Will the Supreme Court Favor Senator Poe?

by Joseph G. Lariosa

CHICAGO (JGL) – Most of the popular sports that end up in a draw or tie are usually extended until the tie is broken by a toss coin or by any means by prior agreement. But in chess, if there is a stalemate, no amount of extra period can end the game.

PH-SupremeCourtAnd the Philippine Supreme Court will likely be facing a stalemate in the case filed against Sen. Grace Poe, who is being prevented from running for president on May 9, 2016 for failure to prove that she is a natural-born Filipino and that she has resided in the Philippines for ten years prior to the election date.

Although, the ideal make up of the Supreme Court is pegged at odd-number, like 15, 13, 11 to avoid stalemate, sometimes there are unforeseen circumstances when one justice abstains from voting or when he is out of the country or he is in dispose, leaving the collegial body with an even number, like 14, as is the current situation.

The way it is playing out right now, there is no doubt, the Arroyo majority Court is the elephant in the room, which will have the last word whether Senator Poe should be allowed to run or not in the May presidential elections.

If the silent majority of seven Arroyo Supreme Court associate justices plus one Aquino appointee will take a unanimous stand in favor of or against Senator Poe, the decision will likely become a controlling decision on the matter if and when it delivers an 11-3 majority decision.

But if these eight justices will split halfway, with a 4-4 tie, it could also end up in a 7-7 split decision that will still likely allow Senator Poe to run.


The split draw decision will mean a political decision that will leave it to the Filipino voters to break the tie the Supreme Court as the Court failed to deliver a convincing, precedent-setting decision.

The Senatorial Electoral Tribunal (SET), with a razor-thin 5-4 decision, had already ruled in favor of Senator Poe to run on the questions of her residency and citizenship.

But two Commission on Elections divisions, based almost on the same SET identical grounds – lack of 10-year residency and not being natural-born Filipino for being a foundling – handed down Poe twin adverse rulings.

And these two contradicting rulings from the two quasi-judicial independent constitutional bodies will give the Supreme Court an opportunity to affirm one ruling or reject the other.

If the Supreme Court majority will uphold the SET ruling, then, Senator Poe can continue with her national campaign. But if the Court upholds the two Comelec rulings, then she can kiss her presidential aspiration goodbye. But she can remain in the campaign trail by supporting her vice presidential candidate, Sen. Chiz Escudero, despite the chip on her shoulder.

My feeling is that the Supreme Court will let Senator Poe run. But if she were to win the elections, losers will not be prevented from filing a quo warranto after her elections, especially if the Supreme Court ruling before the elections were a split draw and elections results were disputed.

But if the Court ruling and the elections results were overwhelmingly in her favor, I don’t think any quo warranto against her will stand.

When the SET ruled against Poe, all the associate justices in the tribunal – Justices Antonio Carpio, Teresita Leonardo-de Castro and Arturo Brion, all Arroyo appointees — were all against Poe. So, there is no likelihood that any of these justices will change their votes.


 During oral arguments of the case in the Supreme Court, three other justices surprisingly, all appointees of President Aquino, namely Chief Justice Maria Lourdes P. A. Sereno, and Associate Justices Marvic Mario Victor F. Leonen and Francis H. Jardeleza, appear to show their leanings in favor of Poe’s arguments. The only Aquino appointee, who has yet to show his inclination, is Associate Justice Bienvenido L. Reyes.

Like the SET justices, the Aquino appointees, who warmed up towards Poe, can still change their minds.

If not, all the rest of the “uncommitted” seven Arroyo justices, namely, Justices Presbitero J. Velasco, Jr., Diosdado M. Peralta, Lucas P. Bersamin, Mariano C. del Castillo, Martin S. Villarama, Jr., Jose P. Perez, and Jose C. Mendoza, and perhaps the lone Aquino appointee, Justice Reyes, will not only break the tie but can come together with a majority decision.

If the decision were all tied up, it will call to mind the 5-4 tie ruling of the U.S. Supreme Court in the Bush v. Gore in 2000 that became a per curiam decision, when nobody from the court wrote the decision.

During the election night in 2000, the Florida Electoral College could not commit its votes to either George W. Bush or Al Gore because the results were too close to call.

As irregularities were exchanged, recounts were started and were stopped over disagreements on how to proceed.

This prompted the U.S. Supreme Court to end the crisis by telling the Florida Supreme Court to extend the time for certifying the vote past the period by state law. But when the Court began hearing the arguments on appeal, the Florida Secretary of State Katherine Harris had already certified that George W. Bush was the winner of Florida’s 25 electoral votes, which embarrassed the U.S. Supreme Court.


 Florida’s votes gave Bush, the Republican candidate, 271 electoral votes, one more than the required 270 electoral votes to win the Electoral College and defeat Democratic candidate Al Gore, who received 266 electoral votes (a District of Columbia elector abstained).

When the Florida Supreme Court ordered a statewide recount on the ballots, the U.S. Supreme Court exercised its discretionary appellate review jurisdiction and granted certiorari, or review, to Bush v. Gore case, and granted a temporary stay, or delay, enforcing the Florida Supreme Court decision. This action by the U.S. Supreme Court prevented long-drawn out lawsuits that would be filed by both parties.

Had the recount of ballots statewide were held, according to a study, it would have resulted in Gore emerging as the victor by 60 to 171 votes, if the official vote-counting standards had not rejected ballots containing overvotes (where a voter hole-punches multiple candidates but writes out the name of their intended candidate).

A similar scenario emerged during the presidential election in 1876 when Samuel J. Tilden, the Democratic governor of New York, got 184 uncontested electoral votes (185 votes were needed to clinch), against Rutherford B. Hayes, the Republican governor of Ohio, who had 165 votes.

When the U.S. Senate and the U.S. House of Representatives opened the certificates of votes and counted the votes, the evenly divided Democrats and Republicans in the Senate and the House electoral commission included two Republican and two Democratic Supreme Court Justices. The four justices chose from among themselves their own nonpartisan tiebreaker. But one neutral member of the Court resigned, leaving the Republican to choose a third Republican in the commission, which later voted along party lines, electing Republican President Hayes.

I believe, the Supreme Court can only reverse itself with full authority if it comes up with a unanimous decision as in the case of the Brown v. Board of Education of Topeka (1954), which ruled with a 9-0 decision as unconstitutional state laws establishing separate public schools for black and white students. The Brown case overturned another landmark case of Plessy v. Ferguson (1896), which upheld by a 7-1 majority decision as constitutional state laws requiring racial segregation in public facilities under the doctrine of “separate but equal.”

After Bush v. Gore cliffhanger decision, the Supreme Court was not only accused of overreaching itself but missed its chance to speak with one voice. That split decision, 5-4, meant that Bush v. Gore was a political, not a judicial, decision.

If the Arroyo justices would decide by the merits of the case and would speak as one and would join a majority, if not, a unanimous decision Supreme Court, nobody will accuse them as a kingmaker. (jglariosa@hotmail.com)

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