Colon-Marrero, et al v. Conty-Perez, et al

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Kermit V. Lipez, Appellate Judge and Jeffrey R. Howard, Appellate Judge. Published. Per Curiam. [12-2145]. CLERK'S NOTE: Docket entry was edited to modify the docket text. [12-2145]

Case: 12-2145

Document: 00116451842

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Date Filed: 11/02/2012

Entry ID: 5687354

United States Court of Appeals
For the First Circuit

No. 12-2145
MYRNA COLÓN-MARRERO,
Plaintiff, Appellant,
v.
HÉCTOR J. CONTY-PÉREZ, President of the Puerto Rico State
Elections Commission (SEC); EDWIN MUNDO-RÍOS, 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-BERRÍOS, as
Electoral Commissioner of the Puerto Rican Independence Party
(PIP); JULIO FONTANET-MALDONADO, as Electoral Commissioner
of the Movimiento Unión Soberanista (MUS); ADRIÁN DÍAZ-DÍAZ,
as Electoral Commissioner of the Puertorriqueños por
Puerto Rico (PPR); and CARLOS QUIRÓS-MÉNDEZ, as Electoral
Commissioner of the Partido del Pueblo Trabajador (PPT),
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Lipez and Howard,
Circuit Judges.
Carlos A. Del Valle-Cruz, with whom Rafael E. García-Rodón and
Carlos Hernández-López, were on brief for appellant.
Jorge Martínez-Luciano, with whom Pedro E. Ortiz-Álvarez, LLC,
was on brief for appellee Eder E. Ortiz-Ortiz.
David C. Indiano, with whom Seth A. Erbe and Indiano &
Williams, P.S.C., were on brief for appellee Edwin Mundo-Ríos.
Nelson N. Córdova-Morales, with whom Córdova Morales Law

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Offices, was on brief for appellee Adrián Díaz-Díaz.
José L. Nieto-Mingo, with whom Nieto Law Offices, was on brief
for appellee Héctor J. Conty-Pérez.
Jessica Dunsay Silver, Principal Deputy Chief, and Sasha
Samberg-Champion, Attorney, Appellate Section, Civil Rights
Division, United States Department of Justice, on brief for amicus
curiae, the United States.
Francisco J. González-Magaz, on brief for amicus curiae
Francisco R. González-Colón.

November 2, 2012

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Per Curiam. Plaintiff is an otherwise qualified voter in
Puerto Rico who has been removed from the voter registration roll
because she did not vote in the 2008 general election, pursuant to
Article 6.012 of Puerto Rico Law No. 78.1
injunction to redress that removal.

She seeks a preliminary

On October 18, 2012, we

affirmed the denial of an injunction that would have required the
government

to

reinstate

more

than

300,000

voters

to

the

registration roll in time for the upcoming federal election on
November 6.

The record and the parties' arguments failed to

demonstrate that such extraordinary relief could be granted only
weeks

before

the

election

without

creating

uncertainty

confusion in the Puerto Rico electoral process.

and

Although we

recognized the importance of plaintiff's claims, we declined to
jeopardize the electoral process as a whole by acting precipitously
on evolving claims that had not yet been adequately analyzed or
developed by plaintiff.

Hence, we affirmed the district court's

denial of a preliminary injunction. We now explain that decision
more fully and remand for further proceedings consistent with this
opinion.

1

Two plaintiffs initially filed this action in the district
court, but only one appeals. Plaintiff brings a facial challenge to
Article 6.012, requesting equitable and declaratory relief under 42
U.S.C. § 1983. Though plaintiff did not seek class certification,
her requested relief would have applied to all similarly situated
voters. See City of Chicago v. Morales, 527 U.S. 41, 55 (1999)
("When asserting a facial challenge, a party seeks to vindicate not
only his own rights, but those of others who may also be adversely
impacted by the statute in question.").
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I.
Plaintiff filed this suit on September 12, 2012, claiming
that

federal

law

prohibited

the

Commonwealth

government

from

removing her from the voting roll for the upcoming election of
Puerto

Rico's

Commissioner.

only

elected

federal

officer,

the

Resident

She alleged that Article 6.012 was unlawful under

both the National Voter Registration Act ("NVRA") and Section
303(a)(4)(A) of the Help America Vote Act of 2003 ("HAVA"), 42
U.S.C. § 15483(a)(4)(A).2

The district court denied plaintiff's

request for a preliminary injunction.

Plaintiff immediately filed

an appeal, and after nearly two hours of oral argument during a
special session of this court on October 11, we concluded that
plaintiff had shown a likelihood of success on the merits of her
claim.
However, the panel also determined that serious factual
questions remained as to the balance of harms and the public
interest in ordering the immediate reinstatement of the more than
300,000 voters who had been stricken from the registration roll.3
The parties offered competing assertions on the feasibility of
granting plaintiff's requested relief. Given that no evidentiary

2

Unlike Article 6.012,
after failing to vote in one
deactivation only after a
elections. See 42 U.S.C.
15483(a)(4)(A).
3

which allows a voter to be deactivated
election, both the NVRA and HAVA allow
failure to vote in two consecutive
§ 1973gg-6(b)(2)(B) & 42 U.S.C. §

These deactivated voters are known as "I-8" voters.
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hearing had been held in the district court, we had "no basis for
assessing the validity of the parties' factual claims."

We thus

retained jurisdiction while remanding the case to the district
court

for

reinstating

fact-finding,
the

affected

forthwith,
voters

in

on

the

feasibility

of

time

for

the

November

6

sixteen

hours

of

election.
The

district

court

heard

nearly

testimony during an evidentiary hearing on October 15 and 16. Both
sides presented several witnesses who testified to the availability
of extra ballots and other electoral materials, the number of
available polling places, training requirements for extra poll
workers,
monitors.

and
On

the

availability

October

17,

the

of

additional

district

court

volunteer
certified

poll
its

findings. In these findings, the court (1) concluded that it would
be feasible to allow the I-8 voters to vote in the general election
so long as this court ordered such relief by Tuesday, October 23,
(2) expressed no opinion on whether it would be feasible to
reactivate the I-8 voters only for the federal portion of the
election, i.e., for the position of Resident Commissioner, and (3)
indicated that this court would need to craft a same-day recusal
procedure to reduce both the risk of reactivated I-8 voters casting

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votes in the incorrect precinct and the risk of fraudulent votes
cast by I-8 voters who were no longer residents of Puerto Rico.4
II.
Our view is that the NVRA by its terms does not apply to
Puerto Rico, and it therefore cannot provide any relief for
plaintiff in this case.

Although the statute does not explicitly

exclude Puerto Rico from its scope, the statutory language and
legislative history reveal Congress's intent to do so.5

Section 1

defines "State" as "a State of the United States and the District
of Columbia."

42 U.S.C. § 1973gg-1(4).

The express inclusion of

one non-state jurisdiction is telling evidence that other such
jurisdictions

were

intentionally

excluded.

Similarly,

while

Congress adopted in the NVRA the definition of "election" and
"Federal office" from the Federal Election and Campaign Act of 1971

4

The court found the expert testimony of Professor Héctor
Luis Acevedo to be particularly compelling. Acevedo stated that,
because extra ballots already existed and additional polling places
were available, preparations could be made to accommodate the
330,902 deactivated voters if the order to do so were given at
least ten to twelve days before the election.
5

Thus, the so-called "default rule" invoked by our dissenting
colleague does not apply here. The rule derives from 48 U.S.C.
§ 734, which provides that federal laws "not locally inapplicable
. . . shall have the same force and effect in Puerto Rico as in the
United States." The rule does not come into play, however, where
Congress manifests an intent to exclude Puerto Rico from a law's
coverage. See United States v. Acosta-Martinez, 252 F.3d 13, 18
(1st Cir. 2001) (stating that the role of the federal court in
determining a federal statute's applicability to Puerto Rico is
"restricted to determining [congressional] intent" if such intent
can be discerned).
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("FECA"), see 42 U.S.C. § 1973gg-1(1), (2), the NVRA definition of
"State" departs from FECA's.

FECA defines "State" as "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) (emphasis added).

In light of its use of other

FECA definitions, Congress's rejection of the broad definition of
"State" evidences a deliberate decision to more narrowly define
that term in the NVRA.6
The
direction.

NVRA's
An

early

legislative
version

history

of

the

points

statute

in

the

adopted

same

FECA's

definition of "State," which expressly includes Puerto Rico.

See

H.R. No. 101-396 (1990) (adopting the definition of State in § 431
of FECA).

This definition was later replaced, however, with the

current version limiting "State" to the United States and the
District of Columbia.

See H.R. Rep. No. 103-66 (1993) (Conf.

Rep.), reprinted in 1993 U.S.C.C.A.N. 140, 140.

Moreover, when

discussing the NVRA before its passage, several members of Congress
indicated

their understanding

that

the

territories,

including

Puerto Rico, would not be covered by the statute's definition of
"State."

For example, New York Representative Solomon observed

6

It is true, as the dissent points out, that the NVRA's
definition of "Federal office," also adopted from FECA, includes
Resident Commissioner -- an office that exists only in Puerto Rico.
See 2 U.S.C. § 431(3).
Given the multiple indications that
Congress did not intend "State" to include Puerto Rico, however,
the inclusion of Resident Commissioner as a "Federal office" is but
one contrary signal in an otherwise consistent set of factors.
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that "this piece of legislation . . . mandates a cost on all 50
States, but not on the territories . . . because the territories
are not included."

139 Cong. Rec. H504 (daily ed. Feb. 4, 1993);

see also id. at S5739-01 (daily ed. May 11, 1993) (statement of
Sen. Helms)("[T]his conference will cost the States, all 50 of them
. . . millions of dollars[.]"); id. at S2913 (daily ed. March 16,
1993) (statement of Sen. Chafee) ("[This bill] requires all 50
states to adopt uniform, federally mandated voter registration
practices.").7
The textual signals and the legislative history, taken
together, constitute persuasive evidence that Congress did not
intend to include Puerto Rico as a "State" under the NVRA. Despite
plaintiff's failure to establish a likelihood of success on the
merits

of

her

NVRA

claim,

however,

we

determined

that

she

successfully made such a showing on the merits of her claim under
Section 303(a)(4)(A) of HAVA that she has a right to vote for
Resident Commissioner. The express inclusion of Puerto Rico within
HAVA's definition of "State," see 42 U.S.C. § 15541, together with
a

sensible

reading

of

that

statute's

relevant

substantive

provision, see id. § 15483(a)(4)(A),8 persuaded us that plaintiff

7

The Department of Justice also takes the position that the
NVRA does not extend to Puerto Rico. See Dep't of Justice Letter
Brief, Oct. 10, 2012.
8

Our dissenting colleague appears to rely on HAVA in
construing the meaning of "State" in the NVRA. HAVA was enacted
nearly a decade after the NVRA, and it thus cannot provide insight
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had established a likelihood of success on her federal election
claim under HAVA.

By contrast, it is an open and difficult

question –- one not addressed by plaintiff –- whether HAVA would
provide a basis for a federal court ordering the reinstatement of
voters in Commonwealth elections.

To the extent that the language

of the October 11 order suggested that our determination also
extended to plaintiff's right to vote in Puerto Rico's local
elections, that language did not and does not reflect the view of
the majority.
Our view of the scope of the relief at issue was informed
by the argument advanced by plaintiff in the district court and on
appeal. Plaintiff had repeatedly asked the district court and this
court only to "immediately activate her and all other[] similarly
situated persons as registered voters in the general registry of
voters entitled to vote in the upcoming election for Resident
Commissioner."

Colón-Marrero v. Conty-Pérez, No. 12-cv-01749-CCC,

at 3 (D.P.R. Sept. 18, 2012) (order denying preliminary injunction)
(emphasis supplied).

The broader question of a right to vote for

local Puerto Rico offices and in the plebiscite in the upcoming
election was raised by plaintiff for the first time before us in
her supplemental briefing to this court following the district
court's fact-finding.

into Congress's intent with respect to the earlier statute.
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Plaintiff was fully aware of the limited nature of her
original

request.

Indeed,

Judge

Cerezo

wisely

brought

the

distinction between the right to vote for the Resident Commissioner
and the right to vote on every ballot in the general election to
the parties' attention at the outset of the hearing on October 15.
Thus, despite the language in the order of October 11, it would
have

been

prudent

for

plaintiff

to

fully

develop

evidence

concerning the feasibility of both potential remedies – voting only
for the Resident Commissioner (the relief originally sought) or
voting in the election generally (the relief now sought).
plaintiff

elicited

scant

evidence

at

the

evidentiary

Yet

hearing

specifically about the feasibility of reinstating the I-8 voters
solely for the purpose of voting for the Resident Commissioner. As
a result, the district court made no finding on the feasibility of
reinstating the I-8 voters only for the Resident Commissioner
election.

That feasibility was a major concern for the majority

because the candidates for both Resident Commissioner and Governor
appear on the same ballot.
We also had concerns about the absence of same-day
recusal procedures, an issue noted by the district court.

While

Professor Acevedo testified that there were sufficient materials
and personnel available to successfully reinstate the I-8 voters
for the November 6 general election, he pointed out that Puerto
Rico law does not include a process by which poll watchers can

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challenge the validity of a voter's claim to residency on the day
of the election.

According to the testimony of several witnesses,

establishing that the I-8 voters are residents of the precinct in
which they seek to vote is necessary because the I-8 voters have
not updated their voter information since before the November 2008
general election.

It is therefore safe to assume that at least

some of them now reside in different precincts than they did in
2008, while others may no longer be residents of Puerto Rico at
all.

In addition, a recusal mechanism on the day of the election

would address the fact that the I-8 voters would be added to the
registration roll without the voter review ordinarily conducted
under Commonwealth law early in an election year.

Even if it were

appropriate for a federal court to prescribe alternative recusal
procedures, we would be ill equipped to do so in the short time
remaining before the election.
Moreover, beyond the concerns about our authority and
competency to craft recusal procedures, we note our global concern
with plaintiff's delay in bringing this action.

Although the

particular statute under which the defendants acted, Article 6.012
of Puerto Rico Law No. 78, was enacted only last year, the
procedures that plaintiff challenges have existed in some form
since at least the 1970s.

Additionally, HAVA itself was adopted

nearly a decade ago, and two federal election cycles have been
completed since then.

Yet plaintiff did not file her complaint

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until September 12, 2012, less than two months before a general
election that had long been scheduled for November 6.
Thus, plaintiff here is in a similar position to the
plaintiffs in Respect Maine PAC v. McKee, 622 F.3d 13 (1st Cir.
2010), who also sought to challenge long-standing election laws in
the weeks leading up to an election.

We held there that the

plaintiffs' claims of irreparable harm were undermined by the fact
that their "'emergency' [was] largely one of their own making."
Id. at 16.

Here, as well, on the eve of a major election,

plaintiff seeks to disrupt long-standing election procedures, which
large portions of the electorate have used.

Indeed, more than

200,000 voters who were deactivated for failing to vote in 2008
reactivated themselves and will be qualified to fully participate
in the upcoming general election. Plaintiff herself had ample
opportunity to reactivate her voting status.

Under the current

reactivation procedures, plaintiff could have reactivated herself
by appearing in person at her local election commission office, a
process that one witness testified can be completed "practically
within minutes."

What is more, plaintiff's own expert witness

Professor Acevedo testified that the election commission published
notices in local newspapers urging qualified voters to reactivate.
In sum, for the reasons stated, we concluded in our order
of October 18 that it would be improvident to grant plaintiff's
requested relief with only eighteen days remaining before the

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Hence, we denied plaintiff's request for a

preliminary injunction.9

We now remand the case to the district

court for further proceedings consistent with this opinion.
So ordered.
-Dissenting Opinion Follows-

9

We are not alone in holding that even where plaintiff has
demonstrated a likelihood of success, issuing an injunction on the
eve of an election is an extraordinary remedy with risks of its
own. Indeed, the Supreme Court has stated that "[c]ourt orders
affecting elections, especially conflicting orders, can themselves
result in voter confusion and consequent incentive to remain away
from the polls." Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006).
Similarly, in Sw. Voter Registration Educ. Project v. Shelley, 344
F.3d 914 (9th Cir. 2003) (en banc) (per curiam), the Ninth Circuit
concluded that plaintiffs had demonstrated a "possibility of
success" on their claim under the Voting Rights Act, but concluded
that on the eve of the election, there was no way to grant
plaintiffs relief without causing significant harm to the general
public.
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TORRUELLA, Circuit Judge (Dissenting).
express

my

profound

dismay

with

what

I

Entry ID: 5687354

I respectfully

consider

to

be

the

majority's 180-degree change of direction from, and disavowal of,
the unanimous

October

11, 2012

order

to

the

district

court.

Nevertheless, I see little to be gained from engaging in ex post
facto arguments regarding its content. It is what it is, and no
amount of parole discussion will alter its text. The best evidence
of what the panel actually agreed to is the order itself:
Having heard argument and carefully reviewed
the record and the parties' filings, we are of
the
view
that
plaintiff-appellant
has
demonstrated a likelihood of success on the
merits of her challenge to Art. 6.012 . . . We
also conclude that plaintiff-appellant has
made the requisite showing of the potential
for irreparable harm, her inability to vote in
the upcoming Puerto Rico general election, if
the preliminary relief requested is denied.
With respect to the third and fourth factors
to be weighed in considering a motion for
preliminary injunction, the balance of harms
and the effect of the decision on the public
interest,
we find
that
the
record
is
insufficiently
developed
on the
factual
issues. On appeal, the parties have made
widely differing claims with respect to the
feasability of granting the request for
preliminary relief, specifically of permitting
the voters who have been inactivated for
failure to vote in the 2008 elections to vote
in the general election on November 6, 2012.
As an appellate court, and in the absence of
an evidentiary hearing in the district court,
we have no basis for assessing the validity of
the parties' factual claims.
Colón-Marrero v. Conty-Pérez, No. 12-2145 (1st Cir. Oct. 11,
2012)(order remanding case to the district court for an evidentiary

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hearing)(emphasis supplied).

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The underlined text indicates that

the panel carefully considered the record and what the parties were
claiming, that it deemed Plaintiff-Appellant's claim to relate to
her inability to vote at the general election, a term used twice in
the order, and that the case was being remanded to the district
court for the purpose of receiving evidence on the factual claims
relating to

the

third

and

fourth

factors

of

the

preliminary

injunction criteria: the balance of harms and the effect of the
decision on the public interest.

The order unambiguously states

that the panel deemed the first two factors, likelihood of success
on the merits and irreparable harm, both of which are legal
determinations, to have already been established.
It is within those parameters that we ordered the fact
finding hearing to be held before the district court, and further,
it is to develop the record as to those two factors that the
district court produced its findings of fact.

These findings,

based on the evidence adduced at the hearing, resulted in a
certification that it was feasible to allow the voters stricken
from the lists to vote in the forthcoming general elections, if
certain attainable processes were immediately put into effect. See
Findings Certified to the Court of Appeals, Colón-Marrero v. ContyPérez, No. 12-cv-1749 (D.P.R. Oct. 17, 2012)("In sum, the Acevedo
proposal meets all feasibility requirements.").

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Notwithstanding these factual findings, and the legal
conclusions contained in our order of October 11, 2012, upon return
of the matter to this Court, a majority of the original panel,
without giving any explanation whatsoever as to its change of
course, "concluded that serious feasibility issues preclude[d] the
entry of the relief sought by plaintiff-appellant."

Colón-Marrero

v. Conty-Pérez, No. 12-2145 (1st Cir. Oct. 18, 2012)(order denying
preliminary injunction).

This action was taken without any

reference to the requirements of Fed. R. Civ. P. 52(a)(2), and in
clear violation of its mandate.

See id. ("Findings of fact,

whether based on oral or other evidence, must not be set aside
unless clearly erroneous, and the reviewing court must give due
regard to the trial court's opportunity to judge the witnesses.").
See also Constructora Mazda v. Banco de Ponce,

616 F.2d 573, 576

(1st Cir. 1980)(the clearly erroneous rule applies in all nonjury
cases "not only when the district court's findings are based upon
its assessment of conflicting testimony, but also when as here,
much of the evidence is documentary and the challenged findings are
factual inferences drawn from undisputed facts").
Our October 11 order is the law of this case, and should
have been set aside only if the panel majority found it to be
"clearly erroneous" and to have resulted in "a manifest injustice."
Pepper v. United States,

131 S. Ct. 1229, 1250-51 (2011)(internal

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citations omitted).

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Of course, no such finding was made because

the record would not credibly support it.
The importance of the findings of fact by the trial court
in this case, and the innate wisdom of Fed. R. Civ. P. 52(a)(2) in
a

situation

such

as

was

presented

to

us,

are

of

particular

relevance because the nuances that are evident to an experienced
magistrate with local knowledge, such as Judge Cerezo, are not
apparent, and are most likely lost, to an appellate court relying
solely on a cold record, sitting thousands of miles away from the
scene of a developing scenario.
court in

the

present

case

Thus, the findings of the trial

should

have

been

given

particular

deference, even more so by the standard of Fed. R. Civ. P. 52.
I shall not further dwell on this point, but choose to go
to the merits of this controversy, which I believe should have
strongly favored Plaintiff-Appellant had justice prevailed in this
case.
In my opinion, after the district court's findings were
extant, the requirements of Planned Parenthood League v. Bellotti,
641 F.2d 1006, 1009 (1st Cir. 1981), were met and a preliminary
injunction should have been issued.

See id. (setting forth the

standards for the issuance of a preliminary injunction).

I shall

briefly explore seriatim each of the four factors established in
Planned Parenthood:

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(1) The likelihood of success on the merits
As was recently stated by the same panel that is now
ruling on the present case, "[i]n the First Amendment context, the
likelihood

of

success

on

the

merits

preliminary injunction analysis."

is

the

linchpin

of

the

Sindicato Puertorriqueño de

Trabajadores v. Fortuño, No. 12-2171, slip op. at 17 (1st Cir.
Oct. 19, 2012)(citing Elrod v. Burns, 427 U.S. 347, 373 (1976)).
In this appeal, the central issue relating to this
requirement is a determination of the applicability of two federal
statutes to the Puerto Rican electoral processes, namely, the
National Voter's Registration Act of 1993 ("NVRA"), 42 U.S.C.
§§

1973gg-1973gg-10,

("HAVA"),

42 U.S.C.

and
§§

the

Help

America

15301-15545.

Both

Vote
of

Act

these

of

2002

statutes

require, among other things, that state and local governments not
remove voters from active voter lists until after they decline to
vote in at least two consecutive elections for Federal office. See
42 U.S.C. § 1973gg-6(b) & § 15483(a)(4).
These statutes apply to Puerto Rico.

By virtue of

section 3(2) of the NVRA, 42 U.S.C. § 1973gg-1(2), the term
"Federal office" shall have the same meaning it has in section
301(3) of the Federal Election Campaign Act of 1971 ("FECA"), 2
U.S.C. § 431(3).

Pursuant to section 301(3) of FECA the term

"Federal

includes,

office"

"the

Commissioner to, the Congress." Id.

-18-

office

of

.

.

.

Resident

The only jurisdiction of the

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United States in which this office exists is in the Commonwealth of
Puerto Rico.

See 42 U.S.C. § 891.

The NVRA, however, does not expressly mention Puerto Rico
within its definition of "State." See id. § 1973gg-1(4).10 As will
be further explained infra, that does not have the effect of making
the statute inapplicable to Puerto Rico. Most importantly, neither
does it nullify the express inclusion within its scope of elections
for the office of Resident Commissioner made by virtue of its clear
reference to section 301(3) of FECA.
Conversely, HAVA, which was enacted almost ten years
after the NVRA, expressly includes Puerto Rico in its definition of
"State."

See id. § 15541.

Section 303 of HAVA prescribes the

requirements that must be met by the voter registration systems
used by the states in elections where a Federal office is at stake.
Among said prescriptions is the prohibition of removal from voter
registration lists until after the voter declines to vote in two
consecutive elections for Federal office.

Plaintiff-Appellant

seeks to enforce this proscription against the Commonwealth's
conflicting disenfranchisement provision.
Section

303

of

HAVA

also

incorporates

See id. § 15483(a)(4).
the

NVRA's

provision

regarding elimination of voters from voter registration lists for
not

voting.

See

42

§

15483(a)(2)(A)(i).

Given

that

these

provisions prescribe the way Puerto Rico must keep its voter

10

Neither does it expressly exclude it.
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registration rolls for elections for Federal office, and that
Puerto Rico, like many states, has a single voter registration
system

-not

two-

these

provisions

necessarily

regulate

the

registration lists for the general elections in Puerto Rico, which
always include the election for the Resident Commissioner as an
integral part of the general election process.

See American Civil

Liberties Union v. Santillanes, 546 F.3d 1313, 1325 (10th Cir.
2008)("HAVA applies to all elections that include election to
federal offices.")(emphasis supplied); Crowley v. Nevada ex rel.
Nevada Secretary of State, 678 F.3d 730, 735 (9th Cir. 2012)(same).
Furthermore, HAVA also provides that, as a condition to
receiving Federal funding pursuant to its provisions, states must
draft and submit "State plans" and detail how they meet the
requirements

of

subchapter

prohibition at issue here.
& (a)(4)(A).

III

of

HAVA,

which

includes

the

See id. §§ 15401(b), 15483(a)(2)(A)(i)

The record reflects that the Commonwealth has been

the recipient of these funds and that it has used them to comply
with some provisions of subchapter III of HAVA, but has chosen to
opt out of other provisions of the same subchapter, such as the
prohibition involved in this case.

See Puerto Rico's Plan for

Implementation, Plaintiff-Appellant's Br., Add. A, at 46-50.
As stated above, the NVRA expressly includes in its
definition of Federal office the office of "Resident Commissioner,"
but fails to specifically mention Puerto Rico in its definition of

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"State."

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I believe this omission does not nullify the express

intent of Congress to include within the scope of the NVRA the
office of Resident Commissioner, an office for which elections are
only held in Puerto Rico.
Even if we were to attribute significance to the omission
in question, the special interpretive default rule that has evolved
over time in the First Circuit pursuant to Section 9 of the Puerto
Rican Federal Relations Act, 48 U.S.C. § 734 ("[t]he statutory laws
of the United States not locally inapplicable . . . shall have the
same force and effect in Puerto Rico as in the United States"),
unequivocally mandates the application of the NVRA and HAVA to the
present controversy.

According to said rule "as a general matter,

a federal statute does apply to Puerto Rico under [48 U.S.C.]
§ 734."

United States v. Acosta-Martínez, 252 F.3d 13, 18 (1st

Cir. 2001)(finding that the Federal death penalty applies to
Federal crimes committed in Puerto Rico notwithstanding a provision
in the Commonwealth's constitution that prohibits its imposition).
There is abundant jurisprudence in which statutes that
fail to specifically include Puerto Rico within the definition of
"State," have nevertheless been interpreted to include Puerto Rico
within the coverage of the legislation in question.

See, e.g.,

Acosta-Martínez, 252 F.3d at 20 n.6 (citing Examining Bd. of
Engineers, Architects & Surveyors v. Flores de Otero, 426 U.S. 572,
590 (1976); TAG/ICIB Servs., Inc. v. Pan Am. Grain Co., 215 F.3d

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172, 178 (1st Cir. 2000)(Interstate Commerce Commission Termination
Act applies to Puerto Rico); United States v. López Andino, 831
F.2d

1164,

1167

(1st

Cir.

1987)(statutory

prohibition

on

conspiracies to deprive citizens of civil rights applies to Puerto
Rico); United States v. Tursi, 655 F.2d 26, 27 (1st Cir. 1981)
(assuming that Youth Corrections Act applies to Puerto Rico); NLRB
v. Sec. Nat'l Life Ins. Co., 494 F.2d 336, 337-38 (1st Cir. 1974)
(National Labor Relations Act applies to Puerto Rico)).

See also

Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 672
(1974)("Puerto Rico has thus not become a State in the federal
Union like the 48 States, but it would seem to have become a State
within a common and accepted meaning of the word."); United States
v. Laboy-Torres, 553 F.3d 715, 721-22 (3d Cir. 2009) (O'Connor,
Associate Justice, Retired)(same).
In

fact,

"[t]his

[C]ourt

has

consistently

applied

statutes advancing federal interests to Puerto Rico even when
Congress has been silent on the matter." Acosta-Martínez, 252 F.3d
at 20 n.6.

When seen in the context of the First Amendment rights

in question and the paramount federal interests embodied in the
provisions of the NVRA and HAVA, the present case should not be an
exception to the application of the default rule as nothing in
their

content

makes

the

provision

in

question

"locally

inapplicable," except, perhaps, the existence of the contravening
Puerto Rico legislation in question as was the case in Acosta-

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Martínez. Federal elections statutes in general, as seen in NVRA's
reference to FECA and HAVA's reference to the NVRA, are interwoven,
and the advancement of their interests (i.e. the advancement of
First Amendment protections) constitute a paramount and superceding
national interest under the Supremacy Clause of the Constitution,
which calls for the application of the default rule in this case.
In Acosta-Martínez this Court confidently stated that,
even if Congress' intent to apply the death penalty to Puerto Rico
were not as clear as it found it to be, "the outcome would be the
same, since the default rule presumes the applicability of federal
laws to Puerto Rico.

There is little reason to think that the

federal interests in defining the punishment for federal crimes
would have been considered by Congress to be a matter for local
veto power."

Acosta-Martínez, 252 F.3d at 20. I am disillusioned

by an outcome by which this Court applies the default rule to allow
the imposition of the death penalty to Federal crimes committed in
Puerto Rico, but fails to apply the same standard to promoting
democratic rights through the First Amendment.
Paraphrasing what was stated by this Court in AcostaMartínez in finding that it was Congress' intent to apply the
federal

death

penalty

to

crimes

committed

in

Puerto

Rico,

"[i]ndeed, it would be anomalous for Congress to grant the people
of Puerto Rico American citizenship and then not afford them the

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protection of the federal [voting] laws."

Entry ID: 5687354

Acosta-Martínez, 252

F.3d at 20-21.
The majority has attempted to establish that there are
"enough signals" in the NVRA's legislative history to demonstrate
that Congress intended to make this statute inapplicable to Puerto
Rico.

They attempt to bolster the importance of these signals by

relegating

the

most

significant

statutory

provision

for

our

purposes --the provision which expressly mentions the office of
Resident

Commissioner--

characterizes

this

to

provision

a

footnote.
as

"one

otherwise consistent set of factors."

The

contrary

majority
signal

Maj. Op. at 6 n.6.

then
in

an

I find

this assertion to be beyond the pale. Struthiously ignoring a
specific provision of a Congressional statute, while relying on the
self-serving ruminations of individual Congressmen on the floor is
a specially egregious means of defeating the exercise of the right
to vote.11 In this respect, Justice Scalia's comments in Conroy v.

11

It is unfortunate that the majority cites to Representative
Solomon and Senator Helms' respective expressions as if they were
somehow valuable signals of Congressional intent not to apply the
NVRA to Puerto Rico, when in fact they were not made in the context
of a discussion regarding the territorial application of the
statute. During the intervention cited to by the majority, Sen.
Helms explained:
Mr. President, this conference report will cost the
States, all 50 of them, and their respective taxpayers,
millions of dollars while making it even easier for
illegal aliens to register to vote and obtain welfare
benefits.
This is an outrageous set of circumstances, and I am
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Aniskoff regarding legislative history are particularly relevant:
"the use of legislative history [is] the equivalent of entering a
crowded cocktail party and looking over the heads of the guests for

especially disappointed that the conference committee
stripped out the Simpson-Helms amendment that would have
prevented illegal aliens and noncitizens from voting.
This amendment, approved by the Senate, was simple and
straightforward: it allowed States to require proof of
citizenship of any individual desiring to register to
vote. Why did the political types in this country decide
this was too much to ask?
Mr. President, without this amendment, illegal aliens
such as Zoe Baird's chauffeur could end up voting in our
elections.
This bill should be called the Illegal
Aliens' Voter Registration Act .
139 Cong. Rec. S5739 (1993).
Representative Solomon's expressions, which the majority also
cites to, were made in the context of denouncing that the
representatives of the territories were allowed to vote when, in
his view, the statute did not apply to them. He stated:
Mr. Speaker in a few minutes four Delegates are going to
come over here when we resolve ourselves into the
Committee of the Whole and they are going to cast votes
for this piece of legislation which mandates a cost on
all 50 states, but not on the territories they represent,
because the territories are not included.
This is typical of what is going to happens [sic] time
after time, after time. That is why it is a shame that my
colleagues have let this kind of rule to take place, I
say to my colleagues, come over here and defeat the
previous questions, and I'll have an opportunity to offer
an amendment which would include the territories along
with us other 50 poor states.
How about that?
Id. at H504.

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one's friends." 507 U.S. 511, 519 (1993)(paraphrasing Judge Harold
Leventhal).

Using scant and irrelevant legislative history to

exclude the election for the office of Resident Commissioner under
the NVRA is thus disingenuous.
The majority also points to an earlier version of the
statute to support its position.

However, just last year, the

Supreme Court stated that, to explain the unexplained disappearance
of

language

from

a

bill

the

Court

intermediate legislative maneuvers."

will

not

rely

on

"mute

Milner v. Dep't of the Navy,

131 S. Ct. 1259, 1266 (2011)(citing Mead Corp. v. Tilley, 490 U.S.
714, 723 (1989)).
(2) Irreparable harm
The right to vote is without question a fundamental
constitutional right guaranteed by the First Amendment
Constitution.

of the

Conversely, but equally important, the right to

abstain from voting also constitutes political speech, and as such,
is entitled to the highest of protections under the provisions of
the

First

Amendment.

Infringement

of

either

of

these

two

modalities of the exercise of First Amendment rights by a State
constitutes irreparable harm per se. Elrod v. Burns, 427 U.S. 347,
373 (1976); Romero Feliciano v. Torres Gaztambide, 836 F.2d 1, 10
(1st Cir. 1987). In fact, this same panel has also recently stated
that "[t]he loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury."

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Sindicato Puertorriqueño de Trabajadores, No. 12-2171, slip op. at
17 (quoting Elrod, 427 U.S. at 373).
(3) and (4) Balance of the equities and harm to the
public interest
Having the benefit of the findings of the district court,
which are fully supported by the record of the proceedings before
said forum, it must forcefully be concluded that this court is
required to find that the balance of the equities that may result
from

the

issuance

of

a

preliminary

injunction

ordering

that

Plaintiff-Appellant, and other voters stricken from the voter
registration lists by reason of their abstention from voting in the
2008

election,

clearly

favors

their

eligible to vote on November 6, 2012.
most

fundamental

administrative

right

cannot

reinstatement

as

voters

Depriving a citizen of this

begin

inconveniences that are

to

be

claimed

equated
by

to

the

Defendants-

Appellees.
Closely related to this issue is the alleged harm to the
public interest, an issue which can be mitigated in large part by
the remedy that should have been put in place had the findings of
the district court not been cast aside without explanation by this
court. It is beyond ken that the public is benefitted, not harmed,
by having the largest number of its citizens express themselves
democratically in a properly conducted election.

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Conclusion
I am sorry to say that once again this Court's reluctance
to recognize gross violations of fundamental rights results in the
enlargement of the democratic deficit that already assails the
United States citizens of Puerto Rico.

Igartúa v. United States,

626 F.3d 592, 638-39 (1st Cir. 2010)(Torruella, J., dissenting).
I respectfully dissent.

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