Case: 12-2145

Document: 00116451682

Page: 1

Date Filed: 11/02/2012

Entry ID: 5687221

No. 12-2145 ___________________________________________________________ UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ___________________________________________________________ MYRNA COLON MARRERO Plaintiff Appellant v. HCTOR CONTY PREZ, et al., Defendants-Apellees ____________________________________________________________ ON APPEAL FROM UNITED STATE DISTRICT COURT FOR PUERTO RICO --------------EMERGENCY MOTION TO PROTECT THE COURTS APPELLATE JURISDICTION AND THE RIGHTS OF AMERICAN CITIZENS RESIDING IN PUERTO RICO TO CAST PROVISIONAL BALLOTS UNDER HAVA WITHOUT FEAR OF CRIMINAL PROSECUTION -------------------

Carlos A. Del Valle Cruz Rafael E. Garca Rodn Carlos Hernndez Lpez Banco Popular Bldg., Suite 701 206 Tetun Street San Juan, PR 00901 Tel. 787 722 7788 Counsel for Appellant November 2, 2012
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I.

PROCEDURAL BACKGROUND The case below is a civil rights action filed on September 12, 2012

in the District Court for Puerto Rico by Plaintiff-Appellant Myrna Coln Marrero, an United States citizen residing in Puerto Rico, alleging inter alia that Article 6.012 of the Puerto Rico Electoral Code, 16 P.R. Laws Ann. 4072 which call for the disenfranchisement of any voter for failure to vote on the past election is contrary to the National Voter Registration Act of 1993 (NVRA), the Help America Vote Act of 2002 (HAVA), and the first amendment, due process and equal protection clauses of the United States Constitution. Upon the District Courts summary denial of her request for preliminary injunctive relief, plaintiff promptly appealed before this Court. Oral argument was heard on October 11, 2012. The Court of Appeal granted the request for an expedited hearing and heard oral arguments on October 11, 2012; and on that date, issued the following Order: This case is here on appeal from the denial of plaintiff's motion for a preliminary injunction. 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 of the Electoral Code of Puerto Rico for the Twenty-First Century Act No. 78, June 1, 2011. 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
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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 feasibility 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. We retain jurisdiction and return the case to the district court for an evidentiary hearing to be held no later than Monday, October 15, 2012. The district court shall certify findings to this court by 5 p.m. on Wednesday, October 17, 2012. The District Court held the fact-finding hearing on October 5 and 16, 2012, and on October 17, 2012 issued a 14-page order making detailed record-based findings of fact pointing to the feasibility of implementing the requested injunctive relief. The District Court found that there were enough ballot and polling poll places to implement the remedy being sought by the Appellant. The Court endorsed the Acevedo Plan, which proposed using existing but underused provisional polling already manned with polling poll functionaries to handle the new influx of voters. According to the Certified Findings:

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In sum, the Acevedo proposal meets all feasibility requirements. The one circumstance that Mr. Acevedo raises and is for the Court of Appeals, of course, to decide, is whether, in a situation where there is a controversy as to the voters residency, the procedure should include a Courtauthorized poll watchers right to recuse on grounds of residency on Election Day, something which is now prohibited by Puerto Rico law. This right to recusal for residency would occur only as to the I-8 voters on Election Day, November 6, 2012, should the poll watcher have grounds to believe that the voters residence is not the one that appears on the list which the voter claims is still valid. The justification given by Mr. Acevedo is that none of the I-8 voters were subject to recusal on grounds of residency since being deactivated in 2009. All other grounds of recusal under Puerto Rico law are still available without Court Order. If the proposal is determined to be feasible by the Court of Appeals, then the public interest in protecting the right of citizens to vote overrides all others. The viability of the proposal itself neutralizes the claims of costs, burdens and potential threats to the electoral system in Puerto Rico. On October 18, Appellant filed a Supplemental Brief fully endorsing the Certified Findings and the Acevedo Plan endorsed by the Court. To address the concerns with respect to residency challenges, the Appellant noted that that once the deactivated voters were activated, the Court should also allow as part of the remedy that polling poll functionary be allowed these NVRA voters for cause as with any other voter, but adding residency to the reasons for cause. On October 18, 2012 however, a majority of the original panel entered an order announcing that, for unspecified feasibility concerns,
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preliminary injunctive relief was not possible and the appealed order must be affirmed. The Hon. Juan V. Torruella voiced his dissent from the majority. Said Order provides that: In response to our Order of October 11, 2012, the district court held an evidentiary hearing on October 15-16, 2012 to address the feasibility of permitting the voters who have been deactivated for failure to vote in the 2008 elections to vote in the general election on November 6, 2012. We received the district court's findings in a timely fashion. We acknowledge with gratitude the district court's careful assessment of the evidence presented and its detailed findings of fact. A majority of the panel has concluded that serious feasibility issues preclude the entry of the relief sought by plaintiff-appellant. Hence, the decision of the district court denying the request for a preliminary injunction is affirmed. Judge Torruella dissents from this ruling because he understands that the law of the case doctrine, and the findings of fact made by the court, which are supported by the record, require the issuance of the preliminary injunction. Opinions explaining the positions of the majority and the dissent will issue in due course.

A petition for rehearing En banc was submitted on October 20, 2102 and denied, over the vigorous dissent of Judge Toruella. The Opinion promised by the Court in its October 18, 2012 Order is still pending.

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II.

IS IT NECESSARY FOR THE COURT OT ISSUE AN URGENT ORDER TO PROTECT ITS JURISDICTION AND PROTECT AMERICAN CITIZENS RESIDING IN PUERTO RICO OF THEIR RIGHT UNDER HAVA TO CAST A PROVISIONAL BALLOT WITHOUT THREAT OF CRIMINAL PROSECUTION

The absence of a written opinion by this Court has emboldened Defendant-Appellee Edwin Mundo to proceed as if neither NVRA nor HAVA apply to Puerto Rico, as he is seeking a state court order that prohibits eligible voters to cast a provisional ballot under Section 15482 of HAVA, and is threatening these 300,902 voters to criminal prosecution and jail under Commonwealth law should their exercise their federal right. Unless this Court takes immediate and unmistakable action to protect the federal right to vote of these American citizens under Section 15482 of HAVA, this Court will be allowing perhaps the most massive stealth of the fundamental right to vote under the First Amendment and federal law in memorable history. ARGUMENT 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
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States Virgin Islands. 42 U.S.C. 15541. 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 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. 1973gg6(b)(1)(2)(B). Under Section 15482 of 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 is7

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(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 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. In addition, the SEC already pledged, but failed, to comply with Section 15482 of HAVA in its 2003 HAVA Compliance Plan with respect the provisional ballot provision of HAVA. See Attachment B, ps. 7-9. .Said Plan provides: Achieving Compliance with New Polling Place Requirements in 302 Puerto Rico currently administers both a provisional ballot process and a challenge ballot process to protect the rights of eligible voters.

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Under the process for administering provisional ballots (called aadidos a mano, a reference to the process of manually adding names to the list), voters who show up in a polling place but whose names are not on the voter registration list are directed to a special college within the election unit. They are issued a regular ballot that is set aside in a special envelope and counted only if the voter is found to be eligible. Each polling place has multiple colleges, this special college is somewhat like an absentee ballot precinct, which has no voters regularly assigned, but on Election Day has votes assigned to it for reporting purposes. Provisional ballots are kept separate from other ballots when they are sent to the Commission office for the official canvass of the votes. Following Election Day, Commission staff will research the eligibility of each provisional ballot voter. Once the investigation is completed, those votes cast for offices for which a voter is eligible to vote are counted. The research of the voters eligibility and the counting of provisional votes are carried out by separate officials in order to preserve the secrecy of the ballots. All the parties are represented in both processes. Following the election, all voters who cast ballots in this special college can access information on the disposition of the ballot either by means of a toll-free automated phone system or by visiting the local office. Only the voter who cast the provisional ballot has access to information on whether the ballot was counted. Challenged voters vote in the regular college, but their votes are segregated from regular ballots. The college inspectors review the challenge at the polling place on Election Day after the polls close. If the inspectors come to a unanimous decision the ballot is added to the colleges voted ballots for counting. If the inspectors cannot come to a unanimous decision, or if they unanimously decide not to count the ballot, the challenged ballot will be kept separate in a specially identified envelope from other ballots of the college when they are sent to the Commission office for a final review. Following Election Day, Commission staff will research the eligibility of each challenged
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ballot voter. This investigation process is open to public viewing. Once the investigation is completed, if the voter is eligible, his or her vote is added to the other votes counted within the college. All the parties are represented in this process. Only the Commission can invalidate a ballot, though the local commission can unanimously decide to count a ballot and this decision does not proceed to the Commission. If the Commission cannot come to a unanimous decision, the President decides whether a ballot will be counted. While Puerto Rico is largely in compliance with the provisional ballot requirement under 302, some minor changes are necessary. To meet the requirements of 302(a) of HAVA While in practice all voters who claim to be eligible are allowed to vote a ballot either by voting in the special college or voting a challenged ballot, the law specifies certain circumstances under which voters are denied the right to cast a ballot. The law will need to be amended to ensure that every voter meeting the circumstances defined in HAVA 302 is issued a ballot. The Commission will amend the challenge ballot to ensure the protections given to the voters who cast ballots in the special college, such as the protection of secrecy, are given to challenged voters as well.

Despite these assertions, the Commonwealth law has not been amended to comply with NVRA or HAVA. Apeellee 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
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challenged, and possibly subject to criminal prosecution. Yesterday the by Supreme Court of Puerto Rico issued a Resolution that while dicta clearly shows that the Commonwealth Court will side with defendant Mundos request to exclude native voters from casting provisional ballots, regardless or these voters right under federal law. See Edwin Mundo v. Comisin Estatal de Elecciones, Resolution of November 1, 2012. Exhibit A. While the resolution is technically limited to denying an intrajuridisctional certiorari to the Supreme Court, six members of the Court advance their opinion that Article 6.012 of the Electoral Law provides for the exclusion of voters from the electoral process, without the right to cast a provisional ballot. See expressions of Justice Martinez Torres, joined by Kholtoff Caraballo and Estrella Martinez, (no voter in the list of excluded voters can vote without a prior authorization issued by the SEC); and expressions of Justice Rivera Garca, joined by Pabn Charneco and Feliberti Cintrn (only those voters with a valid right to vote can go to the polls). The Supreme Court of Puerto Rico nowhere acknowledges the existence of the excluded voters right to cast provisional ballots under HAVA. On the contrary, Associate Justice Martinez Torres expresses that under Commonwealth law, voters who exercise their right to a
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provisional ballot under section 15482 of HAVA may be exposed to criminal penalties under Commonwealth law. According to the

expressions of Judge Martinez: To vote by hand [to cast a provisional ballot], is a felony on the fourth degree that conveys a penalty of a fixed term of three years of jail. See Article 12. 023 of the Electoral Code, supra sec. 4253, Article 307 of the 2012 Penal Code, law no. 146-2012, 33 L.P.R.A. SEC. ___. 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 while this Court did not find feasible the implementation of their right to be reinstated under NVRA, they still have rights under HAVA to cast provisional ballots, subject to the due process review procedures contemplated by law. The threat of prosecution for the exercise of federally protected right to vote, however, is 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. In sum, through a go-around procedure the Defendant Edwin Mundo seems likely to obtain an objective that is a monstrous
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aberration of federal law. In order to retain effective jurisdiction over an appeal still subject to this Courts promised Opinion, this Court can issue relief in the form of pronouncement that HAVA applies to Puerto Rico, and thus Plaintiffs as well as 330,902 other American citizens residing in Puerto Rico have a right to under HAVA to cast a provisional ballot without threats of criminal prosecution. Accordingly, Appellant prays that this Court order: A. THAT the SEC Apellees abide by their HAVA obligations

under the Supremacy Clause of the United States Constitution, and comply the provisions of Section 15483 of HAVA and the HAVA Compliance Plan; B. that the SEC be impeded from criminal prosecution of

voters for the exercise of their right cast a provisional ballot under section 15482 of HAVA; C. that the Commission 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 and the Commonwealth HAVA Compliance Plan;
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D. that the U.S. District Attorney be advised of its Order 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 1-877-267-8971). RESPECTFULLY SUBMITTED. In San Juan, Puerto Rico, this November 2, 2012. 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/ Carlos M. Hernndez Lpez Carlos M. Hernndez Lpez USDC-PR 207403 PO Box 1731 San, Juan, PR 00681 hernandezcharlie@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

CM/ECF CERTIFICATE OF SERVICE On this same date, the Appellant has electronically filed this Motion with the Clerk of the Court using the CM/ECF system that in turn will notify all attorney of record.
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