing

Approval and Disapproval of Application

This is done by majority vote of the Board

Duties of Election Officer upon approval or disapproval of application:

a. If approved – assign a voter’s identification number and issue identification card

b. If disapproved – furnish the application with the certificate of disapproval and stating the grounds therefor

Deactivation of Registration [Disqualifications]

1. Sentenced by at least 1 year imprisonment

2. Adjudged by final judgment of any crime involving disloyalty to the government

3. Insane or incompetent

4. Failed to vote for 2 consecutive regular elections – this does not include SK elections

5. Any person whose registration is excluded by the court

6. Lost Philippine citizenship

Reactivation of Registration

1. Automatic reacquisition of the right to vote upon expiration of 5 years after service of sentence

2. Those adjudged with crime involving disloyalty to the government are automatically restored to his full civil and political rights upon expiration of 5 years after service of sentence

3. Upon declaration of a proper authority that such person is no longer insane or incompetent

Cancellation of Registration – The only ground is DEATH

Permanent List of Voters per Precinct

Permanent but may be changed on the following instances:

a. New voters

b. Transfer of registration

c. Deactivation and Reactivation

d. Cancellation of registration

e. Inclusion and Exclusion

f. Annulment of Book of Voters

Annulment of Book of Voters

How made?

a. Verified petition

b. After notice and hearing

On what grounds?

a. Not prepared in accordance with the provisions of this Act

b. Prepared through

1. Fraud 4. Impersonation

2. Bribery 5. Intimidation

3. Forgery 6. Force

c. Contains data that are statistically improbable

Inclusion, Exclusion and Correction of Name of Voters

Jurisdiction is with the MTC subject to appeal in RTC

Grounds for Inclusion:

a. Any person whose application for registration has been disapproved

b. Any person whose name has been stricken out

Grounds for Exclusion:

a. Any person who is not qualified to register

b. Any voter who is not real

B. PRECINCTS AND POLLING PLACES

Election Precincts – basic unit of territory established by COMELEC for the purpose of voting

No new precinct be established at the start of the election

1 barangay = 1 precinct = no more than 200 voters and shall comprise contiguous and compact territories

When allowed to have less than 200 voters:

a. Creation of a spin-off or daughter precinct once the 200-limit has been reached

b. Island or group of islands comprise 1 original precinct

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Polling Places and their Designation

Polling Place – the building or place where the BEI conducts its proceedings and where the voters cast their votes

Voting center – the building or place where the polling place is located

Size is sufficient to accommodate 40 voters at one time

No designation of polling places shall be changed except upon

a. Written petition of majority voters of the precinct

b. Agreement of all political parties

c. Resolution by COMELEC upon prior notice and hearing

Arrangements and Contents of Polling Places

1 voting booth = 20 voters = list of the names of all the candidates or issues to be voted for, be posted

1 polling place = 10 voting booths

Ballot Boxes

1 ballot box = 1 polling place

Who shall have the custody of such materials?

o Provincial, City or Municipal Treasurer

Official Ballot

Printed in black ink on white security paper with distinctive watermarks

Official ballots and election returns be printed upon orders of COMELEC

Requisition and Distribution of official ballots = rate of 1 1/5 ballots = every registered voter

Requisition and Distribution of election returns = rate of 1 set = 1 polling place

Signature of Chairman at the Back of Every Ballot is essential and failure to authenticate would constitute an election offense

C. Certificates of Candidacy

Candidate

a. any person aspiring for or seeking an elective public office

b. who has filed a certificate of candidacy

c. by himself or through an accredited political party, aggroupment, or coalition of parties

Certificate of Candidacy (COC)

a. statement of a person seeking to run for public office

b. certifying that he announces his candidacy for the office mentioned

c. he is eligible for the office

d. the name of the political party to which he belongs, if any

e. his post-office address for all election purposes being as well stated

Filing of certificate of candidacy

1 COC = 1 office

If more than 1 = ineligible for all

Unless he cancels 1 COC before the lapse of filing of COC

Stray Vote

Vote cast in favor of a person who is not a candidate

Does not invalidate the entire ballot

Time, place and manner of filing

Under RA 7166, any person running for the office of the president, vice-president, senator, member of the house of representatives or any elective provincial, city or municipal office shall be:

a. Filed in 5 legible copies

b. With the offices of the Commission

c. Not later than the day before the date legally fixed for the beginning of his campaign period.

d. Filed personally by the candidate or his duly authorized representative (not accepted if by mail, telegram or facsimile)

ELECTIVE OFFICE PLACE OF FILING COC

President, Vice-President, Senators Main office of the commission in Manila

Members of the House of Representatives (provincial)

Provincial election supervisor of the province concerned

Members of the House of Representatives (districts in NCR)

Regional election director

Members of the House of Representatives (districts outside NCR)

City election registrar

Provincial offices Provincial election supervisor

City and municipal offices City or municipal election registrar

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Withdrawal of COC

a. Made prior to election

b. Submit to the office concerned a written declaration under oath

c. The filing will not affect whatever civil, criminal or administrative liabilities, which a candidate may have incurred

Automatic resignation

Ipso facto resigned:

a. Appointive officials c. Employees of GOCC

b. Members of the AFP

Qualifications of a Candidate

1. Philippine citizen 4. Registered Voter

2. Age 5. Able to read and write

3. Philippine resident 6. Not disqualified by law

Disqualifications of a Candidate

1. Lack qualifications

2. Possess disqualifications

3. Violated the Term Rule

4. Committed an election offense

5. Nuisance candidate

6. Sentenced by final judgment with an accessory penalty

7. Willfully commits material misrepresentation

8. No valid, timely and properly filed COC

Substitution

Grounds:

a. Death – should happen after the last day of filing of COC

b. Disqualification

c. Withdrawal

Both the substituted and the substitute must be qualified to run for office

Who may substitute?

a. Nominee of the same political party

b. If none, then, no one may substitute

c. Spouse for barangay officials

In case of a valid substitution after the ballots have been printed, the votes for the substituted candidates shall be considered stray votes unless the substitute candidate has the same family name

Petition to deny due course

Filed by any person exclusively on the ground that any material representation contained in a COC is false

Nuisance Candidate

1. Filed to put the election process in mockery or disrepute

2. Cause confusion among voters by the similarity of names

3. Has no bona fide intention to run for office

Similarity/difference of proceeding with quo warranto

DISQUALIFICATION QUO WARRANTO

Deals with qualifications of a candidate Deals with qualifications of a candidate

When to file:

a. Before election

b. After election

When to file:

Within 10 days after the proclamation of the results of the election

Qualifications for elective office are misrepresented

Ineligibility or disloyalty to the Republic of the Philippines.

Petition for quo warranto is not batted by failure to file a petition to disqualify. He has another chance to raise disqualification of the candidate by filing a petition for quo warranto within the time prescribed by law.

Election Offense

1. Vote buying

2. Terrorism

3. Unlawful expenditures

4. Unlawful campaign

5. Coercion of subordinates

6. Threats

7. Prohibition against release of public funds

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Rules governing cases of disqualifications before the election

Complaint before election Inquired into by the COMELEC

Complaint not resolved before election

Refer the complaint to COMELEC’s law department

Complaint filed after election but before proclamation

COMELEC’s law department makes a prima facie finding of guilt and the complaint is filed with the trial court

Effect of disqualification case

After final judgment Shall not be voted

Before final judgment Continuation of trial and hearing is mandatory

Suspension of proclamation is merely directory

Chapter 4

Election Campaign and Expenditures

Prohibited acts

a. Engage in an election campaign except during the campaign period

b. Foreigner aiding any candidate or political party

c. Remove or tamper with the distribution of lawful election propaganda

d. Accept or give free of charge, food or drinks or things of value during 5 hours before and after a public meeting on the day preceding the election and on the election day

6 Modes of Campaign

a. Forming organizations d. Distributing campaign materials

b. Holding rallies e. Soliciting votes

c. Making speeches f. Publishing advertisements

Lawful Election Propaganda

a. Paid political advertisement d. Private poster areas

b. Free space and airtime e. Election surveys and exit polls

c. Use of gadgets and billboard

Equal access to media time, and space

Media members who are candidates are

a. Deemed resigned, or b. Take a leave of absence

Print: ¼ page in broadsheet; ½ in tabloid 3x a week

TV Radio

Local official 60 mins 90 mins

National official 120 mins 180 mins

Written Forms

a. Printed materials – 8.5 x 14 d. Poster areas – 12 x 16

b. Letters e. Rally streamers – 3 x 8

c. Posters – 2 x 3

Prohibited contributions (indirectly or directly by the following)

1. Public or private financial institutions

o But not if they are legally in the business of lending money and the loan is made ordinary course of business

2. Natural and juridical persons operating a public utility or in possession of or exploiting any natural resources of the nation

3. Natural and juridical persons who hold contract or subcontracts to supply the government or any of its divisions with goods and services or to perform construction or other works

4. Those granted franchises, incentives, exemptions, allocations or similar privileges, concessions by the government or any divisions

5. Those who within 1 year prior to the date of the election have been granted loans in excess of P25,000 by the government

6. Educational institutions which have received grants of public funds amounting to no less than P100,000

7. Officials or employees of the CSC or members of the AFP

8. Foreigners and foreign corporations

Limitations upon expenses

Candidates P10 pesos (President and Vice President)

P30 (for other candidates) for every voter currently registered in the constituency where he filed his COC.

Those without political parties may be allowed to spend P5 for every such voter.

Political parties P5 for every voter registered in the constituency where it has official candidates

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Defenses when Candidate Exceeds the Allowable Expenditures:

1. Funds for counsel 3. Sample ballots

2. Copying of list of voters 4. Volunteers

C. Political Parties

Registration of political parties

It shall be first duly registered with the COMELEC

A registered party who fails to obtain 10% of the votes in the constituency, its registration shall, after notice and hearing be deemed to have been forfeited

Nomination and selection of official candidates

President, Vice-President and Senators 165 days before the day of election

Members of the House of Representatives and local elective officials

75 days before the day of the election

Disputes as to party nominations

1. Conduct of party’s internal affairs are not within the jurisdiction of the Courts

2. However, in can be brought to COMELEC Division

The party-list system

a. not more than 250 members

b. elected from legislative districts and on the basis of a uniform and progressive ratio

c. and those elected through a party-list system of registered national, regional and sectoral parties or organizations

Removal and/or cancellation of registration

How made?

a. Motu proprio b. upon verified complaint

Grounds:

1. It is a religious sect

2. Advocates violence

3. Foreign party or organization

4. Receiving support from a foreign government

5. Violates or fails to comply with the laws, rules or regulations relating to elections

6. Declares untruthful statements in its petition

7. Ceased to exist for at least 1 year

8. Fails to participate in the last 2 preceding elections or fails to obtain at least 2% of the votes under the party-list system in the 2 preceding elections

Qualifications of party-list nominees

1. Natural born citizen

2. Registered voter

3. Resident of the Philippines of not less than 1 year immediately

4. Able to read and write

5. Bona fide member of the party

6. At least 25 years of age

Note: Youth sector: must be at least 25-30 on the day of election.

Manner of voting

each voter shall be entitled to 2 votes (1 for house representative and the second, for the party)

Number of party-list representatives

20% of the total number of the house of representatives

How to determine the allocation of seats

a. rank the parties from highest to lowest on the number of votes garnered during elections

b. those with at least 2% are entitled to one seat

c. Those with more than 2% shall be entitled to additional seats in proportion to their total number of vote

d. In no case shall seats exceed 3

Term of office

3 years for not more than 3 consecutive terms

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CHAPTER 5

THE ELECTION

Kinds of Election

1. General – one provided for by law for the election to offices after the expiration of the full term of former officers

2. Regular – an election, national or local, held at regular intervals on such dates provided by law

3. Special – one provided for by law under special circumstances

a. An election not regularly held to fill vacancy in office before expiration of the full term

b. An election at which some issue or proposition is submitted to the vote of the qualified electors

c. An election held when there is failure of election

Construction of Election Laws

When they are mandatory:

a. Laws for the conduct of elections, including the rules and regulations promulgated pursuant thereto

b. Election laws declare that a certain irregularity in an election procedure is fatal to the validity of the ballot or of the returns

c. When the purpose and spirit of the law would be plainly defeated by a substantial departure from the prescribed procedure

When they may be directory:

a. If sought to enforce them after the election

b. When mandatory character is not provided

c. When departure to the purpose and spirit is due to an honest mistake or misinterpretation

Authority for Holding Election

a. Authority to so hold it must be found conferred by the people

b. Either directly through the Constitution, or indirectly through the enactments of their legal representatives

Time of Holding Election

a. It must be fixed by authoritative power

b. There must be substantial observance with the time fixed and slight variations will not invalidate the election

Notice of the Election

In some form, either actual or constructive, of the time, place and purpose of the election

a. Requirement of notice becomes stricter in cases of special election

b. Sufficiency of notice is determined on

o whether the voters generally have knowledge of the time, place and purpose of the elections so as to give the voters full opportunity to attend the polls and express their will

Date of Election under the Law

Simultaneous regular elections for national and local officials = once every 3 years

Regular election for barangay officials = once every 5 years

o The last barangay election was held on October 25, 2010

Sanggunian Panlungsod and Bayan Members shall be elected by district

Postponement of Election

Grounds: for any serious case of such a nature that the holding of a free, orderly and honest election should be impossible

a. Violence

b. Terrorism

c. Force majeure

d. Loss or destruction of election paraphernalia or records

e. Other analogous causes

How postponement is made:

a. By the COMELEC en banc

b. Upon a verified petition by any interested party or motu propio

c. After due notice and hearing

Failure of Election

A petition to declare a failure of elections is a special action

Grounds: failure or suspension would affect the “result of election”

a. Violence

b. Terrorism

c. Force majeure

d. Fraud

e. Other analogous causes

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How failure of election is made:

a. By the COMELEC en banc

b. Upon a verified petition of any interested party

c. After due notice and hearing

Concurrence of Conditions:

1. No voting has taken place in any precinct or, even if there was a voting, the election nevertheless results in failure to elect

2. Votes not cast would affect the result of the election

3. The cause of such failure is among the grounds provided

Fixing Date for Special Elections

Requirements in fixing the date for special elections:

a. It should not be later than 30 days from the cessation of the cause

b. It should be reasonably close to the date of the election not held, suspended or which resulted in the failure to elect

Place of Holding Election

Enactments fixing the place are properly to be regarded as mandatory

Any substantial variation must invalidate the election

o Except when necessity arises, such as emergencies, and the removal to some other appropriate place is promoted by proper motives

Holding of Election by Proper Officers

Board of Election Inspectors – the body which conducts the election in the polling place of the precinct usually composed of 3 public school teachers appointed by COMELEC

A. CASTING OF VOTES

Methods of Voting

a. Voter must vote in person – personally deposit his ballot

b. Voter must vote once only – if the voter has voted but in the wrong precinct, he has no right to vote again

c. Voter need not vote the whole ticket

d. Absentee voting – applies to the elections of President, Vice-President, and Senators only and shall be allowed to members of the AFP and PNP and other government officers and employees who are registered voters

o For Overseas Absentee Voters, they can vote for President, Vice-President, Senators and Party-list Representatives

o Requirements:

1. Philippine citizen abroad

2. Not otherwise disqualified by law

3. at least 18 years of age on the day of the election

Spoiled Ballots

All spoiled ballots (accidentally spoiled or defaced in such a way that it cannot lawfully be used) shall be folded and surrendered to the Chairman who shall note in the corresponding space that it is spoiled

The voter shall then be entitled to another ballot, however, no voters shall change his ballot more than twice

Ballot implies Secrecy

A legal voter will not be compelled to disclose for whom he voted, but, unless he has himself made the contents of his ballots public at the time of voting it, third persons will not be permitted to testify as to its purport

This privilege is waivable

Challenge of Illegal Voters

Grounds for challenging the registration or identity of a voter:

a. Not being registered

b. Using another’s name

c. Not suffering from existing disqualification

No voter shall be required to present his voter’s affidavit on election day unless his identity is challenged

While a legal voter cannot be compelled to state how he voted, and illegal voter may be compelled to disclose how he voted except where it might incriminate him.

Challenge based on certain Illegal Acts

Grounds for challenging a voter:

a. Such voter has received or expects to receive, has paid, offered or promised to pay, has contributed, offered or promise to contribute money or anything of value as a consideration for his vote

b. Such voter has made or received a promise to influence the giving or withholding of any such voter

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c. Such voter has made a bet or is interested directly or indirectly in a bet which depends upon the result of the election

Admission of the challenged voter shall not be conclusive upon any court

B. COUNTING OF VOTES

Board of Election Inspectors

Composition:

a. Chairman

b. 2 members – all of whom must be public school teachers

Powers of the Board

a. Conduct the voting and counting of votes in their respective polling places

b. Acts as deputies of COMELEC

c. Perform such other functions prescribed by the Code or by COMELEC

Counting to be Public and without Interruption unless ordered by COMELEC

Determination of Marked Ballots

Marks which shall be considered sufficient to invalidate the ballot are those which the voter himself deliberately placed on his ballot for the purpose of identifying it thereafter

Duties of Board of Election Inspectors in Counting the Votes

BEI should not concern themselves with the eligibility of the candidates

Counting of votes should be liberal in order that the will of the electorate may be effectuated

Announcement of Results of Elections and Issuance of Certificate of Votes

Upon completion of the election returns Chairman of BEI shall orally and publicly announce the total number of votes received by each and every one of the candidates, stating their corresponding office

After announcement, BEI shall issue a certificate, signed by all the members of the BEI, stating the number of the votes received by a candidate upon request of the duly accredited watchers

What Constitutes an Election

Plurality of votes lawfully cast

C. CANVASS AND PROCLAMATION

Board of Canvassers

Chairman Vice-Chairman Member

Provincial BoC

Provincial Election Supervisor or Lawyer in the regional office of COMELEC

Provincial Fiscal Provincial School Superintendent

City BoC City Election Registrar or

Lawyer of COMELEC

City Fiscal City School Superintendent

Municipal BoC

Election Registrar or a Member of COMELEC

Municipal Treasurer

Most Senior School Supervisor or in his absence, Principal of the school district or elementary school

Control and Supervision of COMELEC over the Board

COMELEC has the power to investigate and act on the proprietary or legality of the canvass of election returns made by the board of canvassers

This includes the power to revise, reverse and set aside the action of the boards

o It is within COMELEC’s power to annul a canvass or proclamation based on

a. Incomplete returns or incorrect or tampered returns

b. Made in an unauthorized meeting of the BoC either because it

i. Lacked a quorum

ii. Did not meet at all

Recount of Votes Cast

Ground:

o Where a discrepancy exists between the votes written in word or in figures

Proclamation by BoC

The winning candidate must have the highest number of votes cast

When proclamation null and void:

a. Based on a faulty or erroneous tabulation

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b. Statement of votes which contain erroneous entities

c. Incomplete canvass

d. Canvass that should have been suspended with respect to the contested election retains

e. Canvass that included unsigned election returns or outrightly excluded election returns

Effect of a proclamation which is null and void:

o Proclaimed candidate may assume office on the strength of the proclamation of Boc but he is only a presumptive winner who assumes office subject to the final outcome of the election protest

o When partially or totally annulling a proclamation or suspending the effects of a proclamation, to be valid, it must be made with notice and hearing

Suspension of proclamation pending determination of a petition for disqualification against a winning candidate is provisional in nature and can be lifted when the evidence so warrants

o This can be issued ex parte

Principles governing Canvass Proceedings

Incomplete canvass = illegal

o Cannot be the basis of a subsequent proclamation

o This is true only where the election returns missing or not counted will affect the results of the election

Canvass of Votes for President and Vice President

a. Shall be transmitted to the Congress

b. directed to the President of the Senate

c. who shall, not later than 30 days after the day of election,

d. open all the certificates in the presence of the Senate and HoR in joint public session

e. Congress, upon determination of the authenticity and due execution, canvass the votes

Election Resulting in a Tie

The BoC shall, after recording this fact in its minutes, by resolution, upon 5 days notice to all the tied candidates, hold a special public meeting at which the BoC shall proceed to the drawing of lots of the candidates who may be favored by luck

Failure to Assume Office

Failure or refusal to take his oath of office within 6 months from proclamation = considered vacant unless such is for cause beyond his control

Nature of Board’s Duties

Ministerial: when canvassing the votes

Quasi-judicial: when it satisfies that the returns are genuine or authentic

o They have the power to suspend the canvass they deemed to be improbable and clearly incredible

CHAPTER 6

Automated May 10,2010 Elections

The first nationwide fully Automated Election System

Automated Electronic System: a. The voter using a special pen, fully shade the blank oval beside the name

of the candidate of his choice, listed in the ballot b. The ballots are precinct specific c. Ballots with erasures and extra markings are not accepted by the

counting machines d. After the PCOS operator presses the “close voting” option, the PCOS

automatically generates a tally of votes and then electronically transmits the counted votes to the municipal/city/district/provincial canvassing centers up to the national level

e. The BEIs have identification cards and passwords that the canvassing computer validate when the ERs are received by the BOC

f. The ERs are tallied by the BOC at the municipality, provincial and national levels

Human intervention which has been blamed for cheating is reduced to the minimum

Padding and shading of votes = “dagdag-bawas”

Board of Election Inspectors

At least 1 BEI shall be an information technology capable person, who is trained by the DOST to use the AES

Official Ballot

1. The COMELEC shall prescribe the size and form of the official ballot 2. Under each position, the names of the candidates shall be arranged

alphabetically by surname and uniformly printed using the same type size 3. There shall be a fixed space where the Chairman of the BEI shall affix

his/her signature to authenticate the official ballot

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4. The official ballot shall be printed and distributed to each city/municipality at the rate of 1 ballot for every registered voter with a provision of additional 4 ballots per precinct

Filing of Certificate of Candidacy

Any person who files his COC within the specified period shall only be considered as a candidate at the start of the campaign period for which he filed his COC

Election Returns

Each copy shall be signed and thumbmarked by all the members of the BEI and the watchers present

If there is a BEI member who refuses to sign, the Chairman shall note it in each copy of the printed election returns and such member shall be compelled to explain his/her refusal to do so

Failure to explain an unjustifiable refusal to sign each copy of the printed election returns shall be punishable

Chairman shall then publicly read and announce the total numbers of a. registered voters, b. voters who actually voted c. votes obtained by each candidate

Within 1 hour after printing of the ER, the Chairman shall, in the presence of watchers and representatives, electronically transmit the precinct results to the respective levels of BOC

Canvassing by Provincial, City, District and Municipal BOC

Upon completion of the canvass, it shall print the certificate of canvass of votes for president, vice-president, senators, and members of HR and elective provincial officials and thereafter, proclaim the elected city or municipal officials

Each certificate of canvass shall be supported by a statement of votes

Within 1 hour after the canvassing, the Chairman shall electronically transmit the certificate of canvass to the COMELEC or Congress sitting as the National BOC

The Certificate of Canvass transmitted electronically and digitally signed shall be considered as official election results and shall be used as basis for the proclamation of a winning candidate

COMELEC as National BOC

Chairman and members of the COMELEC sitting en banc shall compose the National BOC for Senators and Party-list Representatives

It shall canvass the results and shall proclaim the winning candidates for Senators and Party-List Representatives

Congress as National BOC

Senate and HR in joint public session shall compose the National BOC for President and Vice-President

Random Manual Audit

There shall be a RMA in 1 precinct per congressional district randomly chosen by the COMELEC in each province and city

Any difference between the automated and manual count will result in the determination of root cause and initiate a manual count for those precincts affected

Effects of Discrepancy between AES and RMA: a. In the event the results of the AES exceeds the allowable margin of

variance, there will be an initiation of a manual count for those precincts b. In no way shall the results of the RMA delay the proclamation of the

winning candidates based on the results reached by the AES

CHAPTER 7

CONTESTED ELECTIONS

Pre-Proclamation Controversy

1. Any question or matter pertaining to or affecting the

a. Proceedings of the BoC

o Who may raise the issue?

i. Any candidate

ii. Any registered political party

iii. Any registered coalition of political parties

o Where to raise the issue?

i. before the board, or

ii. directly with COMELEC Division

Except for petitions for correction of manifest error in the Statement of Votes, or in the tabulation or tallying of the results COMELEC en banc

b. Preparation, transmission, receipt, custody and appreciation of the election returns and election and certificate of canvass (Secs. 233, 234, 235 and 236)

o Jurisdiction is only with the BOC

How raised?

a. Motu propio b. Written petition

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How made?

a. Submit oral objections to the Chairman of the BOC

b. The BOC shall automatically defer the contested canvass

c. Simultaneous with oral objection is the submission of written objections

d. Submit evidence

Exclusive Jurisdiction of COMELEC

GR: All Pre-Proclamation Controversies involving Local Elective Officials

o Exception: pre-proclamation cases involving National Elective Officials (President, Vice-President, Senator, and Member of House) on matters relation to (b) [one enumerated above]

Exception to the Exception: correction of manifest errors in the certificate of canvass or election returns

Upon due notice and hearing it may order the

a. partial or total suspension of the proclamation of any candidate-elect, or

b. annul partially or totally any proclamation

Summary Hearing of Pre-Proclamation Controversies

Heard summarily, and after due notice and hearing, promulgate its decision and it shall be executory after the lapse of 5 days from receipt by the losing party of the decision, unless restrained by SC

Presentation of evidence by the parties before the COMELEC is not indispensable in order to satisfy the demands of due process

o What is only required is that COMELEC shall dispose of pre-proclamation controversies on the basis of the records and evidence elevated to it by the BoC

Issues that may be Raised (Grounds for Pre-Proclamation Controversy):

a. Illegal composition or proceeding of the BoC

b. Incomplete (loss or destroyed returns), defective (material, if it affects the outcome or integrity), or tampered or falsified canvassed election returns, or contain discrepancies in the same or in other authentic copies of the returns

c. Election returns were prepared under duress, threats, coercion, or intimidation

d. Election returns were obviously manufactured (genuine or authentic in character but are reflective of fraudulent acts done before or carried out by the BEI) or not authentic

e. Substitute or fraudulent returns were canvassed, the results of which materially affected the standing of the aggrieved candidate/s

f. Manifest Error – the only ground for national elective officials

g. Statistical improbability

The issues provided for (grounds) are restrictive and exclusive

Where Election Returns Obviously Manufactured

This fact must be obvious on the face of the returns

Doctrine of Statistical Improbability – applied only where there is

a. unique uniformity of tally of all the votes cast in favor of all the candidates belonging to one party

b. systematic blanking of all the opposing parties appear in the election returns

Where Election Returns found to be Spurious or Falsified

Outright exclusion of election returns on the ground that they were fraudulently prepared by some members or non-members of BEI disenfranchises the voters

If the integrity and identity of the ballot box has not been violated, COMELEC shall order the BEI to recount the votes and prepare a new canvass which the BoC will use

Where the integrity of the ballots has been violated, COMELEC need not recount the ballots but should seal the ballot box and order its safekeeping

Questions properly cognizable in an Election Protest

a. Questions involving the appreciation of votes and the conduct of balloting

b. Reopening of the ballot boxes

c. Sham voting or minimal voting which was made to appear as normal through the falsification of election returns

The powers of COMELEC are essentially executive and administrative in nature, and the question of whether or not there had been terrorism, vote buying and other irregularities in the elections should be ventilated in a regular election protest

Effect of Filing Petition to Annul or Suspend the Proclamation

It will suspend the running of the period within which to file an election protest or a quo warranto proceedings

Order of COMELEC suspending proclamation is merely provisional in nature and can be lifted when evidence so warrants—akin to a temporary restraining order

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Remedy after winning candidate has been proclaimed

(1) Electoral protest before the proper forum- (2) When proclaimed candidate may still be unseated-

a. When his opponent is adjudged the true winner of the election by a final judgment of a court in the election contest

b. When the prevailing party is declared illegible or disqualified by final judgment of a court in a quo warranto case

c. When the incumbent is removed from office for cause d. When the proclamation is null and void for in such case the

proclamation is no proclamation at all- cannot deprive the COMELEC of the power to make such declaration of nullity

Effect when term of contested office begins-

All pre-proclamation cases pending before the Commission shall be deemed terminated at the beginning of the term of office involved and the rulings of the BOC, without prejudice to the filing of a regular election protest;

Running of the period to file an election protest shall be deemed suspended by the pendency of such cases before the Commission or the petition for certiorari in the SC

EFFECT OF FILING AN ELECTION PROTEST OR A PETITION FOR QUO WARRANTO

(1) GR: the filing of an election protest or a petition for quo warranto precludes the subsequent filing of a pre-proclamation controversy, or amounts to the abandonment of one earlier filed;

(2) Exceptions: o the BOC was improperly constituted;

o quo warranto was not the proper remedy; o what was filed was not really a petition for quo warranto or an

election protest but a petition to annul a proclamation as where a party alleges the existence of manifest errors in the preparation of election returns;

o filing of a quo warranto petition or an election protest was expressly made without prejudice to the pre-proclamation controversy or was made ad cautelam;

o proclamation was null and void

actual or compensatory damages may be granted in all election contests or in quo warranto proceedings in accordance with the law

Institution Of Election Contest

consists of either an election protest or a quo warranto – one objective: dislodge the winning candidate from office (1) By a defeated candidate (2) Against a proclaimed candidate (3) There is a presumption of the validity of proclamation

Election Contest Imbued With Public Interest

an election protest is not purely personal and exclusive to the protestant or to the protestee because it is imbued with paramount public interest

Annulment of an election [Grounds]

a. Fraud b. Irregularities c. Violations of Election Laws

Annulment of proclamation

relief sought is the correction of mathematical errors which are not contributable to incorrect entries in any election returns, statement of votes and cert of canvass, it is a petition for annulment/ declaration of nullity of proclamation, not a petition to correct manifest errors

EFFECTS OF DEMURER TO EVIDENCE – equivalent to a Motion to Dismiss

Irregularities affecting election

If election is in fact held, irregularities not proceeding from wrongful intent, in the manner of calling, holding or certifying the election, do not affect the result.

ELECTION PROTEST PETITION FOR QUO WARRANTO

PURPOSE: ascertain whether the candidate proclaimed elected by the BOC is the true and lawful choice of the electorate

GROUNDS: a. Disloyalty to the Republic b. Ineligibility

Contest between the defeated and winning candidates on the ground of frauds or irregularities in the casting and counting of the ballots, or in the preparation of the returns

Special civil action under the Omnibus Election Code

Raises the questions of who actually obtained the plurality of the legal votes, and therefore, entitled to hold the office

Raises in the issue the disloyalty or ineligibility of the winning candidate; Proceeding to unseat the respondent from office but not necessarily to install the petitioner in his place

Can only be filed by a candidate who has duly filed a certificate of candidacy and has been voted for in the preceding elections

Any voter may initiate the action

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Exceptions:

A. Irregularities of such nature and incapable of correction, or illegal or unauthorized votes of such number, as to materially alter or affect the results

B. Non-observance of mandatory provisions

C. Evidence must be convincing, otherwise the election returns and canvassing proceedings will be upheld.

o Reliance should not be place on mere affidavits when they are self-serving.

D. To vacate an election on the ground of intimidation or violence, despite the fact that the elections were not arrested, it must clearly appear that there was such display of force as ought to have intimidated men of ordinary firmness

o It must also be shown that the number of voters prevented from voting was sufficient to change the result

E. To justify the exclusion of election returns, the alleged threats, intimidation or violence that attended its preparation must have affected the regularity or genuineness of such returns

F. The question of existence of election irregularities must be ventilated in regular election protests, not in the COMELEC.

Evidence on the election

Ballots – Best evidence of the voter’s action.

Rules on the use of ballots vs. election returns as evidence in the proclamation of a winning candidate

Ballots cannot be used to overturn the election returns unless it is first shown that the ballots have been preserved with care which precludes the opportunity of tampering and all suspicion of change, abstraction or substitution.

Effect of ineligibility or death of a candidate receiving majority of votes

1. English rule

o If known, votes cast shall not be counted

o The eligible candidate having the next highest number of votes will be deemed elected

2. US rule

o The ineligible candidate receiving the highest number of votes will not be proclaimed winner, the votes cast for him are so far effectual as to prevent the election of other candidates

3. Philippines

o A candidate disqualified by final judgment before an election cannot be voted for and votes cast for him shall not be counted

o No automatic proclamation as winner of the candidate who received the 2nd highest number of votes

o A permanent vacancy in the contested office is created which should be filled by succession

ELECTION OFFENSES

Jurisdiction to investigate and prosecute election offenses

Under the Constitution and the OEC, COMELEC has the exclusive jurisdiction to investigate and prosecute election offenses committed by any person

It is the nature of the offense and not the personality of the offender that matters

Criminal and electoral aspects of an election offenses

1. Criminal aspect

o Ascertainment of guilt or innocence of the accused

o Entails a full-blown hearing and proof beyond reasonable doubt

2. Electoral aspect

o Determination of whether the offender should be disqualified from office

o Administrative proceeding which is summary and requires only a clear preponderance of evidence.

o Petition for disqualification

Prohibited acts and election offenses under the OEC

1. vote-buying and vote-selling

2. conspiracy to bribe voters

3. wagering upon results of elections

4. coercion of subordinates to vote for or against any candidate

5. threats, intimidation, terrorism, use of fraudulent device or other forms of coercion

6. coercion of election officials and employees

7. appointment of new employees, creation of new positions, promotion, or giving salary increases within the election period

o 45 days before a regular election and 30 days before a special election

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o Allowable if:

a) with prior authority from the COMELEC and

b) position to be filled is essential to the proper functioning of the office concerned, and

c) position is not filled in a manner that may influence the election

o Exception: In case of urgent need, so long as there is notice to the COMELEC within 3 days from date of appointment.

8. transfer of officers and employees in the civil service within the election period

o 2 elements must concur to be an offense:

a) fact of transfer or detail is within the election period fixed by COMELEC

b) act was effected without prior approval of COMELEC

9. intervening of public officers and employees in the civil service in any partisan political activity

10. use of undue influence – promises

11. unlawful electioneering

o Any person who solicits votes or undertakes any propaganda for or against any candidate or any political party:

a.) on the day of registration before the BEI

b.) on the day of election within the polling place and within the radius of 30 m thereof

12. prohibition against dismissal of employees, laborers, or tenants

13. appointment or use of special policemen, special agents, confidential agents or the like

14. illegal release of prisoners before and after election

o Committed by:

a) the Director of the Bureau of Corrections

b) Any provincial warden

c) Keeper of the jail

d) Any person/s required by law to keep prisoners in their custody

15. Use of public finds, money deposited in trust, etc.