Majority Voting in Comelec En Banc Decisions: Why a 3-3 Tie Has No Legal Effect

The Commission on Elections (Comelec) is constitutionally required to decide cases by a majority vote of all its members. When the Comelec en banc splits evenly, no valid decision exists — regardless of what the resolution states. In Sevilla, Jr. v. Commission on Elections (G.R. No. 203833, March 19, 2013), the Supreme Court clarified this rule and its practical consequences for election disputes.

The Dispute Behind the Case

Mamerto Sevilla, Jr. and Renato So were candidates for Punong Barangay of Barangay Sucat, Muntinlupa City in the October 2010 Barangay and Sangguniang Kabataan Elections. Sevilla won by 628 votes. So filed an election protest before the Metropolitan Trial Court (MeTC), alleging electoral fraud and irregularities.

After a recount of pilot precincts, the MeTC dismissed the protest. Instead of filing an appeal within the five-day reglementary period, So filed a motion for reconsideration — a prohibited pleading under the rules — and failed to pay the appeal fee. He then filed a petition for certiorari with the Comelec, alleging grave abuse of discretion by the MeTC judge.

The Comelec Second Division granted So's petition. Sevilla moved for reconsideration before the Comelec en banc. The en banc voted 3-3: three commissioners voted to deny the motion, three voted to grant it. Despite the tie, the en banc issued a Resolution denying the motion and directing the MeTC judge to conduct another revision of the contested ballots.

The Issue: What Happens When the En Banc Splits Evenly?

Sevilla elevated the matter to the Supreme Court, arguing that the Comelec gravely abused its discretion in entertaining So's petition despite procedural lapses. So, for his part, argued that the petition before the Court was premature because the October 6, 2012 Resolution was not a valid majority decision — only six commissioners had participated because the seventh had not yet been appointed.

The Supreme Court agreed with So, but for a different reason.

The Ruling: A 3-3 Vote Is Not a Decision

The Court held that the Comelec en banc's October 6, 2012 Resolution had no legal effect because it was not supported by the required majority vote.

Section 7, Article IX-A of the Constitution provides that each constitutional commission "shall decide by a majority vote of all its members" any case or matter brought before it within sixty days from submission. Implementing this mandate, Section 5(a), Rule 3 of the Comelec Rules of Procedure states that the concurrence of a majority of the Members of the Commission is necessary for the pronouncement of a decision, resolution, order, or ruling.

The Court had previously ruled in Marcoleta v. Commission on Elections (G.R. Nos. 181377 and 181726, April 24, 2009) that this means a majority of all members of the Comelec en banc — not merely of those who participated in the deliberations. With seven members constituting the full Commission, four votes are required. A 3-3 vote falls one vote short.

In the present case, neither side obtained the required four votes. The three concurring votes could not affirm the Second Division's ruling, and the three dissenting votes could not overturn it. The Resolution was merely a record of the votes cast, lacking in legal effect.

The Remedy: Rehearing Under the Comelec Rules

When the en banc is equally divided, Section 6, Rule 18 of the Comelec Rules of Procedure mandates a rehearing — not merely a re-consultation or re-evaluation by the members. A rehearing presupposes the participation of the parties, who must be given the opportunity to present additional evidence and further clarify their arguments.

The Court cited Juliano v. Commission on Elections (521 Phil. 395, 2006), where the Comelec's failure to order a rehearing after an equally divided vote constituted grave abuse of discretion. A "re-consultation" is not the same as a "rehearing," the Court emphasized.

Because the Comelec en banc in this case did not order a rehearing before Sevilla filed his petition, the Supreme Court dismissed the petition as premature and remanded the case to the Comelec for the required rehearing.

Practical Takeaways

• A Comelec en banc resolution issued without the required majority vote of all members has no legal effect, even if it purports to rule on a case.
• A tie vote does not mean the status quo simply continues; the Comelec Rules of Procedure require a rehearing with party participation.
• Parties in election cases should verify that a Comelec en banc ruling actually reflects the constitutionally required majority before relying on it or appealing from it.
• Procedural rules in election cases are applied with liberality, but this liberality cannot cure a fundamental defect like the absence of a valid majority vote.
• When the Comelec en banc is equally divided, the proper course is rehearing — not a resolution that merely records the votes.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.