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MANILA — Vice President Leni Robredo will face more difficulties in the poll protest filed against her by former senator Ferdinand "Bongbong" Marcos with the looming changes in the Supreme Court due to 3 vacancies, including one vacated by retired Associate Justice Antonio Carpio, the latter said Tuesday.

Carpio and Associate Justice Alfredo Benjamin Caguioa had wanted to dismiss the election protest after the results of the initial recount in the 3 pilot provinces chosen by Marcos showed no substantial recovery of votes on his part. The 2 magistrates lost in a vote of 11-2 earlier this month.

Asked on ANC's Headstart if his retirement will make the poll protest more difficult for Robredo, Carpio said, "Yes, because that's one less vote."

However, Carpio said the Supreme Court would "also consider the implications of all of these" in reference to Marcos' motion to include more provinces in his protest.

"If you allow a protestant to go outside of the pilot provinces because that will prolong the election contest and that will change the rules," he said.

"If we allow other precincts to be considered, that will be a departure and we have to consider the ramifications."

Acting as the House of Representatives and Senate Electoral Tribunals, the Supreme Court has always decided on whether or not to dismiss poll protests based on the results of the recount in the 3 pilot provinces, noted Carpio.

But aside from contesting election results in 3 pilot areas, Marcos also wants to nullify the votes in 3 other Mindanao areas due to alleged voter intimidation and terrorism.

Ex-poll commissioner Gregorio Larrazabal earlier warned wholesale nullification of votes in entire provinces has never been done before, adding that doing so would have consequences.

If allowed, he said politicians would simply file for an election protest seeking to nullify votes instead of a vote recount.

"What will happen is a particular individual will simply file a protest. Wala nang revision of ballots, nullification na lang of votes. And that’s wrong because if you wanna do that, you have to file a petition for failure of elections."

The Supreme Court gave Marcos and Robredo until Nov. 10 to comment on the initial recount of votes and the nullification of votes in Mindanao.

There are currently 3 vacancies in the Supreme Court: the first vacated by Carpio, the second by retired Associate Justice Francis Jardeleza and the last by Diosdado Peralta who was appointed recently as Chief Justice.

Once President Rodrigo Duterte fully fills these vacancies, he will have 12 appointees in the current Supreme Court. Only 3 – Caguioa, Senior Associate Justice Estela Perlas-Bernabe and Associate Justice Marvic Leonen, are Aquino appointees.

Leonen is now the magistrate in charge of the Robredo-Marcos election protest, ABS-CBN News has confirmed from sources.

Leonen's new post "initially will have no effect because the first issue will be whether the court will allow 3 more provinces to be considered," said Carpio.

"If the court will allow 3 more provinces to be considered then that's material for the ponente because the ponente will be in charge of the revision and recount of the 3 more provinces," he said.

"But if the court will say we don't have to go through other provinces, we will decide on the 3 pilot provinces chosen by Marcos, then the transfer of the case to Justice Leonen will not be that material."

If the court decides to consider the 3 additional provinces, it will have to examine votes in each precinct, said Carpio.

"The court will have to look into each precinct, If 50 percent plus one of the votes are illegal, then all the votes in that precinct will be annulled... But if less than 50 percent plus one, then they will not annul, they will look at each vote and if the votes are illegal then they will just disregard and votes that are legal will be counted," he said.

• Special election needed if PET nullifies votes in 3 Mindanao provinces: ex-CJ Panganiban