PR Elections Federal Case Brief For Appellant

Case: 12-2145
Document: 00116435996
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Date Filed: 09/25/2012
Entry ID: 5677813
No. 12-2145 ___________________________________________________________ UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ___________________________________________________________
MYRNA COLON MARRERO Plaintiff Appellant v. HCTOR CONTY PREZ, President of the Puerto Rico State Elections Commission (SEC); EDWIN MUNDO RIOS, as Electoral Commissioner of the New Progressive Party (NPP); EDER E. ORTIZ ORTIZ, as Electoral Commissioner of the Popular Democratic Party (PDP); ROBERTO I. APONTE BERRIOS, as Electoral Commissioner of the Puerto Rican Independence Party (PIP); JULIO FONTANET MALDONADO, as Electoral Commissioner of the Movimiento Unin Soberanista (MUS); ADRIAN DIAZ DIAZ, as Electoral Commissioner of the Puertorriqueos por Puerto Rico (PPR); and CARLOS QUIROS MENDEZ as Electoral Commissioner of the PARTIDO DEL PUEBLO TRABAJADOR (PPT) Defendants-Apellees
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UNITED STATE DISTRICT COURT FOR PUERTO RICO --------------INTERLOCUTORY APPEAL FROM DENIAL OF PRELIMINARY INJUNCTION -------------------
Carlos A. Del Valle Cruz Rafael E. Garca Rodn Carlos Hernndez Lpez Banco Popular Bldg., Suite 701 206 Tetun Street San Juan, PR 00901 Tel. 787 722 7788 Counsel for Appellant
September 25, 2012
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TABLE OF CONTENTS I. II. III. IV. V. VI. JURISDICTIONAL STATEMENT ............................................................1 STATEMENT OF THE ISSUES ON APPEAL ..................................... 1-2 STATEMENT OF THE CASE ................................................................ 2-5 STATEMENT OF THE FACTS.............................................................. 5-8 SUMMARY OF THE ARGUMENT..................................................... 8-10 STANDARD OF REVIEW................................................................. 10-11
VII. ARGUMENT: .......................................................................................... 11-36 A. In Holding That Appellant Showed No Likelihood Of Success, The District Court Misread NVRA Since It Applies To The Federal Election For Resident Commissioner IN Puerto Rico ........................................................................................11 NVRAs Purpose: To Remedy Historical Exclusion, Promote Voter Registration And Forbid Facile Elimination Of Voters From Electoral Registration List ............................ 12-25 NVRA Applies To Puerto Rico ................................................. 25-32 NVRA Preempts the Commonwealth Electoral Code............. 32-34 The deprivation of Plaintiffs right to vote in the next election for federal office constitute irreparable harm per se .............. 34-35
1.
2. 3. B.
C-D. The Balance of Harms and Public Interest Favors the Plaintiffs Because There Is No Public Interest in Enforcing an Unconstitutional Statute........................................................ 35-36 VIII. CONCLUSIONS..................................................................................... 36-39 ADDENDUM 1.District court denial of PI, D. 11...................................................................... 1-4 2.Complaint ....................................................................................................... 5-54
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TABLE OF AUTHORITIES
Case ACORN v. Miller, 129 F.3d 833 (6th Cir.1997) ......................................................19 Anderson v. Celebrezze, 460 U.S. 780 (1983).........................................................12 Bantam Books, Inc. v. Sullivan, 372 U.S. 581963)..................................................35 Brown v. Board of Education, 349 U.S. 294 (1954) .....................................14,15,36 Burdick v. Takushi, 504 U.S. 428 (1992) ................................................................12 Califano v. Torres, 435 US. 1 (1978) ......................................................................32 Colegrove v. Green, 328 U.S. 549 (1946) ...............................................................33 Condon v. Reno, 913 F.Supp. 946 (D.S.C.1995).....................................................18 Consejo Playa de Ponce v. Rulln, 556 F.Supp. 2d 74 (D.P.R. 2008) ................3,32 Christian Legal Soc'y v. Walker, 453 F.3d 853 (7th Cir.2006) ...............................35 Downes v. Bidwell, 182 U.S. 1 (1900)...........................................................13,31,36 EEOC v. Astra USA, 94 F.3d 738 (1st Cir.1996) ...................................................10 Elrod v. Burns, 427 U.S. 347 (1976) .......................................................................35 Examining Board v. Flores de Otero, 426 U.S. 527 (1976)....................................31 Gonzalez v. Arizona, 624 F.3d 1165 (9th Cir. 2010)....................................12,32,33 GonzalezDroz v. GonzalezColon, 573 F.3d 75 (1st Cir.2009) ............................10 Harris v. Rosario, 446 U.S. 651 (1980) ..................................................................31 Igartua De La Rosa v. U.S., 32 F.3d 8 (1st Cir. 1994).....................................7,33,36
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Joelner v. Village of Washington Park, Ill., 378 F.3d 613(7th Cir.2004) .............35 Mariani Girn v. Acevedo Ruiz, 834 F.2d 238 (1st Cir. 1987) ...............................35 Mora v. Mejias, 206 F.2d 377 (1st Cir.1953) ..........................................................30 Narragansett Indian Tribe v. Guilbert, 934 F.2d 4 (1st Cir. 1991).........................11 Nat'l Coal. for Students with Disabilities Educ. & Legal Def. Fund v. Allen, 152 F.3d 283 (4th Cir.1998) ....................................................................................19 New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1 (1st ir.2002)......11 New York Times Co. v. United States, 403 U.S. 713 (1971) ...................................35 Philip Morris, Inc. v. Harshbarger, 159 F.3d 670 (1st Cir. 1998)..........................11 Plessy v. Ferguson, 169 U.S. 537 (1896) .....................................................13,15,36 Puerto Rico v. Shell Co., 302 U.S. 253 (1937)........................................................30 Romero Feliciano v. Torres Gaztambide, 836 F.2d 1 (1st Cir. 1987).....................35 Rossell-Gonzlez v. Caldern-Sierra, 398 F.3d 1 (1st Cir. 2004) ........................33 Ross-Simons of Warwick. v. Baccarat, 102 F.3d 12(1st Cir 1996) ........................11 Shaw v. Reno, 509 U.S. 630, 640 (1993).................................................................16 South Carolina v. Katzenbach, 383 U.S. 301 (1966) ..............................................16 U.S. v. Laboy-Torres, 553 F.3d 715 (3rd Cir. 2009) ..........................................10,29 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) .......................................33 United States v. Acosta Martinez, 252 F.3d 13 (1st Cir. 2001), cert. denied, 535 U.S. 906 (2002).........................................................................................9,29,36 United States v. Quiones, 758 F.2d 40 (1st Cir. 1985)..........................................29
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United States v. Lara, 181 F.3d 183 (1st Cir. 1999)...........................................19,21 United States v. Steele, 685 F.2d 793 (3d Cir.1982) ...............................................30 Wesberry v. Sanders, 376 U.S. 1 (1964) ................................................................12 Welker v. Clarke, 239 F.3d 596 (3d Cir.2001) ........................................................19 Young v. Fordice, 520 U.S. 273 (1997)...................................................................18 Statutes 2 U.S.C. 431 et seq., ............................................................................9,26,27,30 28 U.S.C. 1292 (a)(1) ......................................................................................1,3,5 28 U.S.C. 1331........................................................................................................1 28 U.S.C. 1343......................................................................................................31 48 U.S.C. Sec. 891 ET SEQ. ...........................................................................7,28,29 42 U.S.C. 1973gg et seq. .......................................1,3,7,9,10,17,20,23,24,26,30,31 Fed.R.App.P. 30(a)(2)................................................................................................7 LEGISLATION (PUERTO RICO) Act of 1950 (PRFRA), 48 U.S.C. 731 et seq........................................................28 Law 4 of December 20, 1977 ....................................................................................8 Law No. 78 of June 1, 2011, Article 6.012 ..............................................................5 Publications Arnold H. Leibowitz, Defining State: A Comprehensive Analysis of United States Territorial Relations (1989)Movement: Black Communities Organizing for Change (New York: The Free Press, 1984) ...................................37
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Arturo Morales Carrin, Puerto Rico: A Political and Cultural History (1983).......................................................................................................................37 Arsenault, Raymond, Freedom Riders: 1961 and the Struggle for Racial Justice (New York: Oxford, 2006) ..........................................................................15 Barnes, Catherine A., Journey from Jim Crow: The Desegregation of Southern Transit, (Columbia University Press, 1983) ............................................15 Branch, Taylor., At Canaans Edge: America In the King Years, 1965-1968 (New York: Simon & Schuster, 2006); Branch, Taylor, Parting the waters: America in the King years, 1954-1963 (New York: Simon & Schuster, 1988); Branch, Taylor, Pillar of fire: America in the King years, 1963-1965 (Simon & Schuster, 1998) .......................................................................................15 Breitman, George, The Assassination of Malcolm X (New York: Pathfinder Press. 1976)..............................................................................................................15 Burnett and Marshall, eds., Foreign in a Domestic Sense: Puerto Rico, America Expansion and the Constitution (Duke 2001)...........................................37 Carson, Clayborne, In Struggle: SNCC and the Black Awakening of the 1960s, (Cambridge, MA: Harvard University Press. 1980) ....................................15 Efrn Rivera Ramos, The Legal Construction of Identity: The Judicial and Social Legacy of American Colonialism in Puerto Rico 147 (2001) ......................37 Eric Foner and Joshua Brown, Forever Free: The Story of Emancipation and Reconstruction (Alfred A. Knopf: New York, 2005)..............................................15 Jos A. Cabranes, Citizenship and the American Empire, 127 U. Pa. L. Rev. 391, 406 (1978)........................................................................................................37 Jos Tras Monge, Puerto Rico: The Trials of the Oldest Colony on the World (Yale 1997) ..............................................................................................36,37 Juan R. Torruella, The Supreme Court and Puerto Rico: The Doctrine of Separate an Unequal (Puerto Rico 1985)................................................................36 Marable, Manning, Race, Reform and Rebellion: The Second Reconstruction
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in Black America, 1945-1982, (University Press of Mississippi, 1984) .................15 McAdam, Doug. Political Process and the Development of Black Insurgency, 1930-1970, (Chicago: University of Chicago Press. 1982).................15 Morris, Aldon D., The Origins of the Civil Rights ..................................................15 Williams, Juan, Eyes on the Prize: America's Civil Rights Years, 1954-1965 (New York: Penguin Books, 1987) .........................................................................15 Zinn, Howard, A Peoples History of the United States (1980) ..............................15
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I.
JURISDICTIONAL STATEMENT
The case below is a civil rights action filed on September 12, 2012 in the District Court for Puerto Rico by Plaintiff-Appellant Myrna Coln Marrero, a United States citizen residing in Puerto Rico, alleging inter alia that provisions of the Puerto Rico Electoral Code that call for her removal from the Puerto Rico electoral register of active voters for failing to vote in 2008, are contrary to the National Voter Registration Act of 1993 (NVRA), the Help America Vote Act of 2002 (HAVA), and the first amendment, due process and equal protection clauses of the United States Constitution. Addendum B. The district court has jurisdiction pursuant to 28 U.S.C. 1331 and 42 U.S.C. 1973gg-9(b). On September 13, 2012, the Appellant filed a Motion for Preliminary Injunction (Ds. 6-7) and a Motion Requesting Order Concerning Expedited Summons, Service of Motions and Preliminary Injunction hearing (D. 8). On September 18, 2012, ex parte, motu propio, the Court denied the motion for expedited summons and the motion for preliminary injunction on the merits. Addendum A. On that same date, September 18, 2012, Plaintiff filed this appeal to the First Circuit. (D. 12). This court enjoys interlocutory jurisdiction over the refusal to grant a preliminary injunction pursuant to 28 U.S.C. 1292(a)(1). II. STATEMENT OF THE ISSUES ON APPEAL
The issues on appeal are as follows:
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A.
Whether the district court erred as a matter of law when it found that Appellant was not likely to succeed on the merits because NVRA does not mention Puerto Rico within the definition of State?
B.
Whether the district court erred as a matter of law where it found no irreparable harm since Appellants injury was self-inflicted?
III.
STATEMENT OF THE CASE
On September 12, 2012. Appellant filed the complaint in this case. Addendum B. In brief, the complaint alleges that obeying the Commonwealth Electoral Code the Defendants the president and electoral commissioners of the State Elections Commission (SEC) - deactivated Appellant, from the Puerto Rico Registry of Voters because she did not vote in the general elections of 2008, although she voted in the general election of 2004. As a result, Appellant, as well as more than 500,000 similarly situated American citizens residing in Puerto Rico, is ineligible to vote in the upcoming November 6, 2012 elections for federal office in Puerto Rico, specifically for the federal position of Resident Commissioner to Congress. In her complaint, Plaintiff argues that the Defendants breach NVRA, HAVA and the Constitution by: (a) failing to comply with the registration provision of NVRA and HAVA; (b) by deactivating her from the electoral register for the 2012 federal election for Resident Commissioner. As relief, Appellant prays that the
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Court issue equitable and declaratory relief under the Civil Rights Act of 1871, 42 U.S.C. 1983 and the Declaratory Judgment Act, 28 U.S.C. 2201-02: (a) declaring Article 6.012 of the Puerto Rico Electoral Law unlawful as preempted by NVRA and HAVA; (b) ordering Defendants to immediately electronically activate the plaintiff and all other similarly situated persons to the General Registry of Voters entitled to vote in the upcoming election for federal office; (c) enjoining the SEC Defendants from holding any future electoral event concerning a federal office until they comply with the voter registration and list maintenance provisions of NVRA and HAVA; and (d) ordering the SEC defendants to immediately take all steps necessary to implement the voter registration and electoral list maintenance provisions of NVRA.1 Following the complaint, on September 13, 2012, the Plaintiff filed a Motion for Preliminary Injunction (D. 6-7) and a Motion Requesting Order Concerning Expedited Summons, Service of Motions and Preliminary Injunction hearing (D. 8). The Motion Requesting Order prayed that the Court: (a) order Plaintiff serve the Defendants within 48 hours of the issuance of the Summons with copy of the Complaint and the Motion for Preliminary Injunction, and Memorandum Of Law in Support; and (b) that a preliminary injunction hearing be held next week to
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In the alternative, Appellants complaint argues that should the Court find that NVRA does not apply to Puerto Rico that it be found to be a violation of the equal protection of the laws. Consejo Playa de Ponce v. Rulln, 556 F.Supp. 2d 74 (D.P.R. 2008).
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determine the merits of the petition for preliminary injunction. Appellant provided a Proposed Order to said effect. By Order of September 18, 2012, the Court denied the motion for preliminary injunction on the merits and the motion for expedited summons. Addendum A. its Order that court held that Appellant showed no likelihood of success on the merits because NVRA does not apply to Puerto Rico and HAVA does not grant Appellant a private cause of action; and that Appellant had not shown irreparable harm, because at all times prior to the civil action she could have simply re-registered; her injury, therefore, was self-inflicted. On that same date, Appellant filed the instant interlocutory appeal. D. 12. The next day, September 19, 2012 Appellant returned summons as to all Defendants, except as to one defendant who had already appeared. D. 13, 15. In addition, Appellant filed an Informative Motion with the Court, indicating that together with the service of summons, all the Defendants have been served with a notice letter, informing that the Court had denied the motion for preliminary injunction, that the Plaintiff had appealed the same to the First Circuit, and that they should promptly make a formal appearance if their wished to fully defend their rights before the First Circuit. D. 16.2 As of this date, the President of the SEC
The letter read: I enclose the summons and complaint in the case of reference. Please be advised that following the complaint, on September 13, 2012, the Plaintiff filed a Motion for Preliminary Injunction (D. 6-7) and a Motion
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has appeared, as well as the Electoral Commissioner for the Popular Democratic Party. Ds. 13,17. On September 21, 2012, Appellant filed an Amended Complaint that states that Law No. 4 of December 20, 1977 has been replaced by Law No. 78 of June 1, 2011, and Article 2.012 is now Article 6.012. The content of both articles is the same, both provide for the removal of voters for failing to vote in the past election. Article 2.012 provided If an elector did not vote in a general election, his name shall be excluded from the electoral lists. Article 6.012 reads: If an elector did not vote in a general election, his registration or filing shall be deactivated in the General Registry of Voters. The State Election Commission has treated claims under Article 2.012 of Law No. 4 and Article 6.012 of Law 78 indistinctively since they both provide for the removal of voters from the active register of voters for failure to vote in one election; the bottom line for the SEC, as for the court below, is simply that NVRA does not apply to Puerto Rico. See D. 1-4 (SEC Resolution), Requesting Order Concerning Expedited Summons, Service of Motions and Preliminary Injunction hearing (D. 8). By Order of September 18, 2012, the Court denied the motion for preliminary injunction on the merits, and the motion for expedited summons. (D. 11). On that same date, Plaintiff appealed said Order to the First Circuit. (D. 12). // Although the federal rules grant you twenty (20) days to answer the complaint and make a formal appearance before the Court, please note that pursuant to 28 U.S.C. 1292(a)(1), Plaintiff has already filed a notice of appeal and will be seeking an expedited review of her case before the Court of Appeals for the First Circuit. You are hereby formally informed of the same, and further indicated that should you wish to protect your rights fully in the appellate process, it is advised that you make an appearance before the District Court with the promptness suggested by these circumstances.
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5 (Translation), 19-2 (Amended Complaint).3 IV. STATEMENT OF THE FACTS
The Appellant in this case did the utmost to have an expedited preliminary injunction hearing in which all defendants could participate. As noted above, on September 13, 2012, together with the Motion for Preliminary Injunction, the Appellant filed a Motion requesting the Court: (a) to order Plaintiff serve the Defendants within 48 hours of the issuance of the Summons with copy of the Complaint and the Motion for Preliminary Injunction, and Memorandum Of Law in Support; (b) that a preliminary injunction hearing be held next week to determine the merits of the petition for preliminary injunction. On September 18, 2012, the District court, nonetheless, ex parte and motu propio denied said motion and denied the merits of the preliminary injunction. For purposes of this interlocutory appeal, therefore, the relevant facts are those contained in the
Note that in denying the Appellant claims, the SEC President relied upon and attached a prior SEC decision denying a claim under Article 2.012 and thus treating said Article and Article 6.012 indistinctively. See Complaint, at D.1-4, 116, 5; Amended Complaint 2, 19-2. Both Article 2.012 and 6.012 provide for the same removal from the register of active voters for failing to vote in the prior election - and according to the SEC, NVRA does not invalidate either provision of state law, because NVRA simply does not apply to the Commonwealth. Thus although the original complaint cited to the prior electoral law, the challenged provision is the same in both laws: it provides for the elimination from the active register of voters for failing once to vote. The amended complaint corrects this error. Appellant reiterates that both provision have been treated indistinctively by the SEC, and the legal issue is the same under either: does NVRA apply to the Commonwealth?
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complaint, included as an Addendum to this brief, together with the district courts decision. Addenda A-B. See Appellants Fed.R.App.P. 30(a)(2) motion. The factual allegations of the Complaint are as follow: Plaintiff is a United States citizen who lives in Puerto Rico. Complaint, 11. All United States citizens who live or move to Puerto Rico are eligible to vote in the federal election for the Resident Commissioner. See Puerto Rican Federal Relations Act, 48 U.S.C. Sec. 891 (Resident Commissioner chosen by "[t]he qualified electors of Puerto Rico"); 42 U.S.C. Sec. 1973ff-6(3) (defining "[f]ederal office" to include Resident Commissioner); Igartua De La Rosa v. U.S., 32 F.3d 8 (1st Cir. 1994). Id., 12. Plaintiff voted in the 2004 general elections but did not vote in the 2008 elections. Id., 13-14. Following the 2008 general elections, the SEC Defendants deactivated plaintiff from General Registry of Voters of the Commonwealth of Puerto Rico, eliminating her eligibility to vote in the 2012 Commonwealth elections for the federal office of Resident Commissioner to Congress. Id., 15. At no time did the SEC Defendants notify plaintiff Coln that she had been removed from the General Registry of Voters. Id., 16. By information and belief, the SEC has deactivated more than 500,000 otherwise qualified voters from the General Registry of Voters for the federal elections of 2012 simply because they did not vote in the 2008 general elections. 17. On July 30, 2012, Plaintiff wrote to the SEC, claiming that her exclusion
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from the register of voters for the upcoming election of Puerto Ricos Resident Commissioner to Congress was contrary to the United Constitution, NVRA and HAVA. The Plaintiff, accordingly, requested her reactivation as a registered voter. Id., 21; See D. 1-3. By Resolution of August 9, 2012, the SEC President, defendant Conty Prez, issued a SEC Resolution finding no legal infirmity with Article 6.012 of the Electoral Code, Law 78. Said Resolution, in turn, relied on a prior unanimous decision of the SEC of April 27, 2011, finding no legal infirmity with Article 2.012 of the Electoral Code, Law 4. Id., 22; see D.1-4, 5, 19-2. By letters of August 13, 2012 and September 7, 2012, the plaintiff Coln notified the U.S. Attorney General of the violations of the federal laws and Constitution of the United States. The plaintiffs requested the Attorney General to bring an enforcement action pursuant to Article 401 of HAVA for such declaratory and injunctive relief as necessary to make the SEC comply with the list maintenance and voter registration provisions of NVRA and HAVA. Id., 23; see D. 1-5, 1-6. As of this date, the AG has not replied to said petition. V. SUMMARY OF THE ARGUMENT
The district court found that NVRA did not apply to Puerto Rico. The Acts prefatory finding and statement of purposes clearly state, however, that voting is a fundamental right and that the Act seeks to enhance its availability and proscribe its facile elimination. Although NVRA does not mention Puerto Rico in the
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definition of state, as it provides that the term "State" means a State of the United States and the District of Columbia. 42 U.S.C. 1973gg-1(4), this is not dispositive of the issue. The election for the federal office of Resident Commissioner in Puerto Rico is provided by other provisions of NVRA, and NVRA incorporates the Federal Election Campaign Act, 2 U.S.C. 431 et seq., that applies to Puerto Rico. Thus, NVRA provides that: (A) "Federal office" has the meaning stated in 2 U.S.C. 431(3), that is, the office of President or Vice President, or of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress; (B) the term "election" has the meaning stated in 2 U.S.C. 431(1), that is, a general, special, primary, or runoff election; (C) FECA defines candidate as an individual who seeks nomination for election, or election, to federal office, 2 U.S.C. 431(2) ; and (D) the term State in FECA means, a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States. 2 U.S.C. 431(12). In sum, by its own
definition of federal office, which includes the Resident Commissioner, and only the Commonwealth has such a federal office, as well as by its incorporation of FECA, the rules of statutory construction call for the application of NVRA to Puerto Rico. United States v. Acosta Martinez, 252 F.3d 13 (1st Cir. 2001), cert. denied, 535 U.S. 906 (2002)(default rule is that all federal laws apply to PR); U.S.
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v. Laboy-Torres, 553 F.3d 715, 722 (3rd Cir. 2009)(PR included even when statute is silent). The SEC Apelles, in turn, breach NVRA in two principal ways: (a) by failing to implement the voter registration provisions that allow for voter registration by mail, by simultaneous application for a motor vehicle license, and by other designated state or municipal offices such as public assistance, unemployment, schools, libraries and marriage license bureaus; and (b) by removing from the register of active voters those qualified voters that did not vote in the last election. See 42 U.S.C. 1973gg-6(b)(1)(2)(B)(Any State program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office (2) shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the persons failure to vote, [unless the person] (B) has not voted or appeared to vote in 2 or more consecutive general elections for Federal office.). VI. STANDARD OF REVIEW
Appellate review of the trial court's grant or denial of a preliminary injunction is only for abuse of discretion or mistake of law. See EEOC v. Astra USA, Inc., 94 F.3d 738, 743 (1st Cir.1996); GonzalezDroz v. GonzalezColon, 573 F.3d 75 (1st Cir.2009). In considering a request for a preliminary injunction, a
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trial court must weigh several factors: (1) the likelihood of success on the merits, (2) the potential for irreparable harm to the movant, (3) the balance of the movant's hardship if relief is denied versus the nonmovant's hardship if relief is granted, and (4) the effect of the decision on the public interest. See Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15-16 (1st Cir. 1996); Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir. 1991) Of the four criteria listed above, a showing of the likelihood of success on the merits has been held to be the touchstone of the preliminary injunction inquiry. Philip Morris, Inc. v. Harshbarger, 159 F.3d 670, 674 (1st Cir. 1998). [I]f the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity. New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir.2002). VII. ARGUMENT: A. IN HOLDING THAT APPELLANT SHOWED NO LIKELIHOOD OF SUCCESS, THE DISTRICT COURT MISREAD NVRA SINCE IT APPLIES TO THE FEDERAL ELECTION FOR RESIDENT COMMISSIONER IN PUERTO RICO The district court grounded its decision on its reading of NVRA and HAVA. According to the Court, NVRA does not apply to Puerto Rico because Puerto Rico is not included within the definition of State in NVRA. In addition, the court held that HAVA does not grant Appellant a private cause of action under 1983.
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1. NVRAs Purpose: To Remedy Historical Exclusion, Promote Voter Registration And Forbid Facile Elimination Of Voters From Electoral Registration List The Supreme Court has recognized that the right to vote is of the most fundamental significance under our constitutional structure, because other rights, even the most basic, are illusory if the right to vote is undermined. Burdick v. Takushi, 504 U.S. 428, 434 (1992); Wesberry v. Sanders, 376 U.S. 1, 17 (1964); Gonzalez v. Arizona, 624 F.3d 1165, 1170 (9th Cir. 2010). Thus, the right to vote, while not mentioned directly in the Bill of Rights, has been found to be central to the protection of the other rights guaranteed in our society and inherently linked to other preferred fundamental rights, such as the first amendment rights of association, expression and petitioning the government. Burdick, id., Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). Although the Constitution is the most memorable tablet in the history of democracy, its text contained several exclusions with respect to participation in the electoral process, the most notable being the exclusion of non-propertied white men, women, and slaves from democratic processes. The history of civil rights in America has been the chronicle of the efforts to redress these wounds, and realize a vision of democracy that makes whole the initial fracture. With respect to AfroAmericans the story is well-known. The price of massive exclusion in democratic life was a Civil War that took close to a million lives. As a result, the Civil War
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Amendments were enacted and the Constitution was essentially forged again from a confederate to a federalist structure. The Civil War Amendments embedded the essential democratic principles of liberty, equality and political participation not only for emancipated salve, but also to all persons under the Constitutions umbrella. The Thirteenth Amendment abolished slavery, the Fourteenth Amendment granted due process and equal rights under law, and the Fifteenth Amendment extended the right to vote to all persons of color or race. Despite the best intention of the Civil War Amendments, the differential treatment of people of different color, race and origin persisted under a racist and segregationist prism sanctioned by the Supreme Court itself. The biases of this period are well reflected in the paradigmatic cases of the age, Plessy v. Ferguson, 169 U.S. 537 (1896) and Downes v. Bidwell, 182 U.S. 1 (1900). In Plessy, the Court upheld a Louisiana law that established separate but equal accommodations in railroad for whites and blacks; in essence, authorizing a variation of apartheid in the United States. While the doctrine arose in the context of railroad accommodations, its logic was applicable to all other spheres of social life, including exclusive Jim Crow voting laws. Plessy reflects a segregationist worldview because it is founded on the proposition that the inequality of the races is a natural condition that cannot be remedied through social legislation. While paying lip service to equality, it
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detaches it from social integration, leaving in place the power structure, socioeconomic disparities and moral inferiority linked to segregation. In essence, it attempted to undo the work of Lincoln and the Civil War, and allowed the restoration of the racist society that both the Civil War and the Reconstruction Amendments sought to eliminate. After the disputed election of 1876 and the end of Reconstruction, White Americans in the South resumed political control of the region under a one-party system of Democratic control and established an apartheid regime through what were known as the Jim Crow laws. The voting rights of blacks were increasingly suppressed, racial segregation imposed, and violence against African Americans grew, most visibly through the Ku Klux Klan. While predominant in the South, this conduct and mentality affected the entire nation to a lesser or greater degree. African-Americans and other racial minorities rejected this regime through what eventually became known as the civil rights movements, from 1896-1954. The National Association for the Advancement of Colored People (NAACP) was founded in 1909 and it was a prime mover in the efforts to end race discrimination through peaceful means, such as litigation, education, and lobbying efforts. Following World War II, the Civil Rights movement, together with other sociocultural factors, led to the most significant reconstruction, short of a revolution, a nation has seen. In Brown v. Board of Education, 349 U.S. 294 (1954), the Court
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began the dismantling of the apartheid logic of Plessy by expressly overruling the case and overturning the doctrine of separate but equal, holding that segregation in public schools constituted a violation of the equal protection of the laws. The implementation of said decision became the centerpiece of the domestic, progressive political agenda in United States for the next two generations.4 The two statutes at play here - NVRA and HAVA - are part and parcel of the historic and evolving effort following the enactment of the Fifteen Amendment and the Brown decision to eliminate discriminatory and unfair registration laws and to make participation in federal elections wider, easier and fairer. The first century following the enactment of the Fifteen Amendment had
See generally: Arsenault, Raymond, Freedom Riders: 1961 and the Struggle for Racial Justice (New York: Oxford, 2006); Barnes, Catherine A., Journey from Jim Crow: The Desegregation of Southern Transit, (Columbia University Press, 1983); Branch, Taylor., At Canaans Edge: America In the King Years, 1965-1968 (New York: Simon & Schuster, 2006); Branch, Taylor, Parting the waters: America in the King years, 1954-1963 (New York: Simon & Schuster, 1988); Branch, Taylor, Pillar of fire: America in the King years, 1963-1965 (Simon & Schuster, 1998); Breitman, George, The Assassination of Malcolm X (New York: Pathfinder Press. 1976); Eric Foner and Joshua Brown, Forever Free: The Story of Emancipation and Reconstruction (Alfred A. Knopf: New York, 2005); Carson, Clayborne, In Struggle: SNCC and the Black Awakening of the 1960s, (Cambridge, MA: Harvard University Press. 1980); Marable, Manning, Race, Reform and Rebellion: The Second Reconstruction in Black America, 1945-1982, (University Press of Mississippi, 1984); McAdam, Doug. Political Process and the Development of Black Insurgency, 1930-1970, (Chicago: University of Chicago Press. 1982); Morris, Aldon D., The Origins of the Civil Rights Movement: Black Communities Organizing for Change (New York: The Free Press, 1984); Williams, Juan, Eyes on the Prize: America's Civil Rights Years, 1954-1965 (New York: Penguin Books, 1987); Zinn, Howard, A Peoples History of the United States (1980).
4
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been regarded as a failure since early enforcement laws were inconsistently applied and repealed with the rise of Jim Crow. Another series of enforcement statutes in the 1950s and 1960s depended on individual lawsuits filed by the Department of Justice. Said efforts were also ineffectual. See South Carolina v. Katzenbach, 383 U.S. 301, 313 (1966) (discussing social inequalities and shortcomings of the Civil Rights Act of 1957 and Civil Rights Act of 1964). Litigation is slow and expensive, and the States were creative in "contriving new rules" to continue violating the Fifteenth Amendment "in the face of adverse federal court decrees." Katzenbach, 383 U.S., at 335; Riley v. Kennedy, 553 U.S. ___, 128 S.Ct. 1970, 1976-1977 (2008); Northwest Austin. Mun. Utility Dis. No. One v. Holder (NAMUDNO), 557 U.S. 193(2009). To limit voter registration, some local officials defied court edicts or simply closed their registration offices to freeze the voting rolls. Katzenbach, 383 U.S. at 314. Congress's attempts to authoriz[e] registration by federal officers ... had little impact on local maladministration. Id. A hundred years after the Civil War, the constitutional objectives were still thwarted. Registration of African American voters had not been achieved, and in some states was still fifty percentage points lower than that of eligible white voters. Shaw v. Reno, 509 U.S. 630, 640 (1993).
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In the 1960s, President Johnson pushed for radically different enactments to address the problem of minority exclusion and disenfranchisement. In 1964, the Civil Rights Act of 1964 was passed to outlaw discrimination based on race, color, religion or national origin in employment and public accommodations as to all business enterprises engaged in interstate commerce. 42 U.S.C. 2000e et seq. In 1965, to address electoral disenfranchisement, Congress passed the Voting Rights Act of 1965 (VRA), 42 U.S.C. 1973 et seq. The VRA is a complex scheme of stringent remedies aimed at areas where voting discrimination has been most flagrant. Katzenbach, 383 U.S. at 308, 315. As enacted, the VRA suspended the use of literacy tests, 4(a)-(d), required covered jurisdictions to preclear changes in voting procedures and practices, 5, and provided for the appointment of federal examiners to assist in registering qualified citizens to vote, 6, 7, 9, 13. Section 2 of the VRA also allows actions to be brought to void voting qualifications or prerequisites resulting in the denial or abridgement of the right of any citizen of the United States to vote on account or race or color. See NAMUDNO, supra, (VRA history 1965 to present). While considered on the whole to be a successful tool in eliminating the more egregious discriminatory voting procedures, the VRA failed to address voter registration procedures that imposed a complicated maze of local laws and procedures, in some cases as restrictive as the outlawed practices, through which
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eligible citizens had to navigate in order to exercise their right to vote, H.R.Rep. No. 1039, at 3 (1993), 1993 U.S.C.C.A.N. 105, 107. For these reasons, between 1988 and 1993, Congress held a series of hearings focused on reforming the voter registration process to address the increasingly pressing issue of low voter turnout in federal elections. Condon v. Reno, 913 F.Supp. 946, 949 n. 2 (D.S.C.1995). In said hearings, Congress found that while over eighty percent of registered citizens voted in Presidential elections, only sixty percent of eligible voters were registered. H.R.Rep. No. 1039, at 3. Public opinion polls showed that the primary reason eligible citizens were not voting was the failure to register. Id. While acknowledging that this failure was attributable to many factors outside its control, Congress enacted the NVRA to address those situations that were within its control, namely those barriers to registration that were imposed by state governments. See Young v. Fordice, 520 U.S. 273, 275 (1997). Congress therefore enacted the NVRA to remove these obstacles and to provide simplified systems for registering to vote in federal elections. Id. In enacting NVRA, Congress held that: (1) the right of citizens of the United States to vote is a fundamental right; (2) it is the duty of the Federal, State, and local governments to promote the exercise of that right; and that (3) discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office and disproportionately harm voter
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participation by various groups, including racial minorities. 1973gg-(a). See Welker v. Clarke, 239 F.3d 596, 59899 (3d Cir.2001) (One of the NVRA's central purposes was to dramatically expand opportunities for voter registration ....); United States v. Lara, 181 F.3d 183, 191-192 (1st Cir. 1999)(The NVRA is addressed to heightening overall popular participation in federal elections....); Nat'l Coal. for Students with Disabilities Educ. & Legal Def. Fund v. Allen, 152 F.3d 283, 285 (4th Cir.1998) (Congress passed the NVRA ... to encourage increased voter registration for elections involving federal offices and to make it easier to register to vote.); ACORN v. Miller, 129 F.3d 833, 835 (6th Cir.1997) (In an attempt to reinforce the right of qualified citizens to vote by reducing the restrictive nature of voter registration requirements, Congress passed the [NVRA].). In the Statement of Objectives, NVRA provides that: The purposes of this Act are: (1) to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office; (2) to make it possible for Federal, State, and local governments to implement this Act in a manner that enhances the participation of eligible citizens as voters in elections for Federal office; (3) to protect the integrity of the electoral process; and (4) to ensure that accurate and current voter registration rolls are maintained. 1973gg-(b).
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Section 1973gg, setting forth the act's Findings and Purposes, provides an overview of the NVRA. The findings subsection, 1973gg(a), articulates Congress's intent to promote voter registration and to address discriminatory and unfair registration laws. The purposes subsection, 1973gg(b), provides a preview of the operative sections of the NVRA, listing Congress's goals of increasing voter registration and enhancing the participation of eligible voters (relating to Sections 2 through 5, 1973gg2 1973gg5) and the goals of ensuring the accuracy of registration rolls and protecting the integrity of the electoral process (relating to Section 6, 1973gg6). The NVRA seeks to advance these goals by a comprehensive scheme that centers on three significant changes to federal election registration procedures nationwide: (1) it creates a standard Federal Form for registering federal voters; (2) it requires states to establish procedures to register voters for federal elections according to three prescribed methods; and (3) it regulates maintenance of voting lists. See 42 U.S.C. 1973gg et seq. Section 2, 1973gg2, sets forth the scope and applicability of the act. Each state (except for those that do not require voter registration as a prerequisite to voting) shall establish procedures to register voters for federal elections according to the NVRA's three methods notwithstanding any other Federal or State law, in addition to any other method of voter registration provided for under
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State law. 1973gg2(a). The first method of voter registration provides for the simultaneous application that of drivers license. 1973gg3. This provision earned the statute its informal title, the Motor Voter Law. United States v. Lara, 181 F.3d 183, 191 (1st Cir.1999). Under the statute, the voter registration form must be part of the driver's license application, and generally may not require any information that duplicates information required in the driver's license portion of the form. 1973gg3(c)(2)(A). Section 3 also limits the content of the form to the minimum necessary to prevent duplicate voter registrations and to enable the state to assess the eligibility of the applicant. The second method of voter registration requires states to register federal voters by mail using the Federal Form. 1973gg4. Section 4(a)(1) states that [e]ach State shall accept and use the [Federal Form] for the registration of voters in elections for Federal office. Section 4(a)(2) provides that, [i]n addition to accepting and using [the Federal Form], a State may develop and use a mail voter registration form that meets all the criteria of the Federal Form. Section 4(b) discusses the availability of the Federal Form and the state equivalent: States must make the mail registration form available for distribution through governmental and private entities, with particular emphasis on making them available for organized voter registration programs. 1973gg4(b). With certain exceptions not pertinent here, the statute permits states to require citizens who register by
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mail to vote in person if they have not previously voted in the jurisdiction. 1973gg4(c). The third method of federal voter registration is mandated by Section 5, 1973gg5, which requires states to designate certain state offices for voter registration. Targeting the poor and persons with disabilities who do not have driver's licenses and will not come into contact with motor vehicle agencies, H.R.Rep. No. 10366, at 19 (1993), as reprinted in 1993 U.S.C.C.A.N. 140, 144. This section requires states to provide for federal registration at all offices in the State that provide public assistance, 1973gg5(a)(2)(A), and all offices in the State that provide State-funded programs primarily engaged in providing services to persons with disabilities, 1973gg5(a)(2)(B). The state may also designate additional government offices such as public libraries, public schools, offices of city and county clerks (including marriage license bureaus), fishing and hunting license bureaus, government revenue offices, unemployment compensation offices, and [other offices] that provides services to persons with disabilities as voter registration agencies. 1973gg5(a)(3). Section 5 requires each designated agency to provide applicants with the Federal Form, help them complete it, and mandates [a]cceptance of completed voter registration application forms for transmittal to the appropriate State election official. 1973gg5(a)(4)(A). As in Section 4, the designated state agency may
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also distribute a state form, but only if it is equivalent to the Federal Form. 1973gg5(a)(6)(A)(ii). Section 6, 1973gg6, establishes procedures to enhance
the accuracy and integrity of the official voting lists both by removing ineligible voters and preventing the mistaken removal of eligible voters. As pertains to this case, NVRA specifically provides that Any State program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office (1) shall be uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965 (42 U.S.C. 1973 et seq.); and (2) shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the persons failure to vote, [unless the person] (B) has not voted or appeared to vote in 2 or more consecutive general elections for Federal office. 42 U.S.C. 1973gg-6(b)(1)(2)(B). This section also provides that
Defendants breach of the Act (c) by failing to notify the registrant prior to removal from the official list of eligible voters in elections for Federal office to inquire whether that individual 1) changed residence and 2) if it indeed changed residence or failed to respond to the inquiry by the State, then determine whether the individual has not voted or appeared to vote in 2 or more consecutive general elections for Federal office. Both required steps that need be taken by the State according to NVRA prior to the removal of any individual from the official list of
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eligible voters. See 42 U.S.C. 1973gg-6(b) to 42 U.S.C. 1973gg-6(d). Section 7, 1973gg7, describes how the federal and state governments will determine the contents of the Federal Form, and otherwise coordinate administration of the NVRA's procedures. This section delegates the creation of the Federal Form to the federal Election Assistance Commission (EAC).
1973gg7(a). The section requires the EAC to work in consultation with the chief election officers of the States in crafting the Form's contents. Id. Section 7 also sets out parameters for what the Federal Form may, shall, and cannot include. Among other things, the Federal Form may require only such identifying information as is necessary to allow the state to determine the eligibility of the applicant and to administer the voter registration and election process. 1973gg 7(b)(1). The Federal Form must inform the applicant as to every eligibility requirement including citizenship and require the applicant to attest that the applicant meets each requirement. 1973gg7(b)(2). The form may not include any requirement for notarization or other formal authentication. 1973gg 7(b)(3). Section 8, 1973gg8, requires states to designate an officer to serve as chief election official. Section 9, 1973gg9, regulates civil enforcement of the NVRA's provisions and designates a private right of action under the statute.
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Section 10, 1973gg10, sets forth the criminal penalties for election fraud or other non-compliance with the statute. As this overview indicates, the thrust of the NVRA is to increase federal voter registration by streamlining and amplifying the registration mechanisms. In this vein, the NVRA requires states to make registration opportunities widely available, at the motor vehicle bureau, 1973gg3, by mail, 1973gg4, and at public assistance, disability service, and other designated state offices, 1973gg 5. Along with increasing the opportunities for registration, the NVRA eases the burdens of completing registration forms. At the motor vehicle authority, for instance, voter registration must be included as part of the driver's license application and the combined form cannot require duplicative information. 1973gg3(c)(2)(A). The NVRA also regulates the Federal Form to meet its goal of eliminating obstacles to voter registration. See 1973gg(b)(1)-(2). Thus, the NVRA forbids the Electoral Assistance Commission (EAC) from including any identifying information beyond that necessary to enable the appropriate State election official to assess the eligibility of the applicant and to administer voter registration and other parts of the election process. 1973gg7(b)(1). 2. NVRA Applies To Puerto Rico
There is little margin to question the defendants violations with the central provisions of the NVRA. In Puerto Rico, Commonwealth law forbids what
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NVRA mandates. While the SEC allows registration at specific Permanent Inscription Boards, it does not allow registration via mail, or at motor vehicle or drivers license registration, or at public assistance, unemployment, school libraries or marriage bureaus and other designated state offices. But worse, NVRA explicitly outlaws what the Electoral Law calls for: eliminating from the electoral register all voters that fail to vote in a single election. This is what happened to Appellant. In sum, there is no factual dispute that the SEC Defendants operate in total disregard of NVRAs requirements. The Acts prefatory finding and statement of purposes clearly provide that the voting is a fundamental right and that the Act seeks to enhance its availability and proscribed its facile elimination. Although NVRA does not mention Puerto Rico in the definition of state, as it provides that the term "State" means a State of the United States and the District of Columbia. 42 U.S.C. 1973gg-1(4), this is not dispositive of the issue. This is because NVRA is aimed primarily at State election of presidential electors and Congressional election to the House and Senate. NVRA, however, expressly applies to the election to the federal office of Resident Commissioner to Congress. Thus, NVRA provides that: (A) "Federal office" has the meaning stated in 2 U.S.C. 431(3), that is, the office of President or Vice President, or of Senator or Representative in, or
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Delegate or Resident Commissioner to, the Congress. In the entire federal system, only Puerto Rico has a Resident Commissioner. (B) the term "election" has the meaning stated in 2 U.S.C. 431(1), that is, a general, special, primary, or runoff election. The election of the Resident Commissioner is a general election. (C) the term candidate in FECA means an individual who seeks nomination for election, or election, to federal office, 2 U.S.C. 431(2) . The Resident Commissioner is a bona fide candidate to federal office under FECA, and thus, NVRA. (D) the term State in FECA means, a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States. 2 U.S.C. 431(12). FECA applies not only to the election of the Resident Commissioner but also to the party primaries periodically held in Puerto Rico to nominate a candidate to run for President and VicePresident. The American citizens residing in Puerto Rico should also have the protection of NVRA for these federal primaries; and they do not. In sum, by its own definition of federal office, which includes the Resident Commissioner, and only the Commonwealth has such a federal office, as well as by its incorporation of FECA, the rules of statutory construction call for the application of NVRA to Puerto Rico.
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There is also little margin to question the federal nature of the Resident Commissioner position. The position is a creature of federal law. It came into existence following the Treaty of Paris of 1898, by Article 39 of the Foraker Act of 1900, Organic Act of April 12, 1900. Said Article provided that the qualified voters of Puerto Rico shall elect every two years a Resident Commissioner to Congress. In 1917, Congress repealed the Foraker Act and enacted the Jones Act, granting inter alia United States citizenship to the citizens of Puerto Rico. The term of the Resident Commissioner to Congress, elected by qualified voters, was enlarged from 2 to 4 years. The Puerto Rico-Federal Relations Act of 1950 (PRFRA), 48 U.S.C. 731 et seq., regulates the actual relationship between the U.S. and Puerto Rico. The Commonwealth Constitution does not mention the position of Resident Commissioner. Section 891 of PRFRA provides that the qualified electors of Puerto Rico shall choose a Resident Commissioner to the United States at each general election, whose term of office shall be four years from the 3rd of January following such general election, and who shall be entitled to receive official recognition as such commissioner by all of the departments of the Government of the United States, upon presentation, through the Department of State, of a certificate of election of the Governor of Puerto Rico. 48 U.S.C. Sec. 891. The federal nature of this office is further underlined by Section 894 of PRFRA that
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provides that the salary and traveling expenses of the Resident Commissioner from Puerto Rico to the United States shall be paid by the Chief Administrative Officer of the House of Representatives in the same manner as the salaries of the members of the House of Representatives are paid. 48 U.S.C. Sec. 894. In sum, there can be little doubt that Resident Commissioner is a creation of Congress and that Congresss will as to its election overrides Commonwealth law. Plaintiff further notes the default rule that applies to the application of federal law in Puerto Rico. According to the First Circuit in United States v. Acosta Martinez, 252 F.3d 13 (1st Cir. 2001), cert. denied, 535 U.S. 906 (2002) the rules of statutory construction determine that all federal laws apply to Puerto Rico, unless explicitly excluded. "The Congressional intent behind the approval of the Puerto Rico Constitution was that the Constitution would operate to organize a local government and its adoption would in no way alter the applicability of United States laws and federal jurisdiction in Puerto Rico." Acosta, 252 F.3d at 19, citing United States v. Quiones, 758 F.2d 40, 43 (1st Cir. 1985). In Acosta, the Circuit held that Federal Death Penalty Act applied to Puerto Rico, although the island is not expressly mentioned in the law. According to Acosta, under the PRFRA the default rule is that all federal law applies to PR; and there, as here, the federal interest behind federal law is manifest. See U.S. v. Laboy-Torres, 553 F.3d 715, 722 (3rd Cir. 2009)(courts routinely conclude that
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Congress intended to include Puerto Rico even when a statute is silent on that front, citing cases); United States v. Steele, 685 F.2d 793, 805 n. 7 (3d Cir.1982)("It is thus not surprising that although Puerto Rico is not a state in the federal Union, it ... seem[s] to have become a State within a common and accepted meaning of the word. quoting Mora v. Mejias, 206 F.2d 377, 387 (1st Cir.1953); Puerto Rico v. Shell Co., 302 U.S. 253 (1937) (determining a statute's applicability to Puerto Rico is a question of congressional intent). In the past, the judiciary has routinely concluded that Congress intended to include Puerto Rico even when a statute is silent on that front." Acosta, 252 F.3d at 18. We finally note that HAVA incorporates NVRA, including NVRAs mandate with respect to voter registration and list maintenance. HAVA expressly includes Puerto Rico within the definition of State: In this Act, the term State includes the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, and the United States Virgin Islands. 42 U.S.C. 15541. HAVA, in turns, incorporates by reference the voter registration and list maintenance provisions of NVRA. See, e.g., 42 U.S.C. 15483(a)(4)(A): The State election system shall include provisions to ensure that voter registration records in the State are accurate and are updated regularly, including the following: (A) A system of file maintenance that makes a reasonable effort to remove registrants who are ineligible to vote from the official list of eligible
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voters. Under such system, consistent with the NVRA, registrants who have not responded to a notice and who have not voted in 2 consecutive general elections for Federal office shall be removed from the official list of eligible voters, except that no registrant may be removed solely by reason of a failure to vote. This is the language from NVRA, 42 U.S.C. 1973gg-6(b)(1)(2)(B). We see a doctrinal analogy in Examining Board v. Flores de Otero, 426 U.S. 527 (1976) the issue was whether Puerto Rico was a State under the jurisdictional statute, 28 U.S.C. 1343, necessary for implementation of the Civil Rights Act of 1871. Said statute granted the district courts original jurisdiction for civil rights actions. The Court found that although the jurisdictional statute did not mention Puerto Rico by name, Congress intended no such restriction given that Section 1983 was applied to the Commonwealth. The failure of both Section 1343 and 1983 to coincide in its terminology was found to be inconsequential because their relationship suggests that the two provisions were meant to be, and are, complementary. Said logic suggests also that NVRA and HAVA also be read in a complementary manner. In sum, the district courts reading of NVRA as inapplicable to Puerto Rico is contrary to the purpose and letter of the law, and contrary to the rules of statutory construction. Despite its profound flaws Downes is still good law, and it allows for the exclusion of Puerto Rico from social legislation. Harris v. Rosario,
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446 U.S. 651 (1980); Califano v. Torres, 435 US. 1 (1978); cf. Consejo Playa de Ponce v. Rulln, 556 F.Supp. 2d 74 (D.P.R. 2008). But NVRA concerns not social legislation but a fundamental right: the right to vote. NVRA does not evidence Congressional intent to exclude American citizens residing in Puerto Rico from its umbrage; and HAVA, insofar as it includes Puerto Rico in its reinforcement of NVRA, is a complementary legislation that supports Puerto Ricos inclusion in NVRA. Given the forgoing provisions of law, read in a complementary manner, Appellant submits that she has established a substantial likelihood of prevailing on the merits of this case 3. NVRA Preempts the Commonwealth Electoral Code
In the context of Congressional legislation of election for federal offices, Congressional mandate overrides any State interest that may exist in the regulation of said election. In the case of federal office, a State has an attenuated interest in regulating the same, given that Congressional will predominates. This is because with respect to federal office the Constitution grants Congress plenary authority to regulate the Times, Places, and Manner of holding Elections for Senators and Representatives. Const. art. I, 4, cl. 1. Thus, the power of Congress over the subject [of federal elections] is paramount. Gonzalez v. Arizona, 624 F.3d 1165, 1170 (9th Cir. 2010). It may be exercised as and when Congress sees fit to exercise it. When exercised, the action of Congress, so far as it extends and conflicts with
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the regulations of the State, necessarily supersedes them. Gonzalez, 624 F.3d at 1172, citing Ex parte Siebold, 100 U.S. 371, 384 (1979). Because federal elections are creatures of the Congress, and arise from the Constitution itself, they do not broach a reserved power of the States. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 804-805 (1995). States, therefore, have no inherent or preexisting authority over this domain and all federal elections are ultimately committed to the exclusive control of Congress. Colegrove v. Green, 328 U.S. 549 (1946). Any interest Puerto Rico may have in regulating an election to federal office such as that of the Resident Commissioner is subject to the same principle that applies in the case of a State: it is entirely subordinated to Congressional will. See Igartua de la Rosa v. U.S., 626 F.3d 592 (1st Cir. 2010)(no right to vote for Congressional members); Igartua de la Rosa v. U.S., 417 F.3d 145 (1st Cir.
2005)(en banc)(no right to vote for President and Vice-president); Igartua de la Rosa v. U.S., 229 F.3d 80 (1st Cir. 2000); Igartua de la Rosa v. U.S., 32 F.3d 8 (1st Cir 1994) (presidential elections). Simply put, even in we consider Puerto Rico to be a self-governing entity akin to a State within a federalist scheme, with a legitimate interest in regulating elections for Commonwealth positions, RossellGonzlez v. Caldern-Sierra, 398 F.3d 1 (1st Cir. 2004), said interest completely dissipates when it comes to the regulation of federal elections. Congress mandate over any federal election - be it for a Representative, Senator or Resident
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Commissioner - is simply supreme. For such reason, neither a State nor the Commonwealth may vitiate an action of Congress by adopting a system if regulations to undo congressional efforts and in all instances, the law of the State [and of the Commonwealth], insofar as they are inconsistent with the laws of Congress on the same subject, cease to have effects as laws. Gonzalez, 624 F.3d at 1175, citing Siebold, 100 U.S. at 397(italics added). B. The deprivation of Plaintiffs their right to vote in the next election for federal office constitute irreparable harm per se
The district court found that Appellant had not shown irreparable harm, because at all times prior to the civil action she could have simply re-registered; her injury, therefore, was self-inflicted. The simply reply to this is that NVRA does not require qualified voters to so do; it imposes on the State a federal mandate to register these citizens even if they take no active measure to so do. This action challenges the lawfulness of Defendants inaction, not Appellant. At this moment, Appellant cannot register and Appellant suffers an irreparable harm: the denial of a fundamental right to vote.5 In cases raising First Amendment concerns, the likelihood of success on the merits will often be the determinative factor because the loss of First Amendment
Following the courts denial of the injunctive relief, a new Plaintiff joined the case, after registration proceeding had been closed. See D. 19.
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freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury, Elrod v. Burns, 427 U.S. 347, 373 (plurality opinion), citing to New York Times Co. v. United States, 403 U.S. 713 (1971); Romero Feliciano v. Torres Gaztambide, 836 F.2d 1, 4 (1st Cir. 1987)(Torruella: the chilling effect of the lost of employment due to political discrimination is a penalty that cannot be addressed after the fact); Mariani Girn v. Acevedo Ruiz, 834 F.2d 238 (1st Cir. 1987)(same). Joelner v. Village of Washington Park, Ill., 378 F.3d 613, 620 (7th Cir.2004). Where the loss of First Amendment freedoms, for even minimal
periods of time, is unquestionably at issue, and the injury is both actual and prospective, and the movant sufficiently demonstrates a probability of success on the merits, the denial of preliminary injunctive relief is an abuse of discretion. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963). C-D. The Balance of Harms and Public Interest Favors the Plaintiffs Because There Is No Public Interest in Enforcing an Unconstitutional Statute Moreover, if the moving party establishes a likelihood of success on the merits, the balance of harms normally favors granting preliminary injunctive relief because the public interest is not harmed by preliminarily enjoining the enforcement of a statute that is likely unconstitutional. Joelner, 378 F.3d at 620. Stated differently, injunctions protecting First Amendment freedoms are always in the public interest. Christian Legal Soc'y v. Walker, 453 F.3d 853, 859 (7th
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Cir.2006). CONCLUSIONS The right to vote is intrinsically interwoven with the right to life and the right to liberty. The knot is such that a Civil War was fought over its meaning, and more American lives were lost in that conflicts that have been lost in every other war, combined. We do not think it necessary to rehearse again the political relationship between Puerto Rico and the United States, as the tale has been well told by others. See, e.g., See Juan B. Torruella, The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal (1985); Jos Trias Monge, Puerto Rico: The Trials of the Oldest Colony in the World (1999); Igartua de la Rosa v. U.S., 626 F.3d 592 (2010)(no right to vote for Congressional members); Igartua de la Rosa v. U.S., 417 F.3d 145 (1st Cor. 2005)(en banc)(no right to vote for President and Vice-president); Igartua de la Rosa v. U.S., 229 F.3d 80 (1st Cir. 2000); Igartua de la Rosa v. U.S., 32 F.3d 8 (1st Cir 1994) (presidential elections); United States v. Acosta Martinez, 252 F.3d 13 (1st Cir. 2001), cert. denied, 535 U.S. 906 (2002)(applying death penalty in Puerto Rico). American citizens residing in Puerto Rico have no voting representation in Congress. Unlike Browns revocation of Plessy, Downes continued to allow the differential treatment of American citizens residing in Puerto Rico.6 Puerto Ricans
See Juan R. Torruella, The Supreme Court and Puerto Rico: The Doctrine of
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elect no voting member to the House of Representative or to the Senate. Under these conditions, Puerto Ricans residing in their homeland, have just one voice to roar in Congress on their behalf. That voice is of the Resident Commissioner to Congress. The Resident Commissioner has no vote in Congress, and only half a voice in the chamber, the House, not the Senate. The Commissioner, thus, has little political power. But when the Congress decides to engage in war as in WWII, Korea, Vietnam, Irak and Afghanistan wars in which thousands of Puerto Ricans fight and die, that Commissioner is the only voice on behalf of the approximately 4 million otherwise disenfranchised citizens residing on the island. Similarly, the Commissioner does not vote in the enactment of federal laws. But when Congress enacted the laws adopting the death penalty, and the First Circuit ruled that it is to be applied in Puerto Rico, despite its repudiation in the Commonwealth Constitution, we have only one voice in Congress to express our view on said imposition, the Resident Commissioner. For these reasons, in Puerto Rico, the election of the Resident Commissioner is, literally, a matter of life and Separate an Unequal (Puerto Rico 1985); Jos Tras Monge, Puerto Rico: The Trials of the Oldest Colony on the World (Yale 1997); Burnett and Marshall, eds., Foreign in a Domestic Sense: Puerto Rico, America Expansion and the Constitution (Duke 2001); Arturo Morales Carrin, Puerto Rico: A Political and Cultural History (1983); Efrn Rivera Ramos, The Legal Construction of Identity: The Judicial and Social Legacy of American Colonialism in Puerto Rico 147 (2001); Jos A. Cabranes, Citizenship and the American Empire, 127 U. Pa. L. Rev. 391, 406 (1978); Arnold H. Leibowitz, Defining State: A Comprehensive Analysis of United States Territorial Relations (1989).
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death. Under these circumstances, election of the Resident Commissioner to Congress, and his presence as the representative of the people of Puerto Rico, although weak in political power, is the thread that legitimizes the representations made to the United Nations that Puerto Rico is no longer a colony of the United States. For these reasons, Puerto Ricos legitimacy as a democratic entity before Congress and under international law hinges on the election and participation of the Resident Commissioner. Representational fissures are not exclusive to Puerto Rican. As we have seen, Afro-American persons required a Civil War and several constitutional amendments to aspire to equality. Women needed the XIX Amendment to the Constitution in 1921. And the District of Columbia, required the XXIII
Amendment to partake of the selection of the President. But Defendants claim that neither NVRA nor HAVA apply to Puerto Rico is indefensible. NVRA and HAVA were adopted by Congress in pursuance of full electoral participation by all persons in all federal elections by eliminating state obstacles to voter registration and establishing safeguards against the facile elimination of voters from the state registration lists. The purpose of NVRA and HAVA is to transform voter
registration and electoral participation from a state franchise subject to restrictions and manipulation by state entities in control of political parties and to a federal right achieved through diverse and ample means of voter registration and stringent
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prohibitions on the elimination of citizens from electoral registers. The SEC defendants are driven by the power-oriented, party-centered paternalistic biases and restrictions that NVRA meant to eliminate. Because the right to vote is a fundamental right of all American citizen, because Congress has declared that the fundamental right to vote shall no longer be subject to these pernicious practices, and because the Resident Commissioner plays such a fundamental role in the representation of Puerto Rico before Congress, it is necessary to enhance to the highest and protect to the utmost the popular participation in the election of the same. This is what NVRA does. WHEREFORE, for the foregoing reasons, the Appellant prays that this Court of Appeals nullify Article 6.012 of the Electoral Law; order the SEC defendants to activate the Appellant and other similarly situated citizens, and that it order such relief as it may consider just and proper under the circumstances.
RESPECTFULLY SUBMITTED. In San Juan, Puerto Rico, this 25th day of September, 2012. S/ Carlos A. Del Valle Cruz Carlos A. Del Valle Cruz USDC-PR 130604 1st CA Bar # 27697 Del Valle Law PO Box 9022473 San Juan, PR 00902-2473 cdvlawpr@gmail.com S/ Rafael E. Garca Rodn Rafael E. Garca Rodn USDC-PR 129911 1stCA Bar # 28304 Banco Popular Bldg., Suite 701 206 Tetun Street San Juan, PR 00901 rafael_e_garcia@hotmail.com
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S/ Carlos M. Hernndez Lpez Carlos M. Hernndez Lpez USDC-PR 207403 1st CA Bar # 8401 PO Box 1731 San, Juan, PR 00681 hernandezcharlie@gmail.com
CM/ECF CERTIFICATE OF SERVICE I HEREBY CERTIFY: That on this same date I electronically filed the
foregoing with the Clerk of the Court using the CM/ECF system which will notify all parties who have appeared below. In addition, hand copy will be delivered to all parties who have yet to make an appearance.
CERTIFICATE OF COMPLIANCE WITH RULE 32(A) 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because the brief contains 9, 513 words, excluding the parts of the brief exempted by Fed. R. App. P. 32 (a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Word Perfect 5.1 for Dos, 14 font size Times New Roman.
S/: Carlos A. Del Valle Cruz Carlos A. Del Valle Cruz CA1 Bar No. 27697
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ADDENDUM
A. District Court Order of September 18, 2012 .................................................... 1-4
B. Complaint of September 12, 2012 .................................................................. 5-54
Case: 12-2145 Case 3:12-cv-01749-CCC Document 11 Date Filed: 09/25/2012 1 ofEntry ID: 5677813 Document: 00116435996 Page: 49 Filed 09/18/12 Page 4
ADDENDUM A
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO MYRNA COLON-MARRERO Plaintiff vs HECTOR CONTY-PEREZ, as President of the Puerto Rico State Elections; EDWIN MUNDO-RIOS, as Electoral Commissioner of the New Progressive Party; EDER E. ORTIZ-ORTIZ, as Electoral Commissioner of the Popular Democratic Party; ROBERTO I. APONTE-BERRIOS, as Electoral Commissioner of the Puerto Rican Independence Party; JULIO FONTANET-MALDONADO, as Electoral Commissioner of the Movimiento Unin Soberanista; ADRIAN DIAZ-DIAZ, as Electoral Commissioner of Puertorriqueos por Puerto Rico; CARLOS QUIROS-MENDEZ, as Electoral Commissioner of Partido del Pueblo Trabajador; NORMAN PARKHURST Defendants CIVIL 12-1749CCC
ORDER Before the Court is a Motion Pursuant to Fed. R. Civ. P. 65 for Preliminary Injunction filed on September 13, 2012 (docket entry 6) and Memorandum of Law in support thereof (docket entry 7). The nature of plaintiffs action is defined in paragraph 1 of the Complaint (docket entry 1) which reads: This is a civil action filed by plaintiff Myrna Coln-Marrero, a citizen of the United States of America residing in Puerto Rico, alleging that the Defendants - the President and the Electoral Commissioners of the Puerto Rico State Elections Commissions (SEC) - unlawfully removed her from the Commonwealth electoral register because she exercised [her] right not to vote in the 2008 election for Resident Commissioner. In so doing, the SEC defendants knowingly breached the National Voter Registration Act of 1993 (NVRA), the Help America Vote Act of 2002 (HAVA), and the first amendment, due process and equal protection clauses of the United States Constitution. Complaint, at 1.
01
CIVIL 12-1749CCC
Plaintiff requests injunctive relief and a declaration under the Declaratory Judgment Act, 28 U.S.C. 2201-02: (a) declaring Article 2.012 of the P.R. Electoral Law unlawful as contrary to the provisions of NVRA and HAVA; (b) enjoining the SEC Defendants from holding any future electoral event concerning a federal office until such time as their acts and conduct comport to the voter registration and list maintenance provisions of NVRA, HAVA and the Constitution; (c) ordering Defendants to immediately activate the plaintiff and all other similarly situated person as registered voters in the General Registry of Voters entitled to vote in the upcoming election for federal office; (d) ordering the SEC Defendants to immediately and individually contact any and all persons who were removed from the General Registry of Voters because they did not vote in the 2008 elections; (e) order the SEC defendants as state officials in charge of implementing the electoral laws to abide by all the voter registration and other applicable mandates of the NVRA, HAVA and the first, due process and equal protection amendments to the Constitution. Complaint, at 2. Although the plaintiff avers constitutional violations to the First Amendment, Due Process and Equal Protection Clauses, the main thrust of her Complaint seeking declaratory and injunctive relief, supported by the factual circumstances of plaintiff Coln-Marrero, is anchored on her 42 U.S.C. 1983 claim for violation of the two federal statutes invoked, to wit: the NVRA and HAVA. Plaintiffs NVRA claim primarily involves a statutory construction issue on the definition of State. Plaintiffs likelihood of success regarding the
NVRA statutory interpretation is not ascertainable from the arguments set forth in her complaint and memorandum in support of preliminary injunction. While Puerto Rico is not included within the definition of State in NVRA, the statute that provides her a private cause of action, she contends that the other statute invoked, HAVA, requires that the Commonwealth comply with NVRA in order to receive federal funding to better its electoral system. However, she acknowledges that HAVA does not seem on its face to grant Plaintiff a private cause of action and it is unclear whether there is an implied cause of action under 1983. Memorandum (docket entry 7), at p. 20. Plaintiff reverts, once again, to the rules of statutory construction to claim her right to enforce compliance with NVRAs requirements of National Voter Registration, 42 U.S.C. 1973gg through 1973-10, stating:
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CIVIL 12-1749CCC
While HAVA does not seem on its face to grant Plaintiff a private cause of action, and it is unclear whether there is an implied cause of action under Section 1983, there is no doubt that HAVA explicitly requires and assumes compliance with all the NVRA provisions for all participating States that solicit funds, and Puerto Rico has applied and received funds for purposes of HAVA. See Complaint, Exhibit E. Under rules of statutory construction, the express inclusion of Puerto Rico in the definition of State in HAVA and HAVAs objective of assuring compliance with NVRA, give favor to the construction that Puerto Ricos obligation under both statute[s] are complementary, such that NVRA compliance is mandate[d]. Id. Given the statutory construction issues set forth above, the Court cannot make a determination favorable to plaintiff on the likelihood of success prong. Furthermore, plaintiff has also failed to show Irreparable injury. According to her Complaint, the specific provision of law which she challenges, Article 2.102 of the Puerto Rico Electoral Law, has been in place since 1977. That section requires that any elector, such as plaintiff, who did not vote in a general election, must be excluded from the registry of voters. That law also established a deadline of September 17, 2012 for voter registration which allowed any voter who did not participate in the 2008 election to re-register in order to participate in the 2012 election. The basis of plaintiffs claim of violation to the federal statutes is the consequence of the local law that is being challenged. No justification has been advanced, however, as to why she awaited until four (4) days before expiration of the voter registration deadline in Puerto Rico to seek a preliminary injunction to order defendants to immediately activate her and all others similarly situated persons as registered voters in the general registry of voters entitled to vote in the upcoming election for Resident Commissioner and to order the State Election Commission defendants to immediately and individually contact all persons who were removed from the general registry of voters because they did not vote in the 2008 elections. The irreparable injury claimed was created by plaintiffs own conduct. In sum, it is self-inflicted. She had full opportunity to submit her claims to the Court and obtain a remedy without inflicting upon herself any injury as to her rights as a voter.
03
CIVIL 12-1749CCC
Accordingly, and for the reasons stated, the Motion for Preliminary Injunction (docket entry 6) is DENIED. This case will be managed as any other ordinary civil action. Plaintiff shall proceed to serve process upon defendants as provided in Fed. R. Civ. P. 4. Plaintiffs Motion Requesting Order Concerning Expedited Summons, Service of Motions and Preliminary Injunction Hearing (docket entry 8) is DENIED. SO ORDERED. At San Juan, Puerto Rico, on September 18, 2012.
S/CARMEN CONSUELO CEREZO United States District Judge
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ADDENDUM B
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO MYRNA COLON MARRERO Plaintiffs v. CIVIL NO. 12-1749
HCTOR CONTY PREZ, as President of the Puerto Rico State Elections Commission; EDWIN MUNDO RIOS, as Electoral Commissioner of the New Progressive Party (NPP); EDER E. ORTIZ ORTIZ, as Electoral Commissioner of the Popular Democratic Party (PDP); ROBERTO I. APONTE BERRIOS, as Electoral Commissioner of the Puerto Rican Independence Party (PIP); JULIO FONTANET MALDONADO, as Electoral Commissioner of the Movimiento Unin Soberanista (MUS); ADRIAN DIAZ DIAZ, as Electoral Commissioner of the Puertorriqueos por Puerto Rico (PPR); and Carlos QUIROS MENDEZ as Electoral Commissioner of the PARTIDO DEL PUEBLO TRABAJADOR (PPT) Defendants
FIRST AMENDMENT DUE PROCESS EQUAL PROTECTION NVRA, 42U.S.C.1973 et seq., HAVA, 42 USC 15541 et seq. CIVIL RIGHTS, 42 U.S.C. 1983
and respectfully state, allege and pray as follows: 1.
COME NOW the plaintiffs Myrna Coln Marrero, through the undersigned attorneys, This is a civil action filed by plaintiff Myrna Coln Marrero, a citizen of the I. JURISDICTIONAL STATEMENT
COMPLAINT
United States of America residing in Puerto Rico, alleging that the Defendants - the
President and the Electoral Commissioners of the Puerto Rico State Elections Commissions 1
05
(NVRA), the Help America Vote Act of 2002 (HAVA), and the first amendment, due process federal question jurisdiction pursuant to 28 U.S.C. 1331. 2.
doing, the SEC defendants knowingly breached the National Voter Registration Act of 1993
exercised their right not to vote in the 2008 election for Resident Commissioner. In so
(SEC) unlawfully removed her from the Commonwealth electoral register because she
and equal protection clauses of the United States Constitution. As this is a civil rights action As relief, Plaintiffs pray that the Court issue the following equitable and
arising under the Laws, Constitution and Treaties of the United States, this Court has declaratory relief under the Civil Rights Act of 1871, 42 U.S.C. 1983 and the Declaratory Defendants from holding any future electoral event concerning a federal office until such activate the plaintiff and all other similarly situated person as registered voters in the
Judgment Act, 28 U.S.C. 2201-02: (a) declaring Article 2.012 of the Puerto Rico Electoral time as their acts and conduct comport to the voter registration and list maintenance General Registry of Voters entitled to vote in the upcoming election for federal office; (d)
Law unlawful as contrary to the provisions of NVRA and HAVA; (b) enjoining the SEC provisions of NVRA, HAVA and the Constitution; (c) ordering Defendants to immediately ordering the SEC Defendants to immediately and individually contact any and all persons
2008 elections; (e) order the SEC defendants as state officials in charge of implementing the NVRA, HAVA and the first, due process and equal protection amendments to the Constitution.
the electoral laws to abide by all the voter registration and other applicable mandates of
who were removed from the General Registry of Voters because they did not vote in the
06
residing in Puerto Rico that seeks to vote in the upcoming elections for Puerto Ricos 0171778. 4. 5.
Resident Commissioner to the United States Congress. Her electoral registration number is
3.
Plaintiff Myrna Coln Marrero (Coln) is a citizen of the United States
II. THE PARTIES
State Elections Commissions (SEC). He is sued in his official capacity for equitable and declaratory relief. New Progressive Party (NPP). declaratory relief. 6. Defendant Edwin Mundo Ros is the current Electoral Commissioner of the Defendant Eder Ortiz Ortiz is the current Electoral Commissioner of the He is sued in his official capacity for equitable and
Defendant Hctor J. Conty Prez is the current President of the Puerto Rico
Popular Democratic Party (PDP). He is sued in his official capacity for equitable and of the Puerto Rican Independence Party (PIP). He is sued in his official capacity for equitable and declaratory relief. and declaratory relief. declaratory relief. 9. 8. declaratory relief. 7. Defendant Roberto I. Aponte Berros is the current Electoral Commissioner
of the Movimiento Unin Soberanista (MUS). He is sued in his official capacity for equitable Puertoriqueos por Puerto Rico (PPR). He is sued in his official capacity for equitable and Adrian Diaz Diaz is the current Electoral Commissioner of the
Defendant Julio Fontanet Maldonado is the current Electoral Commissioner
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Del Pueblo Trabajador (PPT). declaratory relief. 11. 12.
Carlos Quiros Mndez is the current Electoral Commissioner of the Partido
He is sued in his official capacity for equitable and STATEMENT OF FACTS
vote in the federal election for the Resident Commissioner. See See Puerto Rican Federal Relations Act, 48 U.S.C. Sec. 891 (Resident Commissioner chosen by "[t]he qualified electors Commissioner); Igartua De La Rosa v. U.S., 32 F.3d 8 (1st Cir. 1994). 13. of Puerto Rico"); 42 U.S.C. Sec. 1973ff-6(3) (defining "[f]ederal office" to include Resident the Commonwealth general elections of 2004 voted for one of the candidates seeking the government candidates. 2008. 14. 15. Plaintiff Coln exercised her right not to vote in the general elections of Plaintiff Coln is a United States citizen who lives in Puerto Rico and that in
Plaintiff is a United States citizen who lives in Puerto Rico.
III.
All United States citizens who live or move to Puerto Rico are eligible to
federal office of Resident Commissioner, as well as for other Commonwealth and municipal
plaintiff from General Registry of Voters of the Commonwealth of Puerto Rico, eliminating their eligibility to vote in the 2012 Commonwealth elections for the federal office of Resident Commissioner to Congress. 16. personally of their deactivation from the General Registry of Voters. At no time did the SEC Defendants notify plaintiff Coln individually and
Following the 2008 general elections, the SEC Defendants deactivated
08
500,000 otherwise qualified voters from the General Registry of Voters for the federal elections of 2012 simply because they did not vote in the 2008 general elections. 18. In removing Plaintiff, as well as other similarly situated persons, from the
By information and belief, the SEC has deactivated approximately
lists.
20, 1977, as amended, P.R. Laws Ann., Tit. 16, 3301-3383. Said Article provides: If an 19.
General Registry of Voters eligible to vote in the 2012 election for federal office in Puerto
elector did not vote in a general election, his name shall be excluded from the electoral
Rico, the Defendants purported to act pursuant to Article 2.012 of Law No. 4 of December
ensuring the maintenance of an accurate and current voter registration roll for elections for
contrary to NVRA, HAVA and the federal Constitution. In its relevant provisions, NVRA
Federal office (1) shall be uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965 (42 U.S.C. 1973 et seq.); and (2) shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the persons failure to vote, [unless the person] (B) has not voted or 1973gg-6(b)(1)(2)(B). 20.
provides: Any State program or activity to protect the integrity of the electoral process by
Article 2.012 of Law No. 4 is null and void as a matter of federal law as it is
appeared to vote in 2 or more consecutive general elections for Federal office. 42 U.S.C. law a qualified voter cannot be removed from the electoral register unless she has not voted in 2 consecutive general elections for Federal office, has been notified of the intention of removal for said reason, and has not responded to said notice. 42 U.S.C. 15483(4). 5 HAVA has a similar disposition that provides that under the relevant federal
09
Resolution on behalf of the SEC denying plaintiffs request for inclusion in the electoral register. See Exhibit B. The Resolution is issued by the President of the Board whenever there is an absence of unanimity in a Board decision. Here, the representatives of the Popular Democratic Party (PDP) and of the Movimiento de Unin Soberanista (MUS) would Progressive Party (NPP), the Puerto Rican Independence Party (PIP), the Puertorriqueos for Puerto Rico(PPP) and the Partido del Pueblo Trabajador PPT). 23.
Plaintiff, accordingly, requested their insertion in the electoral lists. Exhibit A. 22.
from the register of voters for the upcoming election of Puerto Ricos Resident Commissioner to Congress was contrary to the United Constitution, NVRA and HAVA. The By Resolution of August 9, 2012, the defendant Hector Conty Perez issued a
On July 31, 2012, Plaintiff wrote to the SEC, claiming that her exclusion
have granted plaintiffs request; while, it was opposed by the representatives of the New By letters of August 13, 2012 and September 7, 2012, the plaintiff Coln
pursuant to Article 401 of HAVA to bring an enforcement action against the Puerto Rico make the SEC comply with the list maintenance and voter registration provisions of NVRA and HAVA. See Exhibit C and D. 24.
State Election Commission for such declaratory and injunctive relief as is necessary to By interpreting NVRA and HAVA as inapplicable to Puerto Rico, the
the United States. The plaintiffs petitioned the Attorney General of the United States that
notified the U.S. Attorney General of the violations of the federal laws and Constitution of
Defendants are depriving half-a-million American citizens residing in Puerto Rico of their fundamental right to vote in the Commonwealth elections for federal office in the manner ordained by Congress for the rest of the American citizens. 6
10
States Congress in 2004, but was removed by Defendants from the electoral register of State program or activity to protect the integrity of the electoral process by ensuring the active voters because they did not vote or were perceived as not having voted in the 2008
25.
Plaintiff voted in the 2004 election for Resident Commissioner to the United
FIRST CAUSE OF ACTION: BREACH OF NVRA
election. This conduct is in violation of NVRA, which in its relevant parts, provides Any maintenance of an accurate and current voter registration roll for elections for Federal office (1) shall be uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965 (42 U.S.C. 1973 et seq.); and (2) shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office 1973gg-6(b)(1)(2)(B). a. 26.
by reason of the persons failure to vote, [unless the person] (B) has not voted or appeared to vote in 2 or more consecutive general elections for Federal office. 42 U.S.C. and HAVA that in their relevant part provide as follows: In addition, the PREC does not follow the registration provisions of NVRA
drivers license application (including any renewal application) submitted to the sign the voter registration application. 42 U.S.C. 1973gg-3 (a)(1). b.
appropriate State motor vehicle authority under State law shall serve as an application for voter registration with respect to elections for Federal office unless the applicant fails to and use the mail voter registration application form prescribed by the Federal Election 7 Mail registration provisions. NVRA provides that: Each State shall accept
Motor vehicle provisions. NVRA provides that: Each State motor vehicle
11
Commission pursuant to section 1973gg7(a)(2)of this title for the registration of voters in elections for Federal office. 42 U.S.C. 1973gg-4(a)(1). c.
designate agencies for the registration of voters in elections for Federal office and mandates the following: (i) all offices in the State that provide public assistance; (ii) all services to persons with disabilities; (iii) other voter registration offices such as State or local government offices such as public libraries, public schools, offices of city and county nongovernmental offices, with the agreement of such offices. 42 U.S.C. 1973gg-5(a). 27. clerks (including marriage license bureaus), fishing and hunting license bureaus, offices in the State that provide State-funded programs primarily engaged in providing
Voter registration offices provisions: NVRA provides that: Each State shall
government revenue offices, unemployment compensation offices, and Federal and apply to Puerto Rico because NVRA does not include Puerto Rico within the definition of of Columbia. 42 U.S.C. 1973gg-1(4). This, however, is a hollow and counterfactual
State, as it provides that the term "State" means a State of the United States and the District argument. While NVRA does not include Puerto Rico in the definition of State, ostensibly because Puerto Rico does not select state representative to Congress, it does include the NVRA provisions applies. NVRA specifically defines "[f]ederal office" to include Resident whole federal office landscape, and it is the Resident Commissioner of Puerto Rico. 28.
The PRSEC claims that said provisions of NVRA and adopted in HAVA do not
position of Resident Commissioner within the definition of federal office, and to which the
Commissioner, 42 U.S.C. Sec. 1973ff-6(3). There is only one Resident Commissioner in the the Act considers voting for federal office a fundamental right and that the Act is meant to 8 It is clear, furthermore, from the Acts prefatory finding and purposes that
12
protect and enhance the right of all American citizens participating in all federal election irrelevant, as the Act specifically includes the election for federal office of the Resident Commissioner. Although Puerto Rico is not a State, the registration and list maintenance Commissioner to Congress in a like manner as if Puerto Rico were a State. 29.
across the Nation. Thus, the exclusion of Puerto Rico from the definition of State is simply provisions of NVRA applicable to the federal election of a States representative to Congress, apply exclusively to the election for the federal office of the Resident If there were any doubt, note furthermore that NVRA defines election with
reference to the Federal Election Campaign Act of 1971 (FECA), 2 U.S.C. 431 et seq. FECA, in turn, defines: (1) the term candidate under FECA means an individual who seeks nomination for election, or election, to Federal office, section, 2 U.S.C. 431(2); (2) the term special, primary or runoff election, (B) a convention or caucus of a political party that has "election" under FECA has the meaning stated in 2 U.S.C. 431(1), that is: (A) a general, to a national nominating convention of a political party; and (D) a primary election held for
authority to nominate a candidate; (C) a primary election held for the selection of delegates the President; (3) the term "Federal office" under FECA has the meaning stated in 2 U.S.C. 431(3), that is, the office of President or Vice President, or of Senator or Representative in, District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the
the expression of preference for the nomination of individuals for election to the office of or Delegate or Resident Commissioner to, the Congress; and (4) the term State has the
meaning stated in section 301(12), 2 U.S.C. 431(12), that is, a State of the United States, the Ricos Resident Commissioner because it both includes the office directly or by its 9
United States. 2 U.S.C. 431(12). In sum, NVRA applies to the federal election of Puerto
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incorporation of FECA, which not only applies to federal elections in Puerto Rico, but also to federal primaries, conventions, and related federal nominating and electoral events. 30. Registry of Voters solely because she did not vote in the 2008 elections is a violation of the declare unlawful and remedy. 31. For these reasons, the Defendants removal of the plaintiff from the General
fundamental right to vote, and protected under NVRA, that this Court is compelled to SECOND CAUSE OF ACTION: BREACH OF HAVA
because of their actual or perceived failure to vote in the 2008 elections for federal office. federal law, the SEC defendants deprive the Plaintiff of the fundamental right to vote in an and voter notification provisions of HAVA. 32. 33.
By removing them from the electoral lists, without notice and for reasons contrary to election for Federal office. This is a violation of the voter registration, voter maintenance HAVA because they are inapplicable to election for federal office in Puerto Rico. The SEC claims that it does not have to abide by the relevant provisions of This claim, as with the NVRA claim, is completely without merit. HAVA HAVA, in turns,
The Plaintiff has not been notified of her removal from the electoral lists
expressly includes Puerto Rico within the definition of State: In this Act, the term State Samoa, and the United States Virgin Islands. 42 U.S.C. 15541. incorporates by reference the voter registration and list maintenance provisions of NVRA. ensure that voter registration records in the State are accurate and are updated regularly, 10
includes the District of Columbia, the Commonwealth of Puerto Rico, Guam, American See, e.g., 42 U.S.C. 15483(a)(4)(A): The State election system shall include provisions to
14
including the following: (A) A system of file maintenance that makes a reasonable effort
to remove registrants who are ineligible to vote from the official list of eligible voters. removed from the official list of eligible voters, except that no registrant may be removed solely by reason of a failure to vote. This is the language from NVRA, 42 U.S.C. 1973gg6(b)(1)(2)(B). 34.
Under such system, consistent with the NVRA, registrants who have not responded to a notice and who have not voted in 2 consecutive general elections for Federal office shall be
application, 42 U.S.C. 1973gg-3 (a)(1); (b) mail registration provisions, 42 U.S.C. 1973gg-4(a)(1); and (c) the voter registration offices provisions, 42 U.S.C. 1973gg-5(a). Puerto Rico. 35.
HAVA also incorporates NVRAs: (a) motor vehicle drivers license
Although the Commonwealth receives Congressional monies for the SEC to implement HAVA, the SEC has made no effort to implement these voter registration provisions in unconceivable claim that the U.S. Attorney General personally exempted Puerto Rico from coverage of Section 303 of HAVA and the dispositive provisions of NVRA. Thus, in Puerto Although HAVA expressly applies to Puerto Rico, the SEC makes the
Ricos 2003 HAVA Compliance State Plan, the SEC claims that by virtue of the U.S. Attorney letter of March 17, 2003, Puerto Rico is exempt from Section 303 of HAVA, which in turns NVRA. According to Puerto Ricos HAVA State Plan: Puerto Rico is exempt from the National Voter Registration Act (NVRA), and therefore, exempt from the provisions of 303 incorporates the substantive electoral maintenance list and voter registration provisions of that require a state to use list-cleaning procedures prescribed by NVRA in administering
the computerized list, including 303(a)(2) and 303(a)(4). The U.S. Department of Justice 11
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has confirmed this exemption in a letter to the Secretary of State of Alabama on March 17, 2003. (Bold added). See Exhibit E (PR 2003 HAVA State Plan, p. 6, Appendix). 36.
U.S. Attorney General. A review of the U.S. Attorney March 17, 2003 letter shows that said letter refers to States where registration can be done on the date of the election, nowhere of the SEC. See Exhibit F. 37.
The Defendants position is a brassy misrepresentation of the position of the
does it refers to the Commonwealth of Puerto Rico, and is simply not material to the claim Puerto Rico is nothing but a furtive attempt to deprive American residents in Puerto Rico of In sum, the Puerto Rico SECs position that neither HAVA nor NVRA apply to
their fundamental right to vote in the Commonwealth elections for federal office in the manner ordained by Congress for the rest of the American citizens. It is unconceivable that
the Commonwealth is relying on the authority of the U.S. Attorney General to accomplish said purpose, for the Attorney General is an federal officer at the service of the President, and the President, Barack H. Obama, was one of the leading attorneys in advocating for the State of Illinois. See ACORN v. Edgar, 56 F.3d 791 (7th Cir. 1995). 38. application of the voter registration and voter maintenance list provisions of NVRA to the
Registry of Voters solely because plaintiff did not vote in the 2008 elections is a violation of their fundamental right to vote, and protected under HAVA, that this Court is compelled to declare unlawful and remedy, pursuant to its powers under Section 1983. 39. THIRD CAUSE OF ACTION: BREACH OF THE CONSTITUTION
For these reasons, the Defendants removal of the plaintiff from the General
constitutional structure, and other rights, even the most basic, are illusory if the right to 12
The right to vote is of the most fundamental significance under our
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vote is undermined the Supreme Court has recognized the right to vote as a fundamental right central to the protection of the other rights guaranteed in our society. v. Takushi, 504 U.S. 428, 434 (1992); Wesberry v. Sanders, 376 U.S. 1, 17 (1964); Gonzalez v. Arizona, 624 F.3d 1165, 1170 (9th Cir. 2010). Thus, the right to vote, while not mentioned directly in the Bill of Rights, has been found to be inherently linked to other preferred petition the government. See Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). 40. fundamental rights, such as the first amendment rights of association, expression and to See Burdick
voting in a federal or state election also deprives Plaintiff of the fundamental right to vote under the first amendment; the due process right to be notified of the exclusion from the electoral lists; and the equal protection right to enjoy the full coverage of federal electoral laws concerning the fundamental right to vote of all American citizens, regardless of place (1986). 41.
Defendants elimination of the Plaintiff from the electoral lists for purposes of
and location. See Posadas de Puerto Rico Assoc. v. Tourism Co. (No. 84-1903), 478 U.S. 328
the American citizens residing in Puerto Rico, said exclusion by Congress would be
unconstitutional as it would deprive them of equal protection of the law with respect to a programs, which neither affects a suspect class nor infringes a fundamental right, here the a fundamental right, that although circumscribed to the federal election of a Resident Commissioner, is as fundamental as the voting right of a person voting for his or her representative to Congress. See Posadas de Puerto Rico Assoc. v. Tourism Co., 478 U.S. 328 13
In the alternative, should the Court determine that NVRA is inapplicable to
fundamental right. Unlike situation involving the lack of Congressional parity for social
statutory exclusion would affect only minority citizens of the United States with respect to
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a violation of the Constitution. 1. 2.
(1986; cf. Harris v. Rosario, 446 U.S. 651 (1980); Califano v. Torres, 435 US. 1 (1978). This is WHEREFORE, plaintiff respectfully prays that this Honorable Court: PRAYER FOR RELIEF
HAVA, and the first, fifth, fourteenth amendments to the United States Constitution the first amendment and due process clause of the United States Constitution. 1977, as amended, P.R. Laws Ann., Tit. 16, 3301-3383. 3. Declare unlawful and preempted Art. 2.012 of Law No. 4 of December 20,
Declare that the Defendants have violated Plaintiffs rights under NVRA,
to comply with the voter registration, electoral lists maintenance, and voter notification to the General Registry of Voters; 6. 5. provisions of NVRA and HAVA; 4. Order the reinstatement of plaintiff Coln, and all similary situated citizens,
Grant preliminary and permanent injunctive relief ordering the Defendants
insofar as it excludes from its coverage American citizens residents in Puerto Rico. 7. RESPECTFULLY SUBMITTED. Award attorney fees and costs pursuant to 42 U.S.C. 1988.
deem necessary to implement the provisions of NVRA, HAVA and the Constitution;
Order any and all declarative and equitable remedy that the Court may In the alternative, declare NVRA in violation of the equal protection clause
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S/ Carlos A. Del Valle Cruz Carlos A. Del Valle Cruz USDC-PR 130604 Del Valle Law PO Box 9022473 San Juan, PR 00902-2473 cdvlawpr@gmail.com
In San Juan, Puerto Rico, this 12th day of September, 2012.
S/ Rafael E. Garca Rodn Rafael E. Garca Rodn USDC-PR 129911 Banco Popular Bldg., Suite 701 206 Tetun Street San Juan, PR 00901 rafael_e_garcia@hotmail.com
S/ Carlos M. Hernndez Lpez Carlos M. Hernndez Lpez USDC-PR 207403 PO Box 1731 San, Juan, PR 00681 hernandezcharlie@gmail.com
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August 13, 2012 VIA EMAIL A D REGULAR MAIL askdoj@usdoj.gov Honorable Eric Holder Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Ave. Washington, D.C. 20530-0001 Re: VIOLATIO S OF AVORA, HAVA, and U.S. CO STITUTIO
Dear Mr. Holder: We attach for your review and action the petition of two citizens of the United States, domiciliary and residents of Puerto Rico that allege that the Puerto Rico Election Commission breached their constitutional and statutory rights under the United States Constitution, the National Vote Registration Act of 1993 (NAVORA) and the Help America Vote Act of 2002 (HAVA). Although these citizens voted in the 2004 election for Resident Commissioner to the United States Congress in 2004, they were removed from the electoral register of active voters because they did not vote or were perceived as not having voted in the 2008 election. As you know, this is a violation of NAVORA, 42 U.S.C. 1973gg-3, which provides that: Any State program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the persons failure to vote, [unless the person] has not voted or appeared to vote in 2 or more consecutive general elections for Federal office. It is also a violation of HAVA, which incorporates the NAVORA requirements by reference. Cordially,
Rafael Garca Rodn, Esq. rafael_e_garcia@hotmail.com Banco Popular Bldg, Suite 701 206 Tetuan Street San Juan, Puerto Rico 00901
Carlos Hernndez Lpez, Esq. hernandezcharlie2@gmail.com P.O. Box 1731 Mayagez, Puerto Rico 00681
Carlos A. Del Valle Cruz, Esq. cdelvallecruz@gmail.com P.O. Box 9022473 San Juan, Puerto Rico 00902-2473 Attachments: Letter to PR Election Commission Letter of Petitioners (2)
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DEL VALLE LAW

San Juan, Puerto Rico
September 7, 0212 VIA EMAIL AND CERTIFIED MAIL askdoj@usdoj.gov Honorable Eric Holder Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Ave. Washington, D.C. 20530-0001 Re: Puerto Rico State Election Commission NVRA & HAVA Violations
Dear Mr. Holder: This letter is in supplement to the August 13, 2012 letter sent to you by the undersigned attorneys on behalf of two Puerto Rican voters Myrna Coln Marrero and Gladys Rivera Cintrn - asking that you seek judicial enforcement of the Help America Vote Act of 2002 (HAVA) and National Voter Registration Act of 1993 (NVRA) against the Puerto Rico State Elections Commission (SEC) for its failure to obey the federal mandates. In a nutshell, although these citizens voted in the 2004 election for Resident Commissioner to the United States Congress, the SEC removed them from the electoral register of active voters for the upcoming 2012 election for federal office because they did not vote in the 2008 election. This is an express violation of their fundamental right under HAVA and NVRA to vote in the same. To compound matters, on August 30, 2012 the PRSEC published a proclamation in all major newspapers, informing the public as follows: Article 6.012 of the Election Code establishes that if a voter has not voted in the past General Election, their registration or record has been deactivated in the General Registry of Voters and, in accordance with Article 6.015, (s)he has fifty (50) days before an Election to reactivate it, so until September 17, 2012. See Exhibit A. Article 6.012 is the equivalent of Article 2.012 of the Commonwealth Electoral Law, Law No. 4 of December 20, 1977, as amended, P.R. Laws Ann., Tit. 16, 3301-3383. Said Article provides: If an elector did not vote in a general election, his name shall be excluded from the electoral lists.
cdvlawpr@gmail.com P.O. Box 9022473 San Juan, Puerto Rico 00924-2473 Tel. 787-233-0202 www.cdvlawpr.com
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The SEC claims that it does not have to abide by the relevant provisions of HAVA or NVRA because they are inapplicable to election for federal office in Puerto Rico. This claim is without merit. HAVA expressly includes Puerto Rico within the definition of State: In this Act, the term State includes the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, and the United States Virgin Islands. 42 U.S.C. 15541. HAVA, in turns, incorporates by reference the voter registration and list maintenance provisions of NVRA. See, e.g., 42 U.S.C. 15483(a)(4)(A): The State election system shall include provisions to ensure that voter registration records in the State are accurate and are updated regularly, including the following: (A) A system of file maintenance that makes a reasonable effort to remove registrants who are ineligible to vote from the official list of eligible voters. Under such system, consistent with the NVRA, registrants who have not responded to a notice and who have not voted in 2 consecutive general elections for Federal office shall be removed from the official list of eligible voters, except that no registrant may be removed solely by reason of a failure to vote. This is the language from NVRA, 42 U.S.C. 1973gg-6(b)(1)(2)(B). HAVA also incorporates NVRAs: (a) motor vehicle drivers license application, 42 U.S.C. 1973gg-3 (a)(1); (b) mail registration provisions, 42 U.S.C. 1973gg-4(a)(1); and (c) the voter registration offices provisions, 42 U.S.C. 1973gg-5(a). Although the Commonwealth receives Congressional monies for the SEC to implement HAVA, the SEC has made no effort to implement these voter registration provisions in Puerto Rico. Neither the Federal Election Commission nor the Attorney General monitor these massive incompliance with these federal electoral laws and the subsequent violation of these American citizens civil electoral rights. Although HAVA expressly applies to Puerto Rico, the SEC makes the unconceivable claim that the U.S. Attorney General personally exempted Puerto Rico from coverage of Section 303 of HAVA and the dispositive provisions of NVRA. Thus, in Puerto Ricos 2003 HAVA Compliance State Plan, the SEC claims that by the U.S. Attorney letter of March 17, 2003, Puerto Rico is exempt from Section 303 of HAVA, which in turns incorporates the substantive electoral maintenance list and voter registration provisions of NVRA. According to Puerto Ricos HAVA State Plan: Puerto Rico is exempt from the National Voter Registration Act (NVRA), and therefore, exempt from the provisions of 303 that require a state to use listcleaning procedures prescribed by NVRA in administering the computerized list, including 303(a)(2) and 303(a)(4). The U.S. Department of Justice has confirmed this exemption in a letter to the Secretary of State of Alabama on March 17, 2003. (Bold added). See Exhibit B (PR 2003 HAVA State Plan, p. 6). It is astonishing that the exemption claimed by the SEC is grounded in a willful and material and misrepresentation of the AGs position. A review of the U.S. Attorney March 17, 2003 letter shows that nowhere does it refers to the Commonwealth of Puerto Rico, and is simply not material to the claim of the PRSEC. See Exhibit C. -2-
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While NVRA does not include Puerto Rico in the definition of State, ostensibly because Puerto Rico does not select state representative to Congress, it does include the position of Resident Commissioner within the definition of federal office, and to which the NVRA provisions applies. NVRA specifically defines "[f]ederal office" to include Resident Commissioner, 42 U.S.C. Sec. 1973ff-6(3). There is only one Resident Commissioner in the whole federal office landscape, and it is the Resident Commissioner of Puerto Rico. It is clear, furthermore, from the Acts prefatory finding and purposes that the Act considers voting for federal office a fundamental right and that the Act is meant to protect and enhance the right of all American citizens participating in all federal election across the Nation. Thus, the exclusion of Puerto Rico from the definition of State is simply irrelevant, as the Act specifically includes the election for federal office of the Resident Commissioner. The registration and list maintenance provisions of NVRA, therefore, apply to the election of the Resident Commissioner just as if Puerto Rico were a State. If there were any doubt, note furthermore that NVRA defines election with reference to the Federal Election Campaign Act of 1971 (FECA), 2 U.S.C. 431 et seq. FECA, in turn, defines: (1) the term candidate under FECA means an individual who seeks nomination for election, or election, to Federal office, section, 2 U.S.C. 431(2); (2) the term "election" under FECA has the meaning stated in 2 U.S.C. 431(1), that is: (A) a general, special, primary or runoff election, (B) a convention or caucus of a political party that has authority to nominate a candidate; (C) a primary election held for the selection of delegates to a national nominating convention of a political party; and (D) a primary election held for the expression of preference for the nomination of individuals for election to the office of the President; (3) the term "Federal office" under FECA has the meaning stated in 2 U.S.C. 431(3), that is, the office of President or Vice President, or of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress; and (4) the term State has the meaning stated in section 301(12), 2 U.S.C. 431(12), that is, a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States. 2 U.S.C. 431(12). In sum, NVRA applies to the federal election of Puerto Ricos Resident Commissioner because it both includes the office directly or by its incorporation of FECA, which not only applies to federal elections in Puerto Rico, but also to federal primaries, conventions, and related federal nominating and electoral events. In sum, the Puerto Rico SECs position that neither HAVA nor NVRA apply to Puerto Rico is nothing but a furtive attempt to deprive million American residents in Puerto Rico of their fundamental right to vote in the Commonwealth elections for federal office in the manner ordained by Congress for the rest of the American citizens. It is unconceivable that the Commonwealth is relying on the authority of the U.S. Attorney General to accomplish said purpose, for the Attorney General is an federal officer at the service of the president, and our President, Barack H. Obama, was one of the leading attorneys in advocating for the application of the voter registration and voter maintenance list provisions of NVRA to the State of Illinois. See ACORN v. Edgar, 56 F.3d 791 (7th Cir. 1995). We are sure that the President does not wish to see that the American citizens of Puerto Rico treated any more differently than the American citizens of Illinois, or of the Nation for that matter, when it comes to the fundamental right to vote under HAVA and NVRA. -3-
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For these reasons, American citizens Coln and Marrero petition you, as Attorney General of the United States that pursuant to Article 401 of HAVA you bring a civil action against the Puerto Rico State Election Commission for such declaratory and injunctive relief as is necessary to make the SEC comply with the list maintenance and voter registration provisions of NVRA and HAVA. We ask for your prompt reply to this petition. Cordially,
S/Carlos A. Del Valle Cruz, Esq. Del Valle Law P.O. Box 9022473 San Juan, Puerto Rico 00902-2473 Cdvlawpr@gmail.com S/Rafael Garca Rodn, Esq. Banco Popular Bldg., Suite 701 206 Tetun Street San Juan, Puerto Rico 00901 rafael_e_garcia@hotmail.com S/Carlos Hernndez Lpez, Esq. P.O. Box 1731 Mayagez, Puerto Rico 00681 hernandezcharlie2@gmail.com Attachments A: Proclamation published by the SEC B: PR 2003 HAVA State Plan (see p. 6, Appendix A). C. Letter of U.S. Attorney General, March 17, 2003
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Puerto Ricos Plan for Implementation August 14, 2003

August 14, 2003 An open letter to all citizens: On July 8th, 2003 the Puerto Rico State Elections Commission presented a preliminary plan for the implementation of the Help America Vote Act of 2002 (HAVA), as required by law. The Commission disseminated copies of the Plan for public commentary and review through the press, public media and by posting it on the Government of Puerto Ricos website. The Commission received responses and commentaries from individuals and organizations both in writing and at the public hearing held on August 4th, 2 003. The Commission will be responding individually to each one. This process of the design of the implementation of this Plan has given Puerto Rico an exceptional opportunity to continue to improve its election process and to involve broad spectrum of the government and interested public into the discussion. This Plan has benefited from perspectives and suggestions of the members of the Puerto Rico HAVA Advisory Committee that represent the diverse constituencies that are a part of Puerto Ricos electorate. Puerto Rico is already in compliance with many of the requirements under HAVA thanks to the foresight and vision of former and current Commissions and the initiative of the Commission staff. Indeed, Puerto Ricos Electoral Law goes beyond these minimal requirements in the area of complaints, provisional ballots, the creation of a centralized voter registry and voter identification. For over twenty years, Puerto Rico has been at the forefront of the movement to make voting accessible to persons with disabilities. The Commission will continue working assiduously to improve and make elections accessible to each voter in Puerto Rico. The State Elections Commission is proud of the response and interest expressed by the Committee members and the citizens of Puerto Rico. Sincerely, Aurelio Gracia Morales President
Help America Vote Act of 2002 Table of Contents

Background on Elections in Puerto Rico Unique Characteristics of Elections in Puerto Rico Section 1 Achieving Compliance with HAVA in Puerto Rico Achieving Compliance with Voting System Requirements in 301 of Page 1 3 5
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HAVA o Achieving Compliance with New Polling Place Requirements in 302 o Achieving Compliance with New Registration Requirements in 303 of HAVA o Achieving Compliance with Military and Overseas Voters Requirements in Title VII of HAVA o Planned Activities to Achieve and Enhance Compliance with Title III o Projects to improve election administration (101 funds) o Planned Activities to Improve Accessibility (261 funds) Section 2 Distribution and Monitoring of Requirements Payments Section 3 Education and Training Section 4 Voting System Guidelines and Processes Section 5 Election Funds Section 6 Budget for Title III Requirements Section 7 Maintenance of Effort Section 8 Performance Goals and Measures Section 9 Grievance Procedure Section 10 Budget for Title I Funds Section 11 Management of the State Plan Section 12 Changes from the Previous Years Plan Section 13 HAVA Committee Appendix A Summary of HAVA Requirements and Puerto Ricos Compliance or Necessary Actions for Compliance Appendix B Current Requirements for Voting Systems in Puerto Rico Comisin Estatal de Elecciones
5 7 9 12 13 14 14 16 16 19 20 20 23 24 25 26 26 27 27
1-A 13-A
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Background on Elections in Puerto Rico

The Comisin Estatal de Elecciones de Puerto Rico (the Commonwealth Elections Commission or the Commission) is an independent, body constituted by a representative of each political party and responsible for all aspects of election administration in Puerto Rico. The current three commissioners are appointed by their respective political parties. If another political party were to meet the criteria to become a recognized party, a commissioner would be added to represent that party. The commissioners unanimously appoint a president for a four-year term. Subject to the unanimous consent of the other two parties commissioners, each of the parties appoints a vice president to serve a four-year term. Although all responsibility for elections resides with the Commission, a local commission carries out election administration duties at the local level. There are 110 local commissions serving 110 precincts with approximately 330 part-time local commissioners, 330 alternative part-time local commissioners and 110 judges serving part-time as presidents of local commissions. Local commissions review polling place procedures and handle local problems. While the local commissions have primary responsibility, a Junta de Inscripcin Permanente (JIP or registration board) provides secretariat functions to these commissions, namely: (1) administering voter registration; (2) issuing voter identification; (3) assign voters to polling places; (4) transaction reports; and (5) submit monthly all transactions to local commission for approval. The Commonwealth Commission employs a staff of approximately 1000 people; of those, approximately 325 staff the offices of JIPs. There is one General Election to elect all levels of public office and it is held every four years. In Puerto Rico Election Day is a holiday and it occurs on the first Tuesday after the first Monday in November of the same year the President of the United States is elected. The next general election will be held on November 2, 2004. Across Puerto Rico all polling places are open from 8 a.m. to 3 p.m. Voter turnout traditionally ranges between 85 percent and 90 percent. Primaries for the general election are held in November of the prior year.1 Parties may also nominate candidates within party assemblies before the primaries. Special elections may be held if a vacancy occurs; in the last two years there have been five special elections. The Commission also conducts special elections for referenda, plebiscites and primaries. All voters in Puerto Rico cast paper ballots. On Election Day, Puerto Rican voters vote three separate paper ballots. On the first ballot, identical across Puerto Rico,
1 By law beginning in 2005 Puerto Rico will hold its party primaries twelve days prior to Good Friday of the general election year.
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Comisin Estatal de Elecciones Page 2 Puerto Ricans elect their Governor and Resident Commissioner (Puerto Ricos representative to Congress). Using a separate ballot, voters elect the entire Puerto Rican legislature (51 members of the House of Representatives, including 11 at-large, and 27 members of the Senate, including 11 at-large). Finally, there is a third ballot for electing public officials in each of Puerto Ricos 78 municipalities. In a general election there are more than 120 different ballots. There are eight senate districts and forty legislative districts in Puerto Rico. Each of the representative districts may include from one to six precincts. Each of the senate districts may include six to eighteen precincts. There are 110 precincts in Puerto Rico, but these precincts are not equivalent to precincts as the term is traditionally used in the United States and within HAVA. Within these precincts there are currently 1694 election units. These election units are equivalent to precincts as the term is conventionally used, as each election unit is one physical polling place location. Since 1988 Puerto Rico has provided blind voters with a template that allows the blind to vote independently and in secret. In 1991, the template was modified to include Braille. Most polling places are totally accessible, and the Commission will this year survey all polling places and determine what more needs to be done to make all polling places totally accessible. The Commission intends to have all polling places (election units) totally accessible in advance of the next general election in 2004. Each election unit or polling place, typically a school or government building, will usually house between two and twelve colegios or colleges. The size of each college varies according to the type of election; in a general election approximately 375 voters will be assigned to each college. Voters are alphabetically assigned to colleges with one exception: within each election unit there is always one college for all provisional voters. The size of the provisional voting college cannot be determined in advance as it depends on the number of provisional voters. All colleges, except the provisional ballot college, will have a minimum of nine poll workers: three inspectors, three auxiliary inspectors and three secretaries. The chairman of the college is the inspector who represents the Governors party. Inspectors give the ballots and instructions to the voters. Special inspectors examine voters fingers when they arrive to ensure the voter has not already voted. Secretaries are in charge of the list. The provisional ballot college will only have two party workers for each party. After the polls close, each college will resolve any challenged votes and tally its votes. Only if there is unanimous consent in a challenge situation is the vote counted by the college.2 All colleges votes at the election unit are then tallied together. The election units preliminary results are posted and then transmitted to the local election office where the election unit results are entered into the computer system and faxed to the Commonwealth Commission office. The Commission is responsible for issuing a preliminary certification of all results on Election Night. All materials, including all
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2 Uncounted ballots at the college level, whether challenge ballots or provisional ballots, are then sent directly to the Commission for resolution.
Comisin Estatal de Elecciones Page 3 ballots, are then transmitted to the Commission the night of the election where they are securely held until the official general count of all the results. The official count typically takes a couple of weeks to complete, and is conducted under the Commissions auspices in San Juan. A team of party representatives and a representative of the Commission work to resolve challenges, determine the voters intent on ballots where local polling place officials were unable to reach a unanimous decision,and determine the eligibility of voters who cast provisional ballots. If this team fails to reach unanimous agreement on how to treat a ballot, the ballot next goes to the Commission for a decision. If there is no unanimous decision by the Commission, the President decides.
Unique Characteristics of Elections in Puerto Rico

The Commonwealth Commission is one of a handful of state election authorities that run centralized elections. While Puerto Rican law clearly delineates the responsibilities of the Commission, the local commissions and the local registration boards, the Commission, located in San Juan, has ultimate authority over the registration process the Commission administers the registration database, for example and over the counting of the ballots. As a consequence of this centralized system, some of the provisions in HAVA intended to shift responsibility and authority from the localities to the state election authority do not apply. In addition, Puerto Rico is exempt from the requirements of the National Voter Registration Act (NVRA). Specifically, Puerto Rico does not allow mail-in registration and no government agencies other than local registration boards may process voter registrations. Accordingly, certain provisions of HAVA intended to improve functions required under the NVRA do not apply in Puerto Rico. As noted above, Puerto Rico is exempt from the National Voter Registration Act and, therefore, exempt from those provisions of 303 that require a state to use listcleaning procedures prescribed by NVRA in administering the computerized list, including 303(a)(2) and 303(a)(4). The U.S. Department of Justice has confirmed this exemption in a letter to the Secretary of State of Alabama on March 17, 2003. That being said, the Commission coordinates its list with the Civil Registry records, which include death records. Felons convicted in Puerto Rico have the right to vote, and, therefore, there is no need to coordinate records on felony convictions. Under this same exemption, Puerto Rico does not permit voters to register by mail except for those voters covered under the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). Since Puerto Rico does not otherwise allow voters to register by mail, 303(b) of HAVA, which requires
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mail-in registrants voting for the first time to provide identification, does not apply to Puerto Rico. In addition to these provisions, the provision required in the State Plan under 254(a)(2) also does not apply. This provision requires the State to describe how it will distribute Comisin Estatal de Elecciones and monitor funds to units of local government. Although there are local election offices the local registration boards these are not separate local government entities as named in this provision but rather field offices. The Commonwealth Commission will be the sole agency authorized to expend federal funds received under HAVA. *** NOTE: This is shortened version of the original of this Document, D.1-4, 5, 19-2, that is part of the record on appeal. For the sake of economy, Appellant prayed to the Court of Appeals for permission to file this shortened version as part of the ADDENDUM, without prejudice to it being cited in whole by any party that may wish to so.
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U.S. Department of Justice Civil Rights Division
Office of the Assistant Attorney General
950 Pennsylvania Avenue, .W. - MJB Washington, DC 20530
March 17, 2003 The Honorable Nancy L. Worley Secretary of State P.O. Box 5616 Montgomery, Alabama 361035616 Dear Secretary Worley: The Help America Vote Act of 2002, Public Law 107-252, 42 U.S.C. 15301-15545("HAVA"), was signed into law by the President on October 29, 2002. This landmark legislation, a copy of which is enclosed, seeks to improve the administration of elections throughout the United States. Under 1 of Title IV, the Attorney General has enforcement authority for the uniform and nondiscriminatory election technology and administration requirements that apply to the States under Sections 301, 302, and 303 of Title III. Responsibility for this task has been delegated to the Civil Rights Division of the Department of Justice, and I have assigned primary responsibility within the Division to the Voting Section, which will coordinate with the Disability Rights Section on HAVA's disability provisions. The Division stands ready to assist you in your efforts to implement HAVA. Title III of HAVA applies to all 50 States, the District of Columbia, Puerto Rico, Guam, American Samoa, and the U.S. Virgin Islands. We are aware that States have been concerned whether federal funding would be available under Titles I and II to assist in complying with Title III. As you are probably aware, Congress passed an omnibus budget bill for fiscal year 2003 on February 13th that included $1.5 billion for election reform. In any event, regardless of whether States choose to accept federal funding when it becomes available, each State must comply with Title III in its entirety, absent a state-specific exemption in the law. We encourage States to begin their preparations now because several provisions must be implemented by January 1, 2004, when States will begin holding primary elections for federal office. What follows is a brief summary of Title III's provisions, their implementation time line, and their exemptions, as well as several other significant provisions. Section 301, which applies to all States, establishes standards for voting systems to be used in federal elections, including alternative language accessibility. It is effective on January 1, 2006. Under the Section 301 standards, each voting system must be accessible for persons with disabilities, including persons who are blind or have low vision. Specifically, each polling place must have at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities so that the individuals can vote independently and privately. The Election Assistance Commission ("EAC") set up under HAVA will eventually issue voluntary voting guidelines and guidance as to what constitutes an accessible voting system. Until that guidance is adopted, the voluntary guidance of the Federal Election Commission on Voting System Standards can be used to determine the accessibility of voting machines. (These can be found at www.fec.gov/pages/vss/vss.html at section 2.2.7 of the Voluntary System Standards). Section 302(a) sets forth standards for provisional voting in federal elections for voters who assert they are registered and eligible voters in the applicable jurisdiction where they are attempting to vote. This requirement applies to all States, but States exempt from the National Voter Registration Act ("NVRA") may comply by using voter registration procedures established under state law. Section 302(b) sets forth standards for voter information to be posted at each polling place for each federal election and also applies to all States. Section 302(c) sets out new rules for all States for voters who cast votes after polls close as a result of Federal or state court or other orders. The effective date of all
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of these requirements is January 1, 2004. Section 303(a)(1) requires States to create, for use in federal elections, a single, uniform, centralized, and interactive computerized statewide voter registration list, containing registration information and a unique identifier for every registered voter. This applies to all States, except those that do not presently require voter registration for federal elections. Section 303(a)(2) requires States to maintain the list according to specific standards. For example, names must be removed from the list in accordance with the NVRA (as amended by 3 of HAVA), and the list must be coordinated with State agency records on felony status and death. These requirements apply to all States, except those exempt from the NVRA, which "shall remove the names of ineligible voters from the computerized list in accordance with State law." Section 303(a)(5) provides that States may not accept or process any type of voter registration application for federal elections unless it includes the applicant's driver license number or, if the applicant has no driver license number, the last four digits of the applicant's social security number. If the applicant has neither, then the State must assign an identifying number. The State must also verify the statewide voter registration database information against state driver license databases and federal social security number databases. These requirements apply to all States, but are optional for States permitted under Section 7 of the Privacy Act (5 U.S.C. 552a note) to ask, and which actually do ask, registrants for a complete social security number on registration applications. The effective date of all the registration list requirements of Section 303(a) is January 1, 2004, but can be extended until January 1, 2006 if a State certifies to the EAC, when it is constituted, that, for good cause, it cannot meet the original deadline. Under Section 303(b), certain categories of individuals who register to vote by mail for the first time must provide specific identification documents or verifying information, either at the time of registration or the first time they vote. It also requires changes in the content of the national NVRA mail-in registration form, including a citizenship question. Individuals who register to vote by mail for federal elections after January 1, 2003 must submit identification materials that meet the new requirements in the first federal primary or general election in which they vote after January 1, 2004. There is information about the effective date of this provision on the Voting Section's website (www.usdoj.gov/crt/voting). I encourage States to take steps now to conform their mail-in forms to Section 303(b) standards, to advise registrants of the new identification requirements, and to verify information for new mail-in registrants, even though these steps are not required until 2004. These efforts will reduce the need for voters to present identification during the 2004 elections. Section 304 notes that Title III sets "minimum requirements," and that nothing prevents a State from establishing standards that are "more strict" so long as such requirements are not inconsistent with federal law. Section 305 provides that the specific choices on the methods of complying with Title III shall be left to the discretion of the State. Section 402(b) requires "nonparticipating" States (i.e., States that do not give notice during 2003 that they intend to seek Title I or II funding) either to certify by January 1, 2004, to the EAC that they have established an administrative grievance procedure under Section 402(a) to hear complaints from private individuals about possible violations of Title III, or to submit a compliance plan to the Department of Justice describing how they intend to comply with Title III. Nonparticipating States that do not do one of the above will be deemed out of compliance with Title III. Because there is little reason, however, for States not to seek funding under HAVA, we do not expect to receive many compliance plans for review. Section 261 establishes a grant program authorizing the Secretary of Health and Human Services to provide funds for improving physical access to polling places for voters with disabilities, including persons who are blind or have low vision. Funds accepted under Section 261 must be used to make polling places, including the path of travel, entrances, exits, and voting areas of each polling facility, accessible to individuals with disabilities, and to provide individuals with disabilities with information about the accessibility of polling places. In addition, a State may use funds obtained under Section 101(a) of HAVA to improve the accessibility and quantity of polling places, including providing
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physical access for individuals with disabilities. Section 906 provides (with one specific exception) that nothing in HAVA may be construed "to authorize or require conduct prohibited under" or "supersede, restrict, or limit the application of" six other laws enforced by the Civil Rights Division. You should also be aware of the relationship between HAVA and two provisions of the federal Voting Rights Act (VRA). The obligation of state officials to comply with Section 5 of the VRA when implementing HAVA is similar to that of States under the NVRA when it was passed by Congress in the early 1990s. See Young v. Fordice, 520 U.S. 273 (1997) (when discretion is granted to state officials in the manner in which they implement federal legislation, covered jurisdictions must comply with preclearance provisions of Section 5). There are 16 states covered at least in part by the preclearance requirement in Section 5. For voting changes occasioned by implementation of HAVA and requiring preclearance, covered jurisdictions should seek Section 5 review as soon as possible from the Attorney General or the U.S. District Court for the District of Columbia, i.e., after the changes are final, but before they are implemented. If you choose to submit changes to the Attorney General rather than to the Court, please include for our reference, if possible, copies of your state plans under Title II, funding applications under Title I, and any information on actions taken on those applications. However, states need not seek preclearance of funding applications or state plans submitted to the GSA or the EAC. Any action taken by other federal agencies on state plans or state funding requests will not affect preclearance review. There are 31 states covered in full or in part by the minority language assistance provisions in Sections 203 and 4(f)(4) of the VRA. Minority language issues will arise, for example, when designing new voting systems under Section 301, provisional ballots and voter information posters under Section 302, and voter registration and list maintenance materials under Section 303. Covered jurisdictions should bear in mind the continuing need to make these election materials accessible to covered language minorities as required by law. Should you have any questions concerning HAVA, please contact Hans A. von Spakovsky (202305-9750), Counsel to the Assistant Attorney General, or Chris Herren (202-514-1416) and Brian Heffernan (202-514-4755), who are attorneys in the Voting Section. If you have any questions about the disability provisions of HAVA, please contact Lucia Blacksher (202-514-1947), an attorney in the Disability Rights Section. In addition, the Voting Section will be posting on its website the names of other staff members who will be acting as points of contact for designated States. We look forward to working with you as you take steps to implement HAVA. Sincerely, Ralph F. Boyd, Jr. Assistant Attorney General cc: Governor Robert Riley Attorney General William H. Pryor Jr. Director of Elections Vicki Balogh http://web.archive.org/web/20030423214900/http://www.usdoj.gov/crt/voting/hava/states_ ltr.htm
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PR Elections Federal Case Brief For Appellant

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PR Elections Federal Case Brief For Appellant

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Case: 12-2145

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September 25, 2012

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The issues on appeal are as follows:

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STATEMENT OF THE CASE

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5 (Translation), 19-2 (Amended Complaint).3 IV. STATEMENT OF THE FACTS

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