How the polls automation law altered and impaired the election process

How the polls automation law altered and impaired the election process
By H.A. Barrios
June 20, 2014

Introduction

The PCOS fiasco is the work of two defective objects: a defective polls automation law and a defective automated system. To cure the PCOS problem, the law has to be corrected and then the system replaced. This paper is about the defect in the law.

What is wrong with the law?

The polls automation law (R.A. 8436 as amended by R.A. 9369) is self-contradictory such that some important provisions cannot properly be complied with. More than that, however, it altered and impaired the election process, thereby abridging the people’s sovereign act.

Why is it self-contradictory?

The law requires full automation of the election and yet it also requires something that a fully automated election system cannot provide, namely, “…a system of verification (for the voter) to find out whether or not the machine has registered his choice.” (see R.A. 9369, Sec. 6, e and n.)

Automation cannot provide this requirement. No existing automated system in the world can enable a voter to verify that “the machine has registered his choice.”
The PCOS did not comply with this requirement. What it provided was a false verification process based on a wrong understanding of the clause “the machine has registered his choice.” This false process is also involved in the impairment of the election process so it is discussed more fully below.

How did it impair the election process?

The law redefined the verification of the vote as follows “Provide the voter a system of verification to find out whether or not the machine has registered his choice.” This new definition is insufficient and vague. As such, it impairs the election process.

It is insufficient because the individual voter is not the only one entitled to verify the vote. The parties to the election are all entitled to verify. These parties are the electorate as a body (of which the individual voter is a part), the candidates (through their watchers), and the community or public (for whose benefit the election is being done.) They alone have the right to undertake the election. If one of them is absent, the election cannot be held. They are the users for whom the system should have been designed.

As regards the verification to be done by the individual voter, the law is vague because it does not specify where the choice is to be registered and how the voter will verify. (The proper place where the vote is to be registered is in the election return and it is there where the voter must look to verify.) This vague or loose wording opens the door to false compliance by way of an electronic message on the screen or a print-out showing the voter that his ballot was correctly read by the system or correctly read as well as recorded in the system’s files, but that’s irrelevant because what he should be shown is that his vote was correctly included in the election return.

In other words, the voter is being shown that his input was received by the system correctly, but not that the system, after having received the data, processed it properly and produced the correct output. Not knowing the difference, the unwitting voter will tend to think that he has done enough to ensure the inclusion of his vote. Actually there is no real verification of the system’s output, the election return, and in this situation, the one who controls the system can control the vote.

To recap, the insufficient provision of the law and its vague wording allow the use of a system that does not provide a sufficient and correct way to verify the vote thus impairing the election process.
In contrast, in B.P. 881 (Omnibus Election Code), the action steps for verification of the vote are specified, allowing no room for misdirection. There, verification of the vote is done by all parties to the election, namely, the electorate, the public and the candidates through their watchers. They are empowered to watch the entire precinct proceedings from issuance of ballots up to signing and forwarding of the election return. Thereby, all the parties to the election are able to guard the ballot continuously from issuance to inclusion in the election return and to see with their own eyes that the election return embodies the complete and accurate tally of the votes cast in the precinct.

By these steps, the people themselves ensure that the election return reflects their choice and thus they can accept the election as truly their act.

Other alterations
The new method of vote verification by way of an electronic message or print out means that the data being verified is electronic data. Therefore, the ballot, the election return and the function of the board of election inspectors were given new definitions to conform with this new method. As a result, they too were impaired.

BALLOT. Per R.A. 9369, Sec. 2,(3), “Official ballot – where AES is utilized, refers to the paper ballot, whether printed or generated by the technology applied, that faithfully captures or represents the votes cast by a voter recorded or to be recorded in electronic form.”

Under this new definition, the ballot can be made by machine in lieu of being manually made by the voter. While indeed a person can let a machine make his document, as when a letter-writer uses a laptop and printer, he does so because he is fully in control. He can check the letter and redo it if need be, he can make sure that the machine does not produce spurious copies, and above all, he is in control of the disposition and use of the letter.
The voter, however, is not in a similar situation. He is not in control of the machine, its electronic files and output. He also does not control the disposition and storage of the paper ballot. He therefore can be used as a dummy by persons who are in control of those things.

In contrast, in B.P. 881, the action steps specify that the voter personally accomplish the ballot (thus personally ensuring that his input is correct), the voter personally puts the ballot in the ballot box (thus protecting himself from the insertion of spurious ballots) and the ballot box is watched by all parties all the time (they all protect themselves from spurious insertions or substitutions), and all parties are allowed to watch the counting and tallying of votes and the accomplishment and forwarding of the election return (thus protecting themselves from wrong disposition and use of their ballots.)

With these action steps, the parties to the election are fully in control of the election process in the precinct. Disabling any of these steps will impair the election process.

ELECTION RETURN. Per R.A. 9369, Sec. 2, (4), “Election returns – a document in electronic and printed form directly produced by the counting or voting machine …”.

The redefinition of the election return as being a document in electronic form is a very big change that destroys the integrity of the election return. The substance and form of a hard copy document are permanent but that of electronic data can be changed after it has been verified. The existence and integrity of electronic data are at the hands of the people who control the electronic files.

Also, as redefined, the election return is no longer a document prepared by the board of election inspectors. Their role is just to operate the counting machine and to authenticate copies. The law is silent on who is really making the election return or causing the computer to produce it. Surely, it cannot be the computer itself. There must be a person behind it, but what part does he play in the election, what is his source of authority, how is his work controlled and who controls it, to whom is he answerable?

In B.P. 881, the making of the election return is provided as follows: “The board of election inspectors shall prepare the election returns simultaneously with the counting of the votes…..the entry of votes in words and figures for each candidate shall be closed with the signatures and ...thumbmark…of all the members…to be affixed in full view of the public, immediately after the last vote………” “Immediately upon the accomplishment of the election returns, each copy thereof shall be sealed in the presence of the watchers and the public….”

All the action steps of the board of election inspectors are done under the watch and control of the parties to the election. The process empowers the parties to watch and control the making of the election return because it is their document being made for them by the board. This process fleshes out the fact that the election is the act of the people.

FUNCTION OF THE BOARD OF ELECTION INSPECTORS. Under B.P. 881, the board had two basic functions: (1) To conduct the voting and counting of votes, and (2) Supervision and control of the election in the polling place to assure a free, orderly and honest manner (of election.)

Under the polls automation law, the counting is now to be done by a counting machine operated by the board. This changes the election process in a fundamental way, completely forgetting that the election process is the act of the people.

The reason why the function of the board is just to “conduct the voting and counting of votes..” is because the board is not the one to do the voting or counting. It will just conduct these activities and enable the parties to the election to do these acts.

The board is not a participant in the election. It has no part of its own in the election process. It is there to enable the parties to undertake the election process safely and efficiently. The parties can do some parts of the process by themselves: they can accomplish the ballots and cast their vote so the board does not do these things, but rather facilitates it for them. But the parties all together cannot open the box, read and tally the votes, prepare and sign the election returns. So, the board does these steps in their behalf and in such a way that they control the process. i.e., they can see and react to deviations.

The use of a counting machine takes the parties to the election out of the counting process. They can no longer observe the count and react to deviations. The count is not their count.

How did we come to have this defective law?

The election is a sovereign act of the people and it cannot be abridged by government, which is just an offspring of the election. Government may provide a process or system to make it safe, orderly and efficient, but that process or system must not abridge the act.

The whole point of the election process is empowerment of the people. They must be enabled to do it themselves, and where they have to act through the board, they must still be in control.

B.P. 881 (Omnibus Election Code) codified our election process which at the time was a manual process. That manual process did not abridge the people’s act, rather it enabled and facilitated it.
Then, Congress decided to automate the elections and it enacted the polls automation law. The new law empowered the machine to assume a major part of the election process independently of the people and outside their control. In particular, the recording and counting of votes, making the election return and transmitting it for the canvass were taken over by the machine. Verification of the vote could not be properly done anymore, so it was given a limited and vague definition that allowed the use of a false process that could be done through automation. Likewise, the ballot, election return and function of the board of election inspectors were given new, watered down definitions so as to remove any hindrance to the functioning of the machine. In this way, the law altered and impaired the election process. (Congress overstepped its authority.)

Why did the election process have to be altered? The only explanation we can think of is that the law was bent in a futile attempt to accommodate a faulty system. There must have been a particular system already in mind when the law was being made, and instead of the system being made to fit the process, the process was made to fit the chosen system.

Practical consequences

The quixotic attempt to fully automate the election produced a new election process dominated by the machine at the expense of the people. One consequence is the loss of the verification of the vote, a function that only the people are capable of doing. As a result, the election return is not established to be correct or wrong. If it should in fact be wrong, the error cannot be detected, much less acknowledged or substantiated. There is no process to deal with it.

In the environment of the election, suspicious things may be detected, like PCOS units and CF cards found where they should not be, CF cards found to be programmable, PCOS units with ports that allow programming, failure to disclose the source code, lack of UV lights and digital signatures, a suspicious pattern of results. But it’s one thing to prove that there is something suspicious and another to prove that there is error.

That’s how it was in the 2010 and 2013 polls. Suspicions did abound but error could not be substantiated making it difficult to challenge the election results.

H. A. Barrios, Quezon City, June 2014