ZAFIRO RESPICIO, PETITIONER, VS. HON. VICENTE N. CUSI, JR., AS PRESIDING JUDGE, CFI OF DAVAO, BRANCH I, AND FRANCISCO TESORERO, RESPONDENTS.

Respicio versus Cusi

The Case

This is a petition for certiorari and prohibition, with a prayer for preliminary injunction, brought by Zafiro Respicio against Judge Vicente Cusi, Junior, presiding over the Court of First Instance of Davao, Branch One, and against Francisco Tesorero. Respicio and Tesorero were opposing candidates for councilor of Davao City in the general elections of November 1971, fighting for the last position. Tesorero asked the trial court for a judicial recount of the votes in twenty-nine precincts, and the trial court gave due course to his petitions. Respicio came to the Supreme Court to annul those orders. The case matters because it fixes the meaning of the recount provision of the Election Code of 1971 — what kind of discrepancy in an election return will justify opening the ballot box, and what will not.

Procedural History

Tesorero filed with the Court of First Instance of Davao an original petition, and later an amended petition, for judicial recount in a special case. Respicio moved to dismiss. The trial court, through Judge Cusi, issued an order on November 23, 1971 giving due course to the original petition, and another order on November 29, 1971 giving due course to the amended petition. Respicio then filed this petition for certiorari and prohibition before the Supreme Court, with a prayer for preliminary injunction, asking that both orders be declared null and void. The Supreme Court issued a restraining order, and later required the respondent judge to enter an order, after hearing the parties, containing specific findings on whether the election returns had been closed with the signatures of the board of inspectors as the law requires. The respondent judge complied, and the case was decided on the merits.

Facts

After the elections of November 8, 1971, Respicio and Tesorero were locked in a contest for the last councilor seat in Davao City. Tesorero filed a petition for judicial recount, later amended, covering twenty-nine precincts, which he grouped into three. In the first group of twenty-two precincts, he alleged that the votes written in words and figures in the returns gave Respicio more votes than the tally portion of the same returns indicated, an alleged excess of thirty-five votes. In the second group of six precincts, he alleged the reverse: that the words and figures gave him fewer votes than the tally indicated, an alleged reduction of seven votes. In the third group, a single precinct, he alleged no discrepancy at all in the return, but claimed that the votes of Respicio, written as twenty, were misheard by the tally clerks during the canvass and credited as forty.

Respicio moved to dismiss, arguing that the petition rested on Section 206 of the Election Code of 1971, and that under that provision a recount may be ordered only for a discrepancy between the votes of a candidate in words and in figures in the same return, or between two or more authentic copies of the return, and only where the difference affects the result. A discrepancy between the words and figures on one hand and the vertical lines of the tally on the other, he argued, is not a ground. Tesorero answered that the term figures should be read to include the vertical lines of the tally, and that as to the misheard precinct, the recount was within the intent and purpose of the law even if not within its strict letter.

The trial court gave due course to both petitions. Before deciding, the Supreme Court required the respondent judge to make specific findings on whether the tallies in the returns had been closed with the signatures of the inspectors. The findings showed that in sixteen precincts the tallies were duly closed; that in ten precincts the tallies were not originally closed but were later closed by at least three inspectors when the board of canvassers directed compliance; that in one precinct the tallies were closed only with the initials of all five inspectors; and that in one precinct the returns were not closed at all.

Issues

• Whether or not a discrepancy between the votes of a candidate in words and figures in the same return, on one hand, and the vertical lines of the tally in that same return, on the other, is a sufficient ground for a judicial recount under Section 206 of the Election Code of 1971.
• Whether or not a judicial recount may be ordered where the tallies in the returns were not closed with the signatures of the board of inspectors as required by Section 190, or were closed only later or only with initials.
• Whether or not a judicial recount may be ordered in a precinct where the return itself shows no discrepancy, but the votes of a candidate were allegedly misheard by the tally clerks during the canvass.

Applicable Provisions

Section 206 of the Election Code of 1971 provides:

Section 206. Recounting of votes. In case it appears to the board of canvassers that there exists discrepancies in two or more authentic copies of election returns, other than the copies furnished the political parties from an election precinct or discrepancies in the votes of any candidate in words and figures in the same return and in either case, the difference affects the result of the election, the proper Court of First Instance, upon motion of the board or of any candidate affected and after due notice to all candidates concerned shall proceed summarily to determine whether the integrity of the ballot box had been preserved and once satisfied thereof shall order the opening of the ballot box to recount the votes cast in the precinct solely for the purpose of determining the true result of the count of votes of the candidate concerned: Provided, however, That if upon the opening of the ballot box it should appear that there are evidences or signs of replacement or tampering of the ballots, the Court shall not recount the ballots but shall forthwith seal the ballot box and deliver the same to the Commission for safekeeping.

This is the provision whose scope the Court had to settle, since it is the sole basis for a judicial recount.

Section 188 of the same Code provides, in its pertinent part:

Section 188. Manner of counting votes. The counting of votes shall be made in the following manner: the board shall form separate piles of one hundred ballots fully extended, which shall be held together with rubber bands, with cardboards of the size of the ballots to serve as folders. The chairman of the board shall take the ballots of the first pile one by one and read the names of the persons voted and the offices for which they were voted in the order in which they appear thereon, assuming such a position as to enable the two party inspectors and all or at least a majority of the watchers to read such names. One teacher-inspector shall record on the tally board as the names voted for each office are read, the number of votes received by each candidate, each vote being recorded by a vertical line, except every fifth vote of the same candidate which shall be recorded by a diagonal line crossing the previous four vertical lines. The poll clerk shall do likewise on the election returns as prescribed in Section one hundred ninety hereof. After finishing the first pile of ballots, the board shall determine the total number of the votes recorded for each candidate, the sum being noted on the tally sheet and on the election returns. In case of discrepancy such recount as may be necessary shall be made.

This provision shows that the tally on the return itself, and the total noted at the end of it, are part of the record the law commands to be kept.

Section 190 of the same Code provides, in its pertinent part:

Section 190. Statement of the count. The board of inspectors shall prepare the statement of the count, commonly known as the election returns, simultaneously with the counting of the votes as prescribed in Section one hundred eighty-eight hereof. Each vote read shall be recorded by the poll clerk on the election returns by means of a vertical line, and every fifth vote for the same candidate shall be tallied with a diagonal line across the four vertical lines previously tallied. The entry of votes for each candidate shall be closed with the signature of all the members present, likewise to be affixed in full view of the public, immediately after the last vertical line, or immediately after the name of the candidate who did not receive any vote.

This provision supplies the safeguard that makes the tally trustworthy, namely the signatures of the inspectors closing the entry of votes.

Section 204 of the same Code provides, in its pertinent part:

Section 204. Material defects in the election returns. If it should clearly appear that some requisites in form or data had been omitted in the election returns, the board shall return them by the most expeditious means, to the corresponding boards of inspectors for correction. Said election returns, however, shall not be returned for a recount of the ballots or for any alteration of the number of votes set forth therein: Provided, That in case of the omission in the election returns of the name of any candidate and or his corresponding votes, the board of canvassers shall require the board of inspectors concerned to complete the necessary data in the election returns and affix therein their initials.

This provision supports the Court's holding that the later completion of the tallies by the inspectors was a reasonable correction, not an alteration of votes.

Ruling

On the first issue, the Court ruled against Respicio. The Court held that the omission of any reference to a discrepancy between the votes in words or figures and the vertical lines of the tally does not limit judicial recount only to discrepancies between words and figures. Reading Sections 188 and 190 together, the Court found that the legislature required the tally on the return itself as an additional safeguard against tampering, and that the phrase votes of any candidate in figures can reasonably include the figures written at the end of the tally, and even the vertical lines alone. The Court put the rule this way:

We are of the considered view that it was within the contemplation of Section 206, aforequoted, of the new electoral code to consider any discrepancy between the tally of votes in the return itself and the entry of votes in words and or figures in the same return of the corresponding candidate as sufficient basis for a judicial recount.

On the second issue, the Court held that the tally may serve as basis for a recount only if it is closed by the signatures of the inspectors as Section 190 requires. Applying this to the findings, the Court held that in the sixteen precincts whose tallies were duly closed, and in the ten precincts whose tallies were later closed by at least three inspectors when the board of canvassers directed compliance, there was substantial compliance with the law, the three inspectors composing a majority of the board. In the precinct whose tallies bore the initials of all five inspectors, the Court found sufficient observance, though it would have been better to sign full names. In the precinct whose returns were not closed at all, no recount could rest on the tally.

On the third issue, the Court ruled for Respicio. Where the return itself shows no discrepancy and the complaint is that the votes were misheard during the canvass, no judicial recount is warranted. The proper remedy is for the board of canvassers to examine the return again, since it had not yet proclaimed the fourteenth councilor elect and had not become functus officio, meaning it had not yet lost its authority by completing its task. The Court laid down the general rule that judicial corrections and recounts are in order as long as no proclamation of the affected candidates has been made.

Doctrine

A judicial recount under Section 206 of the Election Code of 1971 may be ordered not only for a discrepancy between the votes of a candidate in words and in figures in the same return, but also for a discrepancy between the tally of votes in the return itself and the entry of votes in words or figures for the same candidate. The tally is a statutory safeguard, and the figures at the end of it, and even the vertical lines alone, fall within the phrase votes of any candidate in figures.

The tally may be used as basis for a recount only if it is closed with the signatures of the inspectors as Section 190 requires. Substantial compliance suffices where a majority of the board later closes the tallies upon the direction of the board of canvassers under Section 204, and initials may suffice in place of full signatures.

Where the return shows no discrepancy and the error lies in the announcement of the votes during the canvass, the remedy is not a judicial recount but a re-examination by the board of canvassers, which retains authority until proclamation.

Disposition

The petition was denied, the restraining order was lifted, and the decision was declared immediately executory, with no costs.

Remember This

Memorize the line that a discrepancy between the tally in the return and the votes in words or figures is a sufficient basis for judicial recount, provided the tally is closed by the inspectors' signatures. Examiners use this case to test the scope of the recount provision and the rule that a mishearing during the canvass is cured by the board of canvassers, not by opening the ballot box.