Colon-Marrero v. Conty-Perez et al

Filing 160

MEMORANDUM OPINION DECLARING RIGHTS AND GRANTING EQUITABLE RELIEF. Related document: 145 Motion for Declaratory Judgment. Signed by Judge Carmen C. Cerezo on 6/4/2015. (mld)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MYRNA COLON-MARRERO;
JOSEFINA ROMAGUERA-AGRAIT
Plaintiffs
vs
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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 Unión Soberanista;
ADRIAN DIAZ-DIAZ, as Electoral
Commissioner of Puertorriqueños
por Puerto Rico; LILLIAN
APONTE-DONES, as Electoral
Commissioner of Partido del
Pueblo Trabajador
Defendants

MEMORANDUM OPINION DECLARING RIGHTS
AND GRANTING EQUITABLE RELIEF
Plaintiff Myrna Colón-Marrero filed this action against the President and
Commissioners of Puerto Rico’s State Elections Commission (SEC) for
removing her from the Puerto Rico electoral register because she did not vote
in the 2008 election for Resident Commissioner. Colón-Marrero contends that
their action violated the National Voter Registration Act of 1993 (NVRA),the
Help America Vote Act of 2002 (HAVA), and the First Amendment, Due

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Process and Equal Protection clauses of the United States Constitution. The
action was filed on September 12, 2012. Romaguera-Agrait joined in the
Amended Complaint (docket entry 19). Plaintiffs and similarly-situated voters
have generally been referred to as “I-8's.”
I.

PROCEDURAL BACKGROUND AND FINDINGS OF FACT
Plaintiffs ask the Court to declare Article 6.012 of the Puerto Rico

Electoral Law unlawful which provides, in pertinent part: “If an elector fails to
vote in a general election, his registration or filing shall be deactivated
from the General Registry of Voters,” (translation ours). They claim this
statute contravenes the provisions of NVRA and HAVA. NVRA 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 person’s failure to vote, [unless
the person] . . . has not voted or appeared to vote in 2 or more
consecutive general elections for Federal office. (Emphasis
ours.)
42 U.S.C. §§ 1973gg-6(b)(1)(2)(B). The election for the federal office of
Resident Commissioner1 is traditionally contained on the same ballot as that
for the election of Puerto Rico’s governor, creating an antagonism between
these two terms of the laws.
Plaintiffs also asked the Court to enjoin the SEC defendants from holding
any future electoral event concerning a federal office until such time as their
acts and conduct conform to the voter registration and list maintenance
provisions of NVRA, HAVA and the Constitution; that defendants be ordered

1

42 U.S.C. § 1973ff-6(3) defines “federal office” as including Resident Commissioner.
See also Igartúa-de La Rosa v. U.S., 32 F.3d 8 (1st Cir. 1994).

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to immediately reactivate plaintiffs and other similarly situated persons as
registered voters in the General Registry of Voters entitled to vote in the
2012 election for federal office, and other subsidiary remedies.
Colón-Marrero’s Motion for a Preliminary Injunction was denied by the
Court (docket entry 11) upon finding that she had offered no justification for
waiting until four days before expiration of the voter registration deadline in
Puerto Rico to seek a preliminary injunction ordering defendants 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. It also requested an order that SEC defendants
immediately and individually contact all persons who were removed from the
general registry of voters for failure to vote in the 2008 elections. The Court
further found that the irreparable injury claimed was created by plaintiff’s own
conduct and was essentially self-inflicted for she had had the opportunity to
timely submit her claims and seek a remedy without injury to her voting rights
yet failed to do so.
On appeal, the Court of Appeals for the First Circuit, in an order dated
October 11, 2012 (docket entry 26), retained jurisdiction while remanding the
case for an evidentiary hearing on the feasibility of granting the injunctive relief
requested, specifically of permitting the voters who had been deactivated for
failure to vote in the 2008 elections to vote in the November 6, 2012 general
election. Following a hearing held on October 15, 2012, this Court certified its
findings to the Court of Appeals two days later. The latter affirmed the denial
of the motion due to the untimeliness of the relief requested. (Docket entries 67
and 89).

The merits of the constitutional challenge remained pending

adjudication before this District Court.

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Meanwhile, Edwin Mundo-Ríos (Mundo), in his capacity as Electoral
Commissioner of the New Progressive Party, filed on the eve of the
2012 elections a parallel lawsuit in the Puerto Rico courts against the State
Elections Commission and the other commissioners, CT-2012-20. While this
federal lawsuit was pending adjudication on the merits on November 1, 2012,
the Supreme Court of Puerto Rico issued a Resolution in the Commonwealth
case that raised the following point:
. . . no voter appearing in the list of excluded voters may vote in a
polling station for those added by hand without presenting an
authorization issued by the SEC itself. It is not sufficient for an
excluded voter to appear to vote without official evidence that he
is entitled to do so. Voting added by hand without the right to
do so constitutes a felony in the fourth degree that entails as
a penalty a fixed term of three years of jail. See, Art. 12.023 of
the Electoral Code, supra, sec. 4253; Art. 307 of the Penal Code
of 2012, Law No. 148-2012, 33 L.P.R.A. sec. ____.
(Our emphasis)
Plaintiffs then filed Motions for Emergency Order (docket entries 69
and 75) on November 1 and 2, 2012 arguing that NPP Electoral Commissioner
Mundo was requesting the Supreme Court of the Commonwealth of Puerto
Rico to order the President of the SEC to send the list of inactive voters or I-8's
to every electoral unit for the purpose of “tagging them for possible fraud and
prosecution,” should they attempt to vote. Id, at 2. We then entered our Order
to Preserve the Court’s Jurisdiction Pursuant to the All Writs Act,
28 U.S.C. § 1651(a) (docket entry 79), quoting U.S. v. New York Tel. Co.,
434 U.S. 159, 174 (1977), where the U.S. Supreme Court, referring to the All
Writs Act observed that “the power conferred by the Act extends, under
appropriate circumstances, to persons who, though not parties to the
original action or engaged in wrongdoing, are in a position to frustrate
the implementation of a Court order or the proper administration of

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justice.” Also cited in that order were lower courts which had expressed
themselves on the role of the Act as an instrument to be used against those
who would undermine the court’s power to bring a case to judgment. We then
concluded “an order is necessary, indeed required, under the Act at this critical
stage of the proceedings precisely to protect this Court’s power to bring the
present litigation to its natural conclusion. Let this be clear: the writ being
issued is wholly unrelated and separate from the ‘Acevedo Proposal’ on the
feasibility of reinstating the affected voters in time for the November 6
Election.

That proposal was determined to be not feasible and this

District Court is in no way attempting to resurrect it in contravention of
the Court of Appeals’ decision. Our writ does not contemplate the actual,
immediate reactivation on November 6 of any I-8 voter, as proposed by
Professor Acevedo.

What it does pursue is to preserve the power and

authority of the Court to decide the merits of the plaintiffs’ First Amendment
and HAVA claims, raised since the inception of this lawsuit and which are the
object of the Court’s ultimate resolution, after full briefing and argument.” That
order resulted in another go-round of motions and an interlocutory appeal, the
end result of which was the Court of Appeals for the First Circuit’s decision that
NRVA did not apply to Puerto Rico. See Colón-Marrero v. Conty-Pérez,
703 F.3d 134, 137 (1st Cir. 2012). By then it was too late to create a remedy
in time for the 2008 general election in Puerto Rico and the I-8 voters did not
cast their votes. We now address the merits of the plaintiffs’ Motion for
Declaratory Judgment filed on May 30, 2014 (docket entry 145).
II.

CONCLUSIONS OF LAW
Post-2012 election, the NPP and the PDP Electoral Commissioners

(docket entries 142 and 143) have both adopted the position of the plaintiffs,

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while only the current President of the SEC, defendant González-Román, still
opposes plaintiffs’ request for relief (docket entry 147). The only remaining
issue before the Court turns on whether Article 6.012 of the Electoral Law
of 2012 violates the other federal law in play: HAVA.
HAVA expressly includes Puerto Rico in its definition of "State.” See
42 U.S.C. § 15541, and the parties do not dispute its applicability to Puerto
Rico. Section 303 of HAVA, 42 U.S.C. § 15483, prescribes the requirements
that must be met by the voter registration systems used by the states in
elections where a federal office is on the ballot.
This section of HAVA, 42 U.S.C. § 15483(a)(4)(A), addresses the
deactivation of voters from the registration lists for not voting:
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 National Voter Registration Act of 1993 (42 U.S.C. § 1973gg
et seq.), 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.
(Our emphasis.)
Relying on Colón-Marrero, supra, defendant SEC’s current President,
nonetheless,

repetitively and emphatically argues that HAVA cannot

incorporate a provision of NVRA because NVRA does not apply to Puerto Rico.
However, this section of HAVA expressly notes that “consistent with the
National Voter Registration Act of 1993 (42 U.S.C. § 1973gg et seq.),
registrants who have not responded to a notice and who have not voted
in 2 consecutive general elections for Federal office shall be removed

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from the official list of eligible voters except that no registrant may be
removed solely by reason of a failure to vote.”2 The provision is not
incorporated by a simple reference to NVRA, leaving it to the reader to refer to
that law to determine its contents. The term of absence from voting in two
consecutive general elections for Federal office is explicitly set forth in the
HAVA paragraph, as opposed to Article 6.012, 16 L.P.R.A. § 4072, which, as
noted above, provides that an elector who fails to vote in a single general
election shall be deactivated in the voter registry.
In sum, the Court finds that Article 6.012of Puerto Rico’s Electoral Law,
by providing for deactivation of an elector’s right to vote for having failed to vote
in one general election, violates the two consecutive election and notice
requirement for voter removal from the official list of eligible voters
under HAVA. Accordingly the term provided in HAVA with regard to election
of federal officers prevails.3 Moreover, inasmuch as Puerto Rico has a single
voter registration system, not two, the provision set forth in HAVA necessarily
regulates 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 Colón-Marrero v. Conty-Pérez,

703 F.3d 134, 137 (1st Cir. 2012), Torruella dissenting.
2

Webster’s Third New International Dictionary, 1976 Ed., defines the word “consistent” as
used here as 2(b)-“marked by agreement and concord: coexisting and showing no noteworthy
opposing, conflicting or contradictory qualities or trends: compatible.
3

As stated by the First Circuit Court in Colón-Marrero, supra, at 138:
The express inclusion of Puerto Rico within HAVA’s definition of
“State,” see 42 U.S.C. § 15441, together with a sensible reading of
that statute’s relevant substantive provision, see id.
Sec. 15483(a)(4)(A, persuaded us that plaintiff had established a
likelihood of success on her federal election claim under HAVA.

(Footnote omitted).

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It is ORDERED, ADJUDGED and DECLARED that the SEC is
permanently enjoined from removing from the official list of eligible voters any
registrant who did not vote in a single general election.
It is further ORDERED, ADJUDGED and DECLARED that the SEC is
affirmatively ordered that no lawfully registered voter may be removed from the
official list of eligible voters unless they have not voted in the two immediately
preceding elections and have received and have been given notice of an intent
to remove them from such list.

This declaratory judgment deflates the

obstructive impact on voting rights brought about by Article 6.012, 16 L.P.R.A.
§ 4072 of Puerto Rico’s Electoral Law. It serves as a reminder to those who
forgot that voters are the feeders of democracy. Despite the attempts to
criminalize them, I-8's sowed the seeds of democracy.
SO ORDERED.
At San Juan, Puerto Rico, on June 4, 2015.

S/CARMEN CONSUELO CEREZO
United States District Judge