On proclaiming a winning candidate

Nelson Celis, Manila Times, Dec. 15, 2021
Posted by CenPEG 17 Dec. 2021

Smartmatic machines

THE Automated Election System (AES) Law or Republic Act 8436, as amended by RA 9369, is very clear that the basis for canvassing of votes and the proclamation of a winning candidate are the electronically and digitally signed election results. For the 2022 national and local elections (NLEs), what happens if these conditions are not complied with? Should the board of canvassers (BOCs) wait until the transmitted results come in? How would they know if the results are digitally signed? Are there verification procedures? What should the citizens' arms/election watchdogs (CA/WD), political parties and other stakeholders do to correct such a situation during canvassing?

To cite specific provisions of the AES Law regarding this concern, Section 22 states that, "The election returns, (ERs) transmitted electronically and digitally signed, shall be considered as official election results and shall be used as the basis for the canvassing of votes and the proclamation of a candidate." On the other hand, Section 25 states that, "The certificates of canvass (COC), transmitted electronically and digitally signed, shall be considered as official election results and shall be used as the basis for the proclamation of a winning candidate." The ERs are the election results transmitted by the board of election inspectors (BEIs), which the Comelec called them now as electoral boards, from the precincts to the municipal and city board of canvassing (M/CBOCs) while the COCs are transmitted to the board of canvassing of provincial (PBOC) and national (NBOC). Since 2010 NLE, the two major local telcos provided the electronic transmissions through a service provider (SP).

Are telcos reliable?

Since 2010 and until 2022, can we rely on our telcos to transmit the election results? Are they reliable? But it is a fact that failed electronic transmissions happened in our past NLEs! What could have caused it? Comelec then was blaming the telcos in 2013 NLE for the anomaly that only 76 percent of the vote counting machines (VCMs), formerly called PCOS machines, were able to successfully transmit and the 24 percent clustered precincts (i.e., 18 million votes approximately) handed over their respective SD, or secure digital cards, formerly called compact flash cards, to the M/CBOCs for manually uploading the ERs to the consolidation and canvassing server (CCS). But the telco representatives said in a joint congressional oversight committee (JCOC) hearing, and even in 2013 media interviews, that their facilities were 100 percent available. Telcos said that PCOS data is relatively small and would not create heavy traffic or pose any cellular network problems. And considering the use of cellular and landline phones and Wi-Fi data in your respective offices and homes, we don't have any issues though there were quite a few incidents. Generally, the telcos are okay! The mere fact that they will be used the fifth time in our 2022 NLE, the service is fine. The problem therefore lies in the two points being connected by the telcos, the point of origin (e.g., the precinct) and the destination point (e.g., M/CBOC). Deeper situational analyses and digital forensics could have been initiated.
The transmission facilities of the telcos can be compared to the roads that we take daily. The roads are there also to transport goods from the farm to the market. It is there all the time and the speed of travel depends on the road and vehicle conditions. Before 2010, the election results were physically transported and of course visible to the eyes of the watchers. For the automated NLEs, there are no more physical transport and no more watchers to see the unseen electronic transmission.

Outsourcing democratic processes

Digital signatures

On the other hand, the digital signing as per Sections 22 and 25 of the AES Law is further strengthened in Section 30 regarding the authentication of electronically transmitted election results, based on the certification procedures for electronic signatures as provided in the e-commerce Act of 2000 or RA 8792 as well as the rules promulgated by the Supreme Court (i.e., Rules on Electronic Evidence, 2001). Digital or electronic signatures of election results are much like the actual handwritten signatures of the BEIs and BOCs in the ERs and COCs, respectively, in the past manual elections. The only difference is that digital signatures are unseen. Looking forward to the 2022 elections, if the Comelec did not fully comply with these said sections in the last four NLEs, they are already preparing not for the machine digital signing...but rather by the BEIs and BOCs.

What is the significance of digital signing? It merely gives us an assurance that the election results are actually generated by the VCMs and the CCS computers used by the BEIs and BOCs, respectively, during the elections. However, there is no way that the BEIs can verify whether the processed ERs by the VCMs reflect the votes shaded in the ballots because there's no procedure for them to check whether the ballots or voter receipts (aka the voter verified paper audit trail) would tally with the machine-generated election results. Our CA/WD and political parties may wish to collaborate with the Comelec on the best way to address this concern. The finest thing about digital signing is that the election officers electronically transmitting could be verified by the receiving BOCs and that rogue transmissions could definitely be eliminated. So, verifying whatever is electronically transmitted and digitally signed ERs to the BOCs would just be a matter of time.

Let's go back to the ERs not successfully transmitted on the day of elections. In the absence of implementing rules and regulations (IRR) since 1997 when the AES Law was enacted, the usual practice by the M/CBOC was to download the ER stored from the SD card of the VCM to the CCS server. That means, there's a manual intervention process as the downloading itself entails the opening of one of the CCS server's ports. Translating this to our daily routine at home, we usually enter the house through the main door — this is the receiving of the electronic transmission. When we can't open this if we don't have the right key (i.e., the digital signature), the only option is to break through the back door, window or smash the main door — this is the manual downloading from the SD card. However, in digital signing, there's only one 'private key' allowed. So, if the transmission is not received on the day of elections, the manual downloading of ERs in the SD cards would take place! The question is, how would the M/CBOC verify the veracity of the contents in the SD cards from the precincts? Again, this concern may be discussed further by the CA/WD and political parties with the Comelec as the law is very clear that the electronically transmitted and digitally signed election results shall be the basis for canvassing and in proclaiming a winning candidate – not the downloaded ERs from the SD cards.

Ensuring the integrity and credibility of election results

Added transparency

What if we consider seriously the proceedings of the 2016 national canvassing of the joint congressional canvassing committee at the Batasan for the president and vice president positions and adopt it in the local elections, will it be an added transparency for 2022 NLE? You may be surprised to observe that the Congress strictly followed the AES Law. They used the electronically transmitted provincial COCs as the basis for canvassing though they compare this first with the hard copies delivered physically. If there's no discrepancy, they would declare to include the verified provincial COC in the national canvass. If there are discrepancies, the body would reconcile the differences. They even suspended the canvass of provinces (e.g., Northern Samar), and also countries (e.g., Canada) for overseas absentee voting through diplomatic pouches, whose hard copies could not yet be delivered physically to the Batasan. Take note, there was no manual downloading of provincial COCs in the CCS server at the Batasan! Therefore, the adoption of NBOC procedures to the local BOCs will surely add transparency for 2022 elections. For those who are interested to watch the three-day series of canvassing proceedings at the Batasan on May 25 to 27, 2016, try watching it on YouTube.

For AES Watch and the rest of the CA/WDs, they see this as the best way to validate the electronically transmitted election results in the precincts going up to the M/CBOC without manually downloading the ERs from the SD cards as this mitigates all possible risks in mishandling the SD cards in transit. Besides, the M/CBOC would only replicate the procedures of the NBOC. Of course, the PBOC should also do the same. No more manual downloading of election results.

Going back to the May 9, 2016 NLE, the start of the national canvassing started on May 25 and the proclamation was held on May 30. So, it took 16 days to start the national canvassing and 21 days to finally declare the president and the vice president. For local elections, it took a day or two to declare winning candidates. Henceforth, the ladderized canvassing via electronic transmission would generally give us 16 days before the national BOCs could start as the electronic transmission is the primary source of provincial COCs backed up by physically delivered election results.

Vote protection: Reengineer election results processing

Question, if following the NBOC procedures: Can the M/CBOCs do the same by waiting for the delayed ER transmissions, suspending questionable ERs for canvassing, and do away with the downloading of ERs from the SD cards if the electronic transmission failed in 2022 NLE? If some BEIs could not transmit on May 9, can the precincts concerned transmit on the following day or days? The NBOC considered late submission of COCs even if these were delayed for days. For sure, the telco facilities are 100 percent fired up. Remember that the NBOC relied heavily on electronic transmission and not on the delivered COCs. That means, the M/CBOC must rely primarily on electronically transmitted ERs and be supported by physically delivered ERs — no transmission, no canvassing at the M/CBOC — no canvassing if no comparison of the electronically transmitted and physically delivered ERs. That should also be the same on the PBOC level — no transmission, no canvassing — no canvassing if no comparison of electronically transmitted and physically delivered COCs from the M/CBOCs. That should make all the procedures the same in all the three ladderized levels of consolidation and canvassing; no exception.

To sum up, the proclamation of a winning candidate should be based on the electronically transmitted and digitally signed election results. In case of failed transmissions on election day, the contingency measures should be good enough to allow successful transmission even after a day or two as this was being observed by the NBOC in the past NLEs. This can still be further enhanced by Comelec, together with the CA/WDs, and even political parties, by coming up with revised general instructions, or GIs, for 2022 elections.