Case 3:12-cv-01749-CCC Document 69-1

Filed 11/01/12 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO CIVIL NO. 12-1749 (CCC) 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

MYRNA COLON MARRERO JOSEFINA ROMAGUERA AGRAIT Plaintiffs v. HCTOR CONTY PREZ, et al.,

Defendants

PROPOSED ORDER

1.

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. 2. Under HAVA, 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

Case 3:12-cv-01749-CCC Document 69-1

Filed 11/01/12 Page 2 of 5

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). 3. Under HAVA any individual who believes that he is entitled to

be registered and vote shall be permitted to cast a provisional ballot as follows: (1) An election official at the polling place shall notify the individual that the individual may cast a provisional ballot in that election. (2) The individual shall be permitted to cast a provisional ballot at that polling place upon the execution of a written affirmation by the individual before an election official at the polling place stating that the individual is(A) a registered voter in the jurisdiction in which the individual desires to vote; and B) eligible to vote in that election. (3) An election official at the polling place shall transmit the ballot cast by the individual or the voter information contained in the written affirmation executed by the individual under paragraph (2) to an appropriate State or local election official for prompt verification under paragraph (4). (4) If the appropriate State or local election official to whom the ballot or voter information is transmitted under paragraph (3) determines that the individual is eligible under State law to vote, the

Case 3:12-cv-01749-CCC Document 69-1

Filed 11/01/12 Page 3 of 5

individual's provisional ballot shall be counted as a vote in that election in accordance with State law. (5)(A) At the time that an individual casts a provisional ballot, the appropriate State or local election official shall give the individual written information that states that any individual who casts a provisional ballot will be able to ascertain under the system established under subparagraph (B) whether the vote was counted, and, if the vote was not counted, the reason that the vote was not counted. 4. The Plaintiffs Emergency Motion claims that defendant

Mundo, Electoral Commissioner for the New Progressive Party, is seeking a state court order requiring the State Elections Commission to sent to all electoral units copies of the list of inactive voters so that the same can be challenged, and possibly subject to criminal prosecution. 5. This conduct is not countenanced by HAVA. The individuals in

the electoral register of inactive voters those that did not vote in the last general election were unlawfully removed for the list of registered voters and still have rights under HAVA to cast provisional ballots, subject to the review procedures contemplated by law. This Courts reads the First Circuits decision on this matter, as concerned with the feasibility of a remedy, not the absence of a right to vote under federal law. Already inactive voters can be challenged under Commonwealth law if they are inactive, so there is no need for further recusal mechanism. The threat of prosecution for the exercise of federally protected right to vote, however, is

Case 3:12-cv-01749-CCC Document 69-1

Filed 11/01/12 Page 4 of 5

contrary to these voters rights under HAVA and chills the exercise of their fundamental right to vote by way of the casting of provisional ballots under federal law. Defendant Mundos concerns, therefore, are adequately addressed under existing procedures, and threaten, without furthering any legitimate state objective, the exercise of the fundamental constitutional right to vote under the First Amendment of the United States Constitution. 6. For these reasons, the State Elections Commission is Ordered

not to submit said list of inactive voters to the electoral units; and it is furthered Ordered that the Commission shall publish an Announcement indicating that all American citizens who are inactive voters for failure to vote on the last general election may nonetheless be permitted to cast a provisional ballot on election day, which shall therefore be counted pursuant to the provisions of HAVA. 7. Copy of this Order is being sent to the U.S. District Attorney

Office so that it post federal selected personnel as election monitors and observers at polling places; be ready to receive election-related complaints of potential violations relating to any of the statutes the Civil Rights Division enforces; will be available at special toll-free numbers to receive complaints related to ballot access (1-800-253-3931) (TTY line 1-877-2678971). In addition, individuals can also report complaints, problems or

Case 3:12-cv-01749-CCC Document 69-1

Filed 11/01/12 Page 5 of 5

concerns related to voting via the Internet.Forms may be submitted through a link at the United States Department of Justice Web page: www.justice.gov/crt/election2010contact.php.

IT IS SO ORDERED.