Election Law ReviewAlberto C. Agra

Flow1) Commission on Elections

2) Voters and Voter Registration

3) Elective Officials and Candidates

4) Campaign

5) Elections: Postponement and Failure

6) Election Day: Casting and Counting

7) Canvassing and Pre-Proclamation Cases

8) Post-Proclamation: Election Protest, Quo Warranto, Annulment and Election Offense

1) Commission on Elections

Enforcement: All election laws (persons and policies)

Judicial Power: Qualifications, Election Contests, Not suffrage

Jurisdiction: Original - Regional, Provincial and City; Appellate - Municipal, Barangay and Sangguniang Kabataan

Recourse: En Banc (MR, administrative) and Division (1st instance, judicial)

Process: Division - MR to En Banc - Certiorari to SC

1) Commission on Elections

Judicial: Disqualification, Election Protest, Quo Warranto, Pre-Proclamation, Annulment of Proclamation

Administrative: Failure of Elections, Postponement of Elections, Election Offense, Annulment of Book of Voters

Contempt: Judicial, not Administrative

2) Voters: ConceptsSuffrage is a Right, Not Obligation

Qualifications defined in Constitution

Procedural Requirements allowed, Substantive not allowed

Disqualifications defined in Statute

Must allow: Absentee Voting, Dual Citizens, Disabled and Illiterates to Vote

Relationship with Right to Run for Office

2) Voters: QualificationsFilipino Citizen

At least 18 years of age on election day

Resident in Philippines for at least 1 year prior to election day

Resided in place wherein propose to vote for at least 6 months prior to election day

Free from Disqualifications

In order to vote, must be a registered voter

2) Voters: Disqualifications

Sentenced by final judgment – imprisonment of 1 year or more

Sentenced to suffer accessory penalty – political rights

Adjudged by final judgment – crime involving disloyalty

Court-declared insane and incompetent persons

2) Voters: RegistrationContinuing

Computerized List

200 Voter-Precinct

Permanent but may be changed (+ or -): New Voters; Transfer; Deactivation and Activation; Cancellation; Inclusion and Exclusion; and Annulment of Book of Voters

2) Voters: Opposition

Where Oppose? Election Registration Board

How Oppose? File Written Opposition

Why Oppose? Not Qualified, Fictitious

2) Voters: Deactivation

When Disqualified to Vote

Failed to Vote in 2 preceding elections

When Registration Excluded by the Court

When Lose Filipino Citizenship

2) Voters: Inclusion/ Exclusion

Where File? MTC (not Comelec), then RTC

Grounds? Disapproval or Name Stricken Out (Inclusion); Not Qualified or Voter Not Real (Exclusion)

2) Voters: Inclusion/ ExclusionFile Petition (refer to 1 precinct; ERB members as Respondents)

Service of Notice (4 modes)

Any Voter, Candidate or Political Party may Intervene

Summary Proceedings (not conference inside Chambers)

Presentation of Evidence (No Stipulation of Facts)

Decision within 10 days from Filing

Appeal with RTC (5 days)

2) Voters: Annulment of BV

Where File? COMELEC

Who Files? Any Voter, EO or Party

What Grounds? Book Prepared Improperly, Preparation Attended with Vice or Fraud, Book contains Statistically Improbable Data

2) Voters: Election Day

Illegal Voter

Not registered; Use another name; Disqualified; Multiple Registrant (allowed to vote if properly identified)

Illegal Act

Vote-Buying; Vote-Selling; Vote-Betting: Promise to induce or withhold vote (allowed to vote if take oath)

3) Officials: Elective

National Office

President; Vice-President; Senators (24; 1/2); Representatives (District and Party-List)

Local Office

LCE: Governor, Mayor and Punong Barangay; VLCE: Vice-Governor and Vice-Mayor; Sanggunian Members; Sangguniang Kabataan

3) Officials: Party-List

Multi-Partism/ Party Loyalty/ Social Justice

Exclusive to Marginalized/ Nominees Organic

Only in House (20% of Total)

2% Threshold (and until filled up)

3-Seat Maximum

3) Officials: Candidate

Definition: Seeks public office and files certificate of candidacy

Effect of Non-Filing: Not a candidate (re: liability for unlawful acts and omissions)

Effect of Filing: On Tenure of Incumbents (elective and appointive)

3) Officials: Substitution2 Grounds – Death, Withdrawal and Disqualification

Both Substituted and Substitute must be Qualified

When? Up to mid-day of election day (Rules might set earlier deadline)

Substitute? Qualified and Same Party (or spouse)

Substituted can no longer run for any other position/ Withdrawal not affect liabilities

Votes cast for substituted stray unless same surname

3) Officials: QualificationsSet by the Constitution (for national) and statutes (for local)

CitizenshipAgeResidencyRegistered VoterLiteracy Free from DisqualificationsUndergo Drug Test under CDDA of 2002 (unconstitutional)

3) Officials: DisqualificationsLack qualifications/ possess some disqualificationsViolate Term Rule (1-2-3 terms)Commission of an election offenseNuisance CandidateSentenced by Final Judgment – accessory penaltyWillfully Commits Material MisrepresentationNo valid, timely and properly filed certificate of candidacy

3) Officials: Disqualifications

Lack of Qualifications

Where File: Comelec Division

When File: Before Proclamation

If Not File: Quo Warranto

3) Officials: DisqualificationsElection Offense

What Offenses? Vote-Buying, Terrorism, Unlawful Expenditures, Unlawful Campaign, Coercion of Subordinates, Threats, Prohibition against Release of Public Funds

Where File? Comelec Division

When File? Before Proclamation

If Not File? Election Protest and/ or Election Offense

3) Officials: DisqualificationsNuisance Candidate

Who Is? Campaign Capability, Intention, Performance, Exposure, Platform, Party Affiliation, Organization, Profession, Income, Health, Education, Name

Where File? Comelec Division

When File? Within 5 days from Last Day Filing of Certificate of Candidacy

If Not File: No remedy

3) Officials: DisqualificationsMisrepresentation

Misrepresentation must be Material (pertains to Qualifications and Disqualifications) and Willful/ Deliberate; Even if there is ‘Misrepresentation”, if actually Qualified – Not Disqualified

Where File? Comelec Division

When File? 25 days from Filing of CoC

If Not File: No remedy

4) Campaign: Concept

Definition: Act designed to promote or defeat a candidate

Determining Factor: Intent/ Design (not all acts of beneficence are considered campaigning)

Application: All Candidates for All Elective Offices

Current Framework: Regulated but Liberalized

4) Campaign: Allowable Forms

Forming Organizations

Holding Rallies

Making Speeches

Distributing Campaign Materials

Soliciting Votes

Publishing Advertisements

4) Campaign: Propaganda

Paid Political Advertisements

Free Space and Airtime

Use of Gadgets and Billboards

Private Poster Areas

Posting in Private Places

Election Surveys and Exit Polls

4) Campaign: Written Forms

Printed Materials (8.5”Wx14”L)

Letters

Posters (2’x3’), Poster Areas (12’x16’)

Rally Streamers (3’x8’)

4) Campaign: Paid Ads

Print: 1/4th page in broadsheet, ½ in tabloid 3x a week

Television: 120 minutes (for national) and 60 minutes (for local)

Radio: 180 minutes (for national) and 90 minutes (for local)

5) Elections: Postponement

Grounds: Force majeure, Violence, Terrorism, Loss or Destruction of Election Paraphernalia, and Analogous Causes

Extent: Serious and Impossible to have free and orderly elections

Conditions: Grounds must exist before voting

Authority: Comelec en banc (petition or motu propio)

5) Elections: Failure

Grounds: Force majeure, Violence, Terrorism, Fraud, and Analogous Causes

Extent: Failure to elect and affect results of elections

Conditions: Election not held or suspended, After voting, During preparations or transmission of election returns, Canvassing

Authority: Comelec en banc (petition)

6) Election Day: Pre-CastingPolling Places are Opened

Election Paraphernalia and Book of Voters Presented and Examined in Public

BEI Chair Opens Ballot Box (turn upside down)

BEI Locks Ballot Box

BEI Chair and Poll Clerk Sign at the Back of Each Ballot

Watchers Present their Credentials

6) Election Day: CastingVoters Vote in Order of their Entrance

Voter Approaches BEI Chair

BEI Verifies Identity

BEI Chair Announces Name (Voter may be Challenged: Illegal Voter or Illegal Acts)

Voter Signs in EDCVL

BEI Chair Enters Ballot Number in EDCVL

6) Election Day: CastingBEI Chair Signs at the Back of BallotBEI Chair Delivers 1 Ballot to VoterVoter Proceeds to Voting Booth (If Voter spoils ballot, must be surrendered and given another)Voter Delivers Folded Ballot to BEI Chair Voter Affixes Thumbmark in CouponBEI Chair Verifies Ballot NumberVoter Affixes Thumbmark in EDCVL

6) Election Day: Casting

Chair applies indelible ink on right forefinger nail of voter

BEI Chair Signs EDCVL

BEI Chair Detaches Coupon and Deposit Folded ballot in Compartment for Valid Ballots and Coupon in Compartment for Spoiled Ballots

Voter Departs

6) Election Day: CountingCounting in Public and Without Interruption

Ballot Box Opened and Ballots Counted

Excess Ballots Disposed of

Marked Ballots Ascertained and Not Counted

Ballots Unfolded, then Placed in Piles of 100, then Read Ballots of 1st Pile 1-by-1, BEI Chair Affixes Thumbmark, Totals after Reading of each Pile

During Counting, Chairperson reads names, Poll Clerk Records on Election Returns, 3rd Member Records on Tally Board

6) Election Day: Counting

Rules on Appreciation Followed (Objections may be made)

Valid Ballot

Intent Rule

3 Ss: Surname, Sitting Official (Incumbent) and Slate

Distinguish Stray Vote and Invalid Ballot

6) Election Day: CountingProclamation of Results (Alterations and Corrections can be made Before Announcement)

Sealing of Counted Ballots and Election Returns and Certification of Tally Sheet

Issuance of Certificate of Votes

Delivery of Ballot Boxes and Election Paraphernalia to Local Treasurer

7 Copies of Election Returns Distributed

7) Canvassing: Concepts

Collegial Body: Board of Canvassers

Determination: Due execution and authenticity of ERs and CoCs

Scope: Canvassing, Pre-Proclamation Controversies or Manifest Errors, and Proclamation

7) Canvassing: Pre-ProcGrounds Exclusive (BoC Composition/ Proceedings and ER/ CoC)

No Pre-Proclamation Cases for National Positions (only Manifest Errors)

Face of Election Returns (No evidence aliunde)

Not violence, voting, voters, appreciation of ballots

2-Objection Rule: Verbal then Written

7) Canvassing: Pre-Proc

ER/ CoC Delayed or Destroyed

Delayed (retrieval)

Lost or Destroyed (use other copies; with Comelec authority)

7) Canvassing: Pre-Proc

Material Defects

Material Defects: Name of Candidate Omitted, or Votes of Candidate Omitted (BEI to correct or recount)

Formal Defects: Not Sealed with Inner Paper Seal, No Outer Paper Seal/ Seal Broken, # of Registered Voters Not Stated, No Closing Signature by BEI, Not Signed by Watchers

7) Canvassing: Pre-Proc

ER/ CoC Falsified/ Spurious

Grounds: Not Signed by BEI, Prepared by Non-BEI, No Security Markings, Prepared by BEI under Duress, or Contain Erasures (affect integrity)

Recourse: use other copies or recount

7) Canvassing: Manifest Errors

Any Palpable Error

Copies of ER tabulated more than 1x

2 Copies of ER tabulated separately

Mistake in adding

Mistake in copying of figures in statement of votes

ERs from non-existent precincts canvassed

8) Post-Proc: Election ProtestGrounds: Fraud and Irregularities in Casting, Counting and Canvassing

Documents in Question: Ballots, ERs and CoCs

Venue: P/VP; Senators; Representatives; Regional; Province; City; Municipality; Barangay

Requirements: Filed by candidate; Within period; Protestee proclaimed; Payment of filing fee; Allegations of fraud; Identify precincts; Verified; Certificate of non-forum shopping

Procedure: Revision; Trial

If prosper: protestee removed, true winner proclaimed

8) Post-Proc: Quo Warranto

Grounds: Disloyalty to Republic; Ineligibility

Venue: Same as Election Protest

If prosper: Respondent ousted; special elections or succession

8) Post-Proc: Annulment

Grounds: Proclamation based on irregular and illegal canvass

Venue: Comelec division

Effect: Proclamation annulled

8) Post-Proc: Election Offense

Grounds: Violation of Election Code, Commission of Prohibited Acts

Investigation: Law Department or Prosecutors

Venue: Regional Trial Court

Effect: Disqualification, Fine/ Imprisonment