Transparency to strengthen consent of the governed

For the last several months, political parties and groups have been doing the rounds. Their operatives regularly exchange notes, some of which are mere red herrings to confuse and mislead.

There are self-styled political analysts, businessmen, academics, public relations and advertising agencies, potential financiers, vote security experts, IT practitioners, characters claiming inside connections within the election commission agency, pollsters of all stripes and biases, both independent and “captured,” and others who may claim to have some political insight and savvy to qualify as seasoned advisers.

The intensity of these groups’ activities mirrors the complexity of political and electoral intelligence gathering, maneuvering, and psy war. As all of these are being undertaken, another group sifts through and analyzes the data gathered. Preliminary “what if” scenarios are formulated and non-quantitative and rudimentary gaming theory is conducted with quite a number of assumptions on decisions and moves to be made by certain parties in the equation. All these are being conducted at this time of the year — in the midst of the pandemic — to achieve the sole objective of coming up with a presidential candidate. The rest of the slate, starting with the vice-president, is adjustable as some kind of wild cards and subjects of hard bargaining and negotiations that sometimes affect local slates.

As the slate talks are conducted, an unavoidable but critical subject, especially for a divided and underfunded opposition, becomes the main item on the agenda: “We may have a popular and powerful slate, but what about the conduct of the counting?”

This question was the main point of discussion in two presentations made by Namfrel National Chairman Augusto Lagman and Automated Election System Watch (AES Watch) spokesman, Dr. Nelson Celis. Both Celis and Lagman are veteran IT practitioners and academicians who have called the attention of the public and the Commission on Elections (Comelec) to various issues on the conduct of elections, including staging demonstrations in front of the Comelec office in Intramuros. Their latest crusade is for the return of the manual count at the precinct level and the use of automation going to the canvassing. In short, a hybrid election system. In addition, they point out the lack of compliance by Comelec with certain basic legal requirements.

In his paper, “Understanding the Automated Election System for Transparency,” Lagman details his proposal for a manual count, a proposal he has been advocating for many years. So far, Lagman and Celis have been ignored by all sectors, including the legislative branch and by the weary public itself.

In his presentation, Lagman points out that a number of mature democracies have abandoned e-voting. Germany did away with electronic voting on the grounds of lack of transparency — “the voter could not see what actually happened to his vote inside the computer and was required to exercise ‘blind faith’ in the technology.” In the Netherlands, e-voting was suspended after 20 years of use when activists showed that the system could, under certain circumstances, endanger the secrecy of the vote. Other countries have abandoned total e-voting for various reasons: lack of transparency; nobody witnesses the counting; any time precinct counting is automated, transparency is lost; it is very vulnerable to tampering by an insider.

The proposed manual count at the precinct level uses the same procedure employed in the past. The chairman of the Board of Election Inspectors (BEIs), reads each ballot. In the old system, the votes were read by the chairman of the BEI and were tallied on preprinted and Comelec-supplied sheets that were posted on a tally board. The votes cast for each candidate were written across the candidate’s name, while another BEI member did a separate manual tally.

In Lagman’s proposal, the second BEI types the vote received by a candidate into a laptop which is connected to a giant screen. The screen shows the public the votes recorded as they are read in each precinct. This transparent system will obviate the need of watchers crowding around the tally board and the election inspectors. Manual counting advocates stress that by displaying the votes on a screen, you solve the problem of voters and watchers crowding around the election officials without observing social distancing. No danger of the vote counting being another super spreader event. Technology therefore has a remedy for this potential problem of people not observing social distancing.

Advocates of total automated voting point out that the Precinct Count Optical Scan (PCOS) machine automated the precinct-counting thus saving five to 12 hours of counting at a cost to government of P10 billion. PC servers and laptops automated the canvassing thus saving over 40 days of work at a cost of P300 million. Lagman and his fellow IT practitioners however stress that since 2008, “the obvious approach of automating only the canvassing, transmitting the election returns (ER) electronically, while keeping precinct-counting manual has been recommended to Comelec but the recommendation has remained unheeded.”

Lagman caps his argument for a manual count at the precinct level by stating his key points: all steps of the election process are transparent; tallying is done under the watchful eyes of the voters; accuracy of the count is high since manual counts are the basis of accuracy; and cost is much less than direct recording electronic (DRE) and OMR or optical scan machine reader which will cost P4 billion. Ballots too will be more expensive under automated elections.

If Gus Lagman’s presentation was both instructive and informative, Dr. Nelson Celis’s talk was not only informative and instructive, it was also breathtaking for its insights. To begin with, Celis’s topic title said it all: “Will the automated polls deliver a clean, accurate and credible election in 2022?”

It was indeed a pointed question and Celis obliged with specific answers which he had been uttering since the introduction of automated elections.

Celis, other IT practitioners, and civil society groups have raised a number of issues and concerns: non-compliance with the Automated Election System (AES) Law or RA 8456 (1997), as amended by RA 9369 (2007), specifically, the non-promulgation of the law’s implementing rules and regulations (IRR), a standard legal requirement before a law can be enforced; unsecure communication channels; non-authentication of Board of Election Inspectors and Board of Canvassers through their digital signatures; non-generation of a voter’s receipt in the 2010 and 2013 elections; disregard of the Comelec Advisory Council; no source code reviews or limited access to the said code; no continuity plan which has resulted in no clear and legal explanation of the seven-hour glitch or delay during the counting of votes in the 2019 senatorial and local elections.

Celis has a compelling case. He cites Section 37 of the Automation Law: “The commission shall promulgate rules and regulations for the implementation and enforcement of this act.” Celis claims that the completion of this important document has been pending for 24 years, since 1997. The non-promulgation of the IRR has led to a lawyers’ delight as various misinterpretations have been made of the law, Celis claims.

After having raised these concerns for the nth time with about nine months to go before election day on May 9, 2022, what do we do now? What is government, that provides the funds for the elections, and the judiciary, supposed to do?

In 2004, the Supreme Court stopped what could have been the first automated election. The high court ordered Comelec to implement instead manual elections. Are we headed for the same direction?

To repeat: will the automated polls deliver clean, accurate and credible 2022 elections?

Philip Ella Juico’s areas of interest include the protection and promotion of democracy, free markets, sustainable development, social responsibility and sports as a tool for social development. He obtained his doctorate in business at De La Salle University. Dr. Juico served as Secretary of Agrarian Reform during the Corazon C. Aquino administration.