No matter how hard the Commission on Elections (Comelec) tries to assure the public of a “safe and sound” automated elections in 2013, serious election problems are poised to arise because of the legal dispute between Smartmatic International and its licensor, Dominion Voting Systems, now being tried in the USA’s Delaware Chancery Court.

Comelec and Smarmatic both have been repeatedly assuring the public that the case between Smartmatic and Dominion would have “no significant effect” on next year’s elections.

But as details of the case become known to Filipinos and May 2013 draws near, civil society election watchdogs and congressional committees are getting apprehensive about too many questions left unanswered by both Comelec and Smartmatic.

The most important of these questions is about the ability of Smartmatic to correct errors in its precinct count optical scan (PCOS) machines in the absence of the source code from its software supplier Dominion.

In the 52-page suit filed by Smartmatic in Delaware’s Court of Chancery last September, it disclosed events that transpired in the May 2010 elections, particularly Dominion’s failure to put the required source code in escrow and its failure to “deliver fully functional technology” for the 2010 election.

The disclosures in the Venezuelan corporation Smartmatic’s filings against Dominion reveals that the corporation that stoutly said it had the source code had lied to the Comelec and the Filipino people.

Smartmatic’s disclosure that it didn’t have Dominion’s source code puts in doubt the authenticity of the software and source code that was put in escrow with the Bangko Sentral ng Pilipinas (BSP), a serious offense if proven otherwise, as a requirement of its contract with the Philippines, through the Commission on Elections.

According to Smartmatic’s complaint in March 2010, Iron Mountain—the third party escrow service provider—certified that the source code and other materials were already deposited by Dominion. However, what was deposited was only the older and encrypted version of the software because Dominion did not put in escrow the latest version of the source code.

That latest version is supposed to be the software that governs the AES system and the system’s PCOS machines that Smartmatic supplied the Philippine Commission on Elections.

“…the material that Dominion International placed in escrow was not the current version and the immediate prior version of the required information, but was instead an outdated a possibly encrypted version of these materials, rendering them ineffective,” Smartmatic said in its complaint against Dominion.

Dominion, however, denied Smartmatic’s allegations. It stated in its counterclaim versus Smartmatic filed on October 17 that it “placed in escrow the version of software that had been deployed in the Philippines.”

But AES Watch (AES means “automated election system”)—a multisectoral group of election-focused IT experts and social scientists belonging to different non-government organizations (NGOs), including social action bodies of the Catholic Bishops’ Conference—have expressed strong doubts as to what was really escrowed in the vaults of the Bangko Sentral on February 9, 2010.

“If we are to believe the complaint of Smartmatic, Dominion deposited [put the source code] in escrow with Iron Mountain, only the pre-customized version. So the post-customized version actually used in our elections was never put in escrow with Iron Mountain,” said Dr. Pablo Manalastas, convener of AES Watch.

Manalastas, an information technology (IT) professor of the University of the Philippines, said that the AES software has several versions. He said it was unknown what version was examined by SysTest Labs, an international certification agency commissioned by Comelec, to verify that correctness and serviceability of the source code necessary for the AES and PCOS machines supplied by Smartmatic.

“So although the source code of the EMS & PCOS programs were reviewed, we are not sure which versions (pre- or post-customizations) were actually reviewed by SysTest,” he said.

For single use only
Dominion, in its 95-page counterclaim, emphasized that its initial statement of work (SOW) agreed with Smartmatic only applied to the 2010 Philippine elections. Under this deal, the use of the PCOS machines in succeeding Philippine elections would therefore require a new SOW.

“The License Agreement provided that the additional work beyond the initial SOW would have to be negotiated as a part of a new SOW. Although Smartmatic and Dominion had preliminary discussions about a possible SOW for future collaboration in the Philippines, the parties failed to reach agreement,” Dominion said.

The 2009 license agreement between the two companies was terminated by Dominion last May 23 because Smartmatic allegedly breached its contract by marketing its licensed technology in Puerto Rico, a United States territory, despite the condition that Smartmatic should not “develop market or sell” Dominion’s voting systems in the United States.

A Canadian company, Dominion also stressed that Smartmatic’s act of selling the 82,000 PCOS machines to the Comelec without Dominion’s license and new SOW “violates [Dominion’s] ownership rights in the voting machines and associated technology.”

The validity of the 82,000 PCOS machines purchased by Comelec last March is also being questioned. If the license was already revoked by Dominion and if there is no new SOW—how can Smartmatic fix the bugs without Dominion approval and help?

Smartmatic, a mere licensee of Dominion’s AES technology, hasn’t paid the Canadian company for the third payment due for the lease of the PCOS machines used in 2010 and the first 920 machines purchased by Comelec in September 2010 within the timeframes stipulated in the contract.

It also refused to provide Dominion a copy of its contract with Comelec and even the details of the payment made by the poll body. These are, according to Dominion, requirements stipulated in its agreement with Smartmatic.

As the suit is still being tried in the Delaware court, the Philippines has no assurance that the AES system and PCOS machines supplied by Smartmatic will function correctly and the errors and glitches that caused protests of miscounting and fraud with the use of the PCOS machines in the 2010 election will not happen again in the 2013 and 2016 elections.

Many of the protests and complaints of fraudulent results with the use of the PCOS machines have never been resolved.

But despite these threats of the coming election being messed up with wrong counts and fraud because of the faults in Smartmatic’s system, Comelec Chair Sixto Brillantes Jr. has just shrugged off the cries of alarm made by poll watchdogs and critics.

“Hindi ako nag-aanticipate ng [I’m not anticipating the] negative,” Brillantes told This writer.

“Lahat ng tao pinag-uusapan yung legal issue sa Amerika. Pwede bang ipaubaya na sa mga abogado yon. [Everybody is talking about the legal issues [between Smartmatic and Dominion] in the U.S. Can we just let the lawyers take care of it?”

He does not seem concerned that the Smartmatic system is illegal and possibly defective and would not yield the people’s true will but whatever errors the PCOS machines produce or whatever results those who know how to manipulate these machines want.