813 F.3d 1 (1st Cir. 2016), 15-1356, Colón-Marrero v. Vélez

Docket Nº:15-1356, 15-1722
Citation:813 F.3d 1
Opinion Judge:LIPEZ, Circuit Judge.
Party Name:MYRNA COLÓ N-MARRERO; JOSEFINA ROMAGUERA AGRAIT, Plaintiffs, Appellees; Cross-Appellants, GUILLERMO SAN ANTONIO-ACHA, as Electoral Commissioner of the Popular Democratic Party; JORGE DÁVILA, as Electoral Commissioner of the New Progressive Party, Defendants, Appellees v. LIZA M. GARCÍA VÉ LEZ, as President of the Puerto Rico State Elections ...
Attorney:José L. Nieto-Mingo, with whom Nieto Law Offices were on brief, for defendant-appellant/cross-appellee García Vélez. Jorge Martínez-Luciano, with whom Martínez-Luciano & Rodríguez-Escudero was on brief, for defendant-appellee San Antonio-Acha. Joan Schlump Peters, with whom Andrés Guillemard-Nobl...
Judge Panel:Before Howard, Chief Judge, Selya and Lipez, Circuit Judges.
Case Date:February 01, 2016
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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813 F.3d 1 (1st Cir. 2016)

MYRNA COLÓ N-MARRERO; JOSEFINA ROMAGUERA AGRAIT, Plaintiffs, Appellees; Cross-Appellants, GUILLERMO SAN ANTONIO-ACHA, as Electoral Commissioner of the Popular Democratic Party; JORGE DÁVILA, as Electoral Commissioner of the New Progressive Party, Defendants, Appellees

v.

LIZA M. GARCÍA VÉ LEZ, as President of the Puerto Rico State Elections Commission, Defendant, Appellant; Cross-Appellee, ROBERTO I. APONTE-BERRÍOS, as Electoral Commissioner of the Puerto Rico Independence Party; JULIO FONTANET MALDONADO, as Electoral Commissioner of the Movimiento Union Soberanista; ADRIÁN DÍAZ-DÍAZ, as Electoral Commissioner of the Puertoriqueños por Puerto Rico; LILLIAN APONTE-DONES, as Electoral Commissioner of the Partido del Pueblo Trabajador, Defendants

Nos. 15-1356, 15-1722

United States Court of Appeals, First Circuit

February 1, 2016

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[Copyrighted Material Omitted]

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APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Carmen Consuelo Cerezo, U.S. District Judge.

José L. Nieto-Mingo, with whom Nieto Law Offices were on brief, for defendant-appellant/cross-appellee García Vélez.

Jorge Martínez-Luciano, with whom Martínez-Luciano & Rodríguez-Escudero was on brief, for defendant-appellee San Antonio-Acha.

Joan Schlump Peters, with whom Andrés Guillemard-Noble and Nachman & Guillemard, P.S.C. were on brief, for defendant-appellee DÁvila.

Carlos A. Del Valle Cruz, with whom Del Valle Law, Carlos M. Hernández López, and Rafael E. García Rodón were on brief, for plaintiffs-appellees/cross-appellants.

Before Howard, Chief Judge, Selya and Lipez, Circuit Judges.

OPINION

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LIPEZ, Circuit Judge.

We revisit in this case whether federal law forbids Puerto Rico from removing individuals from its active voter registry for the office of Resident Commissioner -- the only federal elective position in Puerto Rico -- based solely on their failure to vote in one general election. In 2012, in an interlocutory appeal brought just weeks before Election Day, the panel majority held that the National Voter Registration Act (" NVRA" ) does not apply to Puerto Rico and thus does not supersede the Commonwealth's voter deactivation procedures. See Colón-Marrero v. Conty-Pérez, 703 F.3d 134, 137 (1st Cir. 2012) (per curiam). The majority also concluded, however, that plaintiffs were likely to succeed on the merits of their claim that another federal statute -- the Help America Vote Act (" HAVA" ) -- does bar Puerto Rico from removing voters from the registry for the office of Resident Commissioner unless they fail to participate in the preceding two general federal elections. Id. at 138. We nonetheless refused to order plaintiffs' immediate reinstatement to the voter registry, deeming such preliminary injunctive relief " improvident" given the uncertain feasibility of properly reinstating voters in the short time remaining before the election. Id. at 139.

On remand for consideration of the merits of plaintiffs' claims after the 2012 election, the district court agreed with our preliminary assessment that HAVA invalidates Article 6.012 of Puerto Rico Act No. 78 of 2011 insofar as it applies to voter eligibility for federal elections. It thus issued injunctive and declaratory relief barring the Puerto Rico State Elections Commission (" SEC" ) from removing otherwise eligible voters from the active election registry unless HAVA's requirements are met. Defendant Liza M. García Vélez, as SEC president, now challenges that ruling.1 In a cross-appeal, plaintiffs ask us to reconsider our conclusion that NVRA does not apply to Puerto Rico, and they further argue that excluding the Commonwealth from NVRA's coverage would violate the Equal Protection Clause of the Constitution.

Having considered each of these claims, we reiterate our conclusion that NVRA does not apply to Puerto Rico. In addition, we reject plaintiffs' constitutional challenge to that statute's coverage. We also adhere to our preliminary view that HAVA, which comprehensively addresses federal election administration, invalidates Article 6.012's deactivation procedure. We further hold that plaintiffs may bring a private cause of action seeking relief under HAVA pursuant to 42 U.S.C. § 1983. Accordingly, we affirm the judgment of the district court.

I. Factual Background

A. The 2012 Litigation

Plaintiffs Myrna Colón-Marrero and Josefina Romaguera Agrait filed this action in September 2012 claiming they were unlawfully removed from the Commonwealth's active voter registry, pursuant to

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Article 6.012,2 for having " exercised their right not to vote in the 2008 election for Resident Commissioner." 3 Am. Compl. ¶ 1. They asserted violations of NVRA, HAVA, and the Constitution, and sought declaratory and injunctive relief that included invalidation of Article 6.012 and immediate reinstatement of themselves and all similarly situated persons as eligible voters " in the upcoming election for federal office." Id. ¶ 2.4 Under both NVRA and HAVA, registered voters retain eligibility to vote in a federal election unless they have failed to respond to a notice seeking to confirm eligible residency and have not voted in two consecutive general elections for federal office. See 52 U.S.C. § 20507(b)(2)(NVRA); id. § 21083(a)(4)(A) (HAVA). 5 Plaintiffs also asked for an order directing the defendants " to abide by all the voter registration and other applicable mandates of the NVRA, HAVA and the first, due process and equal protection amendments to the Constitution." Am. Compl. ¶ 2.

The district court denied plaintiffs' request for a preliminary injunction, and Colón-Marrero (but not Romaguera Agrait) appealed. After holding a special oral argument session on October 11, 2012, a panel of this court concluded that Colón- Marrero had shown a likelihood of success on the merits of her claim for reinstatement. See Colón-Marrero, 703 F.3d at 136. We determined, however, 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." Id. Accordingly, we remanded the case to the district court for fact-finding on the feasibility of reactivating the affected voters in time for the November 6 election. See id.

Based on testimony presented at a two-day hearing on October 15 and 16, the district court found it would be feasible to reactivate the I-8 voters if this court ordered such relief by October 23 and devised a same-day recusal procedure that would allow the Commonwealth to exclude voters who had become ineligible for reasons other than Article 6.012 (such as moving out of the precinct or the Commonwealth). Id. at 136-37. The district court certified its findings to this court on October 17. In a brief order the next day, the appellate panel, with one dissenting member, affirmed the denial of preliminary relief because the district court's findings did

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not alleviate the majority's feasibility concerns.

Opinions explaining the October 18 ruling were issued on November 2. Among other factors, the majority noted that Puerto Rico law does not include a mechanism for same-day challenges to voter eligibility, which the district court had identified as necessary, and the majority observed that, " [e]ven if it were appropriate for a federal court to prescribe alternative recusal procedures, we would be ill equipped to do so in the short time remaining before the election." Id. at 139. The majority also pointed out that, although plaintiff originally sought to vote only for the federal position of Resident Commissioner -- rather than seeking to vote generally in the election6 -- she had elicited " scant evidence" at the evidentiary hearing on the practicality of a limited reinstatement. Id. at 138. As a result, the district court had made no finding on that issue -- " a major concern for the majority because the candidates for both Resident Commissioner and Governor appear on the same ballot." Id. at 138-39. Moreover, the panel expressed concern about the plaintiffs' decision to bring this action " less than two months before a general election that had long been scheduled for November 6." Id. at 139.

Having determined that, in these circumstances, it would be " improvident to grant plaintiff's requested relief with only eighteen days remaining before the general election," id., the panel refused to grant a preliminary injunction and remanded the case to the district court for further proceedings.7

B. Proceedings on Remand

In June 2013, on remand, the parties agreed to submit the case to the district court for decision on the merits based on a joint stipulation of facts and memoranda of law. On March 31, 2014, the district court ordered the parties to file the stipulation by April 30 and simultaneous memoranda by May 30, with replies due by June 20. The court described the case at that point as follows:

Although the nature of the controversies has been well defined during the preliminary injunction relief stage, primarily during the remand hearing and in the First Circuit's opinion issued in Colón-Marrero v. Conty-Pérez, 703 F.3d 134 (1st Cir. 2012), the parties are advised that the scope of relief -- whether the remedy is limited to the election of the Resident Commissioner in Puerto Rico or extends to the general election process -- is an open question that shall be addressed in the parties' briefs.

In compliance with the order, the parties filed a limited stipulation of facts stating only that (1) the two plaintiffs voted in the 2004 general election, (2) did not vote in the 2008 general election, (3) did not follow the...

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