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ELECTION -Suggested answer (final exams 2 sem 2005-2006)

nd

group 3

1) The transfer of the polling place of Precinct No. 104 was illegal because it was made only by agreement between the incumbent mayor and the Board of Election Inspectors since it was without notice and hearing and in violation of the prohibition against transfers less than 45 days before a regular election, as provided in 153-154 of the Omnibus Election Code (OEC). However, two conditions must concur in order that failure of election maybe declared by the COMELEC, namely, (1) that no voting has taken place in the precinct on the date fixed by law or, even if there was voting, the election results in a failure to elect; and (2) that the votes not cast would affect the result of the election. In the case at bar, voting was done at the house of Mr. Cruz and there were no indication that there were people who failed to cast their vote affecting the result of the election. The Supreme Court held in Balindong v Comelec that the mere fact that the transfer of polling place was not made in accordance with law does not warrant a declaration of failure of election and the annulment of the proclamation of the winning candidate, unless the number of uncast votes will affect the result of the election. An election can not be annulled because of illegal transfer of a precinct less than 45 days before the election if the voted of those who were not able to vote will not alter the result. (Balindog vs Comelec and Cawasa vs Comelec) 2) No, absence of an affidavit of registration is not a ground for preventing a person from casting his vote when challenged. Even if he fails or is unable to produce his voters affidavit, he may still vote if: (a) his identity be shown from the photograph, fingerprints, or specimen signatures in his approved application in the book of voters; or (b) he is identified under oath by a member of the BEI. Such identification shall be reflected in the minutes of the board. (Sec. 199, BP 881)

3) The ballot is presumed to be valid. Presumption. Every ballot shall be presumed to be valid unless there is clear and good reason to justify its rejection (Sec. 211, BP 881). Only in an unmistakable case where the ballot appeared to be marked, should it be rejected. Determinative factor: the existence of evidence aliunde clearly showing an intent or plan for purposes of identification. OEC. Sec. 211. Rules for the appreciation of ballots. 1. Where only the first name of a candidate or only his surname is written, the vote for such candidate is valid, if there is no other candidate with the same first name or surname for the same office.

4) Isagani as surname Sec. 211 (5)When on the ballot is written a single word which is the first name of a candidate and which is at the same time the surname of his opponent, the vote shall be counted in favor of the latter.

5) Sec. 211(8b) If the word or words written on the appropriate blank on the ballot is the identical name or surname or full name, as the case may be, of two or more candidates for the same office none of whom is an incumbent, the vote shall be counted in favor of that candidate to whose ticket belong all the other candidates voted for in the same ballot for the same constituency. 6) It is a stray vote. Sec.211 (15) If on the ballot is correctly written the first name of a candidate but with a different surname, or the surname of the candidate is correctly written but with different first name, the vote shall not be counted in favor of any candidate having such first name and/or surname but the ballot shall be considered valid for other candidates. 7) Marked ballot A ballot containing irrelevant expression is a marked ballot (Bautista vs. Castro)

8) Unlawful. What is the proper procedure to be resorted to in case of a tie? Explain. ANS: To resolve the tie, there shall be drawing of lots. Whenever it shall appear from the canvass that two or more candidates have received an equal and highest number of votes, or in cases where two or more candidates are to be elected for the same position and two or more candidates received the same number of votes for the last place in the number to be elected, the board of canvassers, after recording this fact in its minutes, shall by resolution, upon five days notice to all the tied candidates, hold a special public meeting at which the board of canvassers shall proceed to the drawing of lots of the candidates who have tied and shall proclaim as elected the candidates who may favored by luck, and the candidates so proclaimed shall have the right to assume office in the same manner as if he had been elected by plurality of votes. The board of canvassers shall forthwith make a certificate stating the name of the candidate who had been favored by luck and his proclamation on the basis thereof. Nothing in this section shall be construed as depriving a candidate of his right to contest the election. (Sec. 240, BP 881; Tugade v. COMELEC, et al., G.R. No. 171063, March 2, 2007). 9) No, a pre-proclamation controversy is limited to an examination of the election returns on their face the COMELEC as a general rule need not go beyond the face of the returns and investigate alleged election irregularities. (Sebastian v Comelec) Fraud, terrorism, irregularities or illegal acts committed before, during or after the casting and counting of votes are grounds for an election protest and not for a pre-proclamation controversy. 10) Local Officials a. Barangay MeTC, MCTC, MTC b. Municipality RTC c. City COMELEC d. Province COMELEC Members of Congress a. Senate Senate Electoral Tribunal

b. House of Representatives House of Representatives Electoral Tribunal

President or Vice President Supreme Court (Presidential Electoral Tribunal)