PART 1: ELECTION LAW INTRODUCTORY CONCEPTS Right to Vote Q: what is the nature of this right?

A: it is a constitutional right however is subject to restrictions. It is a personal right thus it cannot be assigned to other persons. It is considered the core of republicanism. Q: what is republicanism? A: It is a form of government where people rule through their representatives. Q: what form of government is republicanism? A: democracy Q: what is democracy? A: Democracy is a political form of government in which governing power is derived from the people, either by direct referendum or by means of elected representatives of the people. (Wikipedia) Q: how do you trace the evolution of democracy? A: Case: Punos dissenting opinion: Tolentino vs. COMELEC Plato described it as rule of the masses (this is precisely where the danger lies, you will be ruled by low quality who would dominate by mere numerical superiority) Artistotle preferred the rule of the upper class than the lower class; democracy is not entirely bad for as long as its rule of many speaks of greatest refinement. Rule of Enlightenment Middle Ages came about the THEORY OF POPULAR SOVEREIGNTY (every individual is important and equal, no one enjoyed the moral right to govern another without the consent of the governed) Material success became the engine which drove the people to search for solutions to their social, political and economic problems THE INDIVIDUALS ARE RESPONSIBLE FOR THE SUCCESS OF EUROPE IN THE MIDDLE AGES

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Social Contract Theory if someone has got to governed, he can only do so upon consent (John Locke) The way government gets the consent is through ELECTIONS. Even then, Locke believed that the people should be governed by a parliament elected by citizens who owned property. Q: what is the rationale behind Lockes belief? A: you have some property rights to protect Thomas Jefferson If you want to protect government (democracy preservation or guard liberties), the people were the only competent guardians of their own liberties, and should thus control the government. (Thus they should be allowed to vote, even the ordinary votes)

Q: what is the nature of right to vote? Is it given for your own sake? A: Case: Punos dissenting opinion: Macalintal vs. COMELEC The people, in clothing a citizen with the elective franchise for the purpose of securing a consistent and perpetual administration of the government they ordain, charge him with the performance of a duty in the nature of a public trust, and in that respect constitute him a representative of the whole people. This duty requires that the privilege thus bestowed should be exercised, not exclusively for the benefit of the citizen or class of citizens professing it, but in good faith and with an intelligent zeal for the general benefit and welfare of the State. As a privilege delegated by the people, a citizen acquires no indefeasible right to the continuous exercise or enjoyment of the right of suffrage. The people of the State, in the exercise of their sovereign power, may disqualify, suspend or entirely withdraw it from any citizen or class of them, providing always that representation of the people, the essential characteristics of a republican government, be not disregarded or abandoned. Note: Because it is a right that carries a duty, it can be subjected to restrictions to carry out such duty RESTRICTIONS ON YOUR RIGHT TO VOTE [section 25, ICCPR) 1. Age an act of choice and involves prescience (equate age with maturity); 18 years old

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2. Citizenship suffrage is a political right appertaining to citizenship; an individual is a particle of popular sovereignty , hence such right cannot be extended to non-citizens; ALLEGIANCE TO THE COUNTRY IS UNDIVIDED 3. Residence for more meaningful expression of sovereignty; voter must possess more than a passing acquaintance with the problems and prospects of the country (double residence requirement) have resided in the Philippines for at least one year and in the place wherein they propose to vote, for at least six months immediately preceding the election. Does section 5 (d) of Rep. Act No. 9189 violate section 1, Article V of the 1987 Constitution? In its ordinary conception, residence connotes the actual relationship of an individual to a specific place. To be a resident, physical presence of a person in a given area, community or country is required Domicile in turn has been defined as an individual's permanent home or the place to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent Elements: (1) the fact of residing or physical presence in a fixed place; and (2) animus manendi, or the intention of returning there permanently. First residence requirement refers to a persons domicile. The second residence requirement refers to either a persons temporary residence or domicile. The second residence requirement is relevant for two purposes: (1) the determination of the place where the voter will register, and (2) the determination of the place where the voter will vote. It ought to be noted that as a general rule, a person should register and vote in the place where he has established his domicile or the place where he has resided for six months. (2) Whether an immigrant or a permanent resident of a foreign country has lost his domicile in the Philippines.

3 Classes of Domicile: Domicile of origin is acquired by every person at birth and continues until replaced by the acquisition of another domicile. Domicile of choice is a domicile chosen by a person to replace his or her former domicile. While intention is a principal feature of domicile of choice, a mere intention without the fact of actual presence in the locality cannot bring about the acquisition of a new domicile.

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Domicile of choice generally consists of a bodily presence in a particular locality and a concurrent intent to remain there permanently or at least indefinitely. Domicile by operation of law is a domicile that the law attributes to a person independent of a persons residence or intention. It applies to infants, incompetents, and other persons under disabilities that prevent them from acquiring a domicile of choice. Q: what can you say about this provision: No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage? A: It conforms to the idea of Thomas Jefferson that the people were the only competent guardians of their own liberty, thus everyone shall be allowed to vote (refer also to the arguments of Plato, Aristotle, etc..) Q: what happens to those who are abroad who cannot comply with the residency requirement? A: they can still vote. Section 5 RA 9189: You submit an affidavit

4. An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be the cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. Q: ISSUES RAISED: absentee voting cannot comply with the residency requirement, does this therefore be considered in violation of the constitution? A: NO. SC ruled that in resolving the residency issue of absentee voters, the constitutional provision applicable is Article V Section 2. Q: ISSUE RAISED: Section 5 RA 9189 provides declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act, WHAT HAPPENS IF YOU DONT GO BACK? A: SC The law says you are barred perpetually from registering as an absentee voting. But the vote which you cast is valid. You cannot recall and invalidate because at the time you casted your vote, you were a valid voter.
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Case: Macalintal vs. COMELEC - Read notebook Section 25 ICCPR (NATURE OF RIGHT) Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country. NATURE OF PHILIPPINE ELECTORAL SYSTEM Article 9 Section 6 (constitution). A free and open party system shall be allowed to evolve according to the free choice of the people, subject to the provisions of this Article. - It is NOT provided in the constitution that you have multi- party.. you can have a biparty system DEFINTION OF TERMS 1. Plebiscite electoral process by which an initiative on the constitution is approved or rejected of changes by the people (CONCERNS THE CONSTITUTION) 2. Referendum approve or reject an act or law passed by congress 3. Initiative power of the people to propose amendments to the constitution or to propose an enact legislations (people directly proposing) Q: what is indirect initiative? A: done through a proposition sent to congress or the local legislative body for action. (Proposal is passed through congress which makes the needed legislation) Recall - Importance of right to vote: part of democracy equality among person, it is through election that you are given that consent to be allowed to govern - You cannot impose substantive requirement because you just have to allow ordinary people to exercise such right for them to protect their liberty - It is for a higher intention, to preserve the government and guard your liberty
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- Thus, It is all right to put limitations so that you are to attain your goal AMENDMENT AND REVISIONS - Article XVII of the constitution Intention: Revision intention and plan must contemplate a CONSIDERATION of all the provisions of the constitution to determine which one should be altered or supported or whether the whole document should be replaced with an entirely new one Amendment intention is to IMPROVE specific partsof the existing constitution or to ADD to its provisions deemed essential or to SUPRESS portions of it that seem obsolete, or dangerous or misleading in their effect Q: How are amendments and revisions done? A: Step I: Proposal by the people Step II: Ratification- congress shall provided for the implementation Q: How do you propose? A: (Amendments and revisions have diff. steps) Amendments (3) 1. Constituent assembly - Same congress not acting as legislative; upon a vote of 2. Constitutional convention - They make a separate body by having a 2/3 votes of all its members 3. Peoples initiative: 12% of registered voters of which every legislative district must be represented by at least 3% of the registered voters therein [note: in proposing, one should follow the ONE SUBJECT rule] Revisions 1. Constituent Assembly 2. Constitutional Convention RA 6735 peoples initiative is for national/local legislation amendments only, not to constitution revisions (only for laws, ordinances or resolutions Q: How do you know if the process being done is amending or revising? A: Through the quantity and quality test - Quality, inquires into what will be changed. Whether the fundamental principle with which the government is founded of the constitution is changed
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Revision, implies a change that alters a basic principle in the constitution; it involves alterations of different portions of the entire document - Quantity, how many provisions are to be changed (refers to the number of) Q: How do you ratify? A: Submitted to the people on a single election plebiscite one time Q: Constitutional Assembly is formed by a vote of of Congress. Considering the fact that the Lower House comprises more than of the Congress, can you exclude the senate from the vote? A: For instance that they want the congress to vote jointly, it is to be specified whether both houses vote jointly or separately. - When article 17 was finished, they thought it was still under unicameral provision SC did not answer such in the case of Lozano because there is no actual case Whenever the framers of the congress wants the congress to vote jointly, they express that (ex. In a singular case of martial law declaration) thus, the general rule is to vote separately Q: Is peoples initiative available today? A: Peoples is not self executory. There should be an enabling law. (Case: Santiago v. Comelec) Q: Was the decision carried over to Lambinos case? A: No, because the cases are different. In Lambinos case, the matter at hand was a revision rather than amendment. In Lambinos Case - There were 105 sections changed (quanti) - What they wanted to change was the governmental principle of checks and balances (quali) - In this case, they werent able to show the full contents or laws of the proposed law Q: why should the text be in full and not just an abstract? A: because Art. XVII section 2 of the constitution clearly provides that peoples initiative should be DIRECTLY PROPOSED, so that people will fully comprehend the meaning and effect of the
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proposed changes to enable them to make a free, intelligent and well-informed choice on the matter Q: Assuming you have an enabling law, how do you go about with Peoples Initiative? A: In the petition that you pass, the draft of the petition should be embodied (it should be at the face of the petition) Q: Is there an alternative way of making a petition? How do you do it? A: Yes, you attach your draft. The petition must state the fact/ reason for such attachment. Q: What are the next steps after passing the draft? A: - You let the people sign (voters only) - You then submit the signatures to COMELEC for them to verify the signatures and to check its sufficiency. They have to check if these people are live voters and if they complied the 12% or 3% requirement. - After having the certification from COMELEC, you proceed with the ratification which is done not earlier than 60 days nor later than 90 day after the approval of such amendments (after COMELEC signed it) Note: Something so extensive as referendum should not be done by 50million people thus it cannot be proposed through an initiative

ELECTION PROCESS AND/OR PROCEEDINGS REGISTRATION OF VOTERS Section 8 RA 8189 Section 8. System of Continuing Registration of Voters. The personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election. Q: who may register? A: Section 9 RA 8189
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Section 9. Who may Register. All citizens of the Philippines not otherwise disqualified by law who are at least eighteen (18) years of age, and who shall have resided in the Philippines for at least one (1) year, and in the place wherein they propose to vote, for at least six (6) months immediately preceding the election, may register as a voter. Remember: residency requirement does not apply for absentee voter PROCEDURE OF REGISTRATION 1. Go there 2. Election assistant will ask for your name to check if you have already registered 3. After determining that you can register and that you complied with section 9, you are asked to fill up the form 4. Then you have your picture taken 5. Then you give your digital signature 6. Then your fingerprints Note: All of these features get included in comelec data base 7. Sign the logbook 8. You get your acknowledgment receipt NOTE: APPLICATION IS NOT EQUATED TO BEING REGISTERED (that just becausese you applied, it doesnt mean that you are already registered) It is just an application because such will still be approved or rejected by the election registration board (ERB) Because it is just a mere application, if you know that a certain person was able to fill up a registration form but he is not a resident of the place, you can challenge his right at the COMELEC LEVEL. NOTE: REGISTRATION IS WHAT IS CHEATED Q: How to challenge a persons right to registration? A: 1. you go to the ERB level 2. You go to the MTC court and file an EXCLUSION PROCEEDING a. It is important that you check the COMELEC resolution because it will provide for the date of filing exclusion proceeding b. It is a summary proceeding: you just state in your petition that X is not a resident of a place or that he committed a crime (you put affidavits of witnesses). In a matter of days, court will give notice of initial hearing. But there is no presentation of evidence. You only rely on presumptions. Example if your
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defense is that X is just a fictitious person. If X fails to appear on the date of hearing then there is a presumption that he is fictitious. You can actually appeal tho. Q: If court says you are not a resident of this place, can that fact be used for disqualifying you as being a candidate? A: Case: Domino vs. COMELEC. No. It is not res judicata. It settles only the singular issue of your right to vote (decided at the MTC level). The rest of the matter is resolved by COMELEC. Q: what if you failed to file exclusion proceeding on the period set by comelec, what can you do? A: 3. Annulment of book of voters you file this with COMELEC: goes to the admin function in preparing the voters list (long shot remedy) Note: The best way is to go with the exclusion proceeding because it is with the court. Q: can you be disallowed to register? A: GR: No. However, COMELEC can adopt measures to achieve orderly registration of voters (ex. Giving priority numbers for a certain day) Q: what can you do if you are disallowed to register? A: 1. File an inclusion proceeding in MTC. 2. COMELEC Resolution 8514 Section 19. Voter Excluded Through Inadvertence/or Registered with an Erroneous or Misspelled Name. Any registered voter whose name has not been included in the precinct certified list of voters, or whose registration record has not been included in the precinct book of voters, or whose name has been omitted in the list of voters, or who has been included therein with a wrong or misspelled name may file with the ERB an application for reinstatement or correction of name as the case maybe. For this purpose, he shall personally accomplish in three (3) copies the prescribed application form Annex E. It is important that the EO shall check the box corresponding to the appropriate type of application. If the applicant is a registered voter who has not previously submitted himself for the capturing of his biometrics data, the applicant shall accomplish both sides of the application form and shall be obliged to undergo the process of capturing his biometrics data. The DCM
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operator shall capture the biometrics data of the applicant. Thereafter, the operator shall affix his initial below the space provided for the EOs signature in Part 2 of the application form. If it is denied or not acted upon, he may file on any date with proper Municipal Circuit, Municipal or Metropolitan Trial Court a petition for an order directing that his name be entered or corrected in the list. He shall attach to the petition a certified copy of his registration record or identification card or the entry of his name in the certified list of voters used in the preceding election, together with proof that his application was denied or not acted upon by the ERB and that he has served notice to the ERB. Q: What is the prayer for this petition? A: --- that your name has been inadvertently omitted. COMELEC can allow you to be included because it can always be argued that your name has been withdrawn (but you should prove that you have previously been registered) On deactivation you can only be deactivated upon notice to the voter concern. Thus the voter can question why he was not notified but still excluded by reason of inadvertence. (Notification is NECESSARY) Note: The voters list is important if you are working for a candidate. The game is now with registration (cleanse the voters list) ELECTION PERIOD - 90 days before and 30 days thereafter Within that is your a. Campaign perion I. Pres, VP, Sen 90 days II. Congressman and local 45 days Before 2010, you can only engage with partisan political activities when campaign period has started Q: what is partisan political activities? A: rally; you post posters. Anything you do to promote candidacy or to defeat a candidate Q: So if campaing period is March 15, 2008. As early as January 17, 2008 you bombarded the air waive to vote for a candidate, Is that engaging with partisan political activities? A:
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Partisan Political Activites uses the term candidate which is defined as someone who has been filed a COC.. if you did not file yet your COC then it is not a part. Pol. activity (but this was before 2010).. [thus they file their coc at the last day] But in 2010, Pre-automated election system, there is a change in scenario

Section 80 of BP881 It shall be unlawful for any person whether or not a voter or a candidate, or for any political party or association of persons to engage in an election campaign partisan political activity except during campaign period. - This is not subject to presidents pardoning power - Can pardon but with the added requirement favorable recommendation from COMELEC Q: what is a partisan political activity or election campaign? A: Section 79 (b) of BP 881 Section 79. Definitions. - As used in this Code: (a) The term "candidate" refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties; *what includes election campaign* (b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include: (1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate; (2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;

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Q: If client comes to you asking if he can do house to house campaign before the campaign period, what will be your advice? A: before filing a COC, you can tell your client that he can go for the house to house campaign. Thus you advise him to file COC at the last minute of the deadline of filing of COC. Q: what is wrong with the law? A: unequal playing field for those who cannot afford to do a campaign in a wide span of time the law actually does not serve its purpose to deter advance campaigns for equality purposes. Case: Penera vs. COMELEC September 11, 2009 - After she filed COC thats when she did the motorcade. She distributed candies and had colorful balloons. - your advise should have been: you did the motorcade before filing the COCs. - Penera won the election however the ruling of the court was not in her favor. She was disqualified Case: Penera vs. COMELEC November 25, 2009 (motion for reconsideration) - The court reversed the decision - There was no denial of the facts - The argument of the council of Penera was that you are not yet a candidate since you only become a candidate upon the start of the campaign period - The law provides that unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period. (there is no offense committed before the campaign period) - Q: what is the counter argument of andanar? Penera is already a candidate. To construe the term only: you can only file a case after the campaign period. But the acts performed even before the campaign period will still be taken into account as a premature campaigning. (applicable pertains to the filing of the case)

In laymans language, this means that a candidate is liable for an election offense only for acts done during the campaign period, not before. The law is clear as daylight any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period. In ruling that Penera is liable for premature campaigning for partisan political acts before the start of the campaigning, the assailed Decision ignores the clear and express provision of the law. In favor of Penera:
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The decision rationalizes that a candidate who commits premature campaigning can be disqualified or prosecuted only after the start of the campaign period. This is not what the law says. What the law says is any unlawful actor or omission applicable to a candidate shall take effect only upon the start of the campaign period. The plain meaning of this provision is that the effective date when partisan political acts become unlawful as to a candidate is when the campaign period starts. Before the start of the campaign period, the same partisan political acts are lawful. Ex. March 29 (deadline of COC); You file at 5 pm Just before March 30 is the window for premature campaigning thus you cannot engage in such action. FILING OF COC Q: When to file? A: Depends on the date set by COMELEC Q: in what form ? A: in writing and under oath Q: what if not under oath? A: then you cannot be considered as a candidate Q: Can COMELEC refuse to accept? what then is COMELECs role with regards to accepting COCs? A: Ministerial duty to accept and receive. SEC. 8 (Comelec Reso 8678). Ministerial duty of receiving and acknowledging receipt of certificates of candidacy/nomination; Recording: provided said certificates are under oath and contain all the required data and in the form prescribed by the Commission. 2 schools of thought: a. COMELEC has no discretion even if defective because it is for the opposing party to point out. If not raised and he wins, the will of the people to prevail b. COMELECs function is ministerial if it is complete in form and substance Q: who can file COC? A: Any party who falls under the qualification Section 39 RA 7160
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SECTION 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any local language or dialect. In interpreting this requirement, our ruling in Papandayan, Jr. v. Commission on Elections[21] is instructive, thus: The term residence, as used in the election law, imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. Domicile denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. More recently in Coquilla v. Commission on Elections, we further clarified the meaning of the term, and held as follows: The term residence is to be understood not in its common acceptation as referring to dwelling or habitation, but rather to domicile or legal residence, that is, the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi). A domicile of origin is acquired by every person at birth. It is usually the place where the childs parents reside and continues (sic) until the same is abandoned by acquisition of new domicile (domicile of choice). In Caasi v. Court of Appeals, we held that a Filipino citizens immigration to a foreign country constitutes an abandonment of his domicile and residence in the Philippines. In other words, the acquisition of a permanent residency status in a foreign country constitutes a renunciation of the status as a resident of the Philippines. On the other hand, the Court explained in another case that a new domicile is reacquired if the following conditions concur: (1) *R+residence or bodily presence in the new locality; (2) an intention to remain there; and (3) an intention to abandon the old domicile. There must be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual. Qualification:
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For local candidate look at LGC If National candidate look at Constitution Q: can a law be passed increasing the qualification of the candidates? A: for national no unless you amend the constitution Case: SJS vs. PDEA - A law was passed to require all national and local candidates to undergo drug test as additional qualification - The one who filed a case was a candidate for Senator - Q: can COMELEC file a resolution requiring people to undergo drug test? A: For candidates whose qualifications are set by the constitution, they cannot do so because it is provided for the constitution (much supreme than a statue). But there should be no hindrance for those offices created by law.

Not: COMELEC can motu proprio deny the COC. Q: what if the COC is received, what is the effect of such filing? Legal Consequence of Filing the COC A: Case: Quinto vs. COMELEC - Depends on whether the candidate is an appointive or elective official - If appointive: deemed ipso facto resigned Q: why can you treat them differently? A: there is a substantial distinction Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. Nachuras opinion: there is substantial distinction but it is not germane to the purpose of the law (the evil is still there elected officials can still use their position to influence)
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There is an issue on the efficiency because you have to campaign if you filed your COC. There is also an issue on integrity use government resources in your campaign The use of government resource and inefficiency will still be there --- NACHURAS OPINION PUNOS SIDE WITH REGARDS TO CORRECTING THE EVILS Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the Legislature need not address every manifestation of the evil at once; it may proceed "one step at a time."39 In addressing a societal concern, it must invariably draw lines and make choices, thereby creating some inequity as to those included or excluded.40 Nevertheless, as long as "the bounds of reasonable choice" are not exceeded, the courts must defer to the legislative judgment.41 We may not strike down a law merely because the legislative aim would have been more fully achieved by expanding the class.42 Stated differently, the fact that a legislative classification, by itself, is underinclusive will not render it unconstitutionally arbitrary or invidious.43 There is no constitutional requirement that regulation must reach each and every class to which it might be applied;44 that the Legislature must be held rigidly to the choice of regulating all or none. Note: As it is now, elective are no longer deemed resigned but appointive are deemed resigned. Q: Why is this so? A: Elective officials have contract with the people of how long they are to say Q: why is the prohibition of not engaging in partisan political activity only applicable to appointive and not elective? A: elective engage in such activity all year round Q: Who may file for COC A: If national post look at the constitution If local post look at local government code RESIDENCE The term residence, as used in the election law, imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. Domicile denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return.
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Residence in political law is the same with domicile Q: elements to establish domicile? A: The term residence is to be understood not in its common acceptation as referring to dwelling or habitation, but rather to domicile or legal residence, that is, the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi). A domicile of origin is acquired by every person at birth. It is usually the place where the childs parents reside and continues (sic) until the same is abandoned by acquisition of new domicile (domicile of choice).

Intention to remain and intention to abandon the old domicile Q: what proof can you show of abandoning his old domicile? A: prove that you are a residence of the new locality. If you are an immigrant, you surrender your green card. How do you prove that he lost, when a person applies for green card. Case: Tess Dumpit Michelena vs. Boada - New Domicile is reacquired o Residence in the new locality o Intention to remain there o Intention to abandon old domicile - Property ownership is not indicia of the right to vote or to be voted for office. Intent to remain must be for indefinite period Q: what pieces of evidence did she present? A: deed of sale of a beach house. SPA In addition, the designation of caretaker with monthly compensation of P2,500[24] only shows that Dumpit-Michelena does not regularly reside in the place. Q: does this evidences comply with the necessity of the domicile? A:NO Q: if you were council for dumpit, what will be your proof? A: not a beach house but an actual resident for a beach house is only for temporary relaxation. Dont show that you hired a caretaker, because it will imply that you are not staying there.
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Q: what do we want to establish when we speak of residence? A: act of residence, intention to remain in that locality and intention to abandon the previous domicile Q: what if you have established that this person does not have the qualification, how do you attack a persons candidacy? A: You file a petition to deny due course or cancel certificate of candidacy I. Based on COC (Case: Salcedo vs. COMELEC) - There is material misrepresentation of facts - Q: what is material misrepresentation - it is essential that the false representation mentioned therein pertain to a material matter for the sanction imposed by this provision would affect the substantive rights of a candidate 1. Test of materiality Therefore, it may be concluded that the material misrepresentation contemplated by section 78 of the Code refer to qualifications for elective office 2. Intent to defraud Aside from the requirement of materiality, a false representation under section 78 must consist of a "deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible."25

Q: when do you file this? A: not later than 25 days from the time of the filing of the certificate of candidacy by the candidate but within the 5 days from the end of the filing of COCs (FILED WITH THE COMMISSION) Q: What if After the 25th day you did not file anything, do you have another remedy? A: COMELEC Resolution No. 8696 B. PETITION TO DISOUALIFY A CANDIDATE PURSUANT TO SECTION 68 (possessing grounds for qualification or lack of qualifications) OF THE OMNIBUS ELECTION CODE AND PETITION TO DISOUALIFY FOR LACK OF OUALIFICATIONS OR POSSESSING SOME GROUNDS FOR DISQUALIFICATION 1. A verified petition to disqualify a candidate pursuant to Section 68 of the OEC and the verified petition to disqualify a candidate for lack of qualifications or possessing some grounds for disqualification may be filed on any day after the last day for filing of certificates of candidacy but not later than the date of proclamation;
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2. The petition to disqualify a candidate pursuant to Section 68 of the OEC shall be filed in ten (10) legible copies, personally or through a duly authorized representative, by any citizen of voting age, or duly registered political party, organization or coalition of political parties against any candidate who, in an action or protest in which he is a party, is declared by final decision of a competent court, guilty of, or found by the Commission of, having: 2.1. Given money or other material consideration to influence, induce or corrupt voters or public officials performing electoral functions; 2.2. Committed acts of terrorism to enhance his candidacy; or 2.3. Spent in his election campaign an amount in excess of that allowed by law; or 2.4. Solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104 of the OEC; or 2.5. Violated any of Sections 80, 83, 85, 86 and 261 paragraphs d, e, k and v and cc subparagraph 6 of the OEC, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Note: in the past, if your basis is the qualification to run it should be filed 25 days after filing of COC. You have other grounds but not based on qualifications unless you go to court on quo warrantu. Note: Misrepresentation is the only ground when you attack a person based on COCs. Q: what is the effect when you filed in COMELEC a disqualification case? A: the effect of filing Section 6> effect of disqualification case any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and and receives the winning number of votes in such election, the Court of Commission shall continue with the trial and hearing of the action, inquiry or protest and , upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong Therefore you file a motion for reconsideration.. not yet final.. it will still go to the SC.
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[Judgment becomes final upon 5 days from receiving the decision of COMELEC.] Q: assuming it attains finality? A: the votes will be considered stray votes. You can also attack that the candidate is a nuisance candidate (not based on information in the COC) Landmark Case: Pamatong vs. COMELEC Q: what made him a nuisance candidate? A: he is not capable of conducting or wage a nationwide campaign. Not supported by a registered political party. 3 kinds of persons: 1. Said certficate is to put the election process in mockery or disrepute Q: what are the signs of making the election in mockery or disrepute? How do you know he is not sincere? A: 2. Cause confusion among voters 3. Clearly demonstrate that the candidate has no bona fide intention to run for the office Pamatongs argument; 1. He can wage an international campaign because he has a network and is involved in international organizations 2. There is a violation of equal office right under the constitution SCs ruling - There is no constitutional right to run for or hold public office, specifically to seek the presidency. There is NO RIGHT, Just a mere PRIVILEGE subject to limitation imposed by law. - The state has a compelling interest to ensure that its electoral exercises are rational, objective, and orderly Q: what is the compelling interest? A: to ensure and uphold the electoral process Q: how does the nuisance candidate make the election process a mockery. How does this prevent the COMELEC from achieving such election process?
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A: SC said that it will cause logistical nightmare. The state takes into account the practical considerations in conduction elections. Inevitably, the greater number of candidates, the greater opportunities for logical confusion, not to mention the increased of time and resources in preparation for the election. Q: why is there evil in allowing many nuisance candidates? A: the voters will be confused. Further, the time and effort given in preparing electoral paraphernalia. The other way is when he committed prohibited acts in election (ELECTION OFFENSES) --- ppt. presentation WITHDRAWAL OF COCs - Done under oath Q: can a candidate change his mind? A: yes as long as it is within the filing of COC SUBSTITUTION - Look at sec 77 Q: what if he dies on the night before election, can he be substituted? A: yes. Substitution can be done anytime Q: what happens to one who dies, disqualified or withdraws who does not belong to a political party? A: No substitution. One argument, if you read the requirement of the law (section 77) --- refers only to a candidate of a political party. No provision of law dealing with independent party. Because the law does not provide for such, then there is NO substitution (prevailing law as decided in Barangay Election [wear color =)] the wife wanted to substituted but SC said that it cannot be done)but this is not controlling because it did not happen in a regular election MULTIPLE FILING OF COC - It should be UNDER OATH Q: automatically disqualified if not under oath?
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A:Law says he is not allowed to sit because he did not validly file a COC. Alternative answer: primacy of the voters will. Because he won, the will of the people shall be given flesh and that technicality should not kill such will. CAMPAIGN: RULES AND LIMITATION limitation to period --- 90 day before election National. 45 days before election Local Article III(4) of the Constitution has to be taken in conjunction with Article IX (C) (4) --special provision applicable during a specific limited period DURING THE ELECTION PERIOD RA 9006 three limitations: a. When b. kind of election propaganda, c. and the extent Q: site an example on the limitation on the conduct of campaign? A: supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of media of communication or information to guarantee or ensure equal opportunity for public service, including access to media time and space, and the equitable right to reply, for public information campaigns and for a among candidates and assure free, orderly, honest, peaceful and credible elections Examples are those provided in Section 3 of RA 9006 For the purpose of this Act, lawful election propaganda shall include: 3.1. Pamphlets, leaflets, cards, decals, stickers or other written or printed materials the size of which does not exceed eight and one half inches in width and fourteen inches in length; 3.2. Handwritten or printed letters urging voters to vote for or against any particular political party or candidate for public office; 3.3. Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two (2) feet by three (3) feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three (3) feet by eight (8) feet in size, shall be allowed:Provided, That said streamers may be displayed five (5) days before the date of the meeting or rally and shall be removed within twenty-four (24) hours after said meeting or rally;
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3.4. Paid advertisements in print or broadcast media: Provided, That the advertisements shall follow the requirements set forth in Section 4 of this Act; and Section 4. Requirements for Published or Printed and Broadcast Election Propaganda. 4.1. Any newspaper, newsletter, newsweekly, gazette or magazine advertising, posters, pamphlets, comic books, circulars, handbills, bumper stickers, streamers, sample list of candidates or any published or printed political matter and any broadcast of election propaganda by television or radio for or against a candidate or group of candidates to any public office shall bear and be identified by the reasonably legible or audible words "political advertisement paid for," followed by the true and correct name and address of the candidate or party for whose benefit the election propaganda was printed or aired. 3.5. All other forms of election propaganda not prohibited by the Omnibus Election Code or this Act. Q: are these not violation of freedom of expression? A: it is valid to restrict as long as the restriction itself has its limitations The provision below was invalidated by the Supreme court (RA 9006) 5.4. Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election. Obrien Test - The question is whether the content is related to the suppression of free expression - Substantial governmental interest Content-Neutral Regulation - In RA 9003: ex. Size of the pamphlet - The content is not taken into account - What is restricted is the TIME/ PLACE/ MANNER speech restriction There are only 2 persons authorized to disburse expenditures 1. Candidate 2. Treasurer of the political party Q: if candidate wants to hold a rally and you want to sponsor the bill? A: He can avail of the sponsorship only if he secures a permission from the candidate or treasurer.
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Thus an additional person: - Person authorized by the candidate or treasurer Note: without this permission, such disbursement is an election offense This is because there is a required expenses: Pres and VP P10 /voter Others P5/voter Political P5/voter (take note of RA 9006) Q: when can you say that a media station is favoring a candidate? A: repeated reference to the candidate.. however they can do so if it is a news worthy event. If you want to deviate for the lawful propaganda you have to seek for a permission from the COMELEC. But there will be publication that will come with this. You cannot do campaign during Maundy Thursday and good Friday, day before election and election day. LIMIT that you can appear in tv and radio - Look at post it LIMIT ON APPEARANCE IN NEWSPAPER - 3 x a week size in maximom (broadsheep - If tabloid 3 times a week COMELEC IS AUTHORIZED BY RA 9006 TO LIMIT HOW YOU ADVERTISE AND CAMPAIGN YOURSELF - It is content neutral because it is regardless of what the content is in such campaign material - It only concerns on how you deliver it CONTENT BASED - Looks into what you are actually saying

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 If content neutral, it will pass the test of validity as long as the restriction is within the substantial governmental interest. However, if it concerns on the content of expression, it is subject to the clear and present danger rule (strict test IF IT IS CONTENT BASED) For content neutral to be valid it should show substantial governmental interest If regulation of Surveys (SWS case) - It is content-neutral regulation - There is substantial governmental interest (manipulation - the PREVENTION OF THE DEBASEMENT of the electoral process resulting from manipulated surveys, bandwagon effect, and absence of reply i. debasement comes because you might display false results that will further result to a junking effect. Q: so why is it that the survey is still allowed? A: because there is suppression of the expression itself. Because you can still limit the debasement effect(ex. Go after the act but not to prohibit those results which may be credible) DURING CAMPAIGN YOU CAN HAVE RESTRICTIONS CATEGORIZED TO CONTENT-NEUTRAL AND CONTENT BASED (YOU HOLD THESE IN DIFFERENT TESTS)

CONDUCT OF ELECTION Absent; listen to recording Am-10-4-1-SC Comelec reso 8804 8809 8739 Case: Roque vs. COMELEC We were supposed to pilot test during 2007 and 2004 election. But pilot-testing is not necessary so as to automate 2010 election. What is important is that it was pilot-tested outside Philippines. Trace of automations - 1996 automate arm with the use of optical mark reader - We had this under 2010 because it is a mandate under the late RA 9369 i. The word used was shall thus it is a mandate
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COMOPONENT 1: PAPER BASED AUTOMATED ELECTION SYSTEM - Before they crafted the law that required paper based (Q: why not touch screen? Because optical mark reader is leased at 7 million. The lease of touch screen is 11 million. SO part of the factor is the budget or cost) thus paper based mechanism COMPONENT 2: The law requires that it has a provision for electronic transmission using public telecommunication network Component 3: OVERALL PROJECT MANAGEMENT - You have a continuity plan RA 9369 - It is require that there should be a data retention provision (taking picture of the ballot) - Comelec shall develop a system of evaluation (Roque: comelec was required with a system checklist) i. In all the question, the answer must be YES, for the contract to be awarded to the bidder. ii. The system should be able to capture and store in an encrypted format the digital images (number 3 question in roque qualification) BOARD OF ELECTION ISPECTORS NO. OF PRECINTS CLUSTERED 1 2 3 4 5

SUPPORT STAFF

0 0 1 2 3

TOTAL (BEI PLUS SUPPORT STAFF) 3 3 4 5 6

REMEMBER: you cannot change your vote and over vote. if you overvote it does not affect the validity of the ballot. You can undervote. Ideally there is TESTING AND SEALING at least three days before election day. - Supposedly, the machine will arrive in the clustered precinct, you shade, manually count, and place it in the machine. Then you compare the result. Then you seal it when you know that the machine works. You make sure that there is no link with the outside
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world and the public shall be allowed to secure the polling precinct to make sure that its the same machine to be used during the election. - However, in the real scenario, no machines arrived 3 days before election. VOTING - Supposedly 7 am to 6 pm - At least 10 voters can cast ballot at any one time - Before the start of election, there should be a zero report or initialization. Then the election will start. At the close of the post, the counting will immediately commenced. (you first print the 8 hard copies before you commence the transmission, then you print the other 24 copies) COUNTING - After transmission you print again CANVASSING AND CONSOLIDATING - The data will be simultaneously will be transmitted to the canvassers, server for dominant majority/minority parites, citizen arms and kbp. - Q: but do you transmit automatically to national canvassers? A: Testing and Sealing Testing check if the manual coincides with the machine count Sealing sealed in the full view of the public Before Voting starts - Test machine - Print zero vote report Voting - Procedure in filling out of ballots Counting - Before transmitting, print copies with the ER - To check the data that are to be transmitted - After transmission print 22 copies.

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angels notes election law discussion and cases

Whats to be remembered is that the canvassing and consolidating handled by comelec is upto senators and party list. Congress is the one who canvass and consolidate for the position of president and vice president Ironically, that the rules they crafted is the manual count. (rules promulgated by congress)

ELECTRONIC TRANSMISSION From the precinct level, you transmit it to the canvassers. Simultaneous with this is the transmission to the citizens arm and kbp. Then to the national board of canvassers. However, if you look at congress in canvassing: each canvassing unit will hold on to the results they receive from the clustered precints before they transmit it to comelec central server and national canvassers. Q: what if you dont have enough clustered precint that transmitted? a. A: To generate the COC for the next position, repeat procedures (c) to (i). 2.3. If, based on the verification, it becomes clear that there is no way for the lacking results to be transmitted to the MBOC/CBOC/DBOC or PBOC, as the case may be, and said results will affect the standing of the candidates in a particular position, the Board shall, through the Information Technology Department, ask from the Commission authority to generate and print the certificate of canvass for that particular position and to proclaim as winners, the candidates whose standing are not affected by the lacking results. -(comelec reso 8009) If it will not materially affect, you can ask permission to transmit. But as a rule you receive everything before you transmit it to the national board of canvassers. Q: is the possibility of hacking from transmitting the results? A: the law requires 4 security features (password, pin, digital signatures, encryption [128 bit encryption]) encryption is similar as to that of the bank transmission is 2 minutes max thus your window of opportunity of hacking is 2 minutes. Every machine is precinct specific which the most you can have is a thousand votes. THIS IS VERY HARD THUS NO NEWS OF HACKING Note: Controversy does not revolve on hacking but the source code. AUDIT LOG - Record the activity of the machines
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3rd aspect of the project CONTINUITY PLAN TYPES OF SYSTEM BREAKDOWN o Fails to scan o Able to scan but fails to print o Able to print but fails to transmit o Able to transmit but fails to consolidate Q: what if all the pcos machine does not work A: spare pcos, go to other precincts (configure machines) resort to manual counting Q: able to scan but fails to print? A: spare PCOS, Go to other precint, resort to manual counting Q: Able to print but fails to transmit? A: go to the nearest functioning pcos machinery. If everything bugs down, you physically transport Q: Able to transmit but fails to consolidate? A: go to other municipality with functioning consolidation system. Or use back up unit by the central server FAILURE OF ELECTION - Not possible coz you can do manual counting BASIC ELEMETNS OF ELECTIONS - See powerpoint - Problem is caused by people SUCCESFUL IMPLEMENTATION - Have a vigilant citizenry i. Cooperation ii. Coordination iii. Support RA 9369

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angels notes election law discussion and cases

"12. Source code - human readable instructions that define what the computer equipment will do; and BUT the same law says that the source code must be reviewed by a 3rd person "SEC. 11. Functions of the Technical Evaluation Committee. - The Committee shall certify, through an established international certification entity to be chosen by the Commission from the recommendations of the Advisory Council, not later than three months before the date of the electoral exercises, categorically stating that the AES, including its hardware and software components, is operating properly, securely, and accurately, in accordance with the provisions of this Act based, among others, on the following documented results: 1. The successful conduct of a field testing process followed by a mock election event in one or more cities/municipalities; 2. The successful completion of audit on the accuracy, functionally and security controls of the AES software; 3. The successful completion of a source code review; 4. A certification that the source code is kept in escrow with the Bangko Sentral ng Pilipinas; 5. A certification that the source code reviewed is one and the same as that used by the equipment; and 6. The development, provisioning, and operationalization of a continuity plan to cover risks to the AES at all points in the process such that a failure of elections, whether at voting, counting or consolidation, may be avoided. For purposes of the 2007 elections, the certification shall be done not later than eight weeks prior to the date of the elections.

It is required by law to be available and open to any interested political party or groups which can conduct their own review thereof. Note: you can review can you cannot COPY!!!! Because the moment you allow to copy, they will study and find a way to beat the system.
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READ GENERAL INSTRUCTIONS OF BEI HOW TO CHALLENGE ELECTION (8004 AND am 10-4-1) ELECTION CONTEST, PRE PROC CONTROVERSY Pre Proclamation 4 matters: Not applicable only 2 left only Where to file When to file What (petition should be accompanied by what doc, what are to be alleged, what are the evidence admissible to prove the facts) Legal Memo and legal opinion type. BEI what to do when you want to challenge the voters - General instruction and challenges only

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angels notes election law discussion and cases