Case: Colon-Marrero v. Conty-Perez

This case concerned the Puerto Rico State Election Commission's alleged illegal removal of electors from the electoral register.  

On September 12, 2012, a citizen of the United States of America residing in Puerto Rico filed this lawsuit in the U.S. District Court for the District of Puerto Rico against the President and the Commissioners of Puerto Rico’s State Elections Commission (“SEC”). The case was presided by District Judge Carmen Consuelo Cerezo. On September 21, 2012, another resident of the United States of America, in a similarly situated situation as the original plaintiff, joined the lawsuit in the Amended Complaint. The plaintiffs argued that the defendants removed them from the Puerto Rico electoral register because they did not vote in the 2008 election for Resident Commissioner. The plaintiffs contended that the defendants’ action violated the National Voter Registration Act of 1993 (“NVRA”), the Help America vote of 2002 (“HAVA”), and the First Amendment, Due Process, and Equal Protection clauses of the United States Constitution. Represented by private counsels, the plaintiffs sought declaratory relief and preliminary and permanent injunctive relief. 

At issue was Article 6.012 of the Puerto Rico Electoral Law, which provides in pertinent part that: “[i]f an elector fails to vote in a general election, his registration or filing shall be deactivated from the General Registry of Voters." The plaintiffs claimed that this statute contravenes the provisions of NVRA and HAVA. HAVA stated that any State program or activity: “. . . 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.” 

The plaintiffs also asked the Court to enjoin the SEC defendants from holding any future elections event concerning a federal office until such time as their acts and conduct conform to the voter registration and list maintenance provisions of NCRA, HAVA, and the Constitution, and that defendants be ordered to immediately reactivate the 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. The plaintiffs also requested that the defendants immediately and individually contact all persons who were removed from the general registry of voters for failure to vote in the 2008 elections. 

On September 13, 2012, the original plaintiff filed a Motion for a Preliminary Injunction. On September 18, 2012, the court denied the Motion upon finding that the plaintiff 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 their 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. 2012 WL 8134091. The court further found that the irreparable injury claimed by the plaintiff’s own conduct was essentially self-inflicted, because the plaintiff had the opportunity to timely submit their claims and seek a remedy without injury to their voting rights. That same day, the plaintiff filed an interlocutory appeal with the U.S. Court of Appeals for the First Circuit. 

On October 11, 2012, the Court of Appeals 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 elections. On October 19, 2012, the Court of Appeals affirmed the District Court’s denial of the motion due to untimeliness of the relief requested. 698 F.3d 46. The merits of the constitutional challenge remained pending adjudication before the District Court. 

Meanwhile, on the eve of the 2012 election, one defendant filed a parallel lawsuit in the Puerto Rico courts against the SEC. On November 1, 2012, the Supreme Court of Puerto Rico issued a Resolution 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 issue 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 in jail.” 

The plaintiffs filed Motions for Emergency Order on November 1 and 2, 2012, arguing that defendant 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 to every electoral unit for the purpose of tagging them for possible fraud and prosecution should they attempt to vote. The District Court entered an order confirming its power to bring the litigation to its natural conclusion and affirming that it will decide the merits of the plaintiffs’ First Amendment and HAVA claims. This order resulted in another go-round of motions and an interlocutory appeal, the end result of which was the Court of Appeals decision, on November 2, 2012, that NRVA did not apply to Puerto Rico. 703 F.3d 134. By then, it was too late to create a remedy in time for the 2008 general election in Puerto Rico, and the ineligible voters did not cast their votes. 

On May 30, 2014, the plaintiffs filed a Motion for Declaratory Judgment and Permanent Injunctive Relief (1) declaring NVRA unconstitutional under the Equal Protection Clause insofar as it excluded American residents in Puerto Rico from the same rights conferred by the Act on American residents living in the States; (2) declaring that HAVA applied to Puerto Rico, and issuing equitable relief ordering the defendant to comply with all of its provisions, not just some; and (3) declaring that Article 6.012 of the Puerto Rico Electoral Code effectuates a violation of the First Amendment. 

Post-2012 election, the NPP and the PDP Electoral Commissioners both adopted the position of the plaintiffs, while only the President of the SEC still opposed the plaintiffs’ request for relief. Therefore, the only remaining issue before the District Court at that point turned on whether Article 6.012 of the Electoral Law of 2012 violated HAVA. 

The District Court stated that HAVA expressly includes Puerto Rico in its definition of “State.” Further, HAVA prescribed 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. In relevant part, HAVA addressed the deactivation of voters from the registration lists for not voting: “. . . 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 failure to vote.”  

Accordingly, the District Court found that Article 6.012 of Puerto Rico’s Electoral Law, by providing for deactivation of an elector’s right to vote in one general election, violated the two consecutive election and notice requirement for voter removal from the official list of eligible voters under HAVA. Moreover, the District Court found that, inasmuch as Puerto Rico had a single voter registration system, not two, the provision set forth in HAVE necessarily regulated the registration lists for the general elections in Puerto Rico, which always included the election for the Resident Commission as an integral part of the general election process. The District Court therefore ordered the SEC be permanently enjoined from removing the official list of eligible voters any registrant who did not vote in a single general election. It was further ordered that no lawfully registered voter 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 be removed from such list. 2015 WL 3508142. 

The case closed on January 30, 2015. On March 22, 2017, the parties finalized attorney's fees and costs.