Electoral Complaints Adjudication in the Philippines

Transcript of Podcast with Minnesota Supreme Court Justice Paul Anderson and election lawyer and recount expert John “Jack” Harding Young.

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Chad Vickery:

On May 10th the Philippines will conduct National Elections: Presidential, Congressional, and Local. For the first time in the Philippines the entire country will be using optical scan machines to process, count ballots, and transmit results to Manila. The purpose of this conversation is to capture Justice Anderson and Jack Harding-Young’s experience working in the Philippines with IFES and the American Bar Association on the area of Electoral Complaints Adjudication in the Philippines.

To start the conversation, I’m wondering, Justice Anderson if you wouldn’t mind, giving us a little bit of your experience in regards to just finishing work on the Franken and Coleman Case in Minnesota and then coming to the Philippines to work on this specific issue.

Justice Anderson:

I was a little bit surprised to be asked to go to the Philippines given the importance of this election and the first question that one asks is what possible help can we be…I had some very positive reactions to that, though. One I would say is that all the people we met with were very receptive from the COMELEC to the lawyers, judges, and the civil society groups. So the receptivity was very good. You did pick up also a bit of the history of the American system of jurisprudence so that when we were talking we were not talking a foreign language. There was a fairly high level of communication and common language and I think that that made it very good.

One of the things I find when we’re dealing with judges from other countries, when you get to some core principles there are a lot of common issues and what we did was we did find a lot of common issues with respect to the voting. I was struck with the overwhelming logistics that are involved. The Philippines with 7100 islands, I think there are something like 76,000machines, all of that had to be matched to the right ballots and the communications problem and just the remoteness of some of the islands and the size of the ballot so there is a tremendous amount of preparation I think that we focused on some issues that I think were very good and they were very receptive about the need for preparation and standards and transparency and accountability and education. What I found also and maybe Jack can weigh in on that is that it was well designed to have a complimentary presentation as somebody who sees it from a judicial side and someone who has done it from a lawyer’s side and, Jack, I might ask if you kind of had some of those impressions…

Jack Young:

I did, Your Honor, and there are two things that really come out of what we talked about in the Philippines and what we talk about generally in the United States and across the world in the election administration area:

First, it is that automated voting systems work well and do provide a reliable basis for recounting and contesting an election and ensuring that the results are what they should be, that who gets elected is the person who got the most votes and that the system is transparent enough to show that and second is the point you made earlier Your Honor that there’s also a growing consensus in the Philippines and clearly in the United States, particularly after Bush vs. Gore and Franken vs. Coleman and that is that the resolution of disputes in a timely and transparent process requires the adoption of standards for counting or resolving disputes and overcoming errors prior to the election or if not prior to the elections certainly prior to their being any adjudication of the difference in ballots and I think as we’ve learned in the Bush case in 2000 and I think one of the things I think the supreme court of Minnesota should be commended on and that is determining the standards in a non partisan neutral way that then can be applied by the parties in a very partisan way, it is, I think, the essence of good decision making, it’s also the essence of good dispute resolution. Fisher-Ury and others talk about conflict resolution being something that tries to measure interest against acknowledged standards and if we have acknowledged standards then we have a way to adjudicate or resolve disputes it’s sort of what we ask judges to do we ask basically judges to apply the law from precedents and from statutes to the facts, I come to a judge and I say: “judge here are the facts, apply the standards.” Well, we do the same things in election law and I’m very pleased at where we are evolving with the US and in the Philippines as to realize that the rule of law really just turns on the adoption of standards and those have to be neutral non partisan standards, because you see what happened in Bush vs Gore when we tried to adopt standards on the fly and those standards were always subject to criticism because they would count a vote for Gore even though the ballots looked identical and that simply is a definition for disaster and for arbitrary capricious activity so again, one, automated voting systems work, two, because there optical scan we always have the best evidence which is the ballots, these machines have an ability to be examined for ballot images and should cut down the instances of fraud and abuse and second we have an understanding of having a system that should produce a fair representation of the election results. And remember we’re looking for a fair representation of the results that will ultimately be adopted by the body politic that is the people.

Justice Anderson:

Now Jack made a very good point that we repeated a number of times when we were in the Philippines and that is standards prior to the election, you can’t do it on the fly. That’s why we just repeated preparation and standards, because that’s the only way you can avoid arbitrary and capricious interpretations so we hope that some of that was put through and they had as many standards in place before the elections.

Chad Vickery:

Justice Anderson, in the Franken case, council tried to provide these standards before the case as well. I mean, it was a large part of what you were consumed with in pre litigation is that correct?

Justice Anderson:

Actually it was the main difference in Minnesota than in Florida and what I tell people is that we had standards and regulations and rules. Any election is carried out by human beings who are all fallible there will be mistakes, no question about it, but if you have standards and rules and regulations and if you look at what happened in Minnesota and our opinion is to say that yes we had some aberrations here and I’m talking about the universe of absentee balloting. The Franken people looked at the universe of absentee ballot with a wide lens saying yes there are some aberrations, but there is order and structure to this universe there are rules that apply like rules of physics apply to the universe, now Coleman on the other hand, isolated and focused in on those aberrant events, the aberrant galaxies is the metaphor I used and tried to show that based on these aberrant events that the entire universe of absentee ballots was chaos, well you couldn’t do that. That’s ultimately why they lost because the standards and rules and regulations were in place, yes there were some problems here and there, but the ultimate end is that they were followed and the election was fair.

Chad Vickery:

Right, and I thank you for that and I believe we’ve raised this issue under the general topic of contingency plans after the polls close and the results are transmitted

Even on the day of the election there are going to be things that happen, problems that occur and that’s going to happen in any election no matter how well it’s run and there will be these things when first time folks are using these machines, there are all kinds of different perceptions that are going into somebody’s experience and so being as clear as possible and contingency planning is very important. And I think Jack you actually discussed this a bit when you were in Manila.

Jack Young:

Thank you, Chad. Building on what Justice Anderson said, obviously contingency planning is the difference between well run and not well run elections. There are at least four general problems for which contingency plans always need to be made:

First is a fairly mundane one and that is that long lines at that the polls could discourage voter participation. It is particularly in national elections very probable that we’ll have long lines. You can expect that whether it is in Ohio in the United States or in the Philippines or almost anywhere else across the country so we need to start to think about what those long lines mean and how we can assure that everyone vote.

Second is the problem of machines malfunctioning. Machines malfunction because of human error particularly for the Philippines we have the experience of first time users. We’re going from a totally manual system where the voters would have written out the names to a system where we’re asking them to fill in a bubble on a paper ballot where that will be a first time experience for most. We’ve become accustom in the West to filling out forms with bubbles. Anyone who has had to apply for college or law school or business school has taken a computerized test and becomes familiar with the process and it’s not an intuitive one so we need to think through how it is that people actually vote on the machine. The machine may in fact not count the ballot either as an over or under vote and we need to make sure that we have as much training as possible to overcome voter hesitancy, but also that when we look at the ballots that we give the full voter intent or voter appreciation as allowed by statute, because what we’re really trying to do is to find out in counting the ballots what was the will of the people and do we really want to disenfranchise someone because blind, elderly, couldn’t really fill in the bubble, didn’t really understand the instructions, we have literacy questions, we have communications questions, so one thing we really want to look at is what’s a voter machine malfunction and we don’t want to count it and sometimes the machines don’t work, the machine’s not plugged in, for a lot of reasons when you have a large number of mechanical devices that use electricity some will fail so what is our contingency plan to make sure that we have machines in place.

Significantly the board of elections inspectors quick guide that was done by COMELEC and printed by IFES [with the support of USAID] is a very good start for starting to answer some of the contingency problems, including the questions of the shortage of ballots, the transmission errors, so it’s a good start. What the political parties and others in the civic community need to work on the human error, that is training voters how to vote, how to overcome voter confusion and frustration and sometimes this is a name is not on a particular list it may be that the election day computerized voter list or the supplemental PCVL [the posted computerized voters list] is missing a name so how do we overcome that confusion, now we do have a long ballot, but I would not over emphasize a problem of the quote “large ballot.” It’s not particularly long when you think about this, I know who I want to vote for president, I know who I want to vote for senate, I know who I’m going to want to vote for governor, I’m going to know what the local choices are. So while we have a lot of names, and remember in 2000 there were a lot of names on the butterfly ballot and that’s why we had a butterfly ballot about electors. Well it really wasn’t the problem of governor Bush v. Vice President Gore it was in fact voter confusion so what we need to do is not so much be afraid of a long ballot, but be very good about instructing people on how they ought to exercise their rights. The last is that we do have to start thinking about the unanticipated catastrophic events. The volcano in Iceland would have told you that if you were stuck in London that someone should have thought about how to get you home or to London on a contingency plan so we do need to think about, particularly in the Philippines and others, about what we do in catastrophic events. Florida, has catastrophic events over and above the 2000 election which went against my client there are real natural catastrophic events that we have to plan for, if we plan for them than the election can go about in the ordinary course and remember, having an election proceed in the ordinary course and proceeding in the ordinary course is exactly what we want to do to show that the system has some reliability, has some efficacy and that efficacy leads to confidence in the results.

Justice Anderson:

I’m going to pick up on that last comment which is confidence in the results and this is so key as in any election you need to have the voters to have trust and confidence in the results and one of the things we focused on, and Jack talked about it earlier, is the cultural change, just the changing the nature of the ballots, but the culture of election day is going to change as a result of using the voting machines, we are not going to have people gathered around and having these paper ballots counted and you need to build some confidence in the people because the way it’s going to be handled is different, the result is still going to be valid and will be valid and election day is a holiday and people are going to have a different experience, Jack touched on the line.

There’s another thing that plays in and I think Jack raised it first that is about education. The education of the voters and there is getting less and less time to do that and that is that it has to be done very much in the right way, because you can educate voters about hey we have this very complicated system, a new system of voting coming. You can educate them in a way where they say it’s too complicated for me, I don’t want to vote or I won’t vote or I can’t vote and you don’t want the education and I think Jack referred to an example in Washington DC and some other places where actually a voter turnout program and an education program created a disincentive for voters to turn out so it’s very important how the people in charge in Manila convey what is happening here as far as the changes go so that you will have people vested in the system, believe it’s going to work, have trust and confidence and will actually go out and vote and not be intimidated by what the new system is going to present them when they get to the ballot box and that’s why I think the polling guide is a great start in this way it anticipates some of the problems. I think that it may have been part of the message that we convey that is received as that plan for things going wrong, they always do no matter how good your system is there will always be something that goes wrong.

Jack Young:

And I think Justice that is a good point because by planning we can then have a response it doesn’t always have to be a perfect response, but a response that shows voters and people within the government, and candidates that there’s a response to matters that’s being handled on election day in a way that is transparent and rational really does help build the confidence. There is one thing that I really think is good about automated voting that will be somewhat of a change and it will be interesting to see how it plays out and that is for the first time the Philippines really now have a secret ballot process. If you think about a small precinct, if I knew everyone, I also probably will know must everyone’s handwriting if you think about your partners or your friends. You can pick out Chad’s handwriting, or your Justice Anderson, or mark Elias’s or Jack Young’s. In a handwritten ballot process it’s a step removed from putting your hand up as to who you’re voting for, but it’s not necessarily one that has secrecy to it. What’s interesting here is that filling out a paper ballot with a bubble is purely anonymous. It is a secret ballot and that ought to do a couple of things. One, it ought to give some voters some more confidence that there vote is secret and second yes it takes a way a little bit of the social setting but remember in America at the founding of our country, voting was in fact a social event, people actually put their hands up, George Washington lost his first election of the House of Burgesses, because not enough people put their hands up and apparently he didn’t have enough liquor, he solved that problem in the second time he ran for the House of Burgess, he won and went on to be President of the US and yet there was simply nothing about that election that you can say was very secret. And, particularly in a place like the Philippines, the building of a secret ballot helps ensure that the will of the people is what in fact an election is about. I think it’s a great move and I hope this election goes well for the people of the Philippines, because they deserve it and with these machines it should particularly if they think thought the contingency plans and something that Chad that you and Justice Anderson are really thinking about and that is we get to the recounts, how do we do a recount in the Philippines that looks more like Minnesota and less like Florida and I don’t mean just because of geographics with one slight difference and with all do deference to you Justice Anderson, the recount for presidential election or senate or governor really has to happen sooner rather than later.

The Philippines actually has a history of having recounts that will run the whole term of an individual and you’ll get the recount results as we did while we were there of a candidate who is now running for his next term, now think of how that would be if we let Al Gore be president for the last four years and then realize at the last minute it was really George bush and then say, well George you now get a chance for a couple of months and then run again, well we wouldn’t accept that. Minnesota actually did impact somewhat the government of the US. Recounts can happen quickly if they’re well managed. Quite candidly you can do a recount in a state within a month of two, you do have these long lead items that you simply have to resolve again the more we have standards the more you have standards (like in the US) about the absentee ballot box, which is now the new sort of piece of litigation, which can go on forever. Philippines don’t have the same kind of early voting absentee problem but they do have a problem of a history of recount litigation that goes well past a time when someone ought to be in office. One of the things that you know that really hurts the voter confidence in the government of a state or of a county or country is having someone at the helm who is not necessarily the elected choice so…recounts can be done quicker the international community I think has to work with IFES in the Philippines or others to ensure that we have processes in place to get a recount done or a contest done within that month, month in a half that you have between the election and installation of elected officials.

Justice Anderson:

Now dealing with recount raises a couple of interesting concepts that came up. One is that they have in the Philippines put in place what they refer to as a random manual audit and there as we discussed with the election officials it came upon the concept there’s much misunderstanding as to what the random manual audit is, it is not a recount, it is an audit of how the machines are working and to see if they’re doing what they’re supposed to do and so as they’re planning for the manual random audit they need to understand that that is not a recount that is a monitoring of the technology and seeing how the machines work so that if there is a recount they have to plan something differently.

Second is with respect to lawyers and litigation, of the three presentations that we made, the second day was mostly the lawyers. Jack’s been through these recounts and once you put the standards for a recount in place and you have the staffing to go forward with it, it can get done in a rather prompt fashion and if it’s done right and is transparent and whatever is that you can avoid a lot of litigation on the other end of it.

Jack Young:

One of the things as a trial lawyer, I’ve come to the recognition that litigation will never go away and candidates who believe that they were elected and the results are to the contrary will always challenge the results so I’m not terribly dissuaded about the process as long as the process has a neutral arbiter someone like you, Justice Anderson, who at the last of the process can make a decision that is fair and reasoned and based on the evidence because in the last analysis whether Coleman or Franken won the election in Minnesota or whether Governor Bush won in Florida we had a judicial system, the supreme court of Minnesota or the Supreme Court of the US, that brought finality to it and actually brought resolution to it in a way that was acceptable to the vast majority of the people and there was no one running around who seriously says Coleman should be a US senator or that Al Gore was really the President. And so I think it’s important that we recognize litigation will always exist and its how we deal with it, will we deal with it timely with independent decision makers who make decisions quickly based on the law and the facts.

Justice Anderson:

Now what Jack is bringing up another point that we tried to stress which is creating a culture in which good people can make good honest decisions and in the Philippines they have this concept which has the label Dagdag Bawas and this concept comes into play in the elections will not be valid and you also have situations where I think many of the election poll workers are going to be teachers, people who want to do the right thing, but they may be in a situation where their job is at stake , their life may even be at stake, for how they make a decision where they say you know it’s either their job or their life they may turn their back and accept something that is inappropriate . It’s very important to set up a structure and a culture where good people can do the right thing, do the honest thing. The electronic balloting machines is one step in that direction because as Jack talked about in many ways the written ballot is maybe one or two steps removed from raising your hand and the intimidation that goes with that, but there are still many other aspects with respect to the counting and one opinion I wrote is what Tom Stoppard said in a play and that is that in a democracy it’s not the voting that matters it’s the counting. And the system has to be in place that creates the culture that when the counting gets done good people can do the right thing.

Chad Vickery:

Thank you Justice Anderson, I think you’re right. I think the system isn’t always the issue it’s the process, the people, and the procedures around and the law in which is applied. I think we’ll all be watching the Philippines on the 10th of May, there are many benefits that come from this new optical scan technology and there will also be problems that will come up and I think if people address these problems in a fair and transparent way it think in the end the elections will be seen as a success in the Philippines and I’m very happy that we were able to capture this conversation which highlights many if not all of the points that you covered while you were in Manila.

IFES wants to thank you both for your work in this issue. I think there were definite impacts in Manila. Thanks again.