Roughly three weeks before Election Day, the Court of Appeals for the First Circuit ruled against the main opposition party in Puerto Rico in its attempt to strike down a decades-long provision of the electoral code, thus flooding the election with close to 330,000 inactive voters. The provision in question mandated that any voter who did not participate in a general election, had to re-register prior to the next election in order to vote by September 17th, 2012. The Popular Democratic Party, through one of its current legislators, filed a declaratory judgment to deem the provision unconstitutional in light of National Voter Registration Act of 1993 and the Help America Vote Act of 2002, thus allowing 330,000 inactive voters (who did not vote in the 2008 election, the 2012 primaries, the 2012 referendum or failed to register in time for the 2012 elections) to participate in the November 6th general election.
Plaintiffs in this case were several voters who had failed to register in time for the 2012 elections, filed suit for injunctive relief before the U.S. District Court for the District of Puerto Rico. The Court dismissed the request for injunctive relief based on a jurisdictional issue, letting the case continue its ordinary course. Judge Carmen Cerezo held, in part:
“According to her Complaint, the specific provision of law which she challenges, Article 2.102 of the Puerto Rico Electoral Law, has been in place since 1977. That section requires that any elector, such as plaintiff, who did not vote in a general election, must be excluded from the registry of voters. That law also established a deadline of September 17, 2012 for voter registration which allowed any voter who did not participate in the 2008 election to re-register in order to participate in the 2012 election. The basis of plaintiff’s claim of violation to the federal statutes is the consequence of the local law that is being challenged. No justification has been advanced, however, as to why she awaited until four (4) days before expiration of the voter registration deadline in Puerto Rico to seek a preliminary injunction to order defendants to immediately activate her and all others similarly situated persons as registered voters in the general registry of voters entitled to vote in the upcoming election…”
Plaintiffs then filed an interlocutory appeal before the First Circuit, who remanded back to the District Court with instructions to hold an evidentiary hearing as to why the Electoral Commission could or could not accommodate the inactive voters. Following the evidentiary hearing held last week, the District Court issued a series of findings in which it recommended that the Electoral Commission allow the 330,000 inactive voters to vote in separate rooms than those of active voters. In other words, the District Court reversed itself and sided with the plaintiffs. By last Thursday, the District Court had notified the 1st Circuit of its findings, and all parties had filed their appellate briefs.
Late Thursday night, the Court of Appeals issued a brief ruling, putting the possibility of hundreds of thousands of voters hijacking the election to rest:
“ORDER entered by Juan R. Torruella, Appellate Judge; Kermit V. Lipez, Appellate Judge and Jeffrey R. Howard, Appellate Judge: 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. [12-2145] (TS)”
The decision was hailed by the Government and its supporters, as it guarantees that only voters who played by the rules will be allowed to vote. While some may agree with the general proposition (that voters who still appear on voting lists should be allowed to vote even if they did not participate in the previous election), many found the timing of the move offensive and opportunistic. As the District Court originally held, Plaintiffs waited until the very end of the election cycle to petition an order for injunctive relief, rather than spending a few minutes (even on a Saturday) in a government office in order to register to vote.
While the goal in any democracy is for all of its citizens be afforded an opportunity to vote, its citizens should bear a modicum of civic responsibility and spend a few minutes (or god forbid, an hour) of their time to register in order to allow the system to guarantee its transparency and efficiency. In this case, the Puerto Rico Electoral Commission makes it incredibly accessible to register to vote, opening year round and even putting up booths to register in shopping malls. In sum, the move by the PPD smacked of political opportunism at the final stretch. The First Circuit was wise in stopping a move that would have otherwise thrown the transparency of the election up in the air.