The Importance of Transparency and Accountability in Automated Election Systems

AES Watch, et al. v. Commission on Elections (COMELEC), G.R. No. 246332, December 09, 2020

Imagine standing in a long queue, waiting to cast your vote, only to wonder if your choice will be accurately recorded and counted. This concern is not just hypothetical; it’s a real issue that has been at the heart of numerous legal battles in the Philippines. The case of AES Watch, et al. v. Commission on Elections (COMELEC) delves into the crucial aspect of election integrity, specifically focusing on the use of voter verifiable paper audit trails (VVPAT) in automated election systems (AES). The central question revolves around ensuring that every vote is counted correctly and transparently.

In this landmark decision, the Supreme Court addressed the petitioners’ concerns about the implementation of the AES, particularly the absence of digital signatures and the prohibition on capturing devices inside polling places. The petitioners sought to compel COMELEC to review the VVPAT, adopt another method of digitally signing election results, and lift the prohibition on capturing devices. The case highlights the ongoing struggle to balance technological advancements with the fundamental principles of democracy.

Legal Context: Understanding Automated Election Systems and VVPAT

The Automated Election System (AES) was introduced in the Philippines through Republic Act No. 8436, later amended by Republic Act No. 9369. These laws authorized COMELEC to adopt an AES using appropriate technology for voting and electronic devices to count votes and canvass or consolidate results. The amendments allowed COMELEC to use either a paper-based or direct recording electronic election system, emphasizing the importance of minimum system capabilities.

One of these capabilities is the provision for a voter verifiable paper audit trail (VVPAT). As defined in Section 6 of RA No. 8436, as amended, VVPAT is a system that allows individual voters to verify whether the machines have accurately counted their votes. This verification must be paper-based, ensuring that there is a tangible record of each vote cast. The law mandates that VVPAT is essential for maintaining the transparency, credibility, fairness, and accuracy of elections.

Consider a scenario where a voter casts their ballot using an electronic machine. With VVPAT, a paper receipt is printed, allowing the voter to confirm their choices before the vote is finalized. This system acts as a safeguard, providing a means to audit the electronic results against the physical records, ensuring that the technology serves democracy rather than undermines it.

Case Breakdown: The Journey of AES Watch, et al. v. COMELEC

The case began with several groups and individuals, collectively known as AES Watch, et al., filing a petition for mandamus against COMELEC. They argued that COMELEC had not fully implemented the VVPAT as mandated by the Bagumbayan-VNP Movement, Inc. v. COMELEC case, which required the enabling of the vote verification feature on vote-counting machines (VCMs).

AES Watch, et al. proposed a “camerambola” solution, where voters could verify their VVPAT and then deposit it into a box, after which volunteers could take photos of the shuffled receipts to create an audit trail. They also challenged the prohibition on capturing devices inside polling places, arguing that it hindered transparency and the ability to record irregularities.

The petitioners further questioned the use of iButtons and personal identification numbers (PINs) as digital signatures, asserting that these were merely machine identifiers and not personal to the members of the electoral board. They sought a declaration that the prohibition on poll watchers using capturing devices during elections was unconstitutional.

The Supreme Court, in its ruling, acknowledged the petitioners’ standing as citizens concerned with the integrity of elections but found that the petition for mandamus was not warranted. The Court emphasized that COMELEC had complied with the Bagumbayan directive by enabling the VCMs to print voter receipts and allowing voters to verify their votes. Here are key excerpts from the Court’s reasoning:

“The minimum functional capabilities enumerated under Section 6 of Republic Act 8436, as amended, are mandatory. These functions constitute the most basic safeguards to ensure the transparency, credibility, fairness and accuracy of the upcoming elections.”

“The law is clear. A ‘voter verified paper audit trail’ requires the following: (a) individual voters can verify whether the machines have been able to count their votes; and (b) that the verification at minimum should be paper based.”

The Court also addressed the issue of capturing devices, noting that while poll watchers are allowed to use them during the counting of votes and the transmission and printing of election returns, they are prohibited during the casting of votes to maintain the secrecy and sanctity of the ballot. The Court upheld the use of iButtons and PINs as valid digital signatures, citing the Bagumbayan-VNP Movement, Inc. v. COMELEC case:

“As gleaned from the wording of the law, the signature may be any distinctive mark or characteristic that represents the identity of a person. Thus, a machine signature of a PCOS machine may validly be considered the functional equivalent of the aforementioned ‘digital signature,’ as it represents the identity of the individual, said signature naturally being created specifically for the person him or herself inputting the details.”

Ultimately, the Court dismissed the petition, ruling that the issues raised were moot following the conclusion of the 2019 National Elections and that COMELEC had not unlawfully neglected its duties.

Practical Implications: Ensuring Future Election Integrity

The AES Watch, et al. v. COMELEC ruling underscores the importance of adhering to the legal requirements for automated election systems, particularly the use of VVPAT. For future elections, COMELEC must continue to ensure that voters can verify their votes through a tangible paper trail, reinforcing trust in the electoral process.

This decision also highlights the need for clear guidelines on the use of capturing devices, balancing the need for transparency with the secrecy of the ballot. Businesses and organizations involved in election technology must stay informed about these legal standards to ensure compliance and contribute to fair elections.

Key Lessons:

• Compliance with the minimum system capabilities of RA No. 8436, as amended, is non-negotiable for ensuring election integrity.
• VVPAT is a critical component of the AES, providing voters with a means to verify their votes and ensuring an auditable record.
• The use of capturing devices must be carefully regulated to maintain the secrecy and sanctity of the ballot while allowing for transparency in the counting process.

Frequently Asked Questions

What is a Voter Verifiable Paper Audit Trail (VVPAT)?

VVPAT is a system that provides a paper receipt to voters, allowing them to verify their choices after casting their ballots electronically. This receipt serves as an auditable record to ensure the accuracy of the electronic vote count.

Why is VVPAT important in automated election systems?

VVPAT is crucial because it adds a layer of transparency and accountability to the voting process, allowing voters to confirm their votes and providing a means to audit the electronic results against physical records.

Can poll watchers use capturing devices during elections?

Poll watchers are allowed to use capturing devices during the counting of votes and the transmission and printing of election returns but are prohibited from using them during the casting of votes to protect the secrecy of the ballot.

What are the legal requirements for digital signatures in election results?

Digital signatures in election results must be unique to the individual, such as the use of iButtons and PINs, which are considered functional equivalents of electronic signatures under the law.

How can businesses ensure compliance with election laws?

Businesses involved in election technology should stay updated on legal requirements, particularly those related to VVPAT and digital signatures, and ensure their systems meet these standards to contribute to fair and transparent elections.

ASG Law specializes in election law and technology. Contact us or email hello@asglawpartners.com to schedule a consultation.