Tuesday, January 26, 2010

Nuisance candidates on election day

One of the more relevant decisions by the Supreme Court issued in January this year is the case of the nuisance candidate who managed to hang on to the list of legitimate candidates until a month after election day. The winning margin is only 104 votes and the nuisance candidate managed to invalidate 5,401 votes. Tough luck for the legitimate candidate. The facts of the case are as follows:

In the May 14, 2007 elections, petitioner Martinez and private respondent Salimbangon were among the candidates for Representative in the Fourth Legislative District of Cebu Province. On March 29, 2007, Edilito C. Martinez, a resident of Barangay Tambongon, Daan-Bantayan, Cebu, filed his certificate of candidacy for the same position.

On April 3, 2007, Martinez filed a petition to declare Edilito C. Martinez a nuisance candidate.However, the Commission on Elections Second Division issued its Resolution declaring Edilito C. Martinez a nuisance candidate only on June 12, 2007 or almost one (1) month after the elections.

On July 9, 2007, Salimbangon was proclaimed winner in the congressional elections for the Fourth Legislative District of Cebu on the basis of official results showing that he garnered sixty-seven thousand two hundred seventy-seven (67,277) votes as against Martinez who garnered sixty-seven thousand one hundred seventy-three (67,173) votes, or a difference of one hundred four (104) votes.

Martinez filed an Election Protest Ad Cautelam on July 18, 2007 and on July 26, 2007, the HRET granted his motion to convert the same into a Regular Protest of all one thousand one hundred twenty-nine (1,129) precincts of the Fourth Legislative District of Cebu.

The election protest is based on three hundred (300) ballots more or less with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative which the Board of Election Inspectors (BEI) did not count for Martinez on the ground that there was another congressional candidate (Edilito C. Martinez) who had the same surname.

Salimbangon filed his Answer with Counter-Protest stating that the Minutes of Voting (MOV) inside the ballot boxes in all the protested precincts contain no recorded objections regarding straying of votes claimed by Martinez, and that it was very seldom, if at all, that there were ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative.

In its Decision dated May 28, 2009, the HRET resolved each of the claims and objections respectively raised by protestant and protestee applying the rules for appreciation of ballots. The Tribunal recognized as most crucial the issue of whether or not ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative should be counted in favor of Martinez. Thus, the election protest "will rise or fall on how the Tribunal [appreciates said] ballots."[6]

Ruling on the issue, the House of Representatives Electoral Tribunal upheld Salimbangon and considered the ballots as stray in accordance with Sec. 211 (1) of the Omnibus Election Code which provides:

"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."

Since the name of Edilito C. Martinez was still included in the official list of candidates on election day (May 14, 2007), the HRET held that five thousand four hundred one (5,401) ballots with "MARTINEZ" or "C. MARTINEZ" only written on the line for Representative were properly denied on the ground that there was no way of determining the real intention of the voter. These ballots were included in the 7,544 ballots denied as votes for Martinez in 961 precincts.

What then is the legal effect of declaring a nuisance candidate as such in a final judgment after the elections? Should ballots containing only the similar surname of two (2) candidates be considered as stray votes or counted in favor of the bona fide candidate?

The purpose of an election protest is to ascertain whether the candidate proclaimed by the board of canvassers is the lawful choice of the people. What is sought is the correction of the canvass of votes, which was the basis of proclamation of the winning candidate. Election contests, therefore, involve the adjudication not only of private and pecuniary interests of rival candidates, but also of paramount public interest considering the need to dispel uncertainty over the real choice of the electorate.

In controversies pertaining to nuisance candidates as in the case at bar, the law contemplates the likelihood of confusion which the similarity of surnames of two (2) candidates may generate. A nuisance candidate is thus defined as one who, based on the attendant circumstances, has no bona fide intention to run for the office for which the certificate of candidacy has been filed, his sole purpose being the reduction of the votes of a strong candidate, upon the expectation that ballots with only the surname of such candidate will be considered stray and not counted for either of them.

We therefore hold that ballots indicating only the similar surname of two (2) candidates for the same position may, in appropriate cases, be counted in favor of the bona fide candidate and not considered stray, even if the other candidate was declared a nuisance candidate by final judgment after the elections. Accordingly, the 5,401 votes for "MARTINEZ" or "C. MARTINEZ" should be credited to petitioner giving him a total of 72,056 votes as against 67,108 total votes of private respondent. Petitioner thus garnered more votes than private respondent with a winning margin of 4,948 votes.


In the original text of this case, the SC castigated the COMELEC for its inefficiency in failing to resolve the issue of the nuisance candidate before the election. Shouldn't there be a law penalizing nuisance candidates?


Speaker Nograles refuses to allow Martinez to take his congressional seat, even as there are only three days before Congress adjourns.

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