elections litigation brief cee

7/31/2019 Elections Litigation Brief CEE

1/99

1

Appeal No. 12-2145

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

MYRNA COLN-MARRERO

Plaintiff-Appellantv.

HCTOR J. CONTY-PREZ, President of the Puerto Rico StateElections Commission (SEC); EDWIN MUNDO-ROS, as ElectoralCommissioner of the New Progressive Party (NPP); EDER ORTIZ-ORTIZ, as Electoral Commissioner of the Popular Democratic Party

(PDP); ROBERTO I. APONTE-BERROS, as Electoral

Commissioner of the Puerto Rican Independence Party (PIP); JULIOFONTANET-MALDONADO, as Electoral Commissioner of theMovimiento Unin Soberanista (MUS); ADRIN DAZ-DAZ, as

Electoral Commissioner of Puertorriqueos por Puerto Rico;CARLOS QUIRS-MNDEZ, as Electoral Commissioner of Partido

del Pueblo Trabajador (PPT)

Defendants- Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF PUERTO RICO

BRIEF FOR DEFENDANT-APPELLEEHCTOR J. CONTY-PREZ

PRESIDENT OF THE PUERTO RICO STATE ELECTIONSCOMMISSION

Jos L. Nieto-Mingo, Esq.NIETO LAW OFFICES

District View Plaza, Suite 301644 Fernndez Juncos AvenueSan Juan, Puerto Rico 00907-3122Tel. (787) 520-6064Fax (787) 919-7319Cel. (787) 667-2968E-Mail: [email protected]

Case: 12-2145 Document: 00116441767 Page: 1 Date Filed: 10/09/2012 Entry ID: 568126

1 of


2/99

2

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Rules of Appellate Procedure, AppelleeHctor J. Conty Prez, President of the Puerto Rico State ElectionsCommission, need not provide a corporate disclosure statement, as

Appellee is an individual.


2 of


3/99

3

TABLE OF CONTENTS

I. COUNTERSTATEMENT OF JURISDICTION 7

II. COUNTERSTATEMENT OF ISSUES PRESENTED FORREVIEW..12

III. COUNTERSTATEMENT OF THE CASE ..12

A. Nature of the Case12

B. Counterstatement of the facts.19

IV. STANDARD OF REVIEW.24

V. SUMMARY OF THE ARGUMENT...23

VI. ARGUMENT 24

A. NVRA does not Apply to Puerto Rico....24

B. Since NVRA does not apply to Puerto Rico,Section 303 of HAVA does not apply either..31

C. Appellant has not met her burden for the issuanceof a preliminary injunction under Fed. R. Civ. P.65...32

i) Burden of the injunction sought on the SEC andImpact on the PublicInterest....34

ii)Appellant is barred by equitable laches43

VII. CONCLUSION.49

VIII. CERTIFICATE OF COMPLIANCE51


3 of


4/99

4

TABLE OF AUTHORITIES

I. Federal Cases:

Ashwander v. Tennessee, 297 U.S. 228, 345 (1936).50

Bonas v. Town of North Smithfield, 265 F.3d 69, 73 (1stCir. 2001)...5,7,8

Boston Duck Tours, LP v. Super Duck Tours, LLC, 531 F.3d 1, 11 (1stCir.2008)..33

Brunner v. Ohio Republican Party, 555 U.S. 5 (2008).....32

Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 884 (9th Cir.2001)26Charlesbank Equity Fund II v. Blinds To Go, Inc., 370 F.3d 151, 162(1st Cir.2004).33

Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 541U.S. 246, 252 (20..24

Fornaris v. Ridge Tool Co., 400 U.S. 41, 42 n.1 (1970).30

Franchise Tax Board v. Construction Laborers Vacation Trust, 463U.S. 1, 9-10 (1983)..5

Gonzlez-Cancel v. Partido Nuevo Progresista, et al., No. 12-1243,slip op. (1st Cir. October 2, 2012)..7

GonzlezDroz v. GonzlezColn, 573 F.3d 75, 79 (1stCir.2009)..23

Gross v. FBL Financial Services, Inc., 557 U.S. 167,175 (2009)..24

Ind. Prot & Advocacy Services v. Ind. Family & Social ServicesAdministration, 603 F.3d 377-378 (7th Cir. 2010).


4 of


5/99

5

Insurance Corp. of Ireland, Ltd. v. Compagnie Des Bauxites deGuinee, 456 U.S. 694, 702 (1982)9

K-Mart Corporation v. Oriental Plaza, Inc., 875 F.2d 907, 911 (1st. Cir1989).. .43

Knaefler v. Mack, 680 F.2d 671, 676 (9th Cir. 1982).9

Louisville & Nashville Railroad v. Mottley, 211 U.S. 149 (1908)5

Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382, (1884)10

National Organization for Marriage v. Daluz, 654 F.3d 115 (1st Cir.

2011)..22

Northern Securities Co. v. United States, 24 S.Ct. 436, 468(1904)..51

Powell v. Power, 436 F.2d 84, 86 (2ndCir. 1970)7

Puerto RicanAmerican Ins. Co. v. Benjamin Shipping Co., 829 F.2d281, 283 (1st Cir.1987)..43

Railway Labor Executives' Ass'n v. ICC., 735 F.2d 691, 701 (2d Cir.1984)...2Reno v. Condon, 528 U.S. 141 (2000)

Rossell-Gonzlez v. Caldern-Serra, 398 F.3d 1 (1st Cir. 2004).8

Skelly Oil Co v. Phillips Petroleum Co., 339 U.S. 667 (1950).8

United States v. Acosta Martnez, 252 F.3d 13 (1st Cir. 2001)29,31,

United States v. Laboy Torres, 553 F.3d 715, 722 (3 rd Cir.1982....29,30

United States v. Steele, 685 F. 2d 793, 805, n.7 (3rd Cir.1982)..29,30


5 of


6/99

6

Waldron v. George Weston Bakeries, Inc., 570 F.3d 5,9 (1st Cir.2009)33

Verlinden, B.V. v. Central Bank of Nigeria, 461 U.S. 480,494 (1983).5

Zuni Pub. Sch. Dist. No. 89 v. Dept of Educ., 555 U.S. 81, 106(2007)..27

II. Federal Statutes:

United States Constitution ...5,19

28 U.S.C. 1331.7, 9

28 U.S.C. 1746..17

42 U.S.C. 19838

Declaratory Judgment Act, 28 U.S.C. 2201-028

Help America Vote Act of 2002 (HAVA)42 U.S.C. 15301 et seq...5,11,13,19,23,32

Federal Election Campaign Act of 1971 (FECA) (2 U.S.C.431(12)25,26

Fed.R.Civ.P. 12(b)(1)..10

Fed.R. Civ. P. 65.32

National Voter Registration Act of 1993 (NVRA), 42 U.S.C. 1973gg et seq ....5,11,13,14,15,16,17,18,19,21,23,24,25,28,29,31

Puerto Rico Federal Relations Act, 48 U.S.C. 734 .21

III. Puerto Rico Statutes:

Constitution of PuertoRico24,34


6 of


7/99

7

Puerto Rico Electoral Act, Act No. 4 of December 20, 1977, asamended

Article 2.01219

Puerto Rico Election Code for the 21st Century, Act No. 78 of June1st, 2011, as amendedSection 2.003 .6Section 3.004...19,20Section 6.012..5,6,16,18,19,22,23,34,50 Section 6.015..18

IV. Publications

Erwin Chemerinsky, Federal Jurisdiction 278 (4th

Ed. 2003)..8, 9


7 of


8/99

8

I. COUNTERSTATEMENT OF JURISDICTION

Federal Courts are, of course, courts of limited jurisdiction. See

U.S. Const. art. III. As a result, federal courts . . . must be certain

they have explicit authority to decide a case. Bonas v. Town of

North Smithfield, 265 F.3d 69, 73 (1st Cir. 2001).

Albeit not in the clearest of language, Appellant pled in her

complaint federal question jurisdiction pursuant to 28 U.S.C. 1331,

presumably because her cause of action arouse under the National

Voter Registration Act of 1993 (NVRA), 42 U.S.C. 1973gg et seq;

the Help America Vote Act of 2002 (HAVA), 42 U.S.C. 15301 et

seq.; and the first amendment, due process and equal protection

clauses of the United States Constitution. (Addendum at 06)

Federal jurisdiction must be clear from the face of the plaintiffs

complaint. Louisville & Nashville Railroad v. Mottley, 211 U.S. 149

(1908); Franchise Tax Board v. Construction Laborers Vacation

Trust, 463 U.S. 1, 9-10 (1983); Verlinden, B.V. v. Central Bank of

Nigeria, 461 U.S. 480, 494 (1983).

According to Appellant, the procedure set forth in Section

6.0121 of the Puerto Rico Election Code for the 21st Century, Act No.

1Section 6.012. General Voter Registry provides as follows:


8 of


9/99

9

78 of June 1st, 2011, as amended (Puerto Rico Election Code),

whereby the Puerto Rico State Elections Commission (SEC)

deactivates from the General Voter Registry2 voters who fail to vote in

the General Election, as defined in Section 2.003(30), violates the

provisions of the NVRA. This violation of the NVRA in turn, the

argument goes, results in a violation of Section 303 of HAVA, which

requires that a process of purging electoral registrations be carried

out pursuant to the provisions of NVRA.

The Commission shall prepare and keep a General Voter Registry of allregistered persons in Puerto Rico. Said Registry shall be kept in such away that information related to voters can be veritably and promptlydetermined.

The information contained in the General Voter Registry shall becontinually updated in terms of the voters changing circumstances. Alllists of voters entitled to vote in an election shall be prepared based on theGeneral Voter Registry.

If a voter fails to exercise his/her right to vote in a General Election, his/herfile in the General Voter Registry shall be inactivated.

The Commission may exclude voters from the General Voter Registry onthe grounds provided by this Act or established through regulations. Theexclusion of a voter shall not entail the elimination of his/her informationfrom the General Voter Registry.

The Commission shall keep at least one (1) true and exact copy of theGeneral Voter Registry in a separate, secure place under its custody andmake any necessary modifications to keep it up to date

2 Section 2.003 Definitions (84) of the Puerto Rico Election Code definesGeneral Voter Registry as a Record prepared and kept by the State ElectionCommission that contains the information of all the persons in Puerto Rico whohave registered for election-related purposes.


9 of


10/99

10

In light of this argument, Appellants entire jurisdictional

assertiondepends on the applicability of the NVRA to Puerto Rico.

In other words, if the NVRA does not apply to Puerto Rico, then, by

definition, Section 303 of HAVA does not apply to Puerto Rico either.

And, absent a violation of these federal statutes, Appellant cannot

argue any federal constitutional violation that could presumably

confer jurisdiction under the general federal question jurisdiction

statute, 28 U.S.C. 1331.

As SEC will show in section VI A of this brief, infra page 27, by

its own terms, the NVRA does not apply to Puerto Rico and

consequently, Section 303 of HAVA does not apply either.

In the absence of a claim arising under federal law, . . a

federal court may not inject itself into the mist of every local electoral

dispute. Bonas, 265 F.3d at 74. This Honorable Court has long

established, and very recently reaffirmed, that . . . [e]lection law, as it

pertains to state and local elections, is for the most part a preserve

that lies within the exclusive competence of the state courts. Bonas,

265 F.3d at 74, citing Powell v. Power, 436 F.2d 84, 86 (2nd Cir.

1970), reaffirmed in Gonzlez-Cancel v. Partido Nuevo Progresista,

et al., No. 12-1243, slip op. at 8 (1st Cir. October 2, 2012).


10 of


11/99

11

As a result, and . . . with only a few narrow and well-defined

exceptions, federal courts are not authorized to meddle in local

elections. Bonas, 265 F.3d at 74 (emphasis added). This Honorable

court has repeatedly held that federal courts normally may not . . .

undertake the resolution of garden variety election irregularities.

Rossell-Gonzlez v. Caldern-Serra, 398 F.3d 1, 14 (1st Cir. 2004),

citing Bonas, 265 F.3d at 74.

Appellants failure to clear the jurisdictional hurdle is not

remedied by including a cause of action for deprivation of civil rights

under 42 U.S.C. 1983 or a declaratory judgment under the

Declaratory Judgment Act, 28 U.S.C. 2201-02, since, [a] plaintiff

may not circumvent [] [the well-pleaded complaint] rule by seeking

a declaratory judgment. . . . See, Erwin Chemerinsky, Federal

Jurisdiction 278 (4th Ed. 2003). In Skelly Oil Co v. Phillips Petroleum

Co., 339 U.S. 667 (1950), the Supreme Court held that if, but for the

availability of the declaratory judgment procedure, the federal claim

would arise only as a defense to a state created action, jurisdiction is

lacking.

Likewise,Appellants inclusion of a 1983 claim does not aide

her jurisdictional cause either. Since 42 U.S.C. 1983 does not


11 of


12/99

12

create federal jurisdiction but merely a cause of action for deprivation,

under color of state law, of any rights, privileges, or immunities

secured by the Constitution and laws of the United States, federal

jurisdiction to entertain 1983 cases exists under the general federal

question jurisdiction statute, 28 U.S.C. 1331. See, Erwin

Chemerinsky, Federal Jurisdiction 464 (4th Ed. 2003).

As SEC has shown, Appellant has failed to establish general

federal question jurisdiction under 28 U.S.C. 1331. Given its

constitutional roots, see U.S. Const. art. III, the issue of lack of

federal jurisdiction may be raised on appeal. Knaefler v. Mack, 680

F.2d 671, 676 (9th Cir. 1982), citing Insurance Corp. of Ireland, Ltd. v.

Compagnie Des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

It is hornbook law that a federal court, including an appellate

court, will raise lack of subject-matter jurisdiction on its own motion.

Insurance Corp. of Ireland, Ltd at 702. Faced with a showing of lack

of federal jurisdiction, a federal court has indeed no choice but to

dismiss the action:

[T]he rule, springing from the nature and limits of the judicialpower of the United States is inflexible and withoutexception, which requires this court, of its own motion, to denyits jurisdiction, and, in the exercise of its appellate power, thatof all other courts of the United States, in all cases where such

jurisdiction does not affirmatively appear in the record.


12 of


13/99

13

Insurance Corp. of Ireland, Ltd. v. Compagnie Des Bauxites de

Guinee, 456 U.S. 694, 702 (1982), citing Mansfield, C. & L. M. R. Co.

v. Swan, 111 U.S. 379, 382, (1884) (emphasis added).

In light of the foregoing, this Honorable Court should dismiss

the instant appeal for lack of federal jurisdiction.

As of the date of filing of this brief, the SEC has filed with the

District Court a motion to dismiss for lack of subject matter jurisdiction

pursuant to Fed.R.Civ.P. 12(b)(1), for the reasons above stated.

II. COUNTER STATEMENT OF ISSUES PRESENTEDFOR REVIEW

A. Whether the District Court had jurisdiction to entertainAppellants complaint;

B. Assuming arguendo that the District Court had jurisdiction,whether Appellant had met her burden for the issuance of apreliminary injunction under Fed. R. Civ. P. 65.

C. Assuming arguendo that the District Court had jurisdiction,whether the District Court abused its discretion in denying

Appellants Motion for a Preliminary Injunction under Fed. R.Civ. P. 65.

III. COUNTER STATEMENT OF THE CASE

A. Nature of the Case

SECs August 9, 2012 Resolution, (Addendum at 26-30) and

SECs letter dated April 27, 2011 to the exact same attorneys as the


13 of


14/99

14

attorneys of record for Appellant in this case (Addendum at 31-34),

in response to an identical claim made by these attorneys on behalf

of five (5) different voters in a position similar to that of Appellant,

clearly show what this case is about.

This case IS NOT, about the deprivation of the right to vote. In

this case, Appellant knew very wellwhat were the Puerto Rico law

requirements she had to comply with in order to vote in the upcoming

General Election, and, having ample time and opportunity to comply

with those requirements, she voluntarily chose not to do so.

To be sure, Puerto Rico law does not require any of its citizens

to vote in any electoral event. As a result, Appellant was completely

at liberty to exercise her so-called right not to vote. But the

converse does not follow. Her decision not to vote in the General

Election cannot exempt her from complying with the same

requirements that every person who is entitled to vote under Puerto

Rico law is required to follow.

Unlike the poor and the racial minorities that countless federal

statutes, including NVRA and HAVA, were designed to protect,

Appellants inability to vote in the upcoming election is created by her


14 of


15/99

15

decision not to comply with a simple and valid requirement that she

has in no way indicated was unable to fulfill.

That voters who fail to vote in a General Election have to

reactivate in order to vote has been the law in Puerto Rico since at

least the middle of the Twentieth Century. (PDPs Commissioners

Brief, at 1). This requirement has been in place for so long, that it is

safe to say that by now, it has become common knowledge.

In the particular case of Appellant, it is clear that she had

ACTUAL notice of these requirements. As a result of SECs

Resolution CEE-RS-12-89 dated August 9, 2012 (Addendum at 26),

notified through her attorneys, Appellant Coln-Marrero received

actual notice of the denial of her petition for automatic reactivation.

However, said resolution provided specific instructions about

the simple steps that Appellant had to take in order to reactivate.

Specifically, it urged Appellant to go to the Board of Permanent

Inscription (JIP in Spanish) of [her] precinct or to the JIP Island

located in the headquarters of CEE [Spanish acronym for SEC] on or

before September 17, 2012 where personnel of the CEE are

available to assist [her] in [her] voting reactivation process.

(Addendum at 29-30).


15 of


16/99

16

As of the filing date of this brief, the Puerto Rico general

election is only 28 days away. By the time this case is argued in

Boston, the election will be only 26 days away. As the entity

charged with the legal responsibility of administering the General

Election, the SEC is extremely concerned about the prospects of

making any significant changes in its implementation schedule, let

alone adding over 330,000 potential voters to the registry of voters

eligible to cast a vote on the November 6, 2012 General Election.

During the last three years, the SEC has been preparing for the

upcoming election diligently. In making these plans, the SEC had no

indication whatsoever that it would be required to comply with NVRA

or with Section 303 of HAVA.

SECs understanding pertaining to its obligations under NVRA

and HAVA were totally reasonable in light of the fact that since

August 14, 2003, the SEC had filed its plan for the implementation of

HAVA with the U.S. Election Assistance Commission (EAC).3

As a condition to receive federal funds, Section 253 of HAVA

required that the SEC file an implementation plan certifying

compliance this The Voting Rights Act of 1965, 42 U.S.C. 1973 et

3As discussed in Section VI A infra, this plan assumed and specifically stated

that NVRA does not apply to Puerto Rico.


16 of


17/99

17

seq.; The Voting Accessibility for the Elderly and Handicapped Act,

42 U.S.C. 1973ee et seq.; The Uniformed and Overseas Citizens

Absentee Voting Act, 42 U.S.C. 1973ff et seq.; the National Voter

Registration Act of 1993 , 42 U.S.C. 1973gg et seq.; The Americans

with Disabilities Act of 1990, 42 U.S.C. 12101 et seq.; and The

Rehabilitation Act of 1973, 29 U.S.C. 701 et seq.;42 U.S.C. 15545.

Appellant did not include the entire version of this document in

theAddendum of her brief, filed in lieu of Appendix in this case.

(Addendum at 51). Given the importance of this document for the

adequate consideration of the issues presented in the instant appeal,

Appellee has included the entire version of this document as an

addendum to his brief. This addendum shall be referenced in this

brief as the HJCP Addendum.

Even the shortened version of Puerto Ricos implementation

plan included in Appellants Brief specifically states that the Island is

exempt from the requirements of NVRA. (Addendum at 50). But the

entire plan is replete with references and operational assumption

based on the inapplicability of NVRA to Puerto Rico. (HJCP

Addendum at 06, 12-15, 36, 39, 41, 42, 43,44-46).


17 of


18/99

18

After receiving Puerto Ricos implementation plan for HAVA

[stating in no uncertain terms that NVRA did not applied to Puerto

Rico] the EAC published it in the Federal Register (Federal Register,

Volume 69, Number 57, Wednesday, March 24, 2004, Pages 14640-

15232). Since then, this document, containing SECs interpretation

regarding the applicability of NVRA to Puerto Rico has been in the

Public Domain, and no one has suggested or given any indication

that this interpretation is incorrect, or that the SEC was in violation of

any federal law.

As a result, the insinuation made throughout Appellants brief

that the SEC is breaching a federal statute with the intention of

depriving people in Puerto Rico of their right to vote in the upcoming

General Election is simply preposterous. The situation in Puerto Rico

is dramatically different to the one that moved Congress to enact

NVRA and HAVA. Far from erecting barriers to voters, the SEC goes

out of its way to be inclusive, to help people vote and to protect the

integrity of the process by following rules carefully tailored to avoid

electoral fraud.

For almost a decade, the SEC has been working under the

assumption that the provisions of this statute establishing national


18 of


19/99

19

procedures for voter registration for elections for federal office (42

U.S.C. 1973gg-2); simultaneous application for voter registration

and application for motor vehicle driver's license (42 U.S.C.

1973gg-3); voter registration by mail (42 U.S.C. 1973gg-4); and

maintenance of an accurate and current voter registration roll for

elections for Federal office (42 U.S.C. 1973gg-6), do not apply to

Puerto Rico because Puerto Rico is not a State as defined in 42

U.S.C. 1973gg-1.4 Nobody in Puerto Rico eitherhad given any

indication that this interpretation was incorrect, or that the SEC was

in violation of any federal law.

It is rather strange that the alleged violation of federal

constitutional rights denounced by Appellant was so recently

discovered. Following the logic of Appellants arguments, as a

practical matter, any voter who failed to vote in either the 2004 or the

2008 General Election could have filed the same lawsuit filed by

Appellant in this case, since they too would have been deactivated

from the General Voter Registry pursuant to the provisions of Section

6.012 of the Puerto Rico Election Code.

442 U.S.C. 1973gg-1(4) defines the term State as a State of the United

States and the District of Columbia.


19 of


20/99

20

The fact of the matter is, however, that until now, no one has

filed such suit in federal court since the NVRA was enacted in 1993.

Since then, the SEC has been acting under the assumption, firmly

grounded on the statutory language of the NVRA, that this statute

does not apply to Puerto Rico.

B. Counterstatement of the facts

Through the attorneys of record for this appeal, Appellant

Myrna Coln-Marrero sent a letter dated July 30, 2012 to Appellee

Hctor J. Conty Prez requesting immediate reactivation in the

General Voter Registry, notwithstanding the fact that she had not

voted in the 2008 General Election. (Addendum at 21).

Attached to this letter, a Statement Under Penalty of Perjury

pursuant to 28 U.S.C. 1746 executed by Appellant on July 23, 2012

was included. (Addendum at 25). In this statement, Appellant stated

that she had not voted in the 2008 General Election, and that as a

result, she had been removed from the list of active voters.

(Addendum at 25).

This statement is incorrect since, under Puerto Rico law,

inactive voters are never removed from the General Voter Registry.

See Puerto Ricos Implementation Plan for HAVA, dated August 14,


20 of


21/99

21

2003 (HJCP Addendum at 13, footnote 4) (Inactive voters under

the Puerto Rican system do not refer to those inactive under NVRA.

Puerto Rico keeps in its database all prior voters who are no

longer eligible, whether they are no longer Puerto Rico

residents, dead, or otherwise no longer actively registered with

its correspondent codification. (Emphasis added).

By the time Appellants attorney wrote the July 30, 2012 letter,

she still had 48 days to comply with the reactivation requirement set

forth in the Section 6.012 of the Election Code, since the last day for

reactivation was September 17, 2012, pursuant to Section 6.015 of

the Election Code.5 When Appellee issued Resolution CEE-RS-12-89

on August 9, 2012 (Addendum at 25), she still had 39 days to

comply with that requirement.

As previously discussed, and assuming arguendo that the

NVRA applied to Puerto Rico, Appellants cause of action had

accrued since at least May 4, 2009. Yet, she chose to wait over two

years to file the lawsuit.

5 This Section provides that [n]o registration, reactivation, transfer or relocationof a voter for an election shall be authorized within fifty (50) days before theholding of said election.


21 of


22/99

22

The SEC had addressed this issue more than a year prior to

the request made by Appellant on July 23 and 30, 2012. (Addendum

at 22-23 and 20-21). On April 6, 2011 five (5) Puerto Rico voters who

did not vote in the 2008 General Election, represented by the same

attorneys as Appellant in the instant case, sent a letter addressed to

Appellee Hctor J. Conty Prez, as President of the SEC.

(Addendum at 31).

In this letter, the aforementioned attorneys alleged that the

procedure set forth in of Article 2.012 of Puerto Rico Electoral Act,

Act No. 4 of December 20, 1977, as amended, then in effect6 violated

the provisions of the NVRA, HAVA and the Constitution of the United

States. (Addendum at 31). Like the Appellant in the instant case,

these voters requested their immediate reincorporation, and that of

the other voters similarly situated, to the list of voters entitled to

vote, i.e., the General Voter Registry. (Addendum at 31).

Under the provisions of Section 3.004(b) of the Puerto Rico

Election Code, all election-related issues that come before the SEC

have to be decided by the unanimous approval of Election

Commissioners of each registered political party. In the absence of

6Article 2.012 of Act. No. 4 of December 20, 1977, was the precursor of Section

6.012 of the Puerto Rico Election Code at issue in this appeal.


22 of


23/99

23

such unanimous approval, the President of the SEC decides the

matter.7

During SECs Ordinary Meeting held on April 13, 2011, the

Election Commissioners of the three political parties that were

registered at that time met, together with the President of the SEC, to

consider the petition made by the aforementioned voters who did not

vote in the 2008 General Election. (Addendum at 31). After careful

consideration of this matter, the Election Commissioners of the three

political parties that were registered at that time decided

unanimously to deny their request. (Addendum at 31). This

decision was communicated to the voters, though their attorneys by

letter dated April 27, 2011 and signed by Election Commissioners of

the three political parties that were registered at that time.

(Addendum at 31).

7 This Section specifically provides as Follows:

Section 3.004. Decisions of the Commission.

(b) Every election-related issue shall require the agreement of theCommission and the approval by unanimous vote of the ElectionCommissioners present when it is voted upon. Any matter that does notreceive a unanimous vote shall be decided, in favor of or against, by theChair [President of the SEC], whose decision shall be deemed to be thatof the Commission, and may be appealed in the manner provided in this

Act.


23 of


24/99

24

In the April 27, 2011, the Election Commissioners pointed out

that while 9 of the Puerto Rico Federal Relations Act, 48 U.S.C.

734 generally provides that the statutory laws of the United States not

locally inapplicable, shall have the same force and effect in Puerto

Rico as in the United States, the NVRA, by its own terms did not

apply to Puerto Rico. (Addendum at 32). In addition, said letter

stated that the deactivation procedure set forth in the Election Code

was an integral part of the process of purging the electoral lists that

is carried out with the objective of preventing fraud and ensuring that

the Electoral Registry [today, the General Voter Registry] contains

correct information. (Addendum at 32).

As for the issue of notice regarding deactivation for failure to

vote in the General Election, the April 27, 2011 letter stated that the

SEC conducted extensive educational campaigns, informing the

general public the need to go to the Board of Permanent Inscription

(JIP by its Spanish acronym) to reactivate in order to vote if they

had not voted in the last General Election. (Addendum at 33).

Regarding the specific steps taken by the SEC to notify the

general public of the need to reactivate, the April 27, 2011 letter

referenced a press release dated February 29, 2009 published in


24 of


25/99

25

several general circulation newspapers in Puerto Rico that the JIPs

would commence the purging process of the electoral lists as of

March 2, 2009 and that any voter who did not participate in the 2008

General Election could visit the JIP to reactivate their electoral record

starting beginning on May 4, 2009 in order to vote in the next General

Election of November 2012. (Addendum at 34).

It is important to point out that one of the Election

Commissioners who voted in favor of denying the petition of

automatic reactivation, thus upholding the validity of the challenged

provision of the Election Code was the one representing the Popular

Democratic Party (PDP), one of the defendant-appellants in this case.

For reasons yet to be explained, the PDP subsequently changed its

position regarding the validity of the procedure set forth in Section

6.012 of the Election Code. (Addendum at 28).

IV. STANDARD OF REVIEW

The Court reviews the denial of a preliminary injunction under a

deferential standard, reversing only upon finding a mistake of law, a

clear error in fact-finding, or other abuse of discretion, National

Organization for Marriage v. Daluz, 654 F.3d 115,117 (1st Cir. 2011),


25 of


26/99

26

citing GonzlezDroz v. GonzlezColn, 573 F.3d 75, 79 (1st

Cir.2009).

V. SUMMARY OF THE ARGUMENT

Out of the two (2) federal statutes upon which Appellant bases

her claims, only the NVRA recognizes a private cause of action, 42

U.S.C. 1973gg-9. As it pertains to HAVA, only the Attorney General

of the United States may bring a civil action for declaratory judgment

and injunctive relief, since this statute does not create or recognize a

private cause of action.

However, and notwithstanding the above, the NVRA does not

apply to Puerto Rico, and as a result, there is no federal jurisdiction.

Since Appellants entire claim rests on the applicability of NVRA to

Puerto Rico, to the extent NVRA is not applicable to Puerto Rico,

Appellants entire jurisdictional basis crumbles.

In the absence of a federal statutory or constitutional claim, the

doctrine on non-intervention by federal courts in state elections

proceedings further prevents the intervention of the federal courts in

this claim. Moreover, the inclusion of all voters who were deactivated

from the General Voter Registry as a result of their failure to

reactivate pursuant to the provisions of Section 6.012 of the Election


26 of


27/99

27

Code will jeopardize the SECs ability to conduct and administer the

November 6, 2012 General Election, as mandated by Article VI,

Section 4 of the Puerto Rico Constitution.

VI. ARGUMENT

A. NVRA does not Apply to Puerto Rico

The central issue on this appeal is one of statutory construction.

As previously discussed, the jurisdiction of the federal courts over the

instant dispute depends upon the determination of whether or not the

NVRA applies to Puerto Rico.

The Supreme Court has clearly stated that [s]tatutory

construction must begin with the language employed by Congress

and the assumption that the ordinary meaning of that language

accurately expresses the legislative purpose. Gross v. FBL Financial

Services, Inc., 557 U.S. 167, 175 (2009), citing Engine Mfrs. Assn.

v. South Coast Air Quality Management Dist., 541 U.S. 246, 252

(2004)(emphasis added).

If we begin, as we must, with the statutory language of the

NVRA, we will quickly discover that Puerto Rico is not included in the

definition of the term state set forth in this statute. Section 1 of the


27 of


28/99

28

NVRA, 42 U.S.C. 1973gg-1(4) defines the term State as a State

of the United States and the District of Columbia.

While the clear and unambiguous language of Section 1 of the

NVRA should suffice to dispose of the controversy at hand, legislative

intent, so far as anyone can reasonably ascertain, suggests that the

NVRA was enacted to remedy situation of racial discrimination not at

all present in Puerto Rico.

Moreover, during the legislative process leading to the

enactment of the NVRA, the proposed definition of the term State

endured several modifications. For example, during the 102nd

Congress, the NVRA, filed as H.R. 2190 of 1990, included in its

Section 114 a definition of the term State referring to the definition

of this term used in Section 431 (12) of the Federal Election

Campaign Act of 1971 (FECA) (2 U.S.C. 431(12) .

FECAs definition of the terms State contained on Section

401 does include Puerto Rico:

When used in this Act:

(12) The term "State" means a State of the United States,the District of Columbia, the Commonwealth of Puerto Rico,or a territory or possession of the United States. 42 U.S.C. 431 (12).


28 of


29/99

29

According to the Congressional Record, during the 103rd

Congress, the National Voter Registration Enhancement Act was

introduced on January 5, 1993, as H.R. 2 , and contained definitions

[Section 104 Definitions] including one for the term State cross-

referenced to the definition of that term in section 301 (12) of FECA, 2

U.S.C. 431(12).

However, in the Conference Report on H.R. 2, National Voter

Registration Act of 1993 (House of Representatives - April 28, 1993),

the Conference Report (H. Rept 103-66) describes how In lieu of the

matter proposed to be inserted by the Senate amendment, insert the

following:

Sec. 3 Definitions.As used in this Act(4) the term State means a State of the United States andthe District of Columbia; and.

The Conference Report on H.R. 2, National Voter Registration Act

of 1993 (House of Representatives April 28, 1993), in its Joint

Explanatory Statement of the Committee of Conference describes

that, [t]he differences between the text of the House bill, the Senate

amendment thereto, and the substitute agreed to in conference are

noted below, except for clerical corrections, conforming changes


29 of


30/99

30

made necessary by reason of agreements reached by the

conferences, and minor drafting and clarifying changes. Said report

further states:

Section 3. Definitions

The House Bill, the Senate amendment, and the conferenceagreement set forth identical definitions for the terms,election, Federal office, motor vehicle drivers license,State, and voter registration agency.

The NVRA (Pub. L. 103-31, 107 Stat. 77) was finally enacted on

May 20, 1993, with its current 1971gg-1 definition of the term

State that includes only States of the United States and the District

of Columbia.

Although the Supreme Court has advised that recourse to

legislative history is not necessary where a statutes plain meaning is

clear, the Court does suggest that [an appellate court] review the

legislative history to ensure that there is no clearly contrary

congressional intent. Carson Harbor Vill., Ltd. v. Unocal Corp., 270

F.3d 863, 884 (9th Cir. 2001) (en banc) (citations omitted).

Fortunately, [t]his happens to be a case in which the legislative

history is pellucidly clear. Zuni Pub. Sch. Dist. No. 89 v. Dept of

Educ., 555 U.S. 81, 106 (2007) (Stevens, J., concurring).


30 of


31/99

31

"Because a conference report represents the final statement of

terms agreed to by both houses, next to the statute itself it is the most

persuasive evidence of congressional intent." Railway Labor

Executives' Ass'n v. ICC., 735 F.2d 691, 701 (2d Cir. 1984) (citation

omitted).

In this case, the Conference Report tends to indicate that

Congress intended to exclude Puerto Rico and other territories from

the application of NVRA.

In light of the foregoing, it is apparent that Appellants proposed

analytical framework, which essentially calls for the automatic

application of all federal statutes to Puerto Rico, is mistaken as a

matter of law, and useless, as a rule of statutory construction.

In addition, it should be noted that Appellee is not alone in its

interpretation regarding the inapplicability of the NVRA to Puerto

Rico. The Attorney General of the United States appears to share

this interpretation as well.

Section 9 of the NVRA, 42 U.S.C. 1973gg-9, provides that the

Attorney General may bring a civil action in an appropriate district

court for such declaratory or injunctive relief as is necessary to carry

out this subchapter.


31 of


32/99

32

Interestingly, the United States Department of Justice (DOJ)s

website http://www.justice.gov/crt/about/vot/nvra/nvra_faq.php

contains a section devoted to the NVRA. Its questions and answers

section specificallyanswers the question that has eluded Appellant:

What States are covered by the NVRAs requirements?

The requirements of the NVRA apply to 44 States and the Districtof Columbia. Six States (Idaho, Minnesota, New Hampshire, NorthDakota, Wisconsin, and Wyoming are exempt from the NVRAbecause, on and after August 1, 1994, they either had no voter-

registration requirements or had election-day voter registration atpolling places with respect to elections for federal office. Likewise,the territories are not covered by the NVRA (PUERTO RICO,Guam, Virgin Islands, American Samoa). While the NVRAapplies to elections for federal office, States have extended itsprocedures to all elections. (Emphasis added)

As the Court can readily confirm, the interpretation of the

agency charged with enforcement NVRA proclaims, in the medium

providing the widest dissemination possible to the general public, that

the NVRA simply does not apply to Puerto Rico.

This conclusion is further supported by Puerto Ricos

implementation Plan for HAVA. (HJCP Addendum at 12-14).

Appellant cites United States v. Acosta Martnez, 252 F.3d 13 (1st

Cir. 2001); United States v. Laboy Torres, 553 F.3d 715, 722 (3 rd Cir.

1982); and United States v. Steele, 685 F. 2d 793, 805, n.7 (3 rd Cir.

1982) in support of the proposition that, even when the federal statute


32 of
http://www.justice.gov/crt/about/vot/nvra/nvra_faq.phphttp://www.justice.gov/crt/about/vot/nvra/nvra_faq.phphttp://www.justice.gov/crt/about/vot/nvra/nvra_faq.php


33/99

33

is silent as to its applicability to Puerto Rico, the default rule is that all

federal law applies to the Island.. (Appellants Brief at 29-30).

Careful examination of these decisions reveal that there is no

such thing as a default rule, for even when Congress fails to

explicitly refer to Puerto Rico, courts must nonetheless enquire

whether it intended to do so. United States v. Laboy Torres, at

722. (emphasis added). As a result, Appellants proposed rule,

amounting to automatic application of all federal laws to Puerto Rico,

simply has no basis.

Even United States v. Steele, cited by Appellant for the

proposition that even though Puerto Rico is not a State, it seem[s] to

have become [one] within a common and accepted meaning of the

word (Appellants Brief at 30), specifically states, in the very

footnote cited by Appellant, that other Supreme Court Decisions

suggest that Puerto Rico in fact is not a State. See United States v.

Steele, at 805, n.7 but seeFornaris v. Ridge Tool Co., 400 U.S. 41,

42 n.1 (1970) (per curiam) (Puerto Rican statutes are not state

statutes within 28 U.S.C. s 1254(2), which authorizes appeals to the

Supreme Court). (emphasis added).


33 of


34/99

34

Appellants reliance on United States v. Acosta Martnez (the

death penalty case) in support of this contention is particularly

mistaken (and misleading) because, unlike the NVRA, the criminal

statutes applicable to that case, (and the statutory structure) are very

clear that Puerto Rico is not exempt from these death penalty

provisions. United States v. Acosta Martnez at 19. In this decision,

the Court expressly points out that the federal criminal code itself

applies to the United States, and the definition of the United States

for purposes of the crimes in the code includes Puerto Rico. See 18

U.S.C. 5. Further, both section 924 and 1513 refer to the general

federal murder statute, 18 U.S.C. 1111, which itself applies to

Puerto Rico. Id. 1111(b). United States v. Acosta Martnez at 19.

B. Since NVRA does not apply to Puerto Rico, Section 303of HAVA does not apply either

In addition to restating that Puerto Rico is exempt from the

provisions of NVRA, Puerto Ricos implementation plan for HAVA

also states that as a result of this exemption, Puerto Rico is also

exempt from the provisions of Section 303 that require a state to use

list cleaning procedures proscribed by the NVRA in administering the

computerized list, including 303(a)(2) and 303(a)(4). (HLCP

Addendum at 14).


34 of


35/99

35

The validity of SECs interpretation, as set forth in the Puerto

Ricos implementation plan was confirmed by Assistant Attorney

General Ralph F. Boyd, Jr. in a letter dated March 17, 2003 to the

Secretary of Alabama. (Addendum at 53) (These requirements [of

Section 303] apply to all states, except those exempt from NVRA,

which shall remove the names of ineligible voters from the

computerized list, in accordance with state law.)

In addition, even if arguendo HAVA were to apply to Puerto

Rico, the District Court correctly concluded in its Order, and Appellant

acknowledged as much in her Memorandum of Law in Support of

Motion for Preliminary Injunction, that . . . HAVA does not seem on

its face to grant Plaintiff a private cause of action and it is unclear

whether there is an implied cause of action under 1983.

(Addendum at 02). See also, Brunner v. Ohio Republican Party, 555

U.S. 5 (2008) (vacating TRO for absence of likelihood to prevail on

the question of whether a private party can bring an enforcement

action under Section 303 of HAVA).

C. Appellant has not met her burden for the issuance of apreliminary injunction under Fed. R. Civ. P. 65.

In considering a motion for a preliminary injunction under

Fed.R. Civ. P. 65, a district court must consider: (1) the plaintiff's


35 of


36/99

36

likelihood of success on the merits; (2) the potential for irreparable

harm in the absence of an injunction; (3) whether issuing an

injunction will burden the defendants less than denying an injunction

would burden the plaintiffs; and (4) the effect, if any, on the public

interest. Waldron v. George Weston Bakeries, Inc., 570 F.3d 5, 9

(1st. Cir. 2009), citing Boston Duck Tours, LP v. Super Duck Tours,

LLC, 531 F.3d 1, 11 (1st Cir. 2008).

In its Order, the District Court stated that it could not make a

determination favorable to the plaintiff on the likelihood of success

prong (Addendum at 03), and also indicated that she had failed to

show irreparable injury. (Addendum at 03). This Honorable Court

has held that these two factors (likelihood of success and irreparable

injury) are the most important and, in most cases, irreparable

harm constitutes a necessary threshold showing for an award of

preliminary injunctive relief. Waldron v. George Weston Bakeries,

Inc. at 79, citing Charlesbank Equity Fund II v. Blinds To Go, Inc.,

370 F.3d 151, 162 (1st Cir.2004) (emphasis added).

While the importance of the first two factors is paramount, the

remainder two -- whether issuing an injunction will burden the

defendants less than denying an injunction would burden the


36 of


37/99

37

plaintiffs; and, the effect, on the public interest are particularly

relevant in this case. Once again, assuming arguendo the existence

of federal jurisdiction, equitable considerations in this case weigh

heavily against the issuance of such remedy, particularly, when we

are only four short weeks away from the General Election.

i) Burden of the injunction sought on the SEC andImpact on the Public Interest.

As a Practical Matter, reactivating the registration of voters

whose files have been inactivated pursuant to Article 6.012 of the

Puerto Rico Election Code would seriously impair the ability of the

SEC to conduct and administer the November 6, 2012 General

Election, as mandated by the Puerto Rico Constitution.

This Court must appreciate the fact, that as an operational

matter, the SEC cannot minimize the effects of such determination by

limiting them to the position of Resident Commissioner. The positions

of Governor and Resident Commissioner appear on the same ballot.

Conducting a General Election in Puerto Rico involves many

tasks that are closely interrelated. SECs Electoral Registration

Database shows that a total of 330,902 voters are currently inactive

in the General Voter Registry as a result of their failure to vote in the

2008 General Elections.


37 of


38/99

38

Reactivating that number of voters at this point will have,

among others, the following effect on SECs administration of the

electoral process:

Effect on Polling Centers and Polling Places

The amount of voters assigned for each polling place for the

2012 General Election is 325 voters per polling place. A simple

calculation reveals that 330,902 additional voters will require at least

1,018 additional polling places.

The addition of over 1000 additional polling places will require

that SEC, in coordination with the Puerto Rico Department of

Education, as well as other government agencies and private entities

begin searching for alternatives for securing additional polling places.

At this point, the current polling place distribution requires the

use of restaurants, abandoned schools, basketball courts, and even

private residences as polling places in some parts of the Island. With

less than a month to go before the General Election, it would be

practically impossible to find additional polling in some parts of the

Island.

The addition of over a 1000 new polling places will require at

least 4000 additional ballot boxes and 4000 additional voting booths.


38 of


39/99

39

The SEC has some spare units, but not nearly as many as those

required for the additional voters.

Effect on the CEE Information Systems

Voters Registration Data Base.

The voters registration database holds all the voters electoral

data regardless of whether they are active or inactive. The change of

a record status from Inactive to Active on the Voters Registration

Database is one transaction that has to be implemented one record

at the time. This manual transition will require significant manpower

to be implemented. The SEC might need to hire an external

contractor to create a computer program to perform a block

transaction to switch all Inactive records toActive. This option will

also require significant time to implement as any program used to

perform modification on the Electoral Database has to be carefully

validated.

Voters Registration Index.

The voters registration Index is a file transaction performed

once the Electoral Database is closed for voter transactions and it will

assign a polling location and a polling place to each one of the voters


39 of


40/99

40

based on their residential address and the alphabetical sorting of the

voters last name.

The insertion of 330,902 additional voters will completely

modify the Voters Registration Index causing that most of the voters

will have to be reassigned to different polling places. The Voters

Registration Index for the General Elections 2012 has already been

completed.

Voters Electoral Lists

Once the Electors Registration Index is completed the SEC

promptly begins printing the different electoral lists used for the

election process. Among these lists, there is one used by the poll

workers at each polling place to have where the voter will sign in

order to vote, and another used by the polling center officials to

indicate what polling place the voter has been assigned to.

There are several lists divided by polling place, by polling

center, by precinct and by municipality, and multiple copies of these

lists are printed to provide them also to the political parties. The

inclusion of the 303,902 new voters will require to reprint all these

electoral lists. The SEC has already started the printing process

weeks ago and if it is required to restart the process with the existing


40 of


41/99

41

printing equipment, it will not be able to finish on time for the General

Election, and there will not be enough paper to print all the lists again.

The paper used by these special printers is not in stock in Puerto

Rico and it might take some extra weeks to get this paper to start the

new printing.

Vote Casting Tabulation Software

The SEC has developed custom software for the tabulation of

the votes received on the General Elections. A basic configuration

for this software to be used during the elections requires specifying

the amount of polling places for each polling center and the amount

and description of each polling center. The addition of the inactive

voters will force the addition of several polling places thus causing the

reconfiguration of the vote casting tabulation software. The Mock

Elections to be implemented for the General Elections are scheduled

for the second week of October. As a general good programming

practice it is expected that the elections configuration should be final

for the Mock Elections.

Effect on the Electoral Operations

Electoral Material

Ballots


41 of


42/99

42

The General Elections 2012 will present to the voters a total of

four ballots. The Puerto Rico Election Code requires to print and to

bring to the polling places the same amount of ballots than the total

registered voters. This requirement will imply a total of 1,323,608

additional ballots to be printed and delivered to the polling places.

The ballot printing process is in progress with state, plebiscite and

most of the municipal and legislative ballots already printed. The

paper required for this ballot printing was specially ordered for this

contract and there is no spare paper available to print that amount of

extra ballots. The CEE will not be able to provide the additional

ballots required for the additional 303,902 new voters on time.

Electoral Material Briefcase

Each one of the additional 1,018 polling places will require an

additional electoral material briefcase. This briefcase (a cardboard

box) provides each polling place with all the required material for

conducting the election. Among the materials provided in the

Electoral Material Briefcase in addition to the ballots are ultraviolet

lights and the invisible ink used for the finger marking procedure.

Even though SEC has spare units, they are not sufficient for 1,018

additional sets.


42 of


43/99

43

Electoral Material Briefcase Transportation Logistics.

The additional 1,018 briefcases would require to adjust all the

briefcase transportation logistics which contract has already been

awarded. The SEC will have to evaluate the existing contract and

consider the impact that 1,018 additional Electoral Material

Briefcases will cause.

Effect on the Right of the Political Parties to perform exclusions

As per SEC regulations, the political parties have ten days to

evaluate any transaction performed on the Electoral Records and to

issue any complaint or to challenge the transaction. The activation of

the 330,910 less than 30 days before the election day will create

transaction challenges and their opportunity to answer the challenge

to the election week.

Effect on the voters identification cards to be issued.

In order to vote in the General Election 2012 all the voters

need to present their official identification card. Assuming that a

significant number of the 330,910 voters to be re activated do not

have their voters identification card the Permanent Registration

Boards office will expect to receive thousands of re activated voters

requesting a re issue of their identification cards. This high volume of


43 of


44/99

44

re issues has not been considered on the inventory levels of the new

cards nor in the work level of the staff members of the Permanent

Registration Board.

Effect to the Political Parties in terms of Poll workers

The addition of over 1000 polling places to the election will

require that each political party recruits over 3000 poll workers for a

total of over 18,000 poll workers. The educational process for the poll

workers, which is managed by each political party has already started

putting at risk that the new additional poll workers to be recruit will

have no adequate training.

Effect to the Educational Campaign

As part of the voters informational campaign, the SEC

produces informational cards for each voter where the exact polling

center and polling place where the voters should vote. If the voters

are reassigned new informational cards will be required not only for

the re activated voters but or all the voters. The voters who are

already active that have already received these informational cards

will receive a second one with conflicting information.

If the SEC is required to re activate all inactive voters a new

educational campaign will be required and will have to be developed


44 of


45/99

45

in an extremely short time period to let the voters to know about their

re activation.

Effect to the General Canvassing Process

After the General Election, a General Canvassing Process

where all the tally sheets from the polling places are reviewed and

checked for correctness. This General Canvassing Process is

already planned and organized based on the total amount of polling

places that we have defined. If over 1,000 polling places are added,

the layout and the work plan for the entire process will have to be

revised as there are strict limitations, as this process has to be

completed prior to January 2nd, 2013, when the Governor and all the

elected officials begin their term.

Effect to the military absentee vote.

The ballots already sent to the military absentee voters were

based on the evaluation of the voters status and some of them were

limited to receive the Federal ballot as they were detected to be

inactive on the Voters Registrations Database. This inactive status

might change by this re activation and the votes already receive the

federal ballot.


45 of


46/99

46

The foregoing list is not exhaustive and many other effects,

both foreseen and unforeseen may result from the addition of

330,902 at this time.

ii) Appellant is barred by equitable laches

The equitable doctrine of laches bars assertion of a claim

where a party's delay in bringing suit was 1) unreasonable, and 2)

resulted in prejudice to the opposing party. K-Mart Corporation v.

Oriental Plaza, Inc., 875 F.2d 907, 911 (1st. Cir 1989) citing Puerto

RicanAmerican Ins. Co. v. Benjamin Shipping Co., 829 F.2d 281,

283 (1st Cir.1987). As a matter of federal civil procedure, laches is

an affirmative defense. See Fed.R.Civ.P. 8(c). In this case,

Defendant had no opportunity to raise this equitable defense since

the District Court denied Appellants Motion for a Preliminary

Injunction pursuant to Fed.R.Civ.P. 65 prior to the filing of any

responsive pleading by Appellee.

Nonetheless, the applicability of this doctrine to the instant case

is apparent, as the District Court readily identified in its Order:

No justification has been advanced, however, as to why sheawaited until four (4) days before expiration of the voterregistration deadline in Puerto Rico to seek a preliminaryinjunction to order defendants to immediately activate her andall others similarly situated persons as registered voters in thegeneral registry of voters entitled to vote in the upcoming


46 of


47/99

47

election for Resident Commissioner and to order the StateElection Commission defendants to immediately andindividually contact all persons who were removed from thegeneral registry of voters because they did not vote in the 2008elections. The irreparable injury claimed was created byplaintiffs own conduct. In sum, it is self-inflicted. She had fullopportunity to submit her claims to the Court and obtain aremedy without inflicting upon herself any injury as to her rightsas a voter. (Addendum A, at 03). (emphasis added).

In this case, it is undeniable that Appellants delay in bringing

her suit was unreasonable. Assuming arguendothat she in fact had

a right not to be inactivated from the General Voter Registry for her

failure to vote in the 2008 General Election, her alleged caused of

action accrued immediately after the election. Nevertheless, as the

District Court correctly pointed out . . .she awaited until four (4) days

before the expiration of the voter registration deadline in Puerto Rico

to seek a preliminary injunction . . . . (Addendum A, at 03)

D. In the absence of an evidentiary hearing, the Court ofAppeals cannot grant the preliminary injunction requestedby Appellant

The record on appeal for this case is comprised of the sparse

documentation filed by Appellants in the District Court. Prior to the

issuance of the District Courts order on September, 18, 2012, none


47 of


48/99

48

of the defendants had made any filing in the District Court. 8 The

District Court had held no hearings and had neither received any

evidence.

As a result, the onlyrecord this Honorable Court has to assess

the validity and soundness of Appellants claims is the documentation

that Appellant chose to file with her complaint, and which comprises

Appellants Addendum, filed in lieu of the appendix in this case.

Appellants Addendum is a less than ideal record to decide a

case of this momentous importance. As a result, and only to the

extent this Honorable Court determines that there is federal

jurisdiction, the case should be sent back to the District Court for the

development of an appropriate record.

VII. CONCLUSION

This Honorable Court should not lose sight of the fact that the

only action taken by the Judge Cerezo was, in the exercise of her

sound discretion, to deny Appellants petition for preliminary

injunction. As a defendant in the District Court action (assuming the

District Court denies the Motion to Dismiss lack of subject matter

8 The Election Commissioner of the PDP was the only defendant in the DistrictCourt action who filed responsive pleading. An answer to the complaint was filedon his behalf on September 19, 2012, a day after the District Court issued theorder denying Appellants motion for a preliminary injunction.


48 of


49/99

49

jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) filed by Appellee) the

SEC will have to defend the validity of Section 6.012 of the Puerto

Rico Election Code. The SEC stands ready to do so on the merits, as

set forth in the District Court order (Addendum at 04), in a

proceeding where the parties will have the opportunity to present

evidence and develop a full record.

Before this Court, Appellant insists on the necessity of a

preliminary injunction as a remedy --at this late point-- to secure her

right to vote in the November General Election. But for not having

sought this equitable remedy earlier, Appellant has only herself to

blame.

If a federal court determines that it has jurisdiction to entertain

an action [of] great gravity and delicacy Ashwander v. Tennessee,

297 U.S. 228, 345 (1936) (Brandeis, J. concurring) such as

evaluating the validity of Section 6.012 of the Puerto Rico Election

Code, it should do so in the more orderly and serene environment of

the declaratory judgment proceeding, not in a hurry, with the

proverbial Sword of Damocles hanging over the parties heads in a

preliminary injunction action that was filed a month prior to the

election.


49 of


50/99

50

If this Honorable Court reaches beyond the narrow standard of

review of abuse of discretion applicable to the instant appeal, and

undertakes the daunting task of determining the intricacies,

complications and ramifications that could result from an order

directing the SEC to open the registry to more than 330,000 voters,

four weeks prior to the election, the court would no doubt, be

undertaking an incredibly hard case.

But Justice Holmes admonition in Northern Securities Co. v.

United States, 24 S.Ct. 436, 468 (1904) that . . .hard cases, make

bad law, is as relevant today as it was when it was made more than

a century ago. A decision as sensitive and as important as it is to, in

effect, dismantle Puerto Ricos entire electoral system should not be

made as part of an expedited appeal from a denial of a preliminary

injunction. Such course of action would be contrary to the basic

tenets of federalism embodied in the federal constitution.

WHEREFORE, Appellee Hctor J. Conty-Prez, President of

the Puerto Rico State Elections Commission respectfully prays that

the Order issued by the Honorable Carmen Consuelo Cerezo on

September 18, 2012 denying Appellants Motion for a Preliminary


50 of


51/99

51

Injunction be affirmed, and that action filed by Appellant be dismissed

for lack of subject matter jurisdiction.

VIII. CERTIFICATE OF COMPLIANCE

It is hereby certified that this brief complies with F.R.A.P. 32

and the corresponding Local Rule, in that the body of this brief

contains 9,507 words (less than 14,000) , it has margins of one (1)

inch per side, and uses 14 point Arial font.

IX. CERTIFICATE OF SERVICE

I hereby certify that on October 9, 2012, this Brief was

electronically filed with the United States Court of Appeals for the

First Circuit by using the CM/ECF system.

I certify that the following parties or their counsel of record are

registered as ECF Filers and that they will be served by the CM/ECF

system:

Carlos A. Del Valle Cruz Counsel for Plaintiff-Appellant

Rafael E. Garca-Rodn - Counsel for Plaintiff-Appellant

Carlos M. Hernndez-Lpez Counsel for Plaintiff-Appellant

Jorge Martnez-Luciano - Counsel for DefendantAppellee

Nelson Crdova-Morales - Counsel for DefendantAppellee

John E. Mudd - Counsel for Norman Parkhurst


51 of


52/99

52

RESPECTFULLY SUBMITTED

In San Juan, Puerto Rico, this 9th day of October 2012.

S/ Jos L. Nieto-Mingo

Jos L. Nieto-MingoFirst Circuit Bar No. 48497Counsel for AppelleeHctor J. Conty-PrezPresident,Puerto Rico State Elections Commission

NIETO LAW OFFICESDistrict View Plaza, Suite 301644 Fernndez Juncos AvenueSan Juan, PR 00907-3122Tel. (787) 520-6064Cel. (787) 667-2968Fax (787) 919-7319E-Mail: [email protected]


52 of


53/99


53 of


54/99


54 of


55/99


55 of


56/99


56 of


57/99


57 of


58/99


58 of


59/99


59 of


60/99


60 of


61/99


61 of


62/99


62 of


63/99


63 of


64/99


64 of


65/99


65 of


66/99


66 of


67/99


67 of


68/99


68 of


69/99


69 of


70/99


70 of


71/99


71 of


72/99


72 of


73/99


73 of


74/99


74 of


75/99


75 of


76/99


76 of


77/99


77 of


78/99


78 of


79/99


80/99


80 of


81/99


81 of


82/99


82 of


83/99


83 of


84/99


84 of


85/99


85 of


86/99


86 of


87/99


87 of


88/99


88 of


89/99


89 of


90/99


90 of


91/99


91 of


92/99


92 of


93/99


93 of


94/99


94 of


95/99


95 of


96/99


96 of


97/99


97 of


98/99


98 of


99/99


elections litigation brief cee

Documents