Part of the internal process of the PCOS at the time of voting is the creation of a digital image of each ballot. The PCOS evaluates each vote mark on the ballot digital image to check if each vote mark passes a pre-defined shading threshold. If the PCOS determines that an oval is shaded less than 20 percent, the PCOS will reject the ballot and will give the voter the chance to correct the shading. If the PCOS determines that all vote marks pass the 20 percent threshold, it then appends at the end of the ballot digital image a ballot appreciation record which shows the choices made by the voter. Following the close of polls, the PCOS generates the total number of votes garnered by each candidate and records this into the election return. As soon as the election return is completed, it is printed out and electronically transmitted to the city or municipal canvassing and consolidation server.
The question that I pose for election lawyers is: Can the ballot digital images be used for the counting of votes or for resolving election protests?
Discussions at the Joint Congressional Oversight Committee on the Automated Election System (JCOC-AES) hearings indicate that vote counting is based on the ballot digital images.
A lawyer-friend says that the ballot digital images cannot substitute for the original ballots for vote counting.
It should perhaps be noted that appending the ballot appreciation record at the end of the ballot digital image has effectively altered the ballot digital image.
Digital lines have also altered the digital images of some ballots. It appears that dirt or foreign material found on the mylar film which protects the PCOS scanning assembly had caused digital lines to be recorded on some ballot the digital images.
The issue prompted JCOC-AES Co-Chairman Senator Aquilino Pimentel III to suggest the creation of a Committee on Digital Lines which was tasked to study the impact and implications of the digital lines on the digital images of some ballots.
If there were lines that crossed some ovals which are wide enough to be evaluated by the PCOS as being beyond the 20 percent threshold and deemed by the PCOS to be a valid vote mark, certainly, in such a case, the vote count would have been affected. If the voter had made the maximum number of allowable selections on a contest, then an additional vote mark made by the PCOS would result in an over-vote in the particular contest.
In the case of digital lines that crossed some ovals but which were not wide enough to pass the 20 percent shading threshold, the ballots may have been rejected by the PCOS machine. This could perhaps explain why some ballots were rejected for no apparent reason. The question, however, is – were there ballot digital images with digital lines which could have been deemed by the PCOS to be below the 20 percent threshold recorded in CF cards? If there were, the PCOS may not be consistent in its determination which ballots to accept or reject.
Another issue about the ballot digital images that election lawyers should probably study is the basis of resolving election protests. Former Commission on Elections (Comelec) Chairman Sixto S. Brillantes Jr. had declared before the JCOC-AES hearings that no election protest has prospered in the era of automated elections. It appears that the Comelec had relied on ballot digital images in resolving election protest cases.
Another lawyer-friend opines that recounts should be based on the ballots and not on the ballot digital images.
In the case of some ballots, subject of a court case in Gapan, Nueva Ecija, Comelec revisors, during hearings of the JCOC-AES, retrieved the corresponding CF cards and did a recount of the votes for candidate, Bro. Eddie Villanueva, to show that the vote counts were as shown in the election returns. They also examined the original ballots. They had used the senses of sight and touch in evaluating the vote marks for candidate Villanueva. The revisors deemed that some vote marks for candidate Villanueva appeared to be darker than the other vote marks. The revisors seem to have visual skills to distinguish varying shades of black! Comelec revisors also reported that some vote marks for candidate Villanueva felt embossed when a finger is brushed over the vote marks. The revisors’ report appears to conclude that the ballots were tampered with after the elections.
Post-election tampering of the ballots seems to be the reason why Comelec relies on the ballot digital images in resolving election returns.
Let’s face IT! Based on what I’ve learned from lawyer-friends, copies of documents have an inferior legal standing compared to originals and, perhaps, do not merit any evidentiary value. The foregoing is for election lawyers to discuss and debate on.