ColóN–Marrero v. Conty–Pérez

• Decision Date: 02 November 2012
• Docket Number: No. 12–2145.,12–2145.
• Citation: 703 F.3d 134
• Parties: 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.
• Court: U.S. Court of Appeals — First Circuit

703 F.3d 134

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.

No. 12–2145.

United States Court of Appeals, First Circuit.

Heard Oct. 11, 2012.

Decided Nov. 2, 2012.

Validity Called into Doubt

Puerto Rico Law No. 78, Art. 6.012Carlos 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 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.

Before TORRUELLA, LIPEZ and HOWARD, Circuit Judges.

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 She seeks a preliminary injunction to redress that removal. 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 and confusion in the Puerto Rico electoral process. 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.

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 only elected federal officer, the Resident Commissioner. 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 2002 (“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 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 fact-finding, forthwith, on the feasibility of reinstating the affected voters in time for the November 6 election.

The district court heard nearly sixteen hours of 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, and the availability of additional volunteer poll monitors. On October 17, the district court certified 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 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 (“FECA”), see42 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 NVRA's legislative history points in the same direction. An early version of the statute adopted 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 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,” see42 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 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.

Plaintiff was fully aware of the limited nature of her original...