That was the year two presidents were sworn in, not directly by the people’s mandate but by fiat of their Supreme Courts. In the Philippines, the Supreme Court upheld Gloria Macapagal Arroyo’s assumption of office as President of the Philippines. In the United States, the US Supreme Court set aside a Florida Supreme Court decision that would have been favorable to Al Gore over George W. Bush.
Bush v. Gore, 531 U.S. 98 (2000) makes for very interesting reference in respect to a dispute currently raging throughout legal academia: The appreciation of ballots for the high offices of President and vice president.
The US Supreme Court clearly underscored what the matter was: “Much of the controversy seems to revolve around ballot cards designed to be perforated by a stylus but which, either through error or deliberate omission, have not been perforated with sufficient precision for a machine to register the perforations. In some cases, a piece of the card-a chad is hanging, say, by two corners. In other cases there is no separation at all, just an indentation.”
The Florida Supreme Court enunciated what seems to be—and in fact is—a salutary principle: A legal vote is one in which there is a clear indication of the intent of the voter. So we are back, or so it seems, to the always nettlesome problem of determining intent. Is a dimpled or merely indented card sufficient manifestation of intent to vote for a candidate, and is it to be appreciated in the same way as a fully perforated card?
But what the US Supreme Court argued in refutation of the position of the state supreme court is telling: “The law does not refrain from searching for the intent of the actor in a multitude of circumstances; and in some cases, the general command to ascertain intent is not susceptible to much further refinement. In this case, however, the question is not whether to believe a witness but how to interpret the marks or holes or scratches on an inanimate object, a piece of cardboard or paper which, it is said, might not have registered as a vote during the machine count. The fact-finder confronts a thing, not a person. The search for intent can be confined by specific rules designed to ensure uniform treatment.”
It is that last line that clearly suggests that problem that arises when one allows divergences from the rule to establish “thresholds:” The equal protection clause. When one strays from a rule on the pretext that one discerns intent, then one is burdened with having to set a standard, or face the unacceptable prospects that similars are treated dissimilarly—which is the most elemental formulation of unfairness and injustice! It is the succinct formulation of what it is to transgress the equal protection guarantee of the Constitution.
But, it might be protested, how relevant is Bush in a jurisdiction like ours where, once decided, a uniform “threshold” is applied to all contested ballots? Here, there is no problem of counties or states appreciating ambivalent results differently.
The Commission on Elections, on April 12, 2016, promulgated Resolution No. 10088 and under Section 6 amending Section 40 of the earlier Resolution No. 10057, the rule was clearly laid down:
“Using the ballot secrecy folder and marking pen provided by the Commission, accomplish the ballot by fully shading the circle beside the names of the candidates and the organization participating in the party-list system of representation xxx”
The rule was clear and not debated: Full shading. The moment we start accommodating divergence, how far do we go? Should it be 50 percent or 25 percent? The question is difficult to answer because it should not even be raised at all. The rule is clear. It is not a question of literalism. It is rather a question of risking arbitrariness and compromising the equal protection of the laws by allowing deviations from the rule.
But when the intent of the voter is clear, should not the vote be counted out of deference to the sovereign will? Apparently a convincing argument—but not really! No matter how sovereign the people might be, they are sovereign in the way that the constitution and the laws allow them to exercise their sovereignty—and that cannot consist in rewriting the laws for each voter in deference to his supposed “intent.” Paraphrasing the Bush decision is useful: We deal not with the vagaries of a person’s intent but with an inanimate object.
In legal logic, there are two ways of testing the acceptability of a legal proposition. First, by testing its coherence with other unquestioned and indubitable propositions of law. The second, by drawing its entailments and corollaries and watching out for absurd consequences that signal the unacceptability of the questioned proposition.
So, if one insists that the voter’s intent should be respected once manifested, what does one take to be an acceptable manifestation of intent? If, instead of shading the circle beside the name of the candidate, the voter had encircled the candidate’s name, that, to me, would be a clear indication of intent, and yet, would it be counted in favor of the candidate? And the moment one allows this, will one also allow a check mark instead of a shaded circle? Or perhaps a smiley over a candidate’s name? Or even a separate sheet on which one writes the names of his chosen candidates that is attached like an allonge of the Negotiable Instruments Law to the ballot itself? If one considers these scenarios unlikely, that is not argument against the point they make because that is exactly the procedure of legal logic—in fact of all logic: To take the hypothesis as far as it will go to see if it yields absurdity. Reductio ad absurdum was what Scholastics called it!
The moment one concedes that 50 percent or 25 percent is sufficiently indicative of the voter’s intent, one has already compromised the equal protection guarantee of the Constitution, for the only way that intent can be ascertained is its compliance with the established rule. To repeat: If one is willing to accept 25 percent as sufficiently indicative of a voter’s intent, why not a check mark? Why not a circle around the name of the candidate? Why not a cheerful smiley? One can very well be as much an expression of the intent as the other—and when one makes an arbitrary choice over another, then certainly, that one has applied the law unequally is undeniable.
The only guarantee that the law is applied equally is to apply the law!