Case: 12-2145

Document: 00116442677

Page: 1

Date Filed: 10/11/2012

Entry ID: 5681861

No. 12-2145

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ______________________________________________________ MYRNA COLON MARRERO Plaintiff-Appellant v. HECTOR CONTY PEREZ, et al., Defendants-Appellants __________________________________________________ UNITED STATE DISTRICT COURT DISTRICT OF PUERTO RICO ____________________ REPLY BRIEF TO AMICUS CURIAE UNITED STATE DEPARTMENT OF JUSTICE _______________________
Carlos A. Del Valle Cruz Rafael E. Garca Rodn Carlos Hernndez Lpez 206 Tetun St. San Juan, PR 00901 Tel. 787 722 7788 Counsel for Appellants

October 10, 2012

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This is a Reply to briefly address some of the arguments contained in the Letter Brief submitted today by the United States as amicus curiae in the case at bar. A. RULES OF STATUTORY CONSTRUCTION The United States avers that the rule of statutory construction expression unius est exclusio alterius calls for the conclusion that because NVRA does not include Puerto Rico within the definition of State, Puerto Rico is therefore excluded from the substantive provisions of both NVRA and HAVA.. The rule of statutory construction invoked by the government is contrary to rules of statutory construction applicable to Puerto Rico under federal law, and commonly called the default rule. Under said rule, the courts will extend to Puerto Rico the application of federal law, unless there is clear evidence of a contrary legislative intent. The premise of this rule is the notion that while 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. United States v. Steele, 685 F.2d 793, 805 n. 7 (3d Cir.1982) (quoting Mora v. Mejias, 206 F.2d 377, 387 (1st Cir.1953); CaleroToledo v. Pearson Yatch Leasing Co., 416 U.S. 977 (1974)(same). In this vein, when Congress fails explicitly to refer to Puerto Rico in a statute, courts must nonetheless inquire whether it intended to do so. See Puerto Rico v. Shell Co. (P.R.), Ltd., 302 U.S. 253 (1937) (determining a statute's

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applicability to Puerto Rico is a question of congressional intent). In conducting this inquiry, courts routinely conclude that Congress intended to include Puerto Rico even when a statute is silent on that front. See, e.g., Examining Board v. Flores de Otero, 426 U.S. 527, 597 (1976)(defining State to include Puerto Rico for purposes of 42 U.S.C. 1983 and 28 U.S.C. 1343(3); Americana of Puerto Rico, Inc. v. Kaplus, 368 F.2d 431, 437 (3d Cir.1966) (federal statute that referred to the proceedings of any State, Territory, or Possession, applied to Puerto Rico even though Puerto Rico was not a State, Territory, or Possession); U.S.I. Properties Corp. v. M.D. Constr. Co., 230 F.3d 489, 499500 (1st Cir.2000) (defining State to include Puerto Rico for purposes of diversity jurisdiction under 28 U.S.C. 1332); Cordova & Simonpietri Insurance Agency Inc. v. Chase Manhattan Bank N. A., 649 F.2d 36, 38 (1st Cir.1981) (treating Puerto Rico as a State under the Sherman Antitrust Act). This default rule has been more recently applied by this Circuit to such controversial issue as the application of the death penalty for certain federal felonies committed in Puerto Rico, although the statute is silent on the inclusion of Puerto Rico. See United States v. Acosta Martinez, 252 F.3d 13, 18 (1st Cir. 2001), cert. denied, 535 U.S. 906 (2002)( Congress intended to include Puerto Rico even when a statute is silent on that front"); United States v. Quiones, 758 F.2d 40, 43 (1st Cir. 1985)(The Congressional intent behind the approval of the Puerto Rico

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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."); U.S. v. Laboy-Torres, 553 F.3d 715, 722 (3rd Cir. 2009)(courts routinely conclude that 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)(same). Although Congressional intent is guiding light of statutory construction, this Court has wisely noted: if experience teaches us anything, it is that most legal inquiries that turn upon Puerto Rico's political status are complex. Jusino

Mercado v. Puerto Rico, 214 F.3d 34, 40 (1st Cir.2000). As the Court itself stated in Examining Bd., 426 U.S. at 581, it is frequently the case when examining the text of a statute for its applicability to Puerto Rico that the language is not free of ambiguity, the purposes appear to be diverse and sometimes contradictory, and the circumstances are not fully spread upon the record for our instruction. In particular, the judiciary has been responsive to the manner in which Puerto Rico changing status and evolving integration with the United States over the passage of time may call for different practical judicial results. In Cordova & Simonpietri, then Judge Breyer concluded that the passage of the Federal Relations Act, 48 U.S.C. 731 et seq., and the concomitant development of commonwealth status for the island, dictated an opposite result with respect to application of the

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Sherman Act. See, 649 F.2d at 42. This Circuit effectuated a similar change of tack in Trailer Marine Transp. Corp. v. Rivera Vazquez, 977 F.2d 1, 7 (1st Cir. 1992). There, the Court examined the changes in the economic relationship between Puerto Rico and the United States and found that said economic integration warranted application of the dormant commerce clause. As a result, it reversed Buscaglia v. Ballester, 162 F.2d 805 (1st Cir.), cert. denied, 332 U.S. 816 (1947). According to the Court, however the matter may have appeared in 1947, certainly since 1952 Puerto Rico has had sufficient effective autonomy to classify it as something more than the mere agent of Congress and thus bring it within the dormant Commerce Clause doctrine. 977 F.2d at 9. See also Consejo Playa de Ponce v. Rulln, 556 F.Supp. 2d 74 (D.P.R. 2008)(documenting the advancement of the social, cultural, economic and political integration of Puerto Rico to the United States and questioning whether the incorporation doctrine is still valid law). If under TMT full economic integration is as important to Puerto Rico as to any state in the Union, should not full voting right in federal elections for Resident Commissioner also enjoy a similar degree of judicial recognition? Although federal courts generally presume that Congress intends its laws to have the same effect on Puerto Rico as they do on any state, that presumption can be overcome by specific evidence to the contrary or by clear policy reasons

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embedded in a statute. In the case at bar, they are absent. There is little support in the legislative history to support that United States conclusion that the exclusion of Puerto Rico from the NVRAs definition of State was a deliberate choice. An equally valid reading is that NVRA focused in its definition of State only on those political subdivisions that participated in the selection of Presidential Electors, but not to the exclusion of the statutes benefits for the election to other federal offices by definition already covered by the Federal Election Campaign Act (FECA). FECA, as we know, is applicable to the Commonwealth and the Territories. So is HAVA. Rather than attributing hidden and indiscernible motives in the different definition of State under NVRA from that of FECA and HAVA, it would seem a more appropriate statutory construction to heed the Supreme Court itself when it warned that it is frequently the case when examining the text of a statute for its applicability to Puerto Rico that the language is not free of ambiguity, the purposes appear to be diverse and sometimes contradictory, and the circumstances are not fully spread upon the record for our instruction. Examining Bd., 426 U.S. at 581. Under these circumstances, a statute's meaning in particular instances is to be arrived at not only by a consideration of the words themselves, but by considering, as well, the context, the purposes of the law, and the circumstances under which the words were employed. Puerto Rico v. Shell Co., 302 U.S. 253, 258 (1937); Gen. Motors Corp. v. Darling's, 444 F.3d 98, 108 (1st Cir.2006)(We

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must evaluate the statute's language within the statutory scheme and look to the legislative history and policy only if that language is unclear); In re Pharm. Indus. Average Wholesale Price Litig., 582 F.3d 156, 168 (1st Cir.2009) (limning general principles of statutory construction). The other arguments raised by amicus as evidence that Congress intended to treat Puerto Rico differently with respect to voting rights are not persuasive. Although the government recognizes that HAVA applies to Puerto Rico, and HAVA requires compliance with the fundamental provisions of NVRA, it claims that HAVA cannot require Puerto Rico to comply with the HAVA, because it would mean that NVRA would apply to Puerto Rico; and thus defeat the alleged exclusion of Puerto Rico from NVRA. That reading, we submit, is a Gordian knot would not the rule of hermeneutic be more easily and satisfactory met by reasoning that NVRA and HAVA worked in a complementary manner, and that HAVA applies to Puerto Rico both on its own and as a supplement to NVRAs coverage? Similarly, while certain States are excluded from NVRA pursuant to the Attorney General Letter of March 17, 2003, those uncovered jurisdiction are those States that allow same day registration; that is, those that already seem to have accomplished the objective of the law. A far cry from Puerto Rico, where

Commonwealth law (a) either forbids all that NVRA requires, such as alternative means of registration; or (b) requires all that NVRA forbids, such as removal from

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the electoral registry for once failing to vote. Finally, while the voting cycle may vary in the States from Puerto Rico, said distinction seems to be circumstantial and not fatal. The important thrust of the law is that it protects elections to federal office, and Puerto Rico has those elections as well as a State. What would seem to be the utmost consideration is not mentioned by the United States: in 2009, the SEC deactivated 539,820 qualified voters out of 2,458,036 potential voters for failing to vote in 2008. More American citizens were removed from the electoral register in Puerto Rico in one thrust than American soldiers died in WW I and II combined. In sum, by excluding Puerto Rico from the substantive provisions of NVRA and HAVA, the United States is allowing the worst voting right offender in the Nation to operate without any Congressional or judicial restraint. To promote a forced reading of the statutes to allow this result is simply unconscionable. Finally, we note an argument that seems too obvious. NVRA is not a socioeconomic legislation subject to rational scrutiny under Harris v. Rosario, 446 U.S. 651, 651-652 (1980) (per curiam). As we develop in our Brief, voting is a

fundamental right, and as such, the exclusion of American citizens residing in Puerto Rico from the protection given to said fundamental right by NVRA and HAVA is subject to a more compelling strict scrutiny. There is no compelling federal interest in allowing the Commonwealth of Puerto Rico to eliminate over

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half-a-million voters from participating in the federal election of the Resident Commissioner to Congress. If we read NVRA as a federal law extending the

benefits of ampler registration alternatives and explicit removal restriction upon elections for federal office, there is not a compelling federal interest in excluding the American residents in Puerto Rico from these rights. This case falls outside the rubric of Harris, and under strict scrutiny, NVRA would not satisfy a compelling state interest. In sum, 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 is the voice of the Puerto Rican community before Congress, it is necessary to enhance to the highest and protect to the utmost the peoples participation in the election of the same. This we respectfully submit is the more reasonable reading of NVRA. WHEREFORE, Appellant asks this Honorable Court to take note of this response to the United States Amicus brief.. In San Juan, Puerto Rico, this October 11, 2012.

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RESPECTFULLY SUBMITTED.

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

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

CERTIFICATE OF ELECTRONIC FILING On this date, the signatory to this text have filed it with the Clerk of the Court pursuant to the CM/ECF system that will automatically relay it to all attorneys of record.

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