Full text of Mayor Vicente Emanos election protest against Mayor-elect Oscar Moreno

ELECTION PROTEST Protestant Vicente Y. Emano, through counsel, respectfully states: 1. 2. 3. 4. 5. Protestant Vicente Y. Emano is the incumbent mayor of Cagayan de Oro City with address at Mayors Office, City Hall, Cagayan de Oro City. He may also be served processes through the undersigned counsel at 3/F St. Gregory Building, 6 th-17th Sts., Cagayan de Oro City. The protestee Oscar S. Moreno is the incumbent Governor of Misamis Oriental. He may be served summons and processes at the Governors Office, Provincial Capitol, Cagayan de Oro City. The protestant Emano filed his certificate of candidacy for the position of city mayor of Cagayan de Oro City. The protestee Oscar Moreno also filed his certificate of candidacy for the same position. During the elections on 13 May 2013, votes were cast for both candidates. On 14 May 2013, the protestee was proclaimed by the City Board of Canvassers as the elected mayor of Cagayan de Oro City. The proclamation was made on an incomplete canvass based on the lowered threshold standard per COMELEC Resolution dated 14 May 2013. 6. However, it was only on 15 May 2013 that the City Board of Canvassers issued the Certificate of Canvass of Votes and Proclamation of Winning Candidates For Cagayan de Oro City Mayor and Vice-Mayor which formally proclaimed Oscar S. Moreno as mayor. The original copy of which is hereto attached asANNEX A. 7. 8. 9. This protest is therefore filed within 10 days from the proclamation of the protestee. Per the Certificate of Canvass of Votes and Proclamation, the protestee obtained votes of 109,886 while protestant Emano obtained the second highest number of votes with 92,033 . Cagayan de Oro has a total of 1745 precincts but which were clustered into 360 Clustered Precincts.

10. The protested precincts are ALL the precincts , which are indicated with its specific clustered precinct group number and individual precincts in a list hereto attached as ANNEX B to ANNEX B-22 which is made an integral part of this petition. This is based on the Statement of Votes By Precinct but due to lack of time for printing and photocopying resulting from the busy local COMELEC schedule, the exact details cannot be indicated as of now but will be supplemented in succeeding pleadings. 11. The protestee participated in or benefited from acts of electoral fraud, anomalies and irregularities which caused his undeserved victory and which denied protestant his right to be proclaimed as the winner of the position of city mayor. 12. Before the elections, all the credible surveys including the respected Xavier University survey1 all indicated protestant Emano as the sure winner of the electionswith a substantial margin against Mr. Moreno. 13. Protestant and his complete ticket of the local Padayon Pilipino political party were confident of victory for protestant and a majority of his ticket. 14. The anomalies started on the eve of election day and on election day itself when massive vote buying was perpetrated by agents of the protestee whereby sums ranging from P200 to P1,500.00 were distributed with pictures of the protestee attached accompanied with verbal enticement to vote for protestee. This was effected on a city-wide level and substantially altered the vote of the electorate as will be proven by witnesses during trial. 15. Worse, during the casting of votes and the canvassing, it became apparent that the automated process was not done in consonance with the protocol indicated by the COMELEC to enforce the automated elections process. 16. The transmission of the votes from the polling centers to the board of canvassers was not electronically transmitted in many clustered precincts . In fact, a substantial number of the returns were indicated as Not Transmitted or Failed To Transmit which compelled the board of canvassers to canvass the same manually . 17. A partial record of the NOT TRANMITTED and FAILED TO TRANSMIT memory cards from several clustered precincts is found in the minutes of the canvassing.

18. The minutes of the City Board of Canvassers (BOC) conducted over four (4) days are hereto attached as ANNEX C to ANNEX C-26. 19. The BOC proceedings did not follow the protocol to ensure the chain of custody which should have protected the integrity of the results. 20. The failure to protect the chain of custody resulted in the canvass by the BOC of compromised or manipulated returns which did not reflect the will of the electorate and disenfranchised thousands of voters. 21. It also resulted to an improbable and skewed statistical data which show protestee Oscar Moreno garnering alleged votes which conflict with the pre-electionsurvey results, the post-election internal exit polls and analysis, the percentage and pattern of protestants co-candidates in the same Padayon Pilipino ticket. 22. Moreover,the skewed data were substantially contradictory to the results of the first 2010 automated elections for the voting pattern pertinent to the position of mayor. 23. A portent of the flawed conduct of the canvassing was the burning of an air conditioning unit at the canvassing hall which was an indication of some electricalmalfunction which surely affected the electrical power and by consequence, the electronic transmission or custody of the returns which were all stored on computers , USBs and devices dependent on electric power. 2 24. The integrity of the canvassing procedure itself was already put in doubt when the very first step -the initialization protocol- was not complied and no initialization print-out was made and which made it difficult for the canvassers and the candidates to determine with certainty if zero votes were actually recorded prior to canvassing by the consolidation machines and the computers before the BOC. 3 25. Thereafter, a substantial majority of the Board of Election Inspectors (BEI) transmitted their memory cards and reports through physical conveyance and presentation of the Compact Flash (CF) cards to the BOC thereby exposing the said cards and data to manipulation and danger of fraud. 26. Please it be noted that Cagayan de Oro City has 80 Barangays including hinterland areas where travel time is extended before the memory cards and reports eventually reached the canvassing hall at the City Hall of Cagayan de Oro located at the poblacion. 27. The memory cards were placed in envelopes and all such envelopes marked as NOT TRANSMITTED or FAILED TO TRANSMIT were not authenticated asmajority if not ALL were not even signed by the watchers of the protestant or his coalition partner (UNA). 28. Further proof of the failure of the BEI to perform their functions in accordance with law was that urban barangays such as the clustered precincts in Carmen which are right across the BOC hall where the canvassing was conducted failed to electronically transmit their reports including the returns causing much delay. This observation was recorded in the Minutes of 6:00 P.M. session on 13 May 2013.4 29. Loss of signal could not have been a viable explanation because the precincts which did not electronically transmit their returns were urban barangays with strong cellular phone signals. 30. Worse, the precincts which failed to transmit or were late in electronic transmission were mostly located at Barangay Carmen which was a perceived bailiwick of the protestee which gives doubt that the transmitted returns supposedly from the Carmen precincts were authentic or valid. 31. The BOC of canvassers were forced to canvass returns with tainted data which were obviously manipulated or compromised and could not be the basis of a proper proclamation. 32. Other irregularities and anomalies which tainted the valid transmission of the returns for canvassing are the following: 1. 2. The CF card for Agusan precinct contains the data for Barangay 2 resulting in a failure to read and transmit the data;5 One of the envelopes containing a main memory card was not electronically transmitted , the same was submitted by the BEI allegedly for Barangay Carmen-COC Phinma but as indicated in the BOC Minutes of 14 May 2013 Carmen but it is for barangay Patag; 3. 4. 5. At least nine (9) precincts had defective CF cards and were manually added. This is evidenced by a Manually Added Votes For Mayor of Cagayan de Oro Cityissued by the BOC which is hereto attached as ANNEX D. The manually added votes resulted to a 3,874 votes lead for protestee as against protestants 2,518 which is again a doubtful advantage for protestee of 1,356 votes; The results for a precinct in Bayanga was not transmitted at all and a new reconfigured CF card was used which was supposed sent from Manila COMELEC with Serial No. 43050079 and this precinct had 769 registered voters. (1:00 P.M. Session): 6 the voting center is

6. 7. 8.

Over the objections and motion for a manual count by the counsel for the protestant, the BOC rejected the motion and objection and directed the re-feeding ofCF card where the integrity of its contents and the chain of custody is highly suspect; 7 The canvass was incomplete and manual counting for Bayanga revealed an improbable 298 tie or same number of votes for Emano and Moreno . This wasrecorded in Bayanga, a bailiwick of protestant. The last three (3) candidates to be proclaimed (Dante Pajo, Alden Bacal and Adrian Barba) were all party mates of protestant and their proclamation was delayed due to various reasons including defective CF Cards and untransmitted returns. The three (3) were proclaimed only on the fourth day or on 18 May 2013 .

33. Even the Random Manual Audit (RMA) revealed the ploy to deprive protestant Emano of votes. As reflected in the random manual audit for Barangay Bulua (Precinct No. 264-A to D) , the protestant was actually deprived of votes which were not counted for him. 34. The discrepancy between the actual votes cast and the RMA is indicated as an aggregate difference of ten (10) or more votes against the automated Election Results. This is indicated in a Memorandum dated 16 May 2013 issued by the Honorable Commissioner Christian Robert S. Lim which is hereto attached asANNEX E. 35. The results of the RMA are surprising considering that the PCOS were supposed to be machines which could scan and count the ballots with computer-like accuracy but there were still significant ten (10) votes difference. Worse, as indicated by the RMA conducted in the aforesaid four (4) precincts at Bulua, only the protestant was negatively affected. 36. This serious discrepancy shows a possibility that if protestant was deprived of 10 votes for four (4) precincts, he could be a victim of bawas in a dagdag bawas scheme by unscrupulous operators in cahoots with protestee or his agents or the BEI or even higher personnel which deprived protestant of no less than 4,362 votes.8 37. Therefore, the PCOS, at least those assigned at Cagayan de Oro City, did not accurately count the votes for the position of mayor. 38. In any case, the protestant was not apprised of how the precincts were chosen for the RMA since no notice were sent to the protestant. 39. The apparent manipulation of the reading of the ballots and the resultant defective returns actually resulted to statistically improbable results for the votes cast for the position of mayor. 40. The pattern of fraud was apparent from the disenfranchisement of voters for the post of Mayor. 41. The post of mayor is for a single position which means that a voter shades only the box for one (1) person. 42. The single position slots for mayor, vice mayor and congressman are obviously different from the slots for city councilors because the latter involves voting for a maximum of 8 candidates and judicial knowledge may be taken that not all voters choose the full complement of 8 candidates. 43. Even if the party list position is a single choice, due to the extent of choices which number almost a hundred, there is a tendency for voters not to vote for a particular party. 44. However, it highly improbable for voters to ignore voting for the post of mayor considering that it is a single choice and considering further the form and location of the position in the official ballot. 45. It is inconceivable that voters should forget or intentionally refuse to vote for mayor considering that elections in the city are focused on the mayoral candidates, who are usually the most prominent candidates or personalities in the local elections. 46. Moreover, voters have been sufficiently educated in the manner of automated elections as compared to the 2010 elections considering that 13 May 2013 was the2nd automated elections. 47. In other words, it was highly probable that MORE people would have voted for mayor instead of less. 48. However, in the 2013 elections, almost SEVEN (7%) PERCENT did not vote for any mayoral candidate. 49. These could not be explained by abstention because the statistics reveal that this has resulted to a disenfranchisement or a manipulation to deprive the protestant of votes.

50. In the first 10 May 2010 automated elections, Cagayan de Oro City had 287,025 voters. 9 The voters who actually casted their votes on 10 May 2010 totaled to 209,538 or 74% percent. A copy of the Statistical Report Summary prepared by then City Election Officer Atty. Carlito Ravelo hereto attached as ANNEX F. 51. A review of the election returns for such period show that of the actual votes cast of 209,538 , only 202,893 voted for a mayor. In other words, unaccounted votes or abstention from voting for mayor in the 2010 elections was only 3.17% percent. 52. The number of clustered precincts was essentially the same because in 2010 , there were 358 which was only 2 short of the 360 clustered precincts in 2013 . 53. Compare this with the 13 May 2013, where out of a partial tally of 222, 398 (with 3 clustered precincts still not tallied) who casted their votes, there was a combined vote for mayor of only 207,052 which shows that SEVEN PERCENT (7%) or DOUBLE the number of people did not vote for mayor in 2010 (which was only 3.17 percent). 54. As discussed above, this is statistically improbable because the percentage should have been the same or should have been lower i.e. more voters should have casted for votes for the single positions like mayor. 55. Hence, 7% of 218,127 votes results to 15,268.89 votes which were disenfranchised .Nevertheless, basing on the difference with the 3.17% standard set in 2010, some 3.83% percent (7% less 3.17%) were disenfranchised based on this skewed data which translates to no less than 8,355 votes which were not counted. 56. A further skew or improbability in the statistics is that the barangays which were considered bailiwicks of protestant and where they expected a higher number of votes for protestant were closely matched with Mr. Moreno but with a disproportionate percentage of persons not voting for the mayor position. This can be seen from a partial tally indicated in a table for District 1 where the higher Unaccounted votes were all for Barangays traditionally supportive of protestant. The table of partial data hereto attached as ANNEX G. 57. The Supreme Court has ruled to reject returns which have statistically improbable data as the Court has ruled that the same is literally a manufactured or fabricated return and these plain fraudulent practices results in misrepresentation of the election outcome.10 1. 58. In said Lagumbay v. Comelec case, the High Court even said that it only requires prima facie evidence to disregard the return on statistical improbability. 59. Further sign of statistical improbability is that the gap between Vicente Emano and Oscar Moreno for the mayor position has a gross disparity but the majority of protestants ticket won including the vice mayor and majority of his councilors (11 out of 5), including protestants daughter (Nadya Emano Elipe who evenplaced 2nd for the councilors for the 2nd district)11. 60. Protestant has imposed upon himself the burden to ratify the electoral process which has been put to doubt by the above irregularities and to dispel once and for all the high certainty that he was subjected to a highly sophisticated Dagdag Bawas scheme where not only the protestant but the COMELEC itself may have been victimized. 61. There is therefore an imperative to know the truth i.e. if the PCOS and the canvass devices are capable of reflecting the true will of the electorate. 62. The votes , if properly counted will suffice to overcome the supposed lead of Mr. Moreno. In fact, at an average of only fifty (50) votes which were manipulated against protestant and if multiplied by 360 clustered precincts, it would total to exactly 18,000 votes which is the approximate supposed lead of protestee. 63. In any case, the fraudulent returns do not reflect the true will of the electorate and must therefore be re-tabulated based on the actual valid votes cast . The disenfranchised votes must be counted. 64. The protestant hereby pays the Election Protest fee of P10,000.00 and a cash deposit of P100,000.00. The protestant is willing to pay the balance of the installment in accordance with the amount and schedule demanded by the COMELEC, taking into consideration that the same may be based on the clustered precinct groupings. Prayer WHEREFORE , it is respectfully prayed that the Honorable COMELEC give due course to this protest and thereafter:

a.Direct the City Election Officer to take custody and safeguard the pertinent memory cards and paraphernalia, PCOS, RMA Minutes and Audit Returns, , Election day computerized voters list (EDCVL), Voters Registration Record (VRR) and Book of Voters in all the protested precincts or such other items the Commission deems necessary for a proper recount; b. Thereafter, allow the recount of the official ballots (not the picture image) manually and visually in accordance with COMELEC Resolution 9164 and re-tabulation of the election documents in accordance therein; c. Annul the proclamation of Oscar S. Moreno and direct him to cease and desist from performing the functions of his office; and d. Proclaim Vicente Y. Emano as the duly elected city mayor. Other just and equitable remedies are prayed for. 23 May 2013. Cagayan de Oro City. ATTY. FRANCIS U. KU