ELECTION LAWS | Atty.
Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
PART VI. ELECTION
VOTING, DEFINED
WHO CAN VOTE
Sec. 148, Article XII, Omnibus Election Code
List of Voters.
Fifteen days before the date of the regular election of special election,
referendum or plebiscite, the board of election inspectors must post the
final list of voters in each precinct with each and every page thereof duly
signed or subscribed and sworn to by the members of the board of
election inspectors and that failure to comply with this provision will
constitute an election offense.
Any candidate or authorized representative of an accredited political
party, upon formal request made to an election registrar, shall be
entitled to a certified copy of the most recent list of voters in any
precinct, municipality, city or province, upon payment of a reasonable
fee as may be prescribed by the Commission.
Atty Guji: Those who can vote are included in the final list which is
released by the COMELEC in each precinct. This is the final voters list,
which should be the Certified Voters List. You cannot vote if you are not
there in the list. Even if you are a qualified voter, but you did not
register, then you cannot vote. In other words, for you to be listed in
that particular Certified Voters List, you must register. ‘Cause yes, you
can be a qualified voter, you have all the qualifications, but if you did
not register, which is a regulatory proper, you cannot vote.
CHALLENGE OF ILLEGAL VOTERS
Sec. 199, Article XVII, Omnibus Election Code
A. Any voter, or watcher may challenge any person offering to vote
for not being registered, for using the name of another or suffering
from existing disqualification. In such case, the board of election
inspectors shall satisfy itself as to whether or not the ground for
the challenge is true by requiring proof of registration or the
identity of the voter; and
B. No voter shall be required to present his voter’s affidavit on election
day unless his identity is challenged. His failure or inability to
produce his voter’s affidavit upon being challenged, shall not
preclude him from voting if his identity be shown from the
photograph, fingerprints, or specimen signatures in his approved
application in the book of voters or if he is identified under oath by
a member of the board of election inspectors and such
identification shall be reflected in the minutes of the board.
Question: What if you are a watcher designated by Duterte in
one polling place, then somebody from the opposite side
decides to vote, and you think that that person is not the person
he claims to be. What is your remedy?
The BEI can raise this issue by asking the voter to present his proof of
registration or proof of identity of the voter.
Question: What if the BEI states that the person really is the
person he claims to be. Can you insist otherwise?
No, after the BEI had made it’s decision, that decision is final.
Atty Guji: In other words, we are talking about Illegal Voters. And such
example is an impostor. He is not the person he claims to be.
Q. What are the instances which you can say that a person is
an illegal voter?
1. When the person is suffering with an existing disqualification.
2. When he is not the person he claims to be.
3. When the person is not a registered voter.
1 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
CHALLENGE BASED ON CERTAIN ILLEGAL ACTS
Sec. 200, Article XVII, Omnibus Election Code
Any voter or watcher may challenge any voter offering to vote on the
ground that the challenged person has received or expects to receive,
has paid, offered or promised to pay, has contributed, offered or
promised to contribute money or anything of value as consideration for
his vote or for the vote of another; that he has made or received a
promise to influence the giving or withholding of any such voter or that
he has made a bet or is interested directly or indirectly in a bet which
depends upon the results of the election. The challenged person shall
take a prescribed oath before the board of election inspectors that he
has not committed any of the acts alleged in the challenge. Upon the
taking of such oath, the challenge shall be dismissed and the challenged
voter shall be allowed to vote, but in case of his refusal to take such
oath, the challenge shall be sustained and he shall not be allowed to
vote.
Q. What are these illegal acts?
1. Receiving or expects to receive; has paid, offered or promised to
pay; has contributed, offered or promised to contribute money or
anything of value as consideration for his vote or for the vote of
another;
2. Made or received a promise to influence the giving or withholding
of any such voter or when he has made a bet or or is interested
directly or indirectly in a bet which depends upon the results of
the election (when a person wagers on an election result).
Q. As a voter, what is your remedy from the allegation?
1. Deny the allegation (form: written)
2. Under oath (deny it under oath).
Atty Guji: Regardless of the truth or falsity of the denial, you will be allowed
to vote, as long as you do it under oath. That’s why I call it crap. Because
this does not stop you from voting.
Q. What is the reason that you cannot be allowed to vote?
When he does not deny such allegation under oath (some might fear stating
anything under oath because it might amount to perjury).
Atty Guji: This is the only instance that you will not be allowed to vote. But
of course, as a voter, your first instance would be to deny the allegation
under oath because that’s the only thing that would make you be allowed to
vote. So again, regardless of whether or not the challenged voter is telling
the truth, he will still be allowed to vote. And the BEI cannot investigate
further for as long as there is that denial under oath, then so be it. Pwede
na makabotar.
WHEN TO VOTE
Sec. 190, Article XVII, Omnibus Election Code
Voting hours.
The casting of vote shall start at seven o’clock in the morning and shall
end at three o’clock in the afternoon, except when there are voters
present within thirty meters in front of the polling place who have not
yet cast their votes, in which case the voting shall continue but only to
allow said voters to cast their votes without interruption. The poll clerk
shall, without delay, prepare a complete list containing the names of
said voters consecutively numbered, and the voters so listed shall be
called to vote by announcing each name repeatedly three times in the
order in which they are listed. Any voter in the list who is not present
when his name is called out shall not be permitted to vote.
Q. When do you vote?
From 7 o’clock in the morning until 3 o’clock in the afternoon on the
election day
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
WHERE TO VOTE
Sec. 152, Art. XIII, Omnibus Election Code
Polling Place.
A polling place is the building or place where the board of election inspectors
conducts its proceedings and where the voters shall cast their votes.
Sec. 158, Art. XIII, Omnibus Election Code
Voting booth.
During the voting, there shall be in each polling a booth for every
twenty voters registered in the precinct. Each booth shall be open on
the side fronting the table for the board of election inspectors and its three
sides shall be closed with walls at least seventy centimeters wide and two
meters high. The upper part shall be covered, if necessary, to preserve the
secrecy of the ballot. Each booth shall have in the background a shelf so
placed that voters can write therein while standing and shall be kept clearly
lighted, by artificial lights, if necessary, during the voting.
The Commission shall post inside each voting booth and elsewhere in the
polling place on the day before the election, referendum and plebiscite a list
containing the names of all the candidates or the issues or questions to be
voted for, and shall at all times during the voting period keep such list posted
in said places.
Sec. 11, RA 7166 (Synchronized Elections Law)
Voting booth.
Any provision of law to the contrary notwithstanding there shall be in each
polling place at least ten (10) voting booths of such size, specifications
and material as the Commission may provide to enable the voters to fill out
their ballots secretly.
Q. Where do you vote?
Only vote in the polling place.
Q. Can you vote online?
No, you cannot (as of now :D )
Q. Can you vote ahead of time?
Yes, there is an exception for the Local Absentee Voters. If you are a Local
Absentee Voter, you can vote in advance, like 30 days prior to Election Day.
HOW TO VOTE
Sec. 193, Art. XVII, Omnibus Election Code
Order of voting.
The voters shall vote in the order of their entrance into the polling place. The
voters shall have the right to freely enter the polling place as soon as they
arrive unless there are voters waiting inside, in which case they shall fall in
line in the order of their arrival and shall not crowd around the table of the
bard of election inspectors. The voters after having cast their votes shall
immediately depart.
Sec. 194, Art. XVII, Omnibus Election Code
Manner of obtaining ballots.
The voter shall approach the chairman and shall give his name and address
together with other data concerning his person. In case any member of the
board of election inspectors doubts the identity of the voter, the board of
election inspectors shall check his voter’s identification card or, if he does not
have any, the board of election inspectors shall refer to his photograph and
signature in the voter’s application for registration. If the board of election
inspectors is satisfied with his identity, the chairman shall distinctly announce
the voter’s name in a tone loud enough to be plainly heard throughout the
polling place. If such voter has not been challenged, or if having been
challenged, the question has been decided in his favor, the voter shall
forthwith affix his signature in the proper space in the voting record, and the
chairman shall, after first entering the number of the ballot in the
corresponding space of the voting record, deliver to the voter one ballot
correctly folded. No person other than the chairman shall deliver official
ballots nor shall more than one ballot be delivered at one time.
Sec. 195, Art. XVII, Omnibus Election Code
Manner of preparing the ballot.
The voter, upon receiving his folded ballot, shall forthwith proceed to one of
the empty voting booths and shall there fill his ballot by writing in the proper
2 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
space for each office the name of the individual candidate for whom he
desires to vote.
No voter shall be allowed to enter a booth occupied by another, nor enter
the same accompanied by somebody, except as provided for in the
succeeding section hereof, nor stay therein for a longer time than necessary,
nor speak with anyone other than as herein provided while inside the polling
place. It shall be unlawful to prepare the ballot outside the voting booth, or
to exhibit its contents to any person, or to erase any printing from the ballot,
or to intetionally tear or deface the same or put thereon any distinguishing
mark. It shall likewise be unlawful to use carbon paper, paraffin paper, or
other means for making a copy of the contents of the ballot or make use of
any other means to identify the vote of the voter.
Sec. 196, Art. XVII, Omnibus Election Code
Preparation of ballots for illiterate and disabled persons.
A voter who is illiterate or physically unable to prepare the ballot by himself
may be assisted in the preparation of his ballot by a relative, by affinity or
consanguinity within the fourth civil degree or if he has none, by any person
or his confidence who belong to party members:
Provided, That no voter shall be allowed to vote as illiterate or physically
disabled unless so indicated in his registration record:
Provided, further, That in no case shall an assistor assist more than three
times except the non-party members of the board of election inspectors. The
person thus chosen shall prepare the ballot for illiterate or disabled voter
inside the voting booth. The person assisting shall bind himself in a formal
document under oath to fill out the ballot strictly in accordance with the
instructions of the voter and not to reveal the contents of the ballot prepared
by him. Violation of this provision shall constitute an election offense.
Sec. 197, Art. XVII, Omnibus Election Code
Spoiled ballots.
If a voter should accidentally spoil or deface a ballot in such a way that it
cannot lawfully be used, he shall surrender if folded to the chairman who
shall note in the corresponding space in the voting record that said ballot is
spoiled. The voter shall then be entitled to another ballot which the chairman
shall give him after announcing the serial number of the second ballot and
recording said serial number in the corresponding spaces in the voting
record. If the second ballot is again spoiled or defaced in such a way that it
cannot lawfully be used, the same shall be surrendered to the chairman and
recorded in the same manner as the first spoiled or defaced ballot. However,
no voter shall change his ballot more than twice.
The spoiled ballot shall, without being unfolded and without removing the
detachable coupon, be distinctly marked with the word “spoiled” and signed
by the board of election inspectors on the indorsement fold thereof and
immediately placed in the compartment for spoiled ballots.
Sec. 198, Art. XVII, Omnibus Election Code
Voting.
1. After the voter has filled his ballot he shall fold it in the same
manner as when he received it and return it to the chairman.
2. In the presence of all the members of the board of election
inspectors, he shall affix his thumbmark on the corresponding
space in the coupon, and deliver the folded ballot to the chairman.
3. The chairman, in the presence and view of the voter and all the
members of the board of election inspectors, without unfoldingthe
ballot or seeing its contents, shall verify its number from thevoting
record where it was previously entered.
4. The voter shall forthwith affix his thumbmark by the side of his
signature in the space intended for that purpose in the voting
record and the chairman shall apply silver nitrate and commassie
blue on the right forefinger nail or on any other available finger
nail, if there be no forefinger nail.
5. The chairman shall sign in the proper space beside the thumbmark
of the voter.
6. The chairman, after finding everything to be in order, shall then
detach the coupon in the presence of the board of election
inspectors and of the voter and shall deposit the folded ballot in
the compartment for valid ballots, and the detached coupon in the
compartment for spoiled ballots.
7. The voter shall then depart.
Any ballot returned to the chairman whose detachable coupon has been
removed not in the presence of the board of election inspectors and of the
voter, or any ballot whose number does not coincide with the number of the
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
ballot delivered to the voter, as entered in the voting record, shall be
considered as spoiled and shall be so marked and signed by the members of
the board of election inspectors.
Q. How to vote?
 Manual - just write the name of the person you wish to vote for
 Automated - shade the provided circle for the name of the candidate (the
scanner of the VCM reads the vote)
Q. What is undervoting or overvoting?
 Undervoting - when you only voted for a lesser number than what is
required for Ex. In Senators, you only listed 10 instead of 12. The VCM will
still count all of your votes.
 Overvoting - when you voted for more than what is required for
Ex. In Senators, you voted for more than 12. The VCM will not count any
of those, as if you did not vote.
Atty Guji: In the case of overvoting, nobody gets the vote. But remember,
compartmentalized. Meaning, for example, you voted for President, you
chose only 1 that is counted. But if for Senators, you chose more than 12,
then nothing is counted for any Senator, but that is only for that position. It
does not invalidate the entire ballot because it is compartmentalized.
WHO CONDUCTS
Sec. 168, Art. XIV, Omnibus Election Code
Power of the board of election inspectors.
The board of election inspectors shall have the following powers and
functions:
1. Conduct the voting and counting of votes in their respective polling
places;
2. Act as deputies of the Commission in the supervision and control of the
election in the polling places wherein they are assigned, to assure the
holding of the same in a free, orderly and honest manner; and
3. Perform such other functions prescribed by this Code or by the rules
and regulations promulgated by the Commission.
BOARD OF ELECTION INSPECTORS
COMPOSITION
BOARD OF ELECTION INSPECTORS/TELLERS (BEI/BET)
It is the body tasked to conduct voting and counting of votes in a polling
place during election day.
A. BEI – National Local Elections
B. BET – Barangay Elections
Atty Guji: There is really no difference between the two. Only that BEI is for
Presidential and Local Elections and BET is for Barangay elections. Polling place -
classroom where you cast your vote. BEI/BET administers voting and counting of
votes. These are the teachers.
Composition of BET
All public school teachers composed of:
A. Chair
B. Poll Clerk
C. Third Member
Atty Guji: Under the old law, it is mandatory for public school teachers to serve as
BEI during elections. Now, it is no longer mandatory (there was a law that was
passed in 2016). However, it also says that in case of shortage of public school
teachers, we can actually tap those who are employees of Civil Service and also
private school teachers.
As a matter of fact in special cases, in ARMM, there were instances when the
Comelec was constrained to secure the services of PNP as well as AFP to be the
BEI because of the threat to violence. That is allowed even if the law says that it
has to be the public school teachers. Power of the Comelec during election period
is massive so as not to be disturbed by the courts unless there is grave abuse of
discretion or arbitrariness.
3 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
Q. Can a registered voter in that polling place be appointed as
an inspector?
As a general rule, no. But there is an exception actually, which is for
example there is a temporary vacancy. Na-late ang poll clerk, wala
kamata, so wala pa kaabot. But you only need 1 person to do the job of
the poll clerk. The BEI can appoint a registered voter inside the polling
place temporarily, to be the poll clerk, provided that the registered
voter is of known probity and is a non-partisan of that election.
That is why a watcher cannot be appointed temporarily as a BEI because
that would amount to conflict of interest.
Q. It is said that it’s “public school teachers”, is that
mandatory? Can the public school teacher refuse?
Under the old law, it was mandatory. But a recent law was passed in
2016 that states that it is no longer mandatory. Therefore, the public
school teacher can now refuse to become a BEI.
Q. Are they required to state the reason why they refused?
No, because if they are not willing, then we cannot force them anymore
to perform such duties and responsibilities during election day.
QUALIFICATIONS OF BEI
QUALIFICATION OF THE BEI
A. Of good moral character and irreproachable reputation.
Atty Guji: This is because they are tasked to determine the will of the
people. But the DepEd merely gives us a list of names of those who are
willing to serve in the election and we are going to appoint them or sign
them to a particular polling place.
Q: Are we tasked by law to investigate whether they are of good moral
character?
Not necessarily. What we do is just appoint right away and wait for any
opposition to such appointment on the ground that they lack good moral
character. So far no opposition so presumption is if you are appointed
you are of good moral character.
Q: But how to define GMC in the 1st place?
Hard to define. The presumption stays.
Of course, when they were appointed, the presumption is they are of
good moral character and irreproachable reputation, unless, somebody
comes to us and tells us that, that person is lacking good moral character
and irreproachable reputation. Without that, we cannot tinker we the
presumption.
B. Registered voter of city or municipality.
Atty Guji: E.g. if a BEI wishes to serve in Cebu City, then he must be
registered in Cebu City. If not a registered voter, then he can’t be a BEI.
Q. What if you are a registered voter in one barangay and you
serve in another barangay?
It is allowed provided that it belongs to the same city or municipality.
Exception: when we appoint police officers.
Because chances are, they are not registered in that particular
municipality.
C. Able to speak and write Filipino, English or the local dialect.
D. Never been convicted of any election offense or any other
crime punishable by more than 6 months of imprisonment.
Atty Guji: The conviction need not be of an election offense. It can be
of any other crime that carries a penalty imprisonment of 6 months
imprisonment or more.
Take note, conviction with finality for election offense and any other
crime punishable by more than 6 months of imprisonment with finality.
In other words, even if you were convicted with a crime that carries with
it a penalty of 30 days only, even with finality, you can still serve in the
elections. It does not disqualify you because it requires more than 6
months imprisonment.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
But here, take note, that when we talk about election offense, it
does not need conviction, much less finality. Mere pendency of an
election offense case filed against you, disqualifies you. That’s why ang
ubanf pulitiko, they’re taking advantage of this.
For example, I am the politician who’s suspecting the BEIs to be biased
against me, nakadapig sila sa kontra, what I do is I file an Election
Offense case against you. Frivolous! Even without basis. Because mere
filing, it becomes pending, right? And that pendency will take a long
time, so maabtag laing election, di na mo ka-serve the next time. Mao
nay nahitabo.
E. No pending case for election offense.
Atty Guji: It involves an election offense. There is no need for conviction,
no need for finality. The mere pendency of an election offense is
sufficient to disqualify a public school teacher from serving as BEI.
DISQUALIFICATIONS OF BEI
DISQUALIFICTIONS OF BEI
Relationship within the 4th civil degree of consanguinity or affinity to:
A. Any member of same BET.
Atty Guji: In other words, you can’t belong to the same BEI in the same
polling place if you are related. One of you must transfer to another
polling place.
Dili pwede magkuyog ang mag-paryente inside the polling place. But
in this case, the remedy is, ibalhin ang usa sa pikas na polling place in
order to circumvent and prohibition.
B. Any candidate (national or local)
Atty Guji: Example: In the local, you have a relative 1 st cousin falling
within the 4th civil degree of consanguinity or affinity, you can’t serve
as BEI there.
Q: If you don’t have a relative locally, can you automatically serve as
BEI? Not necessarily cause there might be some relative in the national
level. (ex. you are the 1st cousin of Binay, the votes for Binay in that
jurisdiction of city/municipality will also be counted by you as BEI. In
such case, you are disqualified to be BEI)
There are some public school teachers who don’t want to serve
because of the threat to their life and security as well as possible
litigation later on. What they do in order for them not to serve is they
ask a relative to run so that they will be disqualified, and that works.
Atty Guji: When you say “any candidate”, it means tanang
kandidato. So from the Councilor up to the President, if you are related
to anyone there, you can’t be a Board of Election Inspector.
So probably if you are the missing parent of Grace Poe, you can’t be a
BEI. Kay nilansar man sya. Niagi man sa imo iyang mga votes.
Take note: If that particular BE Inspector knows that he/she is disqualified,
and it’s not divulged that there’s this disqualification, it becomes an
election offense. So dapat mosulti sila.
Q. Can we appoint the police and military to become the BEI?
Yes, but only as the last resort. (Old law)
Pangandaman v Comelec
One-liner: The elements of the Armed Forces of the Philippines (AFP)
and the Philippine National Police (PNP)may be appointed as members
of the Board of Election Inspectors (BEI) on a special election in order
to avoid the risk of another failure of elections and to encourage public
trust in the process and results of the special elections.
Facts: An Omnibus Order of the COMELEC declaring holding of special
elections in certain municipalities and cities of Lanao del Sur has been
questioned. This was supervened by a regular election held with massive
scale of terrorism and violence, thereby leading the Commission to
declare failure of elections. Such omnibus order also designated the
elements of the AFP and PNP to be the members of the BEI for that said
4 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
special elections as when said SE was held, the supposed members of
the BEI did not show up.
Issue: WON the elements of the AFP and PNP can be appointed as
members of the BEI during a special election?
Ruling:
The SC held in affirmative. In applying election laws, it would be far
better to err in favor of popular sovereignty than to be right in complex
but little understood legalisms. The elements of the AFP and PNP can
be appointed as members of the BEI during a special election to avoid
the risk of another failure of elections and to encourage public trust in
the process and results of that said special elections.
Atty Guji: The justification of the COMELEC in placing the elements of
the AFP and PNP as members of the BEI was to avoid further delay in
the elections. In contrary to the public school teachers, the people will
tend to abide more to the AFP and PNP. People will respect them. They
cannot terrorize them anymore. This worked actually because the
special elections went peacefully. So it was held that the elements of
the police and the military can indeed be appointed as BEI as the last
resort.
Q. TODAY, can you appoint the military?
Not anymore. There is now a specific prohibition against the military to
serve as a member of the BEI based on the Election Reform Service Act.
Q. How about the PNP?
They are allowed, provided as they are the last resort.
Atty Guji: In other words, we have to appoint first those who were
enumerated by law as those that can be appointed as members of the
BEI. Remember that the military and the PNP were not enumerated by
law to be appointed as Board of Election Inspectors. But remember what
they say? If it is administration of election, for as long as there is no
specific prohibition under the law, the COMELEC is afforded enough
leeway to make snap judgments in the case. Because what do we say?
Politicians- they don’t follow the rules in handling votes. So that is why
the COMELEC, must be empowered to make snap judgments, even
common sense, in the field during elections. Dinalian man sya. So if you
say na “Wait wait wait, basig molapas tag 1 hour blahb blah blah. It will
delay the proceedings. So mo-diskarte ang COMELEC. The Supreme
Court said “That is snap judgment, so pwede for as long as you do not
violate a specific provision of the law.” So that’s the case of
Pangandaman vs COMELEC.
Just to make it clear:
1. Military cannot anymore be appointed.
2. Only the police can be appointed as members of the
BEI as a last resort.
3. It is no longer mandatory for public school teachers to
serve the elections. (But practicability wise, by force of
economic necessity, they are willing to serve in the election)
POWERS OF THE BEI
POWERS OF THE BEI
Q. How powerful is the BET inside the polling place?
The power is so massive. It has supreme authority inside the polling
place during election period. It has the power to:
A. Issue warrant of arrest
B. Administer oath
C. Order detail of PNP or AFP
D. Remove from the polling place any person who disrupts its
proceedings screen watchers
E. Prohibit lawyers from the polling place
TN: Its decision is final and executory. There is no remedy for motion
for reconsideration nor appeal. As a matter of fact, its discretion is final,
that even the election officer has no authority to supersede. It is
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
supreme on electioN day. Whatever they say is the law whether or not
it makes sense.
Issue warrant of arrest
A warrant of arrest can only be issued by a judge and the Bureau of
Immigration and Deportation with respect to deportation cases.
Constitution law tells us, these are the only instances when you can
order the arrest of a person.
However, on election day, suddenly a public school teacher can order
your arrest inside the polling place if you disrupt the proceeding of the
BEI. In other words, you have to behave inside the polling place and
follow the lawful orders of BEI. Otherwise, you can be ordered arrested.
Atty Guji: You know that the judge is the only person who is authorized to issue a
warrant of arrest, and the DAD for the purposes of deportation, and probably
citizen’s arrest. But on election day, without a legal background, suddenly these
public school teachers have the power to issue a warrant of arrest. If you disrupt
the proceedings, and insists to disrupt the proceeding despite warning from the
BEI, you might be arrested.
They have no power of contumacy, they cannot cite in contempt. But they have a
bigger power and that is they can have you arrested if you disrupt the proceedings.
Administer oath
Under the Admin Law, there are only specific persons who can
administer oath. Most popular is Notary Public. But suddenly again
during election day, the public school teachers acting as BEI can
administer oath.
These oaths however are of election related statements only. You
cannot bring a document and tell the BEI that since he already has the
power to administer oath to sign and notarize a Deed of Sale.
Atty Guji: They are not notaries public but they can administer oath, provided it
is a statement or document relative to the conduct of elections inside the polling
place on election day. In other words, dili sila pwede magnotaryo ug deed of sale.
Kana lang mga oath.
What happens if you are challenged of being an illegal voter? What you need to
do is to deny under oath. So you no longer need to look for a lawyer. Diha mismo
sa BEI, they can administer the oath. So you just deny under oath.
Order detail of PNP or AFP
During the entire election period, the PNP or AFP are deputies of the
Commission. BEI are representatives of the Commission. So they have
authority to order detail of AFP/PNP.
AFP/PNP are not allowed inside the polling place on election day.
However, they have to be in a certain radius in the polling place so they
can be called by the BEI anytime if there is a need for peace and order.
Atty Guji: Remember, the AFP and PNP are not allowed to be inside the polling
place on election day or within 50-meter radius towards the polling place. The
reason is, we cannot militarize the elections. Essentially, the elections is a purely
civilian political undertaking. So bawal ni sila.
BUT if the BEI fears for their safety, they can order the detail. “ Dira lang sa mo
ha, dira sa pultahan to protect, the VCM, and other election paraphernalia, and to
maintain peace and order. They can be there, by a written order by the BEI.
Remove from the polling place any person who disrupts its
proceedings
Remove but what if arrested? At 1 st they can just probably call your
attention and if you insist, they would just probably ask you to be
removed from the premises. Still if you insist then they can already order
your arrest.
Atty Guji: Manghod ni sya sa issuance of warrant of arrest. Because here, they can
actually say, “Okay, ga-samok samok man ni Chief, just take him into custody.
Ipalayo. If he behaves, can be released. But if he antagonizes the BEI, they can
have him arrested. Matanggong jud ka for 12 hours. Moingon ang BEI ug “sige
huna-hunaon ko sa na’g mo-file ba ko. Dira lang na sya for 12 hours.”
5 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
Screen watchers
Atty Guji: Kaning mga watchers, they appear before the BE inspectors on election
day like they are the lawyers of the candidates. They represent the candidates.
So, maskin si kinsa lang ka na watcher, pwede?
Not necessarily because you need to present the watcher’s appointment.
Q. If you already have a watcher’s appointment, can you enter
your appearance right away?
Not necessarily because if the BET is very strict about that, they don’t
want to liberalize rules, here’s the procedure:
15 days prior to election day, the candidates are required by law to
submit to the Election officer a masterlist of their watchers in a polling
place. And if you submit it to us, we are going to give that to the BEI
per polling place. And if you, as a watcher, appear there, if you have an
appointment- pwede. If you are not in the master list or if there’s no list
at all in the first place, the BET can refuse your entry. And you cannot
insist. So dapat naa kay advance copy sa master list.
And this requirement , many candidates do not realize and do not know
how to use. But there are times when the BETs liberalize and
accommodate those watchers appointment, even if not in the list.
But we tell them, “If you want to have order inside the polling place,
you screen the watchers strictly according to the law. Because
essentially the watchers are your enemies inside the polling place. They
are the ones who antagonize you. They are the ones who disrupt the
proceedings. They are the ones who accuse you of being biased blah
blah blah.”
Without the watchers, there’s no problem. So one way to remove the
enemy is to screen the watchers according to the law.
Prohibit lawyers from the polling place
The law specifies or enumerates who are allowed inside the polling place
on election day. None of them is a lawyer. Before, lawyers will just barge
in the polling place, intimidate the public teachers thinking they are over
and above the BEI because they are lawyers.
Atty Guji: Because lawyers are not allowed inside the polling place except to vote
and if you want to demote and relegate yourself, you act as watcher.
Has supreme authority inside the polling place
Because whatever the BET/BEI says inside the polling place, that is law.
That is final and executory and unappealable.
Atty Guji: So you cannot say “Ma’am, sayop man na inyong gibuhat. Mao man ni
dapat ang naa sa resolution.”
Even if sayop ang mga Inspectors, if they say that is the decision, that is final and
unappealable.
Q. So what is your remedy?
As a watcher, document the irregularity and give that documentation to
the lawyer because if that lawyer wants to decide to file an election
protest, that document becomes now the guide of the lawyer as to which
polling place should be protested for. Kay dili tanang polling places
imong protestahan. Dako kaayo nag gasto. So dapat mamili ka.
Otherwise, the election protest becomes a fishing expedition. You
don’t know where to go. If you are for example, confronted with a
hundred polling places, mangita kag asa man diri ang gitikasan ka, nya
imong watchers wala pa nihatag nimog documentation, so ana ka
“Okay, protesta na lang ka sa tanang polling place.”
That becomes now a fishing expedition. You don’t know where to go.
So that is the value of documentation by the watcher inside the polling
place.
Its decision is final and executory
Atty Guji: This is because the General Instructions (the bible of the BEI
on election day, all the procedure is there), does not provide the remedy
of motion for reconsideration, much less Appeal, on election day, inside
the polling place.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
Whatever they say, it’s final. You can not force them to change their
decision.
WHEN TO COUNT
Sec. 206, Art. XVIII, Omnibus Election Code
Counting to be public and without interruption.
As soon as the voting is finished, the board of election inspectors
shall publicly count in the polling place the votes cast and ascertain the
results. The board of election inspectors shall not adjourn or postpone
or delay the count until it has been fully completed, unless otherwise
ordered by the Commission.
The Commission, in the interest of free, orderly, and honest elections,
may order the board of election inspectors to count the votes and to
accomplish the election returns and other forms prescribed under this
Code in any other place within a public building in the same municipality
or city: Provided , That the said public building shall not be located
within the perimeter of or inside a military or police camp or reservation
nor inside a prison compound.
WHERE TO COUNT
Sec. 206, Art. XVIII, Omnibus Election Code
Counting to be public and without interruption.
As soon as the voting is finished, the board of election inspectors shall
publicly count in the polling place the votes cast and ascertain the
results. The board of election inspectors shall not adjourn or postpone
or delay the count until it has been fully completed, unless otherwise
ordered by the Commission.
HOW TO COUNT
Sec. 210, Art. XVIII, Omnibus Election Code
Manner of counting votes.
The counting of votes shall be made in the following manner:
The board of election inspectors shall unfold the ballots and form
separate piles of one hundred ballots each, which shall be held together
with rubber bands, with cardboard of the size of the ballots to serve as
folders.
The chairman of the board of election inspectors shall take the
ballots of the first pile one by one and read the names of candidates
voted for and the offices for which they were voted in the order in which
they appear thereon, assuming such a position as to enable all of the
watchers to read such names.
The chairman shall sign and affix his right hand thumbmark at the back
of the ballot immediately after it is counted.
The poll clerk, and the third member, respectively, shall record on
the election returns and the tally board or sheet each vote as the names
voted for each office are read.
Each vote shall be recorded by a vertical line, except every fifth vote
which shall be recorded by a diagonal line crossing the previous four
vertical lines.
One party member shall see to it that the chairman reads the vote as
written on the ballot, and the other shall check the recording of the
votes on the tally board or sheet and the election returns seeing to it
that the same are correctly accomplished.
After finishing the first pile of ballots, the board of election
inspectors shall determine the total number of votes recorded for each
candidate, the sum being noted on the tally board or sheet and on the
election returns.
6 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
In case of discrepancy such recount as may be necessary shall be
made. The ballots shall then be grouped together again as before the
reading.
Thereafter, the same procedure shall be followed with the second pile
of ballots and so on successively.
After all the ballots have been read, the board of election
inspectors shall sum up the totals recorded for each candidate, and
the aggregate sum shall be recorded both on the tally board or sheet
and on the election returns. It shall then place the counted ballots in
an envelope provided for the purpose, which shall be closed, signed and
deposited in the compartment for valid ballots.
The tally board or sheet as accomplished and certified by the
board of election inspectors shall not be changed or destroyed but
shall be kept in the compartment for valid ballots
Sec. 25, RA 7166 (Synchronized Elections Law)
Manner of Counting Votes.
In addition to the requirement in the fourth paragraph of Section 12 of
Republic Act No. 6646 and Section 210 of the Omnibus Election Code,
in reading the individual official ballots during the counting, the
chairman, the poll clerk and the third member shall assume such
positions as to provide the watchers and the members of the public as
may be conveniently accommodated in the polling place, an unimpeded
view of the ballot being read by the chairman, of the election returns
and the tally board being simultaneously accomplished by the poll clerk
and the third member respectively, without touching any of these
election documents.
The table shall be cleared of all unnecessary writing paraphernalia.
Any violation of this requirement shall constitute an election offense
punishable under Sections 263 and 264 of the Omnibus Election Code.
Sec. 12, RA 6646 (The Electoral Reforms Law of 1987)
Official Watchers.
Every registered political party, coalition of political parties, and every
candidate shall each be entitled to one watcher in every polling place:
Provided, That candidates for members of the Sangguniang
Panlalawigan, Sangguniang Panlungsod or Sangguniang Bayan or for
city or municipal councilors belonging to the same slate or ticket shall
collectively be entitled only to one watcher.
There shall also be recognized two principal watchers, one
representing the ruling coalition and the other the dominant opposition
coalition, who shall sit as observers in the proceedings of the board.
The principal watcher shall be designated on the basis of the
recommendation of the ruling coalition, represented by the political
party of the incumbent elected district representative, and of the
dominant opposition coalition, represented by the political party which
performed best or which polled at least ten percent (10%) of the votes
in the last national election.
A duly signed appointment of a watcher shall entitle him to
recognition by the board of election inspectors and the exercise of his
rights and discharge of his duties as such:
Provided, however, That only one watcher of each of those
authorized to appoint them can stay at any time inside the polling
place. The watchers shall be permitted full and unimpeded access to the
proceedings so that they can read the names of those written on the
ballots being counted with unaided natural vision, consistent with good
order in the polling place.
In addition to their rights and duties under Section 179 of Batas
Pambansa Blg. 881, the two principal watchers representing the
ruling coalition and the dominant opposition in a precinct shall,
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
if available, affix their signatures and thumbmarks on the election
returns for that precinct.
If both or either of them is not available, unwilling or should
they refuse to do so, any watcher present, preferably with political
affiliation or alignment compatible with that of the absent or unwilling
watcher, may be required by the board of election inspectors to do so.
BALLOT APPRECIATION
BALLOT APPRECIATION
BALLOT APPRECIATION
It is the determination of the vote using the information written on the
official ballot by the voter, his or her intention, and for whom it is, or
should be counted based on existing rules.
Atty Guji: The definition is not found in the law nor in jurisprudence. This is my
own definition. Whether or not it makes sense up to you.
When we say ballot appreciation, it means you, as a Board of Election Inspector
is confronted with the question of whether that particular vote written in the ballot
is going to be counted and for whom.
We are still talking about ballot appreciation because, even if we automate the
elections now, and the one who actually appreciates the ballot is the machine, it
counts, right? But we still have the barangay and SK elections which is still manual.
Q. Why is it manual?
1. the automated elections is very costly
2. in barangay elections, you complain when there’s only at the level of the
barangay. There’s no need for transmission to the Board Canvassers.
That’s why we still need to learn about ballot appreciation.
When we say Election Inspectors, they are the ones designated for local,
national and Presidential elections.
But in barangay elections, we call them Election Tellers.
Q. What is the difference?
None. They perform the same functions. The difference is that the tellers, they
are designated only on manual elections while inspectors are designated during
automated elections.
Q. What is the composition for the Election Tellers?
All public school teachers, but not mandatory anymore that they should serve. (But
they are our default appointees)
1. Chairman
2. Poll clerk
3. Third member
Q. What is the significance for you to know the Chair, Poll Clerk and Third
member?
The reason there is that there are functions, duties and responsibilities under the
general instructions that are specific to what of kind of designation you have.
For example, the Chairman, it is only him who authenticates the ballot. When
you say authenticate the ballot, that’s when your ballot is being signed by the
Chairman.
Also the Poll clerk, he has a specific functions like he is the only person authorized
to post the election returns outside the polling place after counting.
So they really specific jobs each. But other than that, they are called a collegial
body.
Purpose of ballot appreciation
It is to obtain the expression of the voter’s will
Atty Guji: Here’s a ballot. You are going to appreciate it, count them, you
determine the will of the people. Exactly because, when you are a Board of Election
Inspector confronted with a ballot, that ballot represents the voice of the people.
So you’d want to discover what is the intention of the voter when he wrote the
names of the candidates on that official ballot.
Person tasked to appreciate the ballots
BEI is the one tasked to appreciate the ballots. The time they appreciate
the ballots is the time the watchers should watch out. It might be that
7 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
the appreciation of the ballots is without legal basis. Thus, it now
becomes misappropriation of ballots which is the best ground for an
election protest case.
Function of the watchers
It is the function of the watchers, in the polling place, to document
misappropriation of ballots and submit it to the lawyer or paralegal. The
paralegal or lawyer can then decide whether or not there is ground to
believe that there has to be an election protest case to overturn the
proclamation or the results of that particular polling place.
Where and how ballot should be appreciated
A. It must be public
B. At a designated polling place
C. Watchers are afforded unimpeded view of the ballot, without
touching it.
Atty Guji: If chair reads or appreciates the ballot, she does it in a way
that the watchers behind her can see what is written in the ballot. It is
to verify whether or not what she is appreciating is the same as what
is written in the ballot. RULE: watchers can’t touch the ballot.
Barangay Elections. I am the Chair of the BET (Board of Election
Tellers), I read the ballot or I appreciate the ballot, magtalikod ko. Ang
watchers naa sa akong luyo. What happens is, here is the ballot,
(reading orally what’s written in the ballot)
“Punong Brgy: blah blah blah
Kagawad: blah blah blah”
Dapat ang watchers makakita sa akong gibasa - that’s unimpeded view
of the ballot. But it says “without touching it”. In other words, the
watcher cannot say “Ma’am, palihug ra gud ko sa ballot, akong tan-
awon.” You cannot touch the ballot.
D. The BET acts through the Chair.
Atty Guji: BET is composed of the Chair, Poll Clerk and a third member.
They must act according to a majority vote (2 is to 1). However, in
actual practice only the Chair decides right away. That is allowed,
because what is said is that the BEI acts through the Chairman. In
other words, whatever the BEI decides on is promulgated by the chair.
Thus, it might seem that they are not actually deliberating. It is not
necessary. For as long as the decision promulgated by the chair is
without objection form the poll clerk and 3rd member.
Diba tulo sila, so kung tulo sila, they are a collegial body. If they decide,
they need to deliberate. But what happens is, imong makita
kasagaraan, mo-decide ra direcho ang Chair sa BET. Direcho ang Chair
mo-decide kay sya man gud ang pinaka- experyinsyado sa BET.
But you cannot argue na “Ma’am, nganong nagbuot-buot man ka’g
ikaw ra nga tulo man mo kabuok? Nganong ikaw ra may mo-decide?”
Probably you can argue that way but we have already briefed our
inspectors that this is their answer to that particular argument:
They’d agreed already that whatever the Chair says, that is the
collective decision of the body, unless there is a specific objection
anyone can raise. So the presumption is, whatever the Chair says, it
already underwent prior deliberation by the board.
E. Its decision is final and unappealable
GUIDING PRINCIPLES IN BALLOT APPRECIATION
GUIDING PRINCIPLES IN BALLOT APPRECIATION
A. Every ballot is presumed valid unless there is clear and good
reason to justify its rejection.
Atty Guji: Rejection is the last resort. As much as possible, try to discover
the intent of the voter.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
B. In case of doubt, the intention and expression of the voter’s will
must be carefully determined.
C. Questions decided by majority of BET (since it’s a collegial body).
D. No watcher, candidate or any other person is allowed to
participate
Atty Guji: So you can’t say that the vote should be counted in favor of a
particular candidate. You cannot argue. The power exclusively belongsto
the BET.
Except: When the watcher files a written protest if he thinks that the BEI
misappreciated the ballots. The protest will be the basis for an election
protest later on. Without such protest duly received by the BEI on election
day, the election protest is going to be treated as a fishing expedition.
E. Recorded in the Minutes
When a watcher files an election protest, it must be recorded in the
minutes. We should go back from the root word of “Watcher”, so “watch”.
Paniid. That’s all you have to do as a watcher, paniid and document. You
cannot argue.
BASIC RULES IN BALLOT APPRECIATION
BASIC RULES IN BALLOT APPRECIATION
Ferrer v. Comelec
1. Intent rule (intention of the voter is determined)
2. Neighbourhood rule
3. Idem sonans rule (sounds alike)
4. Equity of the incumbent rule
Atty. Gujilde’s addition based on experience aka his invention:
5. Superiority of surname rule
RULES
1. If only the first name or surname of the candidate is
written – vote is valid, provided there is no other candidate
with the same first name or surname for the same office.
Atty Guji: If you only place there Juan, it is alright, provided there is no other
Juan who also filed for CoC. Because if there are 2 Juans, the vote will be
strayed. The vote cannot be counted for either, unless the other one is
incumbent, in which case it goes to him, equity of the incumbent rule.
2. If only the first name of the candidate is written which
when read, sounds similar to the surname of another
candidate – vote is counted in favor of the candidate with
such surname. (Superiority of surname rule)
Candidate A – First name “Juan”
Candidate B – Surname is “Huwan”
Here, if what is written in the ballot is the correct spelling Juan, but when
read sounds similar to Huwan, the vote doesn’t go to Juan but to Huwan.
The reason behind duna tay Idem sonans rule is this:
A good number of our electorate are unlettered, wala ma-edukar. So
magkasayop-sayop ilang spelling. And mind you, some of our electorate
cannot even correctly spell their own name. If they cannot do that, how do
you expect them to correctly spell the names of the candidates? So that is
why there is the Idem Sonans rule to accommodate our unlettered electors,
so to get their intention.
Idem sonans rule -misspelled or incorrectly spelled but it sounds
alike, still counted in favor of that candidate
3. If there are two (2) or more candidates with the same full
name, first name or surname, and one of them is
incumbent – vote is counted in favor of the incumbent.
(Equity of the incumbent rule)
Candidate A – Juan Cruz
Candidate B – Juan Cruz (incumbent)
8 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
The vote goes to the incumbent if it is a single slot position (e.g. mayor).
However, if it is for multiple slots like councilor and both are written, both
gets the vote. If only one is written, it goes to the incumbent.
4. If there is a woman who uses her maiden name or married
surname or both and there is another with the same
surname – the ballot bearing such surname only shall be
counted in favor of the incumbent.
Candidate A (Woman candidate) – Leviste
Candidate B (Incumbent) – Leviste
The vote goes to the incumbent because it was not specified.
Equity of the incumbent principle applies.
5. If two (2) or more surnames are written on the same line
on the ballot – vote shall not counted for either of them,
unless one of them is an incumbent who has served at
least 1 year.
Atty Guji: This is tricky so take note. If two surnames are written on the
same line because the voter cannot decide – cannot be counted for either,
unless one of them is an incumbent who has served at least 1 year.
Example: “Rama” and “Osmena” (both surnames) are written on the same
line because the voter wants to please both. The rule says it goes to Rama
because he is the incumbent and served for at least 1 year. If what is
written is mixed first name and surname – the next rule applies.
6. If two words are written on the same line, one of which
is the first name of a candidate and the surname of
another – Vote shall not be counted for either.
Candidate A – Michael Rama
Candidate B – Tomas Osmena
If “Michael Osmena” is written on the same line, the vote shall not be
counted in favor of any one, even the incumbent. Nobody gets the vote.
7. If two or more similar surnames are written on different
lines for an office which authorizes election of more than
1, and there are the same number of candidates with the
same surname – votes shall be counted for all.
Atty Guji: If the slots for councilors are 8 and you placed two Cruz on
different lines, each Cruz gets one vote. If only one Cruz is written, it goes
to the incumbent, if there is one. If there is no incumbent, the vote will not
be counted.
Another example:
Multiple slot position. Councilor, diba 8 ka councilors. Sa probinsya, chances
are, magparente ang magkontra-kontra. So sa 8 kabuok, what if nilansar
si Villegas, another Villegas, then another Villegas (three votes). What
happens there?
Pananglit usa ra ka Villegas, she cannot get three votes. Usa lang.the two
votes will be strayed.
But what if tulo ka Villegas? Everybody gets a vote.
What if upat ka Villegas votes but tulo ra ka candidates na Villegas?
They get one vote each but they cannot divide the fourth vote, ma-stray.
What if three ka Villegas candidates but usa ra ka Villegas vote?
If one is incumbent, she gets the vote.
If nobody is incumbent, nobody gets the vote.
8. If a single word is written, which is the first name of a
candidate and the surname of another – vote shall be
counted for the candidate bearing the surname.
Candidate A’s first name – Rodrigo Gomez.
Candidate B’s surname – Alphonso Rodrigo
If only Rodrigo is written, the vote goes to Candidate B because that is his
surname. Superiority of the surname rule.
 ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
9. A name or surname incorrectly written, which when read,
has a sound similar to the name or surname of a candidate
– vote shall be counted in favor of such candidate.
Cruise instead of Cruz
Huwan instead of Juan
Idem Sonas rule. It sounds alike. It is counted in favor of that candidate.
The reason is to accommodate the less educated voters or those who are
poor in spelling.
Remember, this rule was made for the benefit of our unlettered electorate.
That’s why as much as possible, we have to try to give life to their intention
of the voter through ballot appreciation. Because when you stray a vote,
when you nullify a vote, that’s the last resort. Once you nullify a vote or
stray a vote, you are actually disenfranchising the voter. And you cannot
do that whimsically.
Even if a syllable is cut off
Ex. DIVINAGRACIA, it is long, so what is written is only DIVINA and there
is no other candidate with the name Divina. Then it is counted for Charles.
Or only written is GRACIA and no other candidate with Gracia 1 st name,
surname or nickname. It is counted in favor of Charles because it sounds
alike even if 1 syllable is missing.
Ex. Candidate with surname that is GARCIA and another with
DIVINAGRACIA. What is written is only GRACIA. It is up to the judgment
call of the BEI who the vote goes for. But it could be counted for GARCIA,
idem sonas rule. Mas duol kaysa sa natangtang na Divina.
10. If a name of the candidate for the position he aspires for
is written and on another position he does not aspire for
– vote shall be counted in the position he aspires for, but
if it is intended to identify the ballot, it becomes void.
Punong Barangay – Cruz
Barangay Kagawad – Cruz
This voter is loyal to a candidate. Ex. RAMA ran for Mayor. But even in the
VM and the councillors, the loyal voter placed RAMA. Is that allowed? Yes,
but the vote is counted only once to the position he aspires for. But if BEI
says MARK BALLOT then everything is invalidated. Whether or not mark
ballot it is up to the judgment call of the BEI.
What is “marked ballot?”
A marked ballot is intended to identify the voter.
Here’s what happens. Usahay man gud, dunay mga politiko na duna silay
mga kontra-senyas. So for example, molansar ko for brgy. Captain, and
kamo akong botante diri na polling place. So naa koy leader. Adtuon mo’s
inyong mga balay or imbitaron mo na “Ali mo diri kay mag hisgot-hisgot
ta.”, on the eve of elections ha. Then moingon dayon ang leader ug
“Okay, kamo man ang botante ani nga polling place, akona amo, si
umaabot nga Kapitan, mohatag ninyog pahalipay. P1000 each provided you
vote for him as the Brgy. Captain.”
Mao nay gitawag na marking of the ballot.
For example, “Bea, botari si Kapitan ha. But botari si Kapitan this way:
Marlou Villanueva. Pananglit you voted but it does not appear as Marlou
Villanueva, iuli ang P1000.”
If makabantay ang mga teachers nga this is a marked ballot, they are going
to invalidate not only the vote but the entire ballot because it would
condone vote-buying. That’s the remedy against vote-buying- the
marking of the ballot or nullifying marked ballot.
But remember, marking of the ballot shall be the last resort as this
invalidates the entire ballot.
11. If the name of the candidate is erased and another clearly
written – vote shall be counted in favor of the new name.
Example: Osmena Rama. Here the vote goes to Rama because obviously, the
voter changed his mind at the last minute.
But what if at the end of it, the voter writes “Sorry”:
Osmena Rama Sorry
So in a case, the teachers considered that as a marked ballot.
9 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
But when it reached the SC, it said that it is not necessarily a marked ballot
because when the voter wrote the word “sorry”, he was trying to apologize
for the inconvenience he caused the election inspectors.
12. If the initial of the first name, middle name or surname is
incorrect – vote is valid and shall be counted.
Example: Juan S. Dela Cruz is the full name. What is written is Juan R. Dela
Cruz (wrong middle initial). Here, vote is valid, unless there is another
candidate that matches with the name. In which case, it should counted in
favor of that candidate.
13. If the name of a candidate is the same as the name of
another who is not a candidate – vote is counted for
candidate.
Candidate – Juan Dela Cruz
Non-candidate – Juan Dela Cruz
You can’t say it is stray. Obviously, he is voting for the candidate. COC is there
to guide in the tabulation of votes. (Hello!? Obvious naman kaayo ni na rule
oy!!! #goeswithoutsaying)
14. If there are prefixes or suffixes – vote is still valid.
Examples:
Sir Michael Rama, Don Tomas Osmena, Hilario Davide Jr., Cong. Pablo John
Garcia
Nicknames and appellations of affection and friendship accompanied by first
name or surname is valid.
If nickname only – valid if candidate is generally or popularly known in the
locality. Examples: Michael “Mike” Rama, Tom Osmena, Junjun (for Junjun
Davide), PJ (for Pablo John Garcia)
These are allowed, provided no other candidate is with that nickname and
surname.
15. Initials only – does not sufficiently identify candidate. Will
be considered stray vote but will not invalidate the whole
ballot.
Examples: MR (for Michael Rama), TRO (for Tomas R. Osmena), Sir, Mayor.
If BEI says it does not sufficiently identify the candidate, then BEI can say it
is strayed. But does not invalidate the entire ballot. The initials Sir or Mayor
may probably be counted to the incumbent if the BEI decides so.
What is stray?
It means nasaag. So daghan man nag votes di ba in an official ballot. It is
stray because you are just trying to invalidate that particular vote, not the
entire ballot.
But when you mark the ballot, everything there is nullified.
16. Correct first name with different surname. Correct surname
with different first name – Stray vote but will not invalidate
the whole ballot.
Michael Rama – Michael Jackson
Jonas Cortes – Jonas Burgos
17. Ballot written with crayon, lead pencil, or ink, wholly or in
part – valid, unless used to identify the ballot.
Atty Guji: If BEI says arte kaayo maybe this is a marked ballot, then it can be
invalidated.
18. If there are two or more candidates written in a single
position – vote shall not be counted for either or all, but
Punong Barangay – TOMAS OSMENA MICHAEL RAMA. This vote does not
count for either even if 1 of them is an incumbent.
TN: Only instance counted if both are surnames and one of them is an
incumbent who has served for at least 1 yr.
 ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
19. If the candidates voted for exceed the number of those to
be elected – ballot is valid but counted only for those firstly
written until the authorized number is covered.
Barangay Kagawad (7 allowed) but voter wrote 8. What is counted for is the
first 7 only, the 8th one will be strayed.
20. Vote for non-candidate and for a candidate for an office he
did not aspire for – stray vote but does not invalidate the
entire ballot, unless BEI says it is a marked ballot.
Daghang mga binuang nga in-ani di ba? Maskin dili kandidato, botaran. But
be careful, this might be considered as “marked ballot”.
21. Ballot containing name of candidate printed, pasted or
affixed through any mechanical process – totally null and
void.
Atty Guji: When you vote and some give stickers, if you peal it you can stick
it on the official ballot – not allowed because it is considered as mechanical
process. IT VOIDS ENTIRE BALLOT.
22. Circles, crosses or lines on blank spaces – indicate
desistance from voting and shall not invalidate the ballot
Osmena
Rama
Davide
Garcia (if you don’t want to add anymore because only the 4 passed your
standards, you can place lines or crosses)
----------
xxxxxxx
Some place line because of fear that BEI might write some more. Write to
indicate desistance.
Some voters do not maximize, kay could be because taas iyang standards.
Either way, the BET can declare it as “desistance- so pwede” or “marked
ballot”---- invalidating the entire ballot. The reason for the latter is because
kailangan jud nilag botaran or sulatan tanan ani because otherwise, the
teachers might write a candidate’s name on it. But of course, that is
speculative.
Q. What if the voter wrote xxxx or ------- indicating no other name
of candidate can be written for multiple slot positions but at the
end of such ballot, there was a name listed their that is one of the
candidates for that said position?
The BET can accept that as accidental flourish or could just declare that it
is a marked ballot.
Atty G: The rule during the 2016 Elections is that the voter is given four
attempts to feed his ballot onto the VCM. If it still won’t load or if it still
ejects, it will be considered a stray.
If the first time you load the ballot for the VCM to read but it ejects it, the
voter is given three more chances to load the ballot. Probably you start
with the top, then bottom, then face and the dorsal side. If pananglit di
gihapon dawaton, without the fault of the voter, he will be issued another
ballot.
The rule before is that the voter is not given any second chances.
Regardless kung imong sayop or dili, di na gyud ka tagaag laing ballot.
But now, the COMELEC liberalized it. Ilang gitagaan ug one last chance
provided that the ballot was ejected without the fault of the voter.
For example, if the ballot is not configured to the polling place, saag nga
ballot. Like what happened to Cordova. Gikan diay ang ballot sa Dalaguet.
So nagbaylo ba. Hence, it is not your fault.
And remember, the BEIs are not allowed to touch the ballot, unless they
are assisting the voter. So if ikaw ang voter, imoha ra jud na if di mo-feed
ang VCM sa imong ballot. Because if the BEI touches the ballot, chances
are he/she will be violating the secrecy and sanctity of the ballot.
There are also times that the BEIs have to ask the voters to re-feed the
ballot to the VCM. Probably there was an error there or could be because
it was not transmitted.
10 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
23. Commas, dots, lines or hyphens between the first name
and surname or in other parts of the ballot, traces of the
letter “T” , “J”, two or more kinds of writing, use of
accidental flourishes, strokes or strains - does NOT
invalidate ballot.
Examples
Tomas – Osmena
Michael. Rama
These are accepted, unless it clearly appears to have been deliberately
done to identify the ballot. In which case, it can be considered as a marked
ballot by the BEI.
24. Ballot which appears to have been filled by 2 distinct
persons – NULL AND VOID
25. 25. If the space for Punong Barangay is blank, but the
name of the candidate for Punong Barangay is written in
the first line for Barangay Kagawad – vote is counted in
favor of the candidate pursuant to neighbourhood rule.
Official Ballot looks like this:
Punong Barangay _____________
Barangay Kagawad
1) Rama (Punong Barangay candidate) right under the space provided
for.
2) Gullas
3) Osmena
4) Durano
5) Cortes
6) Martinez
7) Garcia
8) Yapha
Here, the vote for Rama in the Punong Barangay is counted for him even
if it is not written in the space provided for.
Reason: Neighbourhood Rule. Placed really near the space it was provided
for. Neighborhood rule is not found in OEC but in the HRET as adopted by
SET and jurisprudence. The vote for Yapha is counted for him because it
goes up. Reverse domino effect.
If Rama instead is written in the second spot, can it be counted for
neighbourhood rule? Probably yes, or not. It really depends on the BEI. But
for me, not anymore because it is not neighbourhood already since there
is a vacant slot in between.
Atty G: What if blanko tanan, nya on a particular distant space the
voter wrote “Olea” who is one of the candidates.
Normally we can stray that because neighborhood rule does not apply. But
there is also the “correct sequence rule”. basta correct iyang sequence,
everybody gets the vote provided kana tanan is blank.
Q. What if wala syay gisulat na punong barangay nya in order
iyang punong barangay pero sa pinaka ulihan gibutang ang “Olea-
Kapitan”.
It depends upon the BEI whether he strays the vote or not. Because
actually, the intention of the voter is very clear. Although nasaag, he is
voting for Olea as the Kapitan. Remember, the intention of the voter
prevails, so pwede dawaton.
But if mag-inistrikto ang BEI, he can declare it as marked ballot or stray
ballot perhaps.
Q. What if Punong barangay, blank. First councilor, blank. Then
si Olea who is a candidate for PB was written in the space after.
Are we going to count this?
Probably you can count based on “correct/right sequence rule” but not
the “Neighborhood Rule” because they are not neighbors anymore, there
was blank in between.
26. Vote for candidate disqualified by final judgment – stray
vote but will not invalidate the entire ballot.
Q. What if pending pa lang ang case?
The vote shall be counted but provisional.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
27. Ballots wholly written in Arabic in localities where it is of
general use – valid
If you write Arabic in Cebu – not counted because presumably BEI does
not know how to read Arabic.
The BEI may say that she’ll count it because she can read Arabic.
However there is a specific provision in the law that the Arabic language
must be used in the locality. Well the BEI may consider this as marked
ballot.
28. Accidental tearing or perforation of ballot does not
invalidate it.
29. Failure to remove detachable coupon does not annul the
ballot.
30. Nicknames and appellations of affection and friendship
accompanied by first name or surname is valid.
If nickname only – valid if candidate is generally or popularly known in the locality.
Examples: Michael “Mike” Rama, Tom Osmena, Junjun (for Junjun
Davide), PJ (for Pablo John Garcia)
These are allowed, provided no other candidate is with that nickname and
surname.
Atty G: The nickname can be tricky because the requirement there is when
you file your COC, you need to indicate there your nickname. Ug usa ra ka
nickname. But there are candidates who would like to include as many
variations as possible just to get the possible votes. But the policy there is,
if in your COC you filed several nicknames, we only get the first one written.
That’s your nickname.
Q. Can we say, “That’s not your nickname. Why are you using that?”
We cannot because, whether or not that is your nickname, that belongs to
you. Ikaw ray nakabalo kung imoha ba jud ng nickname. But remember,
there is here a requirement that the candidate should generally be popularly
known in that one.
Atty G: Just like in the case of Mar Roxas and Leni Robredo who both wrote
in their COCs “Daang Matuwid” as their nicknames. Of course we know that
is not their nicknames, it’s a slogan. But who can argue if they say that is
my nickname effective today?
The general rule is that you cannot argue if that is the candidate’s
nickname of choice. But if the candidate used that nickname with an intent
to confuse or mislead the voters, that can be another issue. It can be
opposed.
In fact, in a case, there was a wife who run for Congress or for Governor,
and she was trying to succeed her husband, and the husband was known
for that initials. I forgot the correct initials but let’s just say, it was F.G.S.G.,
the wife also used the same initials. So it was opposed saying that she is
actually misleading the people. She was riding on the high popularity of her
husband and it was qualified by the SC, because it’s not really good. But the
general rule is if you want to say “that is my nickname”, that really is your
nickname. Unless, it is intended to mislead the voters.
And this can also be considered as a marked ballot. But take note that
when you appreciate a ballot, it’s all a matter of discretion. And what do we
say about discretion? You can decide either way and still be right. So if the
BEI in the polling place, In his/her discretion, does not think that it’s a
marked ballot but the Judge in an election protest can correct that discretion.
So at the time of voting in the polling place, the BEI/BET, whatever their
decision is, that is already final, regardless of whether it is right or wrong.
TAKE NOTE:
If one rule results to straying the votes for two of the candidates,
another rule can be used. It is really up to the judgment call of the BEI.
The discretion of the BEI can be decided either way and still be valid.
Remember, for ballot appreciation, it’s really the discretion of the BEI.
For ballot appreciation, as long as the BEI has legal basis for their
decision, that will be respected. But if that legal basis is found by
the court later on to be insufficient, the court will supersede the
previous decision in ballot revision.
11 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
Atty G: So what if you are really aggrieved by the decision of the BEI?
Your remedy is not found inside the polling place but the remedy pertains to
an election protest where the judge may override or overrule the decision of
the BEI.
BALLOT APPRECIATION APPLIES ONLY TO MANUAL
ELECTIONS
There is no more ballot appreciation in automated elections because it
is the machine that counts.
Dangers:
1. If you do not properly shade the oval next to the candidate you
intended to vote for, the machine might not count it.
2. If you over shade that it might hit another oval, it might
invalidate both votes.
3. If you over vote. Instead of shading 12 senators, you shaded
16, those 16 senators cannot get your vote. Machine will not
count. Everything is nullified but only in that certain position.
4. But if you under vote, 8/12 only, the machine will count it.
Batalla vs COMELEC
One- liner: In ballot appreciation, the intention of the voter must be
discovered so to effectuate the voter’s choice.
Facts:
Ernesto Batalla, a former Punong Barangay (PB) and Teodoro Bataller,
the incumbent PB, were the candidates for the position of PB. Batalla
garnered 113 votes while Bataller got 108 votes. Batalla was declared
the winner. But Bataller filed an election protest claiming
misappreciation of 7 ballots.
Of the 7 ballots, MCTC appreciated five of them in favor of Bataller by
applying the neighborhoood and intent rules, as well as the application
of the doctrine of Idem Sonans. Later, MCTC found both of them
garnering an equal number of 113 votes each.
Batalla disagrees due to the ff reasons:
Ballot 1: the contested first name (Teodoro) was written on the line of
Punong Brgy but the surname is not discernable as it can be read either
as Batalla or Bataller. He says it could be a case of writing the first name
of a candidate and the surname of another candidate.
Ballot 2: while the space for PB is left blank, the first of the names of
Kagawad is unreadable and can’t sufficiently identify Teodoro Bataller,
since the name written seems to be “tododer”. Idem sonans doctine was
misapplied.
Ballot 3: it should be deemed a stray ballot since the real intention of
the voter cannot be determined.
Ballot 4: shows the name of Teodoro Bataller written on the space for
the candidates of Kagawad, with that of PB left blank, and therefore
should be considered a stray vote.
Ballot 5: it is not legible and does not sufficiently identify the candidate
and to consider it a vote for Bataller is highly speculative and conjectural.
Issue: WON the five protested ballots were correctly appreciated by the
MCTC as votes for Bataller.
Ruling:
Only 3 ballots (1, 4 and 5) were properly appreciated to credited in favor
of Bataller while ballots 2 and 3 are stray votes.
Ballot 1: it clearly shows the first name “Teodoro” while the surname
is a bit confusing, still it can’t be read as “Batalla” since the way it is
written indicates 8 characters. The 1st 6 letters show “Batall” while the
last 2 are illegible. However, the benefit of the doubt tilts in favor of
Bataller since the voter evidently wrote his first name clearly. The intent
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
rule must be applied, the ballot in question should be liberally
appreciated to effectuate the voter’s choice of Bataller.
Ballot 4: Neighborhood rule was properly applied, where the name of
a candidate is not written in the proper space in the ballot, but is
preceded by the name of the office for which he is a candidate, the vote
should be counted as valid for said candidate. This is usually applied in
consonance with the intent rule.
Ballot 5: credited in Bataller’s name under the neighborhood rule and
the intent rule. The name of Bataller, written on the first line for
Kagawad, is quite distinct and legible.
Stray ballots:
Ballot 2: neither the neighborhood rule nor the doctrine of Idem
sonans apply to this instance. Firstly, NR applies when the name for PB
is left vacant while the name of the PB candidate was written on the first
space for Kagawad legibly. This ballot does not clearly show the name
of the candidate written on the first space for Kagawad candidates.
Secondly, the word “tododer” does not necessarily refer to “Teodoro
Bataller”. It does not sound like Teodoro under the Idem sonans rule.
Thirdly, for purposes of using the intent rule, absent any indication of
such discernable intent, the ballot can’t be appreciated in favor of
Bataller.
Ballot 3: Bataller’s name is not found on or near any of the lines
corresponding to the office of PB and Kagawads, and thus, does not
relate to any office. His name was written on the upper portion of the
ballot, the upper portion of the ballot, above the instructions of the
voter, but below the words “Bacacay, Albay” while the lines for
Kagawads were properly filled up.
Ferrer vs COMELEC
One- liner: In computing votes after discerning valid votes from the
contested ballots, the computation shall be based on the number of
uncontested ballots, wherein the uncontested ones shall be added with
the valid votes out of the contested ballots.
Facts:
Ferrer and Grospe were candidates for the position of Punong Brgy.
Ferrer got 277 votes while Grospe got 275 votes. Ferrer was proclaimed
the winner. Grospe filed an election protest. He claimed 11 ballots were
misappreciated and should be credited in his favor.
The trial court credited 8 out of 11 contested ballots (the other 3 ballots
claimed were declared stray)in Grospe’s favor while it credited 29 ballots
claimed by Ferrer, no stray votes. This affirmed the proclamation of
Ferrer as the PB.
Issue: WON the valid votes were properly computed.
Ruling: Yes. The computation shall be based on the number of
uncontested ballots after revision at the lower court. Thus, Ferrer who
garnered 251 uncontested ballots would be credited with 29 valid votes
per findings by lower court. He therefore has a total of 280 votes.
On the other hand, Grospe with 268 uncontested ballots shall be
credited with 8 valid votes out of the 11 votes claimed, or a total of 276
votes.
Cordero vs Moscardon
RE: NEIGHBORHOOD RULE
One-liner: Fundamentally, the purpose of election laws is to give effect
rather than frustrate the will of the voter. No technical rule or rules
should be permitted to defeat the intention of the voter, if that intention
is discoverable from the ballot itself, not from evidence alliunde. This
rule of interpretation goes to the very root of the system.
12 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
Facts: Cordero and Orrica were the only candidates for Brgy. Captain.
Orrica was proclaimed the winner by 99 votes as against 95 votes for
Cordero. 204 votes were cast in total, with 9 votes considered as stray
for having place the name of either candidate on the first space provided
for councilmen.
Cordero filed an election protest, while Orrica filed a counter-protest.
Issue: Whether or not the stray votes were properly appreciated.
Ruling:
No. 7 voters wrote the name of Cordero and 2 voters wrote the name
of Orrica, on the first space provided for councilmen followed by the
names of the councilmen of their choice. It can be understood that the
said voters intended to vote for either the Cordero or Orrica
(Neighborhood Rule).
The rule that if the name is written in the space provided for another
office, the ballot cannot be counted as a vote for such person for the
office for which he is a cadidate, admits of exceptions, where, as in this
case, the intention of the voters to vote for Cordero and Orrica is
unmistakable and should not be frustrated.
The ballot should be liberally construed and the intendment be in favor
of a reading and construction which will render the ballot effective,
rather than in favor of a conclusion which will, on some technical
grounds, render it ineffective.
Bautista vs Castro
RE: IDEM SONANS RULE
One-liner: In ballot appreciation, resorting to hadwriting experts is not
mandatory, this can be done by COMELEC. Initials, nicknames, or
appellation of affection and friendship will not invalidate the ballot, if
accompanied by the name or surname of the candidate, and above all,
if they were not used a means to identify the voter.
Facts: Sergio Bautista and Roberto Miguel were candidates for the office
of Brgy. Captain. Bautista was proclaimed the winner with a plurality of
2 votes. Miguel filed a protest on the ground of fraud and illegal acts or
practices committed by Bautista. A revision and recounting of the ballots
was conducted which resulted in a tie. Miguel filed an appeal which
decision declared him as the winner with plurality of 24 votes.
Consequently, Bautista filed an appeal, arguing among others, the ff:
1. that the court erred in declaring that the presence of an arrow
with the words “and party” written after his name was meant
for no other purpose but to identify the voter.
2. the ballot that contained the word “BLBIOY” in the space for
Brgy. Captain, was meant for him as his nickname is “Biboy”,
and should therefore not be strayed.
3. The ballot invalidated as stray vote for bearing “Bo. Barangay
Baustista” written on the first line intended for councilmen,
should not be nullified and must be decided in his favor.
4. The ballot that had the name of Bautista written 7 times was
not meant to identify the ballot.
5.
Issue: WON the contested ballots were properly appreciated.
Ruling: Partly yes.
1. Denied. It cannot be said that these writing were accidental. Even
under the liberal view, the words written on the ballots are irrelevant
expressions that nullified the ballots.
2. Accepted. “Biboy”, Bautista’s surname, was duly registered in his
COC. While the name written was “BLBIOY”, there was no doubt that
the voter intended to vote for “Biboy”, the nickname of which Bautista
was popularly known.
3. Accepted. Although what was placed before the name BAUTISTA was
“Bo. Barangay” and not “Po. Barangay” for Punong Barangay, the voter’s
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
intention to vote for Bautista was present. Thus, said vote should be
counted in his favor.
4. Denied. This vote cannot be considered as a vote for Bautista. The
writing of a name more than twice on the ballot is considered to be
intentional and serves no other other purpose than to identify the ballot.
Ong vs COMELEC
RE: CHANGE OF VOTE
One-liner: The law is clear: "Unless it should clearly appear that they
have been deliberately put by the voter to serve as identification marks,
comma, dots, lines, or hyphens between the first name and surname of
a candidate, or in other parts of the ballot, traces of the letter "T", "J",
and other similar ones, the first letters or syllables of names which the
voter does not continue, the use of two or more kinds of writing and
unintentional or accidental flourishes, strokes or strains, shall not
invalidate the ballot."
Facts: Ong and Rizon were candidates for the position of mayor of
Baroy, LDN. Ong was declared the winner with a margin of 51 votes.
Rizon filed an election protest contesting Ong’s votes in 5 clustered
precincts. Among others, the contested ballots contain the ff:
1. slot no. 1 for Senators contained the name “NIKKI” and all the other
spaces were left blank. The name “NIKKI” was written in print and the
rest written in script.
2. The name “NORMAN” was written on slot no. 1 for senators. Some
had the name “SINA” was written on slot no. 1. Another ballot contained
the word “ONG” in bold letters while the rest were written in different
strokes.
COMELEC invalidated all the above described ballots for being marked
and written by two persons.
ISSUE: WON the ballots should be invalidated.
RULING:
No.
1. The printed name “NIKKI” does not show any intention on the part of
the voters to identify or distinguish themselves. Therefore, the ballots
are not considered marked. The name “NIKKI” only showed that it was
the voter’s intention to stress their adulation for a senator named
“NIKKI”, rather than to identify themselves. The votes are stray for the
senatorial candidates but will not invalidate the entire ballot.
2. The appearance of print and script writings in a single ballot does not
necessarily imply that two persons wrote the ballot. The strokes of print
and script handwriting would naturally differ but would not automatically
mean that two persons prepared the same. A visual examination of the
ballots belies the claim that these ballots were prepared by two persons.
In the absence of any deliberate intention to put an identification mark,
the ballots must not be rejected.
EXCESS BALLOTS
Sec. 207, Art. XVIII, Omnibus Election Code
Excess ballots.
Excess ballots.
Before proceeding to count the votes, the board of election
inspectors shall count the ballots in the compartment for valid ballots
without unfolding them or exposing their contents, except so far as to
ascertain that each ballot is single, and compare the number of ballots
in the box with the number of voters who have voted.
If there are excess ballots, they shall be returned in the box and
thoroughly mixed therein, and the poll clerk, without seeing the ballots
and with his back to the box, shall publicly draw out as many ballots as
13 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
may be equal to the excess and without unfolding them, place them in
an envelope which shall be marked "excess ballots" and which shall be
sealed and signed by the members of the board of election inspectors.
The envelope shall be placed in the compartment for valid ballots,
but its contents shall not be read in the counting of votes.
If in the course of the examination ballots are found folded
together before they were deposited in the box, they shall be
placed in the envelope for excess ballots.
In case ballots with their detachable coupons be found in the
box, such coupons shall be removed and deposited in the compartment
for spoiled ballots, and the ballots shall be included in the file of valid
ballots.
If ballots with the words "spoiled" be found in the box, such
ballots shall likewise be placed in the compartment for spoiled ballots.
MARKED BALLOTS
Sec, 208, Art. XVIII, Omnibus Election Code
Marked ballots.
The board of election inspectors shall then unfold the ballots and
determine whether there are any marked ballots, and, if any be found,
they shall be placed in an envelope labelled "marked ballots" which shall
be sealed and signed by the members of the board of election inspectors
and placed in the compartment for valid ballots and shall not be counted.
A majority vote of the board of election inspectors shall be
sufficient to determine whether any ballot is marked or not. Non-
official ballots which the board of election inspectors may find, except
those which have been used as emergency ballots, shall be considered
as marked ballots.
SIGNATURE OF VOTER IN THE BALLOT
Ferrer vs De Alban
One-liner: A ballot signed by the voter himself is a marked ballot.
Facts: Alban and Ferrer were candidates for the position of mayor.
The Board of Canvassers proclaimed Ferrer as the duly-elected mayor,
with a plurality of 12 votes. Alban filed an election protest impugning
the results of some precincts on the ground that many ballots cast
therein were marked or illegally prepared but were considered valid and
counted in favor of Ferrer. Among the contested ballots is one declared
marked for the reason that it was signed by the elector himself.
Issue: WON the ballot signed by the voter is a marked ballot.
Ruling: Yes. It is a well-settled rule that a ballot signed by the voter
himself is a marked ballot.
NAMES OF PERSONS NOT CANDIDATES
Protacio vs De Leon
One-liner: Writing the name of a non-candidate is considered a marked
ballot.
Facts: Protacio and de Leon were candidates for the position of Mayor.
De Leon was proclaimed the winner. A protest was lodged by Protacio,
declaring him the duly-elected mayor with a plurality of 7 votes over De
Leon. This was however overturned by the CA pn Appeal by de Leon.
The contested ballots by Protacio show the ff, among others:
1. some ballots contained marks consisting of the names of the
protestee’s supposed political leaders, who were not candidates
during the elections
2. The name of “Pelaez”, a national political figure and not a candidate
for councilor was written on the fourth space for councilors and a
big “X” was placed after it.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
Issues: WON said ballots are marked ballots.
Ruling: Yes.
The following circumstances were considered in holding the respective
ballots as marked and therefore invalid:
(1) the inclusion of the name of the two well known movie stars who
were not candidates;
(2) writing the name of a registered voter not a candidate where the
handwriting on the ballot is dentical to the signature on the registered
voters' list in the precincts;
(3) the words "Minute" and "Kabayan" in block or
printed form both enclosed in parenthesis, written after two names in
the second and seventh spaces for councilor;
(4) the corrected names of candidates for mayor and vicemayor;
(5) the writing of the phrase "Liberal Party" eleven times on the space
for vice governor, on all the spaces for board members and from the
2nd to the 8th space for councilors, and the word "Factor" on the first
space for councilor;
(6) writing the word "saging" (banana), an irrelevant epithet, after
the name of a candidate for councilor;
(7) placing a big letter "X" immediately after the name of a candidate
for councilor;
(8) Writing the name of "Pelaez" a national political figure and not a
candidate for councilor on the
fourth space for councilors and placing a big "X" immediately after it;
(9) writing the name "Sony Boy" on the 8th space for councilors,
which is not related to the name of any candidate for councilor;
(10) writing a big "M" in block or printed letter on the eight space for
councilor, with the remaining spaces in blank; and
(11) printing a big "M" after "R. Rodriguez" on the sixth space for
senators, conspicuously and distinctly different from all the letter Ms
in this ballot
Not marked ballots:
The following circumstanceswere considered in holding the respective
ballots as not marked and therefore valid:
(1) indentions not sufficient to identify the voters;
(2) writing the word "sorry" after the name of a candidate, as an
expression of regret for having committed a mistake;
(3) writing the words "Street", or "Grand Alliance", or "and party"
(4) cancelling names and rewriting them to conform with a sample
ballot;
(5) writing a candidate's name to occupy all three spaces for members
of the Provincial Board;
(6) writing the name of a particular candidate for councilor as the last
councilor voted for in each of several ballots;
(7) mis-spelling the name of a candidate;
(8) writing the expression "carancho" before the name of a candidate as
an appellation of affection or friendship;
(9) numerals on the back of a ballot written by the board of inspectors
as a tally guide;
(10) illegible writings, being imprints of othernames written on the ballot
caused by the folding of the same;
(11) cancelling the name of a candidate in a wrong place and putting it
in the right place;
(12) different ways of writing the letter "i" in several ballots caused by
individual mannerisms of voters;
(13) Writing circles and crosses signifying desistance of voter to write
any other name; and
(14) affixing the nickname of a candidate.
IRRELEVANT EXPRESSION
Bautista vs Castro (supra)
One-liner: Ballots containing irrelevant expressions are considered
marked, and should therefore be nullified
Issue: WON the contested ballots are marked.
Ruling: Yes.Even under a literal view, the words written on the ballots
under consideration cannot be considered as falling within the exception
14 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
to the rule. Consequently, they are irrelevant expressions that nulliffied
the ballots.
As a general rule, a voter must write on the ballot only the names of
candidates voted for the offices appearing thereon. Certain exceptions,
however, were provided in Section 149 of the Revised Election Code.
For example, preffixes such as "Sr.," "Mr.," and the like and suffixes
such as "hijo," "Jr.," etc. will not invalidate the ballot (par. 5). Initials
(paragraph 15), nicknames or appellation of affection and friendship will
not invalidate the ballot, if accompanied by the name or surname of the
candidate, and above all, if they were not used as a means to identify
the voter.
USE OF STICKER
Lerias vs HRET
One-liner: A ballot containing a sticker need not necessarily be
invalidated if it was not pasted on a blank space on a ballot.
Facts: Lerias and Mercado were the candidates for the position of
Representative. Mercado led the race during the canvass of votes. But
in the Prov’l Board of Canvassers’ copy of the certificate of canvass,
Lerias would have received more votes as against Mercado. But said
board ruled that their copy contained erasures, alterations and super
impositions, and therefore cannot be used as basis of the canvass. Lerias
filed a protest.
But Mercado also filed a counter-protest stating, among others, that
various ballots for Lerias, pasted with stickers, were considered valid
and counted for Lerias.
Issue: WON the ballots containing stickers are marked ballots.
Ruling:
No. It should only be invalidated if the sticker was pasted on a blank
space on the ballot. Where the stickers appeared to have been hastily
and surreptitiously stuck on other parts of the ballots (mostly diagonally
and without any uniform location), this was done by persons other than
the voters themselves, precisely to invalidate the ballots. It is illogical
for a voter to take the trouble of writing down the names of his
candidates, sometimes laboriously, only to nullify the ballot (and all his
votes) by pasting a sticker on it.
STRAY VOTES
Villarosa vs HRET
One-liner: Three kinds of votes are considered stray:
(1) a vote containing initials only,
(2) a vote which is illegible, and
(3) a vote which does not sufficiently identify the candidate for whom it is intended
Facts: Amelita C. Villarosa and Quintos were the only candidates for the office of
Representative. Villarosa is the wife of Jose T. Villarosa, the incumbent
Representative and has been the Congressman for two terms, who wrote in his
then COC the nickname/stage name “JOE-JTV”. The wife, in her COC, also worte
“JTV” as her nickname/stage name. Villarosa was proclaimed as the winner.
Quintos filed an election protest on some grounds, among which is the canvassers
counting the votes “JTV” in favor of Villarosa, and not considering it as stray
ballots, as her use of such was attended by is bad faith, fraud and misreprentation,
and could have been for no other purpose than to mislead the electorate.
Issue: WON the ballots containing “JTV” should be considered as stray
ballots.
Ruling:
Yes. It would be the height of naivety to believe that, indeed, "JTV" is petitioner's
nickname, or that she used it for any other purpose than to ride on the popularity
of her husband to mislead the voters, especially the less informed.
Villarosa (wife) was not popularly known for such nickname. And besides,
nickname and appellation of affection and friendship can only be accepted if
accompanied by the first name or surname of the candidate.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
WATCHERS
QUALIFICATIONS OF WATCHERS
QUALIFICATIONS OF WATCHERS
Q. Who may be designated as watchers?
A. Registered voter of the barangay or municipality where he or she
is assigned
B. Of good reputation
C. Not convicted by final judgment for any election offense or any
other crime
D. Knows how to read and write Filipino, English or any of the
prevailing local dialect
E. Not related within 4th civil degree of consanguinity or affinity to
any member of the BET where he or she is assigned
Registered voter of the barangay or municipality where he or she is
assigned
If you are assigned as watcher in another part of the province and you
are not registered there, you cannot be a watcher. Most you can be is
paralegal which is good. As law students, you should be a paralegal,
being outside just collate data and give instructions to watchers.
Of good reputation
Good reputation is presumed as long as there is no opposition.
Not convicted by final judgment for any election offense or any other
crime
Take note that if:
Watcher - convicted by final judgment disqualifies
Inspector - mere pendency disqualifies
Not related within 4th civil degree of consanguinity or affinity to any
member of the BET where he or she is assigned
If the BEI is your relative in that polling place, you can’t be a watcher
there. You must be transferred to another because of conflict of interest.
RIGHTS AND DUTIES OF A WATCHER
RIGHTS AND DUTIES OF A WATCHER
A. Stay in the space reserved for them inside the polling place
B. Witness the proceedings of the BET
C. Take note of what they may see or hear
Atty Guji: Can actually document-can take notes, photograph or videos.
Provided, you don’t violate secrecy and sanctity of ballot.
D. Take photographs of the BET proceedings, election returns, ballot
boxes, tally board
Atty Guji: But never the official ballots because it will violate secrecy and
sanctity of the ballots.
E. File a protest against any irregularity or violation of law he believes
may have been committed by BET or any person (important)
Atty Guji: The ground is mere belief on the watcher’s part that there is a
violation of law or any irregularity committed by any person including BEI or
voter. Watcher must file a protest in writing.
Q. If you file a protest in writing, what happens next? Is the BEI
mandated by law to resolve the protest?
Not necessarily.
Atty G: Now you might say, “useless diay Sir”. It’s not useless because if you
want to file an election protest, that copy duly received by the BET of your
protest inside the polling place on election day, will guide the lawyer as to
which polling place he needs to raise as a polling place he needs to allege as
where irregularity or fraud was committed during the elections.
15 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
As paralegal, what you should do is to prepare a template. Give it to the
watchers so that the watchers can only write as to matters they believe were
committed as an irregularity by the BEI. Format is up to you. Leave the ground
blank.
Watchers are only there to watch. Can’t even orally argue with the BEI. If
watcher insists, he might be considered a person who disrupts proceedings
and you may be ordered arrested by the BEI.
F. Obtain from BET certificate of its filing and/or its resolution.
Atty Guji: Make sure that it was copy received/duly received by BET because
that will be your evidence that you filed a protest against some irregularity.
That can be the basis of your paralegal or lawyer later on whether or not they
should file an election protest.
There is no compulsion on the part of the BEI to resolve your protest.
Rules says, can file a protest but BEI is not compelled to issue resolution.
G. Unimpeded view of the ballot being read, ER and tally board, without
touching them.
H. Be furnished, upon request, with certificate of votes, duly signed and
thumb marked by the BET
Atty Guji: After counting, there is election return. Election return embodies the
results coming from that polling place.
Candidate is independent and not entitled collection of copy of election
returns. Alternative is ask for Certificate of Votes, duly signed and
thumbmarked by the BET.
E.g. Candidate is A. Please certify that the number of vote she garnered is like
this. They can certify that. As a matter of fact, If BET/BEI refuses to issue the
certificate of votes, it amounts to an election offense. But there has to be that
request coming from you.
So if the BEI refuses, you can ask that this refusal be put into writing. This is
because if you ask them to do that, they will be afraid and issue the Certificate
of Votes cause it amounts to an election offense. In that way your watchers
coming from the different polling place already have a result and can already
consolidate it certified by the BEI. In that level, prior to consolidation,
canvassing and proclamation, you already know whether or not your
candidate won or lost.
I. But they shall not speak to any BET, voter, or among themselves, in
such a manner as would disturb BET proceedings.
Atty Guji: In other words, you can speak but it should not disrupt the
proceedings. So what can you say? Probably, clarify questions. What is not
allowed under the rules is that you argue. If you insist in arguing that is now
disrupting the proceedings so can now be ordered arrested.
The proceedings is supposed to be solemn, silent and sacred. Nobody can just
interrupt the proceedings. Nobody can just argue there. As a matter of fact,
oral argument is not allowed. Anything that you want to protest against,
put that into writing. You cannot argue.
Q. If you are not allowed to argue, are you just going to be muted?
Are you not allowed to speak at all?
Not necessarily because you are allowed to ask clarificatory questions. But
the moment the clarificatory question crosses the line and becomes allegation
or accusation, you are already not allowed to do that.
TRANSFER OF VENUE OF COUNTING
TRANSFER OF VENUE OF COUNTING
Sec. 18, RA 6646
Transfer of Counting of Votes to Safer Place.
If on account of imminent danger of violence, terrorism, disorder or
similar causes it becomes necessary to transfer the counting of votes to
a safer place, the board of inspectors may effect such transfer by
unanimous approval by the board and concurrence by the majority of
the watchers present. This fact shall be recorded in the minutes of voting
and the members of the board and the watchers shall manifest their
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
approval or concurrence by affixing their signatures therein. The
Commission shall issue rules and guidelines on the matter to secure the
safety of the members of the board, the watchers, and all election
documents and paraphernalia.
Q. Can the BET transfer the venue of counting?
Yes. BET by unanimous vote, recommends the transfer of venue in
writing. Majority of watchers present endorses in writing.
Atty Guji: Only in rare instances where decision of the watchers are considered as
a factor in deciding whether or not it can transfer venue of counting.
The General rule is that the watchers are not allowed to participate in the
decision-making process of the BET. Wala gyud, wala silay power ana.
Except for this particular instance where they also need to endorse in writing,
majority of them, which is the transfer of the venue of counting.
Grounds for transfer of venue of counting
Imminent danger of widespread:
a) Violence
b) Terrorism
c) Disorder
d) Similar causes of comparable magnitude
Atty Guji: Not those whimsical grounds like according to feng shui or it is too hot.
Must be of compelling circumstances like violence, terrorism, disorder and similar
causes of comparable magnitude. This is because the polling place is actually your
territory and if you transfer that without sufficient ground, you are destroying the
territorial integrity of the polling place.
Q. So what about venue of voting? Can it be transferred?
We don’t have a regulation as to how we can transfer the venue for voting but by
analogy, we can apply these rules, because there is no specific provision.
Because it doesn’t make sense that if there’s violence in counting, you can transfer
the venue. But how about if there’s violence in voting? Diba? The more that it
should be allowed to transfer the venue.
Aside from that, when it says “Similar causes of comparable magnitude”, you need
to transfer right away, for your safety. So, pwede.
Q. Where to?
Nearest safe barangay or school building, not located within perimeter
of or inside —
a) Military or police camp, reservation
b) Headquarters, detachment or field office
c) Within premised of prison or detention compound of any law
enforcement or investigation agency
TN: The Comelec through the Election Officer may authorize transfer of
counting of votes. Must be recorded in the Minutes
Atty Guji: It may be transferred somewhere else like in the nearest barangay or
school building but not near a military camp or police station. This is because the
election is a purely civilian political undertaking we can’t militarize that.
BEI has minutes. They have journals for the proceedings from the time they
opened the voting booth until the time of closing. Journals are called minutes. So,
if you file a protest for some irregularity, make sure that it’s received by the BEI
or BET and it must be recorded in the minutes. When you go to an election protest,
the journals made by the BEI is going to be very decisive to determine what really
transpired during counting and voting.
PERSONS ALLOWED INSIDE THE POLLING PLACE
PERSONS ALLOWED INSIDE THE POLLING PLACE
A. Watchers who stay in designated area
B. Voters casting their votes
C. Voters waiting for their turn to vote
D. Voters waiting for their turn to get ballots
E. Jail/prison escorts for detainee voters
F. Members of Special Board of Election Tellers (SBET)
G. Others specifically authorized
16 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
TN: The enumeration is exclusive.
Watchers who stay in designated area
Atty Guji: Watchers can’t go around the polling place. There is a
designated area for you. There is a restricted area also where the voting
booth is. If a person is casting vote, he cannot be near that person
because he might influence the person and violate the secrecy and
sanctity of the official ballots.
Others specifically authorized
Atty Guji: Who are they? Probably:
a) Election officer in the exercise of his supervisory function
b) Representatives from the Commission
c) Foreign Reserves
d) Media if they have accreditation card
Media can be allowed inside the polling place, provided they get that
authority. If they get that authority they cannot be near the voters when
they cast their votes. They can’t talk to anyone. And even if they can
document, yes they can take photographs, they can videotape but,
never the official ballot because you’ll violate the secrecy and sanctity of
the ballot.
Q. Can a lawyer get in the polling place?
GR: No. A lawyer is not allowed inside the polling place because the
watcher is already the lawyer of the candidate. That’s why a watcher
should at least be a law student so there is quality representation.
XPNs:
a) If a lawyers casts his vote and he is registered there.
b) If he delegates himself as a watcher. Lawyers are not prohibited
to be watcher as long as they qualify to be.
PERSONS NOT ALLOWED INSIDE THE POLLING PLACE
The following, except if they vote, are not allowed inside the polling
place:
A. Any officer or member of the AFP or PNP
B. Any peace officer or armed person belonging to any extra-legal
police agency, special reaction, strike forces, CAFGU, paramilitary
forces, special forces, security guards, special policemen
C. All other kinds of armed or unarmed extra-legal police forces
D. Barangay tanods
Considered the lapdogs of politicians
E. Incumbent barangay or SK official, whether elected or appointed
Q: If not listed among those persons not allowed, does it follow
that you are already allowed?
Not necessarily, because we also have an exclusive list of persons who
are allowed the polling place.
We need to control the persons who are allowed inside the polling place
because otherwise, it becomes a circus.
As a matter of fact, in a case decided by the Supreme Court, it was held
that: Mere presence of an unauthorized person inside the polling place
is an election offense.
Q. What about candidates, are they allowed inside the polling
place?
A. No, unless they are going to vote. (Even during counting, they are
not allowed.)
Purpose of having this list of persons not allowed in the polling place
For emphasis. TN that police/military are not allowed. Because election
is a purely civilian political undertaking and we can’t militarize the
proceedings.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
COMELEC vs Romillo
One-liner: During the voting, no person shall be allowed inside the
polling place, except the members of
the board of inspectors and their substitutes, the watchers, the
representatives of the Commission, the voters casting their votes, the
voters waiting for their turn to get inside the booths whose number shall
not exceed twice the number of booths and the voters waiting for their
turn to cast their votes whose number shall not exceed forty at any one
time.
Facts: The COMELEC filed criminal cases against Asuncion for election
offenses committed on election day. Among which is by unlawfully
entering the polling place, carrying a gun. He was not authorized by the
COMELEC to enter a polling place. He was also observed watching the
voters fill up ballots and reading the contents thereof.
Issue: WON Asuncion violated the Omnibus Election Code.
Ruling: The testimony of the Chairman of the BEI of the precinct
involved showed the absence of the prima facie case against Asuncion.
It was revealed that when Asuncion tried to enter the voting booth, he
was stopped by the Chair of the BEI and was sent out, and he obeyed.
It cannot then be said that he committed those alleged acts inside the
precinct as he went out upon being told so.
Under those circumstances, by no means can it be concluded that Eden
Asuncion had violated the Election Code. The secrecy and sanctity of the
ballot sought to be protected by the said provision has not been violated.
ILLEGAL VOTER
ILLEGAL VOTER DEFINED
ILLEGAL VOTER
A person who offers to vote but is:
A. Not registered
B. Uses the name of another
If you are the watcher and you think that person is not the person he
claims to be, by all means file a protest against an illegal voter.
Watcher should be alert in the possibility that there is an impostor
there and casts his vote.
Chances are slim because BEI would really require a valid ID before
one can vote. Now it is fully automated, biometrics based. So BEI
already carries the identity of the voters. Remember, ID is not a
requirement for you to be allowed to vote, unless you are challenged
to vote. Only then will you be required to show your ID.
C. Suffers from existing disqualification
Or maybe you can say he suffers from existing disqualification because
voter just got out of prison, cant exercise suffrage – the watcher can
file a protest. If the protest is on the ground of lack of identity, the
only remedy is for the BEI to ask for a valid ID and if voter can establish
with sufficiency his identity, he shall be allowed to vote.
Q. Can an illegal voter be prevented to vote?
Yes, through a written challenge filed by the watcher.
Sayon ra kaayo ni class because naa may EDVCL. Kung naa ka sa lista
then by all means, you will be allowed to vote. Unless there is an
annotation that you are not allowed.
Q What happens next?
A. The BET requires challenged voter to present proof of:
B. Registration
C. Identity
D. Qualification
Q. What if voter cannot present proof of identity?
A. BET identifies the voter through photograph and specimen
signature in the EDVCL (Election Day Certified Voters List).
Your face, signature and thumb mark is there.
B. BET member may identify the challenged voter under oath, if
the BEI member knows the person personally.
17 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
Q. What are illegal acts that can be used as grounds to
challenge the right to vote?
A. Received or expects to receive, paid, offered or promised,
contributed, offered or promised to contribute money or
anything of value as consideration for the vote.
B. Made or received a promise to influence the giving or
withholding of any such vote
Atty Guji: Challenge there is: I object to this particular voter for he is suffering
from an illegal act. He is going to sell his votes. Somebody is waiting outside for
him. After he votes, someone will pay him. This is however, easily circumvented.
Under the rules. what this challenged voter has to do is only state under oath that
the accusation is false. After that allowed to vote.
If you are challenged as an illegal voter, what you need to do is to deny that under
oath. Then you will be allowed to vote regardless of the truth and falsity of your
denial.
You only challenge the moment the voter offers the vote.
Q. When can you say that a voter offers a vote?
The time when the voter approaches the BET Chair and says “Ma’am, ako si Mr.
Ben Tan, I’m listed number 19 (for example).”
Then the teachers says “Okay. Mr. Tan is now offering the vote.”
Diha ra jud ka dapat mo-object. Otherwise, if you failed to object and they already
gave Mr. Tan his ballot, and Mr. Tan is now accomplishing the ballot, you cannot
say “Ma’am, hoy, ayaw na sya pabotara.”
The remedy is gone forever.
So diha ra jud ka mo-object when the voter offers his vote. Otherwise, wala nay
limit, magkagubot gihapon ang polling place.
Q. What makes you not qualified to vote?
When you simply refuse to deny under oath.
Q. What happens next?
The challenged voter may take an oath denying the allegations. If the
challenged voter refuses to deny under oath, the challenge is sustained
and the voter is not allowed to vote.
All the challenges and decisions must be recorded in the minutes.
Atty Guji: As a watcher, any challenge or protest you make, make sure it must be
duly received by the BEI and you have that copy. So later, it can be collated by
the paralegal or lawyer and they will decide whether or not they file an election
protest. Without these documents, your election protest is a mere fishing
expedition that even the lawyer does not know where to go. Function of the
watcher is to document everything for the benefit of the lawyer in case later on
he decides to file an election protest.
CANVASSING
Canvassing is when you consolidate all the election returns coming from
the polling places of that particular city.
Take note:
Voting = Official ballots
Counting = Election returns
The flow of documents after you vote is this:
Official Ballot -> COC (of that polling place) -> Election return into COC
(of the Municipality/City) -> COC (of the Province) up until the last
canvassing unit done by the NBOC -> COCP
As oppose the COCP (Certificate of Canvass and Proclamation) that
bears only the names of the winners that is the basis of proclamation
Take note:
Every COC a corresponding COCP is issued to proclaim local officials who won
determinable by the canvass.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
BOARD OF CANVASSERS Provincial board of canvassers
WHO CONDUCTS CONSOLIDATION, CANVASSING, ETC A. Chairman – Provincial Election Supervisor or a lawyer of the
Commission
WHO CONDUCTS CONSOLIDATION, CANVASSING AND B. Vice-Chairman – Provincial Prosecutor
TRANSMISSION C. Member-Secretary – District School Superintendent

Automated elections: Who substitutes the Chair: Lawyer of the Commisson

A. Municipal Board of Canvassers (MBOC) Vice-Chair: Provincial Auditor
B. City Board of Canvassers (CBOC) Registrar of Deeds
C. Provincial Board of Canvassers (PBOC) Clerk of Court of RTC
D. National Board of Canvassers (NBOC) Any other available appointive provincial officials

Manual elections: Atty Guji: Once it is a city or province, the election officer must be a LAWYER. If
Barangay Board of Canvassers (BBOC) the election officer is not a lawyer, then there’s an illegal composition. In which
case, you can have the results nullified.

Disqualification
Barangay Board of Canvassers
Must not be related within the fourth civil degree of consanguinity or
All are BET Chairmen
affinity to:
A. Each other Atty Guji: If you are a barangay candidate, the Comelec is without jurisdiction to
B. Any candidate whose votes will be canvassed by the Board proclaim you as a candidate because Comelec does not sit as members of the Brgy
Board of Canvassers, only public school teachers. The Comelec has no jurisdiction
Take note: to proclaim you as an elected barangay official.
Any candidate means – local or national thus if one of your relatives run for
national elections and you are serving for a local barangay you are still disqualified
VACANCY IN THE BOARD OF CANVASSERS
but not if you are serving in another barangay and your relative runs in another
barangay.
VACANCY IN THE BOARD OF CANVASSERS
Q. When is there vacancy in the BOC?
Test is: Is his/her votes will pass the board of canvassers jurisdiction? A. Non-availability (i.e. nagabroad, study leave sya or masters)
B. Absence (dili makit.an despite duly served with notice)
Atty Guji: Voting and counting in the polling place. Who administers? Board of C. Disqualification (relationship)
Election Inspectors. All results coming from each polling place will be transmitted D. Incapacity for any cause
or consolidated for canvassing. Who canvasses? Board of Canvassers.
TN: But feigning illness is an election offense.
COMPOSITION OF THE BOARD OF CANVASSERS QUORUM REQUIRED
COMPOSITION OF THE BOARD OF CANVASSERS Simple majority, or 2 out of 3:
A. To transact official business
Municipal Board of Canvassers
B. To render decision
A. Chairman – Election Officer
C. Thus, from election day until proclamation
B. Vice-Chairman – Municipal Treasurer
D. No member is transferred out of, or leaves station, without
C. Member-Secretary – District School Supervisor
authority from the Commission
Or, in his absence, most senior principal of the school district
POWERS AND FUNCTIONS OF THE BOC
Who substitutes the Chair: Official of the Commission
Vice-Chair: Municipal Administrator
POWERS AND FUNCTIONS OF THE BOC
Municipal Assessor
A. Full authority to keep order – if you disrupt proceedings can be
Clerk of Court of MTC
ordered arrested
Any other available appointive municipal officials
B. Enforce obedience to its lawful orders
Take note: dapat in order ang pagsubstitute and it happens without need of
C. If any person disobeys or interrupts
appointment kay statutorily provided man. D. The Board may order in writing any peace officer to take that
person in custody until adjournment
City Board of Canvassers Atty Guji: Tamer version of arrest, take into custody lang, if he behaves he
A. Chairman – Election Officer or a lawyer of the Commission can be released but if that person really disrupts the proceedings he can
be ordered arrested. The discretion is with the BOC
B. Vice Chairman – City Prosecutor
C. Member-Secretary – Schools Division Supt. E. If there is no peace officer, any other competent and able person
may be deputized to enforce such order
Who substitutes the Chair: Atty Guji: BOC can ask a private person who has big body built to take into
Official of the Commission who is a lawyer custody a person who disrupts proceedings.
Vice-Chair: F. Canvass/consolidated electronically transmitted results
City Auditor G. Proclaim the winner and perform other duties – they have
Registrar of Deeds authority
Clerk of Court of RTC
Any other available appointive city officials Remember: Ang naa ray authority or jurisdiction to proclaim the
winners is the Board of Canvassers unless of course there is an appeal
Atty. Guji: You might want to ask “ngano man dunay mga syudad na dish sa bla bla in which case the commission or the court may order the
cebu nga ang ila election officer is dili mn lawyer? That can still be allowed
proclamation what they do is BOC reconvene and proclaim the winner.
by law but if there is canvassing already that election officer can never serve as a
chair because the law is clear the chair must be a lawyer.

Do they need appointment?

No because their appointment is provided for by law and they cannot
refuse except for very legitimate causes.

18 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
PERSONS ALLOWED INSIDE CANVASSING VENUE ISSUES THAT MAY BE RAISED DURING CANVASSING
PERSONS ALLOWED INSIDE CANVASSING VENUE
A. Candidates, representative of political parties, party-list groups ISSUES THAT MAY BE RAISED DURING CANVASSING
Atty Guji: In the BEI level in voting and counting – candidates are not
allowed inside, except to vote. But during canvassing they are now Omnibus Election Code - Article X
allowed. Sec. 243. Issues that may be raised in pre-proclamation controversy. -
The following shall be proper issues that may be raised in a pre-
B. Counsels (lawyers) proclamation controversy:
 Only one counsel argues
 Have the right to observe proceedings a. Illegal composition or proceedings of the board of canvassers;
 Without touching the CCS (Canvass and Consolidation b. The canvassed election returns are incomplete, contain material
System) defects, appear to be tampered with or falsified, or contain
 Dilatory tactics are not allowed (because canvassing is discrepancies in the same returns or in other authentic copies
summary in nature) thereof as mentioned in Sections 233, 234, 235 and 236 of this
Code;
C. Watchers c. The election returns were prepared under duress, threats,
 Must know how to read and write coercion, or intimidation, or they are obviously manufactured or
 Not allowed to participate not authentic; and
 Barangay officials and tanods not allowed, because it is d. When substitute or fraudulent returns in controverted polling
supposed to be non-partisan. places were canvassed, the results of which materially affected the
standing of the aggrieved candidate or candidates.
PERSONS NOT ALLOWED INSIDE CANVASSING VENUE
No more pre-proclamation controversy.
PERSONS NOT ALLOWED INSIDE CANVASSING VENUE
Pre-proclamation controversy refers to
A. Any officer or member of the AFP or PNP Anything questioning the proceedings of the BOC raised by any
not only inside but 50m radius around the building candidate or party before the BOC or the Commission.

Except: Or any other matter raised in relation to the:

a) When they are directed in writing Preparation, transmission, receipt, custody and appreciation of election
written order of detail is usually issued first thing prior to returns under:
the opening of the canvassing that constitute continuing
authority to PNP or AFP to the door step of canvassing
venue in case anything happens  Section 223, OEC – when election returns are delayed, lost or
b) To stay outside canvassing venue, in proper uniform destroyed
these are common during manual elections, kanag delayed gyud. Before if
c) To maintain peace and order
late sila tapos dugay gyud sila magabot amo na sila ipakuha if asa gyud na
d) To protect the BOC and its staff sila.
e) To protect election paraphernalia and documents
Remember: there are remedies available here because there are multiple
B. Any peace officer or any armed or unarmed persons belonging to: copies usually it is done in 8 automatic copies kanang carbon copy.
a) Extra legal police agency
Note: Watchers if you are not entitled to receive a copy, you can ask for a
b) Special, reaction, strike or civilian armed forces
certificate of votes duly certified by the BEI

C. Any member of:

a) Security or police organizations of government agencies
and instrumentalities
b) Privately owned security, intelligence, protective or
investigative agency
Note: Common denominator nila is they are armed, again go back to our
first premise we said that you cannot militarize the elections because it is
a purely civilian political undertaking because if you militarize now you
could be intimidating the voters vitiate their consent and remember that
“a free ballot is essential in a democracy”. The people should be given
the freedom to choose without any intervention or intimidation from
anybody.
D. Barangay tanod or self-defense units
Because again they are supposedly non-partisan
RIGHTS OF WATCHERS
RIGHTS OF WATCHERS
A. Be present, and take note of all proceedings
B. Stay behind BOC Chairman near enough to observe the canvass,
without touching the CCS
C. File a protest against any irregularity noted in the canvass of
election returns and certificate of canvass (in writing lang ha
because only lawyers are allowed to argue)
D. Obtain from the Board a resolution in writing
 Section 234 – material defects in the election returns
Material defects – are omission of names, votes, entries or etc., of
candidates while others have entries on the same election return.
Take note: there can be a lot of defects in an election but differentiate
formal defects from material ones.
 Section 235 – when election returns appear to be tampered with
or falsified, not authentic, not prepared by the BEI, or if prepared,
it was under duress, force or intimidation
-“not prepared by the BEI” – this is common in ARMM before in manual
elections or if not, it was prepared under duress.
-“Falsified” – changed, it’s there but it was altered
-“Manufactured” – there is nothing, and then you create
 Section 236 – discrepancies in election returns
“Discrepancies” – i.e. you are entitled to a copy of election returns which you
got 150 votes then but sa canvassing na copy you only got 100 votes or if
on the same election return there is 20 “taras” then ang numerical rate is 10
clearly there is a discrepancy because its supposedly 100. (seldom this
happens because of the & 8 automatic copies accomplished through carbon
copy).
Atty Guji: Pre-proclamation controversy is not allowed to be raised during the
canvassing by the Board of Canvassers for it will just delay the proceedings.

19 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
Before Pre-proclamation controversy is not allowed for the President,
Vice-President, Senators and District Reps – and the reason is because
the one with the jurisdiction over the election returns and qualifications
of this bodies are their electoral tribunals (PET, SET, and HRET), but for
local officials allowed.
Now At the onset of automatic elections for all positions even barangay
elections or SK positions, pre-proclamation controversy is not allowed
anymore because it delays the proceedings which is not proper for
Canvassing because it is summary in nature, and it will likely result to a
power vacuum where the winner should have been proclaimed and sat
on the position but he cannot because of the controversy.
Note: You are without remedy; the proper remedy is election protest.
Remember: If the BOC in good faith believes that the election returns
are regular in its face neither the candidate nor anybody can claim
otherwise but if the BOC knows that it is fake of course, they could not
proclaim they should look for the other copies as remedy. See Section
236 – they are actually remedies for the BOC not for the candidates.
Belac v. Comelec
Facts: Election returns were sought to be excluded from canvassing on
the ground that they were padded, tampered or falsified or
manufactured and prepared before voting. The BOC however proceeded
to canvass. On appeal, the Commission excluded them.
Held: The grounds relied upon are in the nature of a pre-proclamation
controversy which is not allowed to be raised during canvassing. For as
long as the election returns appear to be authentic or duly accomplished
on their face, they should be included in the canvass. This presupposes
that the BOC in good faith honestly believe that it is authentic otherwise
they have to exclude that to the canvassing and would probably not
matter if it cannot affect the results because of statistical improbability
To do otherwise is to go beyond the face of the election returns, over
which the Commission or the BOC have no jurisdiction to the
examination of the election returns. It has no jurisdiction to go beyond
its face and investigate irregularities. The proper remedy is election
protest. If at all, pre-proclamation controversies are resolved summarily
without need to present evidence aliunde as it takes up considerable
time.
Atty. Guji:
- In one of the cases the SC said that Canvassing is summary
in nature (or dinalian) because; 1. It may create a political
vacuum, 2. BOCs are incompetent to rule on certain
irregularities (i.e. fake), they are mere ad hoc bodies or
temporary lang sila, that competence belong to the regular
courts or the COMELEC as the case may be and they have all
the time to decide on that so much time that it will include
that time after the term of office
- “aliunde” means outside, you go beyond the face of the COC;
and that is a pre-proclamation controversy.
RA 7166
Sec. 15. Pre-proclamation Cases Not Allowed in Elections for
President Vice-President, Senator, and Member of the House of
Representatives. - For purposes of the elections for President, Vice-
President, Senator and Member of the House of Representatives, no pre-
proclamation cases shall be allowed on matters relating to the
preparation, transmission, receipt, custody and appreciation of the
election returns or the certificates of canvass, as the case may be.
However, this does not preclude the authority of the appropriate
canvassing body motu propio or upon written complaint of an interested
person to correct manifest errors in the certificate of canvass or election
returns before it.
20 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
Questions affecting the composition or proceedings of the board of
canvassers may be initiated in the board or directly with the Commission
in accordance with Section 19 hereof.
Any objection on the election returns before the city or municipal board
of canvassers, or on the municipal certificates of canvass before the
provincial board of canvassers or district boards of canvassers in Metro
Manila Area, shall be specifically noticed in the minutes of their
respective proceedings.
Sec. 17. Pre-proclamation Controversies; How Commenced. -
Questions affecting the composition or proceedings of the board of
canvassers may be initiated in the board or directly with the
Commission. However, matters raised under Sections 233, 234, 235 and
236 of the Omnibus Election Code in relation to the preparation,
transmission, receipt, custody and appreciation of the election returns,
and the certificates of canvass shall be brought in the first instance
before the board of canvassers only.
Milla v. Balmores-Laxa
Facts: A petition to correct entries based on fraud and an irregularity
was filed.
Finding fraud, the COMELEC en banc denied the motion to correct,
nullified the proclamation of one and proclaimed the other.
Held:The petition is in the nature of a pre-proclamation controversy.
Thus, it must first be heard and decided by the division.
The en banc hears and decides only if there is a motion for recon.
Without the prior decision of the division, the en banc has no jurisdiction
over a pre-proclamation controversy.
Note: Pre-proc is quasi-judicial in nature.
MANIFEST ERROR
MANIFEST ERROR
(exception to the pre-proc rule)
- Those that are evident to the eye and understanding, visible
to the eye, that which is open, palpable, uncontrovertible,
needing no evidence to make it more clear, not obscure or
hidden. (Klaro ba)
Note: To be manifest, errors must appear on the face of the COC or ERs
sought to be corrected and must have been objected before the board
of canvassers and specifically noted in the minutes of their respective
proceedings.
But you can actually petition to correct manifest errors even after the
canvassing.
In the case of Tatlonghari v. COMELEC, when what is involved is purely
mathematical and/or mechanical error in the operation of the adding
machine committee by the Board of Canvassers but does not involved
opening of ballot boxes, examination and appreciation and/or election
returns, it is manifest error.
Instances of manifest error
1. Copy of Election return of one precinct or two or more copies
of a certificate of canvass were tabulated separately
2. Two copies of copies of the election returns or certificate of
canvass were tabulated separately
3. There was a mistake in the adding or copying of the figures
into the certificate of canvass or into the statement of votes
by precinct.
4. so called election returns from non-existent precincts were
included in the canvass
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
Remedy against manifest error
BOC may motu propio or upon verified petition by any candidate,
political party or organization or coalition of political parties, after due
notice and hearing, correct the errors committed.
PRE-PROCLAMATION CONTROVERSY
PRE-PROCLAMATION CONTROVERSY
Q. When is there pre-proclamation controversy?
If the BOC is constrained to go beyond the face of the election returns,
it is a pre-proclamation controversy. In which case, it is not allowed to
be raised as an issue in the canvassing.
Examples:
1. Upon the opening of the envelope for an election return coming
from a certain polling pace, a lawyer objects to the inclusion of that
election return on the ground that it is fake. How to know if fake
or not? BOC is forced or constrained to go beyond the face of the
election return.
2. I object to the inclusion of that election return on the ground that
it was prepared under duress for BEI was forced. The canvasser
has to go beyond the face of the election return to ascertain if the
claim is true.
3. An objection to the inclusion of the election return on the ground
that 150 votes there is only 100 but the BEI misappropriated the
ballots. How to know misappropriated? Constrained to go back to
ballots to see if there really is misappropriation.
Q. When is it not a pre-proclamation controversy?
When the BOC is not constrained to go beyond the face of the election
returns as the error is manifest.
1. An objection to not include the election return in the canvassing
because there is a manifest error in the computation. 50 votes +
50 votes = 150 votes suddenly. A manifest error can be seen by
the naked eye, within the face of the election returns. This is
allowed. Need not go to other document to make a reference to
make computation.
Q. If it is under the law, why can’t we avail of it as remedy
during canvassing?
Yes these are remedies available under the law but these are remedies
available to the BOC and not to the lawyers of the candidates during
canvassing.
Antonio v. Comelec
Facts:
Election returns were sought to be excluded on the ground that their
preparation, transmission, custody and appreciation were attended by
undue influence, extreme pressure, threat and coercion. They affected
the due execution, regularity and authenticity of the election returns
justifying examination of circumstances beyond their face.
Held:
This is in the nature of a pre-proclamation controversy. Thus, it must
first be heard and decided by the division. The general rule is that the
Comelec need not go beyond the face of the returns and investigate
irregularities. The exceptional circumstances to justify summary
annulment of canvass and proclamation are not attendant:
a) Precipitate canvassing
b) Terrorism
c) Lack of notice
d) Manifest irregularities in the face
Sebastian v. Comelec
Where the resolution of issues warrant piercing the veil of election
returns that appear prima facie regular, it is election protest.
21 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
Bandala v. Comelec
Facts: Inclusion of election returns were objected on the grounds of lack
of inner paper seal, lack of party affiliation of watchers who signed and
lack of pages listing local candidates. The Comelec en banc ordered their
exclusion and nullified the proclamation.
Held: Lack of inner paper seal is a mere formal defect that does not
justify exclusion of election return. It does not affect the authenticity of
the election return. It is not a proper subject of a pre-proclamation
controversy.
Ocampo v. Comelec
Facts:
Inclusion of election returns were objected for being lopsided and
manufactured, lack statistical data and if any, with discrepancy on the
number of votes cast, registered voters and excess ballots and more
importantly, erasures and super-impositions.
Held:
Lack of statistical data is a formal defect that does not affect the integrity
of the election return. Superimpositions are intended to make the names
more legible. That the results were lopsided could only mean the voters
did not vote for him.
Sandoval v. Comelec
Facts: 19 election returns were alleged to have been omitted from
canvassing. Hence, the canvassing and proclamation were sought to be
suspended.
Held: As a general rule, candidates are not allowed to file pre-
proclamation case before the Comelec, except:
a) Candidates for President, Vice-President, Senator and District
Representatives pursuant to Section 15, R.A. 7166
b) When it involves correction of manifest error. In which case, it may
be filed directly with the Commission en banc.
Ampatuan v. Comelec
Issue:
Whether the Commission is divested of the jurisdiction over a petition
to declare failure of election filed by respondent after the petitioner was
proclaimed.
Contention of petitioner: After proclamation, the only remedy left for
respondent is election protest hence jurisdiction lies with the regular
courts pursuant to a long line of cases.
Held:
Yes, if the ground is pre-proclamation controversy. But in this case, what
is sought is the annulment of election returns or failure of elections.
These remedies are different from each other.
In a pre-proclamation case, the Comelec is restricted to inquire into the
regularity as appearing on the face of the election returns. It has no
jurisdiction to investigate the alleged irregularities.
In declaration of failure of elections, the Comelec is duty bound to
investigate the allegations of fraud, terrorism, violence or other
analogous cases. Thus, it may conduct technical examination of election
documents, compare and analyze voter signatures and thumb prints.
Sarangani v. Comelec
Facts: Certificate of Canvass were excluded by the Board of Canvassers
on the ground that they are mere photocopy or contained erasures.
Held:
The Certificates of Canvass should be included despite the seeming
irregularities. The BoC is authorized to improvise election forms in case
of shortage. In this case, BoC was constrained to photocopy the first.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
page of the CoC and use it as the second page to list other candidates
whose names could no longer be accommodated due to lack of space.
As a matter of fact, it was authenticated by the signatures of watchers
from different political parties and the citizen’s arm. Upon scrutiny, the
erasures were actually intended to reflect the true and actual number of
voters garnered by the candidates.
These findings were made after the Commission investigated the alleged
irregularities. The results were even compared with the copies for the
Commission and were found the same. Extreme caution must be
exercised in the exclusion as it may disenfranchise the voters of an entire
municipality.
Lucman v. Comelec
Facts: Elections returns were sought to be excluded because they are
manufactured. But the BoC included them, as the ground is in the nature
of a pre-proclamation controversy.
The candidate appealed with the Comelec and reiterated the grounds
but added that the election was tainted with massive irregularities.
Substitution of voters, ballot snatching, voters were forced, threatened,
and intimidated to vote, double registrants and flying voters were
allowed to vote, watchers were threatened and forced to leave, the
inspectors merely copied the tally board prepared by watchers.
Held:
Issues of fraud and terrorism are not proper in a pre-proclamation
controversy because their resolution warrants the Comelec to pierce the
veil of the election returns which appear to be prima facie regular. As
such, they should be filed in an election protest which jurisdiction
pertains to the regular court.
As a rule, fraud, vote-buying and terrorism cannot be invoked as a
ground to declare failure of elections. Otherwise, a great number of
innocent voters will be disenfranchised by the misdeeds of a few.
Trinidad v. Comelec
Facts:
A petition to correct manifest errors and annul proclamation was filed
timely on the ground that 5 election returns were canvassed twice. If
corrected, the results would have been different since only 228 votes
separated the winner and the loser.
But a supplemental petition was filed 21 days after to correct the
erroneous copying of the figure 1099 from the Statement of Votes as
1009 into the Summary of Statement of Votes.
Held:
The supplemental petition is a petition to correct manifest error, contrary
to the misimpression of the Comelec that it is a petition to nullify
proclamation. Manifest means it is visible to the eye and understanding
that which is open, palapable, un-controvertible, needing no evidence
to make it clearer. Thus, error in the mere copying of figures from one
document to another is manifest. In this case however, even if the 90
votes were credited to petitioner, it is still not enough to overcome the
228 lead of respondent.
PROBLEMS WITH THE ELECTION RETURNS
WHEN ELECTION RETURNS ARE DELAYED, LOST/ DESTROYED
A. Missing copy – BoC sends messenger to obtain it from the BEI
B. Lost or destroyed – BoC uses other authentic copies upon prior
authority from Commission
C. If they do not affect results of elections – terminate canvass and
proclaim
Atty Guji: If they say, Mr. Chair the election returns from this particular polling
place is delayed, lost or destroyed. So there is now a missing copy. BOC now sends
a messenger to obtain it from BEI. That is the remedy. No problem if this is the
reason because election results are in multiple copies so BOC can use other copies.
22 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
MATERIAL DEFECTS IN THE ELECTION RETURNS
Material defects – omission of name of candidate or omission of votes
obtained
BOC orders the BEI to correct
If the omitted votes can only be ascertained by recount
The Commission shall order the BEI concerned to open the ballot box
and recount if it is satisfied that:
A. The integrity of the ballot box is not violated
B. The integrity of the official ballots is duly preserved
Atty Guji: 3 gubernatorial candidates, suddenly in 1 polling place/1 election return.
What is placed is Candidate A - # of votes and Candidate b – # of votes. Candidate
C’s was not tallied. So there is material defect. So constrained to go back to ballot
box and count again the votes. This is a pre proclamation and not allowed during
canvassing. It may be unfair that you don’t go back, but what did your watcher do
in the BEI level?
ELECTION RETURNS APPEAR TO BE TAMPERED WITH
When election returns appear to be tampered with or falsified after they
left the hand of BEI, or otherwise not authentic.
Not prepared by the BEI, or if prepared, under duress, force or
intimidation
BoC uses other copies of the election returns. If said copies likewise
suffer from the same infirmities, the BoC uses copy from the ballot box
if the Commission is satisfied that its integrity is not violated.
Atty Guji: Common ground during canvassing. They object because fake or
prepared under duress. These are serious accusations. Tell that the document is
spurious. How to determine? Go beyond the face of the document. So pre-
proclamation controversy.
DISCREPANCIES IN ELECTION RETURNS
Discrepancies –
A. In other authentic copies
B. Of votes in words and figures in the same returns
C. Affecting results of elections
Atty Guji: If it involves recounting, then it is a pre-proclamation controversy. So
unfair, what if the accusations were true. Do you still have a remedy? Yes, but not
before the BOC but for an election protest later on. If we allow these grounds
during canvassing, it would take canvassing 1 year. It will delay the proceedings.
You might say it’s unfair but not really because the BEI enjoys the presumption of
regularity in their performance of duty.
Blank v. Comelec
Facts: Election returns found spurious were excluded from canvass.
Held: Outright exclusion after finding they are fraudulent returns is
grave abuse of discretion. Procedure in Sec. 235 must be followed first:
a) Use other copies of election returns
b) If other copies are likewise spurious, use copy inside the ballot
box
c) If still spurious, recount if Commission is satisfied the integrity of
ballot box and ballot is not compromised.
Atty Guji: What will lawyers do during canvassing? Look out if there is illegal
composition of the BOC. Are the members of BOC qualified? But this is a rare issue
because at Comelec level, they make sure that all members of BOC are perfectly
qualified. If there is illegal composition of BOC, then the results from that
municipality can be nullified on the basis that BOC is without authority.
PROCEDURE TO RAISE OBJECTIONS
RA 7166 Sec. 20. Procedure in Disposition of Contested Election Returns.
A. Any candidate, political party or coalition of political parties contesting the
inclusion or exclusion in the canvass of any election returns on any of the
grounds authorized under Article XX or 234, 235 and 236 of 234, 235 and
Article XIX of the Omnibus Election Code shall submit their oral objection to
the chairman of the board of canvassers at the time the questioned return
is presented for inclusion in the canvass. Such objection shall be recorded in
the minutes of the canvass.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
B. Upon receipts of any such objection, the board of canvassers shall
automatically defer the canvass of the contested returns and shall proceed
to canvass the returns which are not contested by any party.
C. Simultaneous with the oral objection, the objecting party shall also enter his
objection in the form for written objections to be prescribed by the
Commission. Within twenty-four (24) hours from and after the presentation
of such an objection, the objecting party shall submit the evidence in support
of the objection, which shall be attached to the form for written objections.
Within the same period of twenty-four (24) hours after presentation of the
objection, any party may file a written and verified opposition to the
objection in the form also to be prescribed by the Commission, attaching
thereto supporting evidence, if any. The board shall not entertain any
objection or opposition unless reduced to writing in the prescribed forms.
The evidence attached to the objection or opposition, submitted by the
parties, shall be immediately and formally admitted into the records of the
board by the chairman affixing his signature at the back of each every page
thereof.
D. Upon receipt of the evidence, the board shall keep up the contested returns,
consider the written objections thereto and opposition, if any, and summarily
and immediately rules thereon. The board shall enter its ruling on the
prescribed form and authenticate the same by the signatures of its members.
E. Any part adversely affected by the ruling of the board shall immediately
inform the board if he intends to appeal said ruling. The board shall enter
said information in the minutes of the canvass, set aside the returns and
proceed to consider the other returns.
F. After all the uncontested returns have been canvassed and the contested
return ruled upon by it, the board shall suspend the canvass. Within forty-
eight (48) hours, therefrom, any party adversely affected by the ruling may
file with the board a written and verified notice of appeal; and within an
unextendible period of five (5) days thereafter an appeal may be taken to
the Commission.
G. Immediately upon receipt of the notice of appeal, the board shall make an
appropriate report to the Commission, elevating therewith the complete
records and evidence submitted in the canvass, and furnishing the parties
with copies of the report.
H. On the basis of the record and evidence elevate to it by the board, the
Commission shall decide summarily the appeal within seven (7) days from
receipt of said record and evidence. Any appeal brought before the
Commission on the ruling of the board, without the accomplished forms and
the evidence appended thereto, shall be summarily dismissed.
The decision of the Commission shall be executory after the lapse of seven
(7) days from receipts thereof by the losing party.
I. The board of canvassers shall not proclaim any candidate as winner unless
authorized by the Commission after the latter has ruled on the object brought
to it on appeal by the losing party. Any proclamation made in violation hereof
shall be void ab initio, unless the contested returns will not adversely affect
the results of the election.
PROPER ISSUES TO BE RAISED
PROPER ISSUES TO BE RAISED
A. Illegal composition of the BoC
Illegal composition of the BOC and illegal proceeding of the BOC are
also in the nature of a pre proclamation controversy. But by virtue of
the rule of the COMELEC that says these issues can be raised, you can
say that there is still pre proclamation controversy but limited only to
these two issues, Illegal composition of the Boc and illegal proceedings
of the BOC.
Q:When can we say that there is an illegal composition of the
BOC?
A: Remember composition ha. The first premise there is that the
people must be appointed by law. So illegal composition is when
somebody that is not qualified was appointed or somebody was
disqualifies by the COMELEC like if he’s related to one of the
candidates. Now take note, like we said municipal treasurer,
administrator, clerk of court etc sometimes there are people appointed
to such position merely as officer in charge or in an acting capacity.
23 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
Q: What if the municipal treasurer, is merely OIC, can he be
appointed or can he serve as a board canvasser?
A: The answer is no because acting capacity gani, your power is limited
to make sure that the office continues to operate its administrative
functions. As opposed to acting capacity. We say acting capacity, you
actually assume all the powers and the responsibility of the one that is
the regular appointee. Do you follow kung acting capacity pwede, if
OIC no.
B. Illegal proceedings of the BoC
 Precipitate canvassing (gidali-dali)
 Terrorism
 Failure to notify the venue and time of canvassing to the
candidates and all other persons interested like BOC
themselves
 Improper venue
Now improper venue is this, in improper venue the default
venue is always the session hall of the municipal hall or city
hall or provincial board. But sometimes, guot ni sila, gamay
ang space kaayo and due to space constraints, we are allowed
to seek leave of authority to transfer the venue. Kay if you
transfer the venue without the authority, that becomes
improper venue. There must be proper authority.
But remember that there is a case there, it says there that, it is not necessary just
because it is precipitate, there is terrorism, there is failure to notify, it results to
illegal proceedings, its not necessary because there must be that qualifying
circumstance where there is that intention to wreck the election results.
So what if you fail to notify in advertence, nakalimot lang ka or pananglit
there are 120 partylist and you forgot to notify one party, does it
automatically result to illegal proceeding?
Not necessarily, because the mere inadvertence without the intention to wreck the
election results does not result. So take note of that qualifying circumstance
Q:When can we say there is Illegal Proceeding of the BOC?
A: Precipitate canvassing. When we say precipitate canvassing, pinadalian,
Terrorism, failure to notify. Kana ang Failure to notify is notice to all candidates,
parties, partylist of the date, time and place of the canvassing. If we fail that, it
might result to illegal proceeding of the BoC
.Ok?
So when do you raise these issues?
Right away when these illegal composition and right away when Board
canvassers start to act illegally, otherwise when you are too late it may
constitute estoppel.
In one of the cases there, the objection of the replacement of the board of
canvassers, but after his objection was denied he still participated in canvassing.
But the SC said that active participation is acquiescence (?) on the legality of the
proceedings. Because the remedy should have been, if your motion or your verified
petition was denied at the canvassing level the best remedy should have been is
to file an appeal to the COMELEC right away. Otherwise, your active participation
after that objection becomes acquiescence to the illegality of the proceeding.
Atty Guji: Automated election canvassing – really boring because you have to wait
for the transmission to get inside the CCS. There’s a list of all polling places and
there’s button there: Red – not yet transmitted; Yellow – transmitted but still in
limbo; Green – results are in, transmitted.
HOW TO RAISE THEM
A. Verified petition before BoC or the Commission
B. If before BoC and decision is adverse, appeal to the Commission
within 3 days from issuance.
MOTIONS
A. Must be in writing
Atty Guji: If not in writing then it would be treated as a mere
manifestation in which case not obliged to resolve. When you are in
the canvassing and you are the lawyer, you make an oral motion at
the same time submit a written motion. Without the written motion,
the oral motion will not be meritorious.
B. Duly received by the Secretary
C. 24 hours to decide from receipt
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
Q. When to proclaim?
When the winner is known
Q. Who is the winner?
The candidate who obtained the highest number of votes by plurality
A. Top 1 – among candidates for single slot positions
B. Top 12, 10, 8 or 2 – among candidates for multiple slot positions
 12 – HUC councillors
 10 – City councillors
 8 – Cebu City per district
 2 – Provincial board members
EFFECTS OF DECISIONS
EFFECT OF FINALITY OF CANCELLATION, ETC
EFFECT OF FINALITY OF CANCELLATION OF OR DENIAL OF DUE
COURSE TO CERTIFICATE OF CANDIDACY
A. Votes cast in his favor are considered stray.
B. Hence, the candidate with the second highest number of
votes is proclaimed.
Atty Guji: If CoC was cancelled or denied due course, then you are not considered
as candidate at all any point in time. So even if you get highest number of votes,
the 2nd placer will be proclaimed.
EFFECT OF FINALITY DECLARATION AS NUISANCE CANDIDATE
EFFECT OF FINALITY OF DECLARATION AS NUISANCE
CANDIDATE
A. Votes cast for the nuisance candidate are added to the candidate
with the same surname.
B. But if two ore more candidates share the same surname other
than the nuisance candidate – votes cast for the nuisance
candidate are stray. The vote is credited to any candidate,
incumbent or not.
C. If nuisance candidate does not share surname with any other
candidate – votes are stray.
EFFECT IF WINNER IS DISQUALIFIED
EFFECT IF CANDIDATE WHO OBTAINED HIGHEST NUMBER OF
VOTES IS DISQUALIFIED BY A FINAL AND ECECUTORY
DECISION
A. He shall not be proclaimed
B. But the candidate with the second highest number of votes is
also not proclaimed
C. Rule of succession applies. Otherwise, the position is vacant.
When does decision become final and executory?
A. Division – no MR is filed
B. En banc – no TRO was issued by SC within 5 days from receipt
of decision by the parties
EFFECT IF DQ REMAINS PENDING DURING CANVASSING
EFFECT IF DISQUALIFICATION REMAINS PENDING DURING
CANVASSING
Winner is proclaimed, if there is no order to suspend proclamation issued
by the Commission in division or en banc.
Remedies after proclamation
A. Election protest – procedure to contest the election or the return
of an elective official
B. Quo warranto – procedure to prevent assumption or unseat the
proclaimed winner on the ground of ineligibility or disloyalty to duly
constituted authorities
Atty Guji: The difference is if election protest, the only one who can file it is the
losing candidate for the same position. If you are a mere registered voter, file a
24 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
quo warranto on the ground of ineligibility or disloyalty to duly constituted
authorities.
Remedies after proclamation, usually petition to nullify the proclamation pwede.
But normally, what you do is either election protest or quo warranto. There are a
lot of differences between an election protest and a quo warranto. But by
definition, ang inyu lang timan-an the protestant will say its not you, its me. Kung
quo warranto gani, its not you but I’m not interested. That’s how you simplify that.
Now when you say Election contest. It now included election protest and quo
warranto.
DOCTRINE OF STATISTICAL IMPROBABILITY
DOCTRINE OF STATISTICAL IMPROBABILITY
Extraordinary coincidence
 All eight senatorial candidites of Liberal Party obtained all votes while
eight senatorial candidates of the Nacionalista Party obtained zero
vote.
 For each polling place, the total number of registered voters, ranging
from 240 to 650, cast their votes only for the Liberal Party
candidates.
Take note, all votes para lang gyud sa Liberal Party, what is more odd
was the 240 to 650 was the maximum number of registered voters and
everybody votes. Kanang 100 percent voters’ turnout that is very rare.
Pero daghan polling places, tanan nagvote. Further,
 There is one inspector from the Nacionalista Party for each polling
place, thus its candidates should have obtained at least one vote.
Probably this inspector is also the watcher in the polling place. Now take
note the Liberal Party was the incumbent. When you are the incumbent
you have the access to everything.
 Election results in polling places were utterly improbable and
clearly incredible. It is not likely, in the ordinary course of things,
that all electors of one polling place would, as one man, vote for
all eight candidates of one party, without giving an single vote to
any of the eight candidates of the other party.
 Such extraordinary coincidence was quite impossible to believe,
knowing that that the other party has a nationwide organization,
with branches in every province, and was in previous years, the
party in power.
But the SC noted, na its quite impossible na ma zero-han gyud and it’s
a National party. So the SC uttered that the election result is really
impossible and not incredible.
Its’ not actually defined but there is a case, an old case that illustrates
what is Doctrine of Statistical Improbability, it actually talks about
extraordinary coincidence, murag sa bisaya ba. Imposible na kaayo.
Question what if you’ll object and say that its statistically improbable, I
got nothing in a particular polling place. That would be speculative
because here take note, a zero vote in one polling place, standing alone
is not statistical impossibility.
Standing alone ha, kay kini katung kaso sa Lagumbay case, daghan man
factors like tanan gyud 100 percent turn out, tanan gyud para sa liberal
party? So that is Statistical Improbabability. Now later on, the doctrine
of statistical improbability mutated into something else. What happened
was, total nu,ber of voters 1000 but then the candidate got 1100 votes.
Asa gikan ang 100 votes? That exemplifies the doctrine of statistical
Improbability.
But then again take note a zero vote in one polling place or probably in
several polling places, standing alone is not statistical improbability. The
answer is nobody voted for you.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
PART VII. ELECTION CONTESTS
ELECTION CONTEST
ELECTION CONTEST, DEFINED
Javier v. Comelec
The word "contests" should not be given a restrictive meaning; on the
contrary, it should receive the widest possible scope conformably to the
rule that the words used in the Constitution should be interpreted
liberally. The term should be understood as referring to any matter
involving the title or claim of title to an elective office, made before or
after proclamation of the winner, whether or not the contestant is
claiming the office in dispute.
ELECTION PROTEST
PROTEST, DEFINED
AM. No. 07-4-15-SC
refers to an election contest relating to the election and returns of
elective officials, grounded on frauds or irregularities in the conduct of
the elections, the casting and counting of the ballots and the preparation
and canvassing of returns. The issue is who obtained the plurality of
valid votes cast.
After the proclamation of the winning candidates, should there be any
dispute related to election results, the legal solution is through an
election protest that may be filed only by a losing candidate for the same
position being challenged before a proper electoral tribunal.
A. An election protest may only be filed against a duly proclaimed
winner.
B. An election protect can only be filed by a losing candidate who
was voted in the election for the same position.
WHEN, WHO, WHERE TO FILE
WHEN, WHO, WHERE TO FILE
When to file Within 10, 15 or 30 days from proclamation
Who may file Candidate who has duly filed a CoC for the same
position
 President & Vice-President – PET within 30
days
 Senator – SET within 15 days
 Congressman – HRET within 10 days
Where to file  Provincial & city officials – Comelec within 10
days
 Municipal officials – RTC within 10 days
 Barangay officials – MTC within 10 days
MUNICIPAL AND BARANGAY OFFICIALS
Who may file: any candidate who filed candidacy, voted for same
office who received second or third highest number of votes
For multiple slot positions, was among the next four positions, was
among the next four candidates following the proclaimed last ranked
winner
When to file: within 10 days from proclamation
Where: RTC for Municipal, MTC for Barangay
Grounds for summary dismissal
 Lack of jurisdiction over the subject matter
 Protest is insufficient in form and substance
 Protest filed time beyond the prescribed period
 Cash deposit is not paid within 5 days from filing
Remedy against adverse decision: appeal to the comelec
When: within 5 days
25 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
Papandayan v. Comelec
Facts: Petitioner contends that the resolution of the COMELEC en banc
was not yet final and executory when the elections were held on May
14, 2001. Consequently, the Board of Election Inspectors of Tubaran, in
the exercise of its ministerial duty, had to count the votes cast in his
favor.
Respondent, on the other hand, avers that the assailed resolution of the
COMELEC en banc had attained finality five (5) days thereafter, on May
17, 2001, as its enforcement had not been restrained by the SC within
the said period. The temporary restraining order should thus be set
aside, the same having been issued by this Court only on May 22, 2001.
Ruling: Respondent is in error in assuming that the issuance of a
temporary restraining order by the SC within five (5) days after the date
of the promulgation of the assailed resolution on May 12, 2001, of the
COMELEC en banc is the operative act that prevents it from attaining
finality. The purpose of temporary restraining order was to enjoin the
May 12, 2001 resolution of the
COMELEC from being enforced despite the fact that, pursuant to
COMELEC Resolution No. 4116, par. 3, the said resolution had not
attained finality.
When the evidence of the alleged lack of residence qualification of a
candidate for an elective position is weak or inconclusive and it clearly
appears that the purpose of the law would not be thwarted by upholding
the victor's right to the office, the will of the electorate should be
respected.
Regatcho v. Cleto
Facts: Defeated candidate filed with the municipal circuit court a
"petition contesting the election" of Clemente. But instead of pursuing
that municipal court case, Regatcho filed with the CFI a quo warranto
action against Clemente on the ground that he does not know how to
read and write, and, therefore, ineligible to hold office.
The lower court dismissed the quo warranto petition on the ground that
the Comelec has jurisdiction over the case because of paragraph 2,
section 189 of the 1978 Election Code which provides that "any voter"
contesting the election of any officer on the ground of ineligibility or of
disloyalty to the Republic of the Philippines may file a petition for quo
warranto with the commission within ten days after the proclamation of
his election.
Ruling: The municipal trial court or the municipal circuit trial court has
jurisdiction, and not the Comelec nor the Regional Trial Court, over the
said quo warranto case regarding the barangay captain's ineligibility.
Jurisdiction over such cases is vested in the appropriate city or municipal
or metropolitan trial court pursuant to the 1982 Barangay Election Law,
Batas Pambansa Blg. 222.
Original jurisdiction to issue the writ of quo warranto is vested in the SC,
the CA and the RTC. But this case involves a quo warranto proceeding
against a barangay captain. There is a clear and manifest intention of
the lawmaker that the inferior court should have jurisdiction over all
disputes regarding the election of barangay officials, whether the
dispute be an election contest or a quo warranto proceeding.
Lindo v. Comelec
Atty. received a copy of the decision on February 12, 1990. The 5-day
period for petitioner to file his appeal from the decision of the trial court
commenced to run from such date. Petitioner's notice of appeal was filed
with the trial court only on February 26, 1990, or fourteen (14) days
after his counsel was served a copy of the decision. Clearly, his notice
was filed out of time.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
Guieb v. Fontanilla
Under Section 2 (2), Article IX (C) of the Constitution, it is the COMELEC,
and not the Regional Trial Courts, that has exclusive jurisdiction over all
contests involving elective barangay officials decided by courts of limited
jurisdiction, which are the Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts. The private respondent should
have appealed the decision of the MTC to the COMELEC; the MTC should
not have given due course to the appeal; and the RTC should have
dismissed outright the appeal for want of jurisdiction.
Rivera v. Comelec
The fact that the Constitution provides that decisions, final orders or
rulings of the Commission on Elections in contests involving elective
municipal and barangay officers are final, executory and not appealable,
does not preclude a recourse to the Supreme Court by way of a special
civil action of certiorari. The "provision was not intended to divest the
Supreme Court of its authority to resolve questions of law as inherent in
the judicial power conferred upon it by the Constitution. It is settled that
in a petition for certiorari, findings of fact of administrative bodies are
final unless grave abuse of discretion has marred such factual
determinations. None in this case.
Calucag v. Comelec
COMELEC is the proper appellate court clothed with jurisdiction to hear
the appeal, which appeal must be filed within five days after the
promulgation of the MTC's decision. The erroneous filing of the appeal
with the RTC did not toll the running of the prescriptive period.
Flores v. Comelec
Section 9 of RA No. 6679, insofar as it provides that the decision of the
Municipal or Metropolitan Trial Court in a barangay election case should
be appealed to the Regional Trial Court, is unconstitutional. Municipal or
metropolitan courts being courts of limited jurisdiction, their decisions in
barangay election contests are subject to the exclusive appellate
jurisdiction of the Comelec
REGIONAL, PROVINCIAL AND CITY OFFICIALS
Who: any candidate who has duly filed a certificate of candidacy and
has been voted for the same office
When: ten days after the proclamation of the results of the election
Where to file: COMELEC
Remedy: MR
When: within 5 days from promulgation
DISTRICT REPRESENTATIVES
Who: registered candidate for President or VP who received the second
or third highest number of votes
When: within 30 days from proclamation
Where: PET
Grounds: electoral fraud, anomalies or irregularities in contested
precincts
Note:
Cash deposit of 500 per ballot box, it is non refundable
Remedy against adverse decision: MR
When: within 10 days from receipt
A second motion for reconsideration is not allowed
Sampayan v. Daza
Facts: Residents of the second Congressional District of Northern Samar
filed the instant petition for prohibition seeking to disqualify respondent
Daza, then incumbent congressman of the same congressional district,
from continuing to exercise the functions of his office, on the ground
that the latter is a greencard holder and a lawful permanent resident of
the U.S.
26 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
Ruling: The jurisdiction of this case rightfully pertains to the House
Electoral Tribunal. Under Section 17 of Article VI of the 1987
Constitution, it is the House Electoral Tribunal which shall be the sole
judge of all contests relating to the election, returns and qualification of
its members. Since petitioners challenge the qualifications of
Congressman Daza, the appropriate remedy should have been to file a
petition to cancel respondent Daza's certificate of candidacy before the
election or a quo warranto case with the House Electoral Tribunal within
ten (10) days after Daza's proclamation.
Lerias v. HRET
Facts: A candidate contested the results of the election in four precincts
asserting that the total votes credited to her in the said four precincts
(1,411 votes) were less than or short by 400 votes from that actually
obtained by her (1,811 votes) and if the provincial board of canvassers'
copy of the certificate of canvass were to be used as basis of the canvass
instead of the Comelec copy, she would have garnered 35,930 votes as
against Mercado's 35,793 votes or a winning margin of 146 votes.
Ruling: In an election contest where what is involved is the correctness
of the number of votes of each candidate, the best and most conclusive
evidence are the ballots themselves. But where the ballots cannot be
produced or are not available, the election returns would be the best
evidence. Where it has been duly determined that actual voting and
election by the registered voter had taken place in the questioned
precincts or voting centers, the election returns cannot be disregarded
and excluded with the resulting disenfranchisement of the voters, but
must be accorded prima facie status as bona fide reports of the results
of the voting.
Canvassing boards, the Comelec and the HRET must exercise extreme
caution in rejecting returns and may do so only upon the most
convincing proof that the returns are obviously manufactured or fake.
And, conformably to established rules, it is the party alleging that the
election returns had been tampered with, who should submit proof of
this allegation.
It is well to stress that the evidence before the HRET is the original copy
of the election returns while the Comelec's copy of the certificate of
canvass, is merely a xerox copy, the original thereof had not been
produced.
SENATE
Who may file: any candidate who duly field certificate of candidacy ad
has been voted for the same office
When: within 30 days after the proclamation
Where: SET
Grounds: electoral fraud, anomaly or irregularity
Remedy: appeal to the comelec
When: within 10 days from service of copy of decision
PRESIDENT AND VP
Who: registered candidate for President or VP who received the second
or third highest number of votes
When: within 30 days from proclamation
Where: PET
Grounds: electoral fraud, anomalies or irregularities in contested
precincts
Note: Cash deposit of 500 per ballot box, it is non refundable
Remedy against adverse decision: MR
When: within 10 days from receipt
A second motion for reconsideration is not allowed
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
GROUNDS FOR ELECTION PROTEST
GROUNDS FOR ELECTION PROTEST
Common grounds: fraud, terrorism, irregularities or illegal acts
committed before, during or after the casting and counting of votes
Electoral frauds, anomalies or irregularities in the protested precincts –
these can be considered significant badges of fraud.
Atty Guji: If RTC/MTC nullifies a proclamation based on these, it cannot be allowed
because it is in the guise of declaring a failure of election, which jurisdiction refers
to the Commission en banc only and not RTC. Best ground is misappreciation of
ballots because that is where the documents and the hard copy of the official
ballots are.
The Election protest may include correction of manifest errors
The election protest may include correction of manifest errors in the
election returns or a statement of votes by precinct, city, and
municipality, such that if corrected the results of the election will be
altered such that the losing candidate will have more votes than the
winning candidate.
In this case it seeks to annul the proclamation of the winner and for the
tribunal to proclaim the protestor or protestant the winner.
Atty Guji: Manifest error is more or less similar to your plain view doctrine. Meaning
just by looking at the face of the election return, you can already see there is some
error in computation. (e.g. Obvious wrong computation, or one precinct tabulated
twice) But if you go beyond the face of the document, then this is no longer
manifest error.
The election protest may also be grounded on election
irregularities of election fraud such as misreading of ballots,
padding or shaving of votes, terrorism, violence, or vote-
buying.
In this case, the election protest will entail review or re-reading of ballots
for the tribunal’s evaluation for such precincts identified in the election
protest.
Atty Guji: However, the best ground is the misreading or misappreciation of ballots.
Irregularities or election frauds cannot alter the result as much as the misreading
of ballots.
If the BEI probably made a mistake in the rules in appreciation, they are not liable
since they have the discretion. They can decide whether to count the vote or not.
However, it should always be based on legal basis, otherwise it will be grave abuse
of discretion.
Electoral Sabotage
A. If you manipulate the number of votes for a national elective
position regardless of the number of votes or documents
B. If you add or shave at least 5000 votes in a municipal election
which adversely altered the result of the election
C. Lower than 5000 simple election offense
D. If number of votes padded or shaved is at least 10,000, regardless
of the position or the number of documents, provided it adversely
affects the result of the election (if it did not, election offense)
Where to appeal
A. MTC & RTC – Comelec (within 5 days after promulgation)
B. Comelec, SET, HRET – Supreme Court (via petition for review -
Rules 64 & 65: Grave abuse of discretion amounting to lack or
excess of jurisdiction)
Nature of Comelec’s decision
Final, unappealable and executory.
Atty Guji: Final and Executory in so far as questions of fact are
concerned, But if questions of law, the Supreme Court is never divested
of its power to review, especially, if there exist grave abuse of discretion
amounting to lack or in excess of jurisdiction.
27 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
STRICT PROCEDURAL REQ FOR ELECTION PROTEST
STRICT PROCEDURAL REQUIREMENTS FOR ELECTION
PROTEST
A. Must be filed within the reglementary period
B. All fees must be paid within the same period
C. Must contain all allegations required to make it sufficient in
form and substance
Misreading of ballots
Padding or shaving votes
Terrorism, violence or vote-buying
D. Must be under oath by the protestor or protestant
E. Must contain certificate of non-forum shopping
ANSWER TO AN ELECTION PROTEST
ANSWER PROCEDURAL REQS FOR ELECTION PROTEST
Protestee or the proclaimed winner shall file an answer within the
prescribed period to file it. It may contain a counter-protest. For the
counter protest, payment of fees are also required.
If the protestant can show that he has a chance to win the protest, then
the counter-protested precincts are revised.
Revision
Ballot appreciation so far as BEI is concerned. If it goes to court under
election protest, it is already revision but the essence is the same, they
are going to re-appreciate the ballots.
Revision report
A revision report is also prepared by the revisers committee to be
submitted to the court.
Decision
After the evaluation of the disputed ballots by the court, the tribunal
makes rulings and prepares the decision.
A. If the protestant wins, the proclamation of the protestee is
annulled and the protestant is proclaimed the winner.
B. After finality of the decision, the new winner takes his oath
and assumes his position
EXECUTION OF JUDGMENT PENDING APPEAL
EXECUTION OF JUDGMENT IN ELECTION PROTEST PENDING
APPEAL
Ferno v. Comelec
The Supreme Court has explicitly recognized and given approval to
execution of judgment pending appeal in election cases filed under
existing laws. The rationale why execution pending appeal is allowed in
election cases is to give much recognition to the worth of a trial judge’s
decision as that which is initially ascribed by the law to the proclamation
by the board of canvassers.
Governed by Sec 2, Rule 39 of the 1997 Rules of Civil procedure.
Execution pending appeal should be based upon good reasons and a
combination of two or more of them will suffice to grant execution
pending appeal:
(1) Public interest involved or will of the electorate.
(2) The shortness of the remaining portion of the term of the
contested office
(3) Length of time that the election contest has been
pending
(4) Filing of bond as a condition for the issuance of a
corresponding writ of execution to answer for the payment of
damages which the aggrieved party may suffer by reason of
the execution pending appeal.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
Relampagos v. Cumba
Facts: Respondent was proclaimed the winning candidate, with a
margin of only 21 votes over the former. Unwilling to accept defeat, the
petitioner filed an election protest with the RTC which found that the
petitioner to have won with a margin of 6 votes over the respondent.
Respondent appealed the decision to the COMELEC. Meanwhile, the
petitioner filed with the trial court a motion for execution pending
appeal, which was granted and a writ of execution was issued.
Respondent then filed with the COMELEC a petition for certiorari to annul
the aforesaid order of the trial court granting the motion for execution
pending appeal and the writ of execution. This was granted and the
write of Execution was lifted by the COMELEC.
Issue: Whether or not the COMELEC has jurisdiction over petitions for
certiorari, prohibition, and mandamus in election cases?
Protestant's term if she would succeed in proving in the instant protest
that she was the true winner in the 1992 elections.
As a consequence, the election protest filed by the protestant has been
abandoned or considered withdrawn as a consequence of her election
and assumption of office as Senator and her discharge of the duties and
functions thereof.
The protestant abandoned her “determination to protest and pursue the
public interest involved in the matter of who is the real choice of the
electorate.
Moreover, the dismissal of this protest would serve public interest as it
would dissipate the aura of uncertainty as to the results of the 1992
presidential elections, thereby enhancing the all too crucial political
stability of the nation during this period of national recovery.

Ruling: Yes. The COMELEC is vested with exclusive authority to hear

and decide petitions for certiorari, prohibition and mandamus involving
election case but only in such cases where, under paragraph (2), Section
1, Article IX-C of the Constitution, it has exclusive appellate jurisdiction.
Simply put, the COMELEC has the authority to issue the extraordinary
writs for certiorari, prohibition and mandamus only in aid of its appellate
jurisdiction.

Upon the perfection of the appeal, the trial court was divested of its
jurisdiction over the case. Since the motion for execution pending appeal
was filed only after the perfection of the appeal, the trial court could no
longer validly act thereon. It could have been otherwise if the motion
was filed before the perfection of the appeal. Since the respondent
COMELEC has the jurisdiction to issue the extraordinary writs of
certiorari, prohibition, and mandamus, then it correctly set aside the
challenged order granting the motion for execution pending appeal and
writ of execution issued by the trial court.

FAILURE TO PAY APPELLATE DOCKET FEE, EFFECT OF

FAILURE TO PAY APPELLATE DOCKET FEE, EFFECT OF

Reyes v. RTC
The rule is that payment in full of the docket fees within the prescribed
period is mandatory. Admittedly, this rule is not without recognized
qualifications. The Court has declared that in appealed cases, failure to
pay the appellate court docket fee within the prescribed period warrants
only discretionary as opposed to automatic dismissal of the appeal and
that the court shall exercise its power to dismiss in accordance with the
tenets of justice and fair play, and with great deal of circumspection
considering all attendant circumstances.

PROTEST, ABANDONMENT OF

ABANDONMENT OF PROTEST

Santiago v. Ramos
Facts: The protestant ran for presidency and lost in the May 1992
election. While case was pending, she was elected as a Senator in the
and eventually assumed such office.

In her Motion, she prayed that the revision in the remaining precincts of
the pilot areas be dispensed with and the revision process in the pilot
areas be deemed computed.

The Court deferred action on the motion and required, instead, the
protestant and protestee to submit their respective memoranda. Hence,
this petition.

Ruling: The term of office of the Senators elected is six years, the first
three of which coincides with the last three years of the term of the
President elected in the synchronized elections. The latter would be

28 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
QUO WARRANTO
QUO WARRANTO, DEFINED
QUO WARRANTO, DEFINED.
AM. No. 07-4-15-SC
Rule 1, Section 3(e). Quo Warranto under the Omnibus Election Code
- refers to an election contest relating to the qualifications of an elective
official on the ground of ineligibility or disloyalty to the Republic of the
Philippines. The issue is whether respondent possesses all the
qualifications and none of the disqualifications prescribed by law.
Regatcho v. Cleto
The writ of quo warranto is an ancient common-law prerogative writ and
remedy. In its broadest sense it is a proceeding to determine the right
to the use or exercise of a franchise or office and to oust the holder from
its enjoyment, if his claim is not well founded, or if he has forfeited his
right to enjoy the privilege. It is a demand made through the State by
some individual to show by what right an individual or corporation
exercises a franchise or privilege belonging to the State which according
to the laws of the land they cannot legally exercise except by virtue of
a grant or authority from the State (74 C.J.S. 174).
PROCEEDINGS
The Court, in its discretion, may grant an additional period of fifteen
(15) days only within which to file the petition for review upon proper
motion and the payment of the full amount of the docket and other
lawful fees and the deposit for costs before the expiration of the
reglemetary period and that no further extension shall be granted except
for the most compelling reason and in no case to exceed fifteen (15)
days.
Rodillas v. Comelec
Facts: Petitioner had only five days from receipt of the decision of the
Municipal Circuit Trial
Court or until June 5, 1994 to perfect his appeal. While he timely filed
his Amended Notice of Appeal on June 2, 1994, he paid the amount of
P510 representing the appeal and legal research fees only on June 14,
1994.
The First Division of the COMELEC denied the appeal for petitioner's
belated filing of the appeal and legal research fees.
Ruling: The mere filing of the notice of appeal was not enough. It should
be accompanied by the payment of the correct amount of appeal fee.
The requirement of an appeal fee is by no means a mere technicality of
law or procedure. It is an essential requirement without which the
decision to be appealed from would become final and executory as if no
appeal was filed at all. The right to appeal is a mere statutory privilege
and may be exercised only in the manner prescribed by, and in
accordance with, the provision of the law.
The correct amounts of the appeal and the research fees are P500.00
and P20.00 respectively, or P520.00 not P510.00 as paid by petitioner.
The fact that petitioner initially paid P150.00 with the Regional Trial
Court is of no moment. The RTC has no appellate jurisdiction over
decisions of the MTC in election cases involving the barangay elections.
The payment of the full amount of the docket fee is an indispensable
step for the perfection of an appeal.
WHEN, WHO, WHERE TO FILE
WHEN, WHO, WHERE TO FILE, GROUNDS
When to file Within 10 days from proclamation
Who may file Any voter
 President & Vice-President – PET
 Senator – SET
 Congressman – HRET
29 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG
Where to file  Provincial & city officials – Comelec
 Municipal officials – RTC
 Barangay officials – MTC
Grounds Ineligibility and disloyalty to the Republic
Atty Guji: If you as a voter thinks that a candidate is ineligible or suffers from a
disqualification, do not file an election protest because you are not a proper party.
Instead, file quo warranto proceedings.
If ground is lack of residence, it must be raised within 10 days after proclamation
otherwise it is lost forever. However, if ground is lack of citizenship, it lingers until
end of incumbency.
MUNICIPAL & BARANGAY
Who: Any voter
Where: COMELEC
When: Within ten days after the proclamation of the results of the
election
Remedy: may be appealed within ten days from receipt of a copy
thereof by the aggrieved party to the regional trial court
REGIONAL, PROVINCIAL & CITY OFFICIALS
Frivaldo v. Comelec
Facts: Frivaldo was proclaimed governor-elect of the province of
Sorsogon, and assumed office. The league of Municipalities, represented
by its President, Estuye, who was also suing in his personal capacity,
filed with the Comelec a petition for the annulment of Frivaldo's election
and proclamation on the ground that he was not a Filipino citizen, having
been naturalized in the United States.
Frivaldo argued that the challenge to his title should be dismissed, being
in reality a quo warranto petition that should have been filed within ten
days from his proclamation, in accordance with Section 253 of the
Omhibus Election Code.
Ruling: A petition for quo warranto, questioning the respondent’s title
and seeking to prevent him from holding office as Governor for alienage,
is NOT covered by the 10-day period for appeal prescribed in Section
253 of the Omnibus Election Code. Furthermore, qualifications for public
office are continuing requirements and must be possessed not only at
the time of appointment or election or assumption of office but during
the officer’s entire tenure; one any of the required qualification is lost,
his title may be seasonably challenged.
DISTRICT REPRESENTATIVES
Who: Any voter of the district concerned
Where: HRET
When: Fifteen (15) days from the date of the proclamation of the
winner
SENATORS
Who: Any voter
Where: SET
When: Ten (10) days from the date of the proclamation of the winner
PRESIDENT AND VP
Who: Any registered voter who has voted in the election concerned
Where: PET
When: Ten (10) days from the date of the proclamation of the winner
GROUND
COMMON GROUND (to all): ineligibility or disloyalty to country
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by EH407 2015-16| Updated by EH407 2016-17
Samad v. Comelec
Facts: Petitioner Samad and private respondent Abdula were among
the contenders for mayor in the synchronized elections in 1992. Both
were proclaimed mayor-elect by two different canvassing boards — the
private respondent, by the board headed by Saga, and the petitioner,
by the board headed by Pagayao. Both went to the Commission on
Elections in separate petitions against each other.
COMELEC issued a Resolution declaring the termination of all pre-
proclamation cases.
Petitioner filed in the RTC an action against the private respondent for
quo warranto and prohibition with preliminary injunction. A temporary
restraining order, converted into a writ of preliminary injunction was
granted by said court, directing respondent Abdula to cease and desist
from exercising the powers and functions of the mayor.
Abdula filed a petition with the CA questioning the validity of the order.
An election protest is a 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. It raises the
question of who actually obtained the plurality of the legal votes and
therefore is entitled to hold the office.
Both petitions in the COMELEC and in the RTC were directed at the
illegality of the composition of the Saga board and of the proclamation
of the private respondent. This matter is within the jurisdiction of the
COMELEC. Therefore, the COMELEC retained jurisdiction over the said
cases.
PROVINCIAL AND CITY OFFICIALS
ELECTORAL TRIBUNALS
SENATE AND HREP ELETORAL TRIBUNALS
SENATE AND HREPS ELECTORAL TRIBUNALS
SET and HRET

Issue: whether jurisdiction over the present controversy remained with Jurisdiction
the COMELEC or was vested in the RTC upon the filing of the petition Sole judge of al contests relating to the election, returns and
for quo warranto? qualifications of their respective members.

Ruling: As a general rule, the filing of an election protest or a petition Composition

for quo warranto precludes the subsequent filing of a pre-proclamation
controversy, or amounts to the abandonment of one earlier filed, thus
depriving the COMELEC of the authority to inquire into and pass upon
the title of the protestee or the validity of his proclamation. The reason
is that once the competent tribunal has acquired jurisdiction of an
election protest or a petition for quo warranto, all questions relative
thereto will have to be decided in the case itself and not in another
proceeding. This procedure will prevent confusion and conflict of
authority.
The rule admits of exceptions, however, as where:
1) the board of canvassers was improperly constituted;
2) quo warranto was not the proper remedy;
3) what was filed was not really a petition for quo warranto or an election
protest but a petition to annul a proclamation;
4) the 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; and
5) the proclamation was null and void.
A. 9 members (all judges)
B. 3 SC justices designated by the Chief Justice
C. 3 members based on proportional representation from
political parties and party-list
D. 3 members each from dominant minority parties
E. Senior Justice acts as Chairman
SUPREME COURT EN BANC AS PET
SUPREME COURT EN BANC AS PRESIDENTIAL ELECTORAL
TRIBUNAL
Jurisdiction
Sole judge of all contests relating to the election, returns and
qualifications of the President or Vice-President.
TN: Incumbent President or Vice-President only. PET does not have jurisdiction
over Presidential or VP candidates.

All the exceptions except the fourth apply here. The Saga board which
proclaimed the private respondent had been illegally constituted. As held
by the COMELEC, the letter of request of the Municipal Treasurer of
Kabuntalan did not serve as an official designation of Abbas Saga to take
over the canvassing allegedly abandoned by Pagayao, because the
Election Supervisor of Maguindanao, denied having signed her name
after the word "Approved." She declared that it was Pagayao whom she
had instructed to continue the canvassing after the former chairman had
been relieved by her.

Moreover, quo warranto was not the proper remedy because both the
petitioner and the private respondent claimed to have assumed the
office of the mayor of Kabuntalan. In a quo warranto proceeding, the
petitioner is not occupying the position in dispute. Moreover, under the
Omnibus Election Code, quo warranto is proper only for the purpose of
questioning the election of a candidate on the ground of disloyalty or
ineligibility. Neither of these grounds was invoked by Samad.

No less importantly, the case before the RTC was not really one for quo
warranto nor was it an election protest.

A petition for quo warranto under the Omnibus Election Code raises
in issue the disloyalty or ineligibility of the winning candidate. It is a
proceeding to unseat the respondent from office but not necessarily to
install the petitioner in his place.

30 | U N I V E R S I T Y O F S A N C A R L O S S L G BASALO | FERNANDEZ | FLORO | GARCIA | IBANEZ | MACAPUGAS | REGENCIA | TARAN | Updated by LSG