Artículo
Por: Ricardo del Campillo Alberty*
Introduction
“While it is this Court’s function to adjudicate the controversies of Law brought before [it], things must be called by their name . . . What occurred on August 9 is an embarrassment.”[efn_note]Pierluisi v. Comisión Estatal de Elecciones, 2020 TSPR 82, at 36. (Oronoz, C.J., concurring).[/efn_note]
The ongoing COVID-19 pandemic has severely affected governmental operations in countries around the world;[efn_note]Coronavirus Disease (COVID-19) Dashboard, WORLD HEALTH ORGANIZATION,https://covid19.who.int/?gclid=CjwKCAiAzNj9BRBDEiwAPsL0d6zB5JgeXcWqFjH8y-5nqyewuUYZSUxdQqf4AJND_D-NS9LIxa4u-hoCoWsQAvD_BwE (last visited Nov 19, 2020) (as of November 20, 2020, there have been over 57,000,000 confirmed cases across the globe, and 1,368,000 confirmed deaths.[/efn_note] Puerto Rico is no different. 2020 was an election year in Puerto Rico, and the government was forced to balance the containment of COVID-19, with the constitutional and statutory frameworks that rule electoral events. Further complicating matters, just before the COVID-19 pandemic outbreak, Puerto Rico’s legislature was in the midst of approving sweeping electoral reform. In the end, the COVID-19 pandemic, election law reform and serious administrative mismanagement merged to create a legal issue of first impression in Puerto Rico: the suspension of a primary election after part of the electorate had already cast their votes.
This article will examine the sequence of events that led to the unprecedented suspension of Puerto Rico’s 2020 Electoral Primaries, and how Puerto Rico’s Supreme Court balanced constitutional, statutory, and political considerations to protect the most severely affected constituency: the voters. Part II of this article provides a general background on Puerto Rico’s electoral law. Part III discusses Puerto Rico’s 2020 primaries as they occurred. Part IV discusses how Puerto Rico’s Supreme Court analyzed the primaries’ postponement and how it adjudicated the issue.
I. General background on Puerto Rico election law
Puerto Rico’s constitutional provisions regarding elections
The preamble of the Constitution of the Commonwealth of Puerto Rico, establishes the democratic character of the island’s political system, stating that “the will of the people is the source of public power . . . and free participation of the citizen in collective decisions is assured.”[efn_note]P.R. CONST. PREAMBLE (the U.S. Congress approved Puerto Rico’s Constitution, establishing the Commonwealth of Puerto Rico on July 25, 2020.) See also Pub. L. No. 447 of July 3, 1952, ch. 567, 66 Stat. 327 (1952).[/efn_note] Article II, Section 2 of Puerto Rico’s Bill of Rights assures that “[t]he law shall guarantee the expression of the will of the people by means of equal, direct and secret universal suffrage and shall protect the citizen against any coercion in the exercise of electoral franchise.”[efn_note]P.R. CONST. art II, § 2.[/efn_note] The Constitution further states that all matters concerning the electoral process, political parties, voters, and political candidacies are determined by law.[efn_note]P.R. CONST, art. VI, § 4.[/efn_note] Thus, the Constitution expressly delegates to Puerto Rico’s Legislative Assembly the power to enact legislation to protect the constitutional right to suffrage and regulate all electoral processes on the island.[efn_note]Id.[/efn_note]
Statutory provisions concerning the celebration of primaries
While the Constitution specifies that general elections are held every four years in November, it does not mention how electoral events should be organized.[efn_note]Id.[/efn_note] To that end, through the 1977 Electoral Law, Puerto Rico’s legislature created the State Elections Commission (“CEE”) (acronym in Spanish), the island’s electoral administrative organism.[efn_note]Código Electoral de Puerto Rico para el Siglo XXI, Ley Núm. 4 de 20 de diciembre de 1977 LPRA §§ 3001–3380, (repealed 2020), http://www.bvirtual.ogp.pr.gov/ogp/Bvirtual/leyesreferencia/PDF/C%C3%B3digos/78-2011/78-2011.pdf.[/efn_note] The CEE would manage the planning, organization, and supervision of the all electoral events held on the island. [efn_note]Samuel Quiñones García, Los Antecedentes de la Distribución Interpartidista del Poder en la Estructura Administrativa de la Comisión Estatal de Elecciones, 57 REV. JUR. U.P.R. 317, 330 (1988) (discussing the CEE’s historical background and amendments to its structure following Puerto Rico’s contentious 1980 general election).[/efn_note] The Commission’s general administrative structure has changed over time, but its general mandate to organize and oversee all aspects of Puerto Rico’s electoral events has remained the same.[efn_note] See Puerto Rico Election Code for the 21st Century, 16 LPRA §§ 4011–4025 2020) (repealed 2020); see also Código Electoral de Puerto Rico, Ley Núm. 58-2020, 16 LPRA §§ 4511-4527 (2020).[/efn_note]
An important consideration in assessing Puerto Rico’s 2020 primaries is that two different electoral statutes applied to its proceedings at different times. On June 20, Governor Wanda Vázquez signed the 2020 Electoral Code of Puerto Rico (“2020 Electoral Code”) into law, which repealed and replaced the 2011 Electoral Code.[efn_note]Ricardo Cortés Chico, Wanda Vázquez Garced Convierte en Ley el Nuevo Código Electoral, EL NUEVO DÍA (June 20, 2020), https://www.elnuevodia.com/noticias/politica/notas/wanda-vazquez-garced-convierte-en-ley-el-nuevo-codigo-electoral/. (as will be discussed, the New Progressive Party (“PNP”) led legislature controversially repealed and replaced Puerto Rico’s electoral code on June 20, 2020, despite considerable opposition the minority parties).[/efn_note] The 2020 Electoral Code came into effect while Puerto Rico’s legislature assessed how to celebrate the upcoming primaries as COVID-19 tightened its grip on the island. As a result, both the legislature and the CEE were forced to balance the implementation of an entirely new electoral statute with a safe preparation of the primaries. Furthermore, it was unclear how the 2020 Electoral Code would affect aspects of the primary process that were already underway. Both the 2011 and the 2020 Electoral Codes stated that primaries “shall be held on the first Sunday of June of the year in which the General Election is to be held,” which was June 7, 2020.[efn_note]See Puerto Rico Election Code for the 21st Century, 16 LPRA §4119 (2020) (repealed 2020); see also Código Electoral de Puerto Rico, Ley Núm. 58-2020, 16 LPRA §§ 4511-4527 (2020).[/efn_note] This deadline therefore was never met.
The role of political parties in primary elections
The Supreme Court of Puerto Rico has recognized that political parties exercise primary control over the island’s electoral system and are considered “quasi-governmental” entities.[efn_note]See McClintock v. Rivera, 2007 TSPR 171, at 598–599.[/efn_note] Puerto Rico’s electoral law creates a structure that makes political parties crucial partners to the CEE during the celebration of electoral events. This relationship is most notable during primaries, because, although primaries are strictly partisan events, the CEE must still organize and oversee their processes.[efn_note]Id. at 605.[/efn_note] Both, the 2011 and the 2020 Electoral Codes gave political parties ample power to determine whether to celebrate primaries, set candidacy requirements, and establish internal rules for their respective primaries.[efn_note]See Puerto Rico Election Code for the 21st Century, 16, LPRA §§ 4111, 4137 (2020) (repealed 2020); see also Código Electoral de Puerto Rico, Ley Núm. 58-2020, 16 LPRA §§ 4611, 4633.[/efn_note] The codes also create a Primary Commission for each political party, composed by the CEE President and each party’s Election Commissioner.[efn_note]Puerto Rico Election Code for the 21st Century, 16, LPRA §§ 4116, 4520 & 4611, (2020) (repealed 2020), §§ 4116, 4611. (each party’s Election Commissioner is assigned by their party President, and is a member of the CEE’s board. They are charged with aiding the CEE President in any electoral matter and supervising the President’s actions).[/efn_note] The Primary Commissions’ decisions must be unanimous, but in the absence of unanimity the, CEE President casts the deciding vote.[efn_note]Id. at §4611.[/efn_note] The CEE must also ratify each party’s internal primary rules and regulations, as approved by their respective governing bodies, before primaries are celebrated.[efn_note]Id.[/efn_note] Thus, the Constitution, the electoral statutes and regulations established by each party, and the CEE govern Puerto Rico’s primaries.
II. Puerto Rico’s 2020 local primaries: a timeline
The main political parties in Puerto Rico, the New Progressive Party (PNP), acronym in Spanish, and the Popular Democratic Party (PPD), acronym in Spanish, would hold primaries in 2020 at the gubernatorial level. On the PNP’s side, incumbent Governor Wanda Vázquez, whom assumed the governorship in August of 2019, would face Pedro Pierluisi. [efn_note] See Patricia Mazzei & Frances Robles, Ricardo Rosselló, Puerto Rico’s Governor, Resigns After Protests, N.Y TIMES (June 24, 2019), https://www.nytimes.com/2019/07/24/us/rossello-puerto-rico-governor-resigns.html (former PNP Governor Ricardo Rosselló resigned on July 14, 2019, following widespread protests in following the government’s failed response to Hurricane Maria, among other issues).[/efn_note] The latter served as Puerto Rico’s Resident Commissioner in the U.S. Congress from 2009-2017.[efn_note]See Dánica Coto, Puerto Ricans, Upset at Botched Primary, Demand Answers,ABC NEWS (Aug. 9, 2020), https://abcnews.go.com/International/wireStory/puerto-ricans-upset-botched-primary-demand-answers-72276359.[/efn_note] The PPD, would hold its first gubernatorial primary with three precandidates in its 82-year history: Senate Minority Speaker Eduardo Bhatia, San Juan Mayor Carmen Yulín Cruz, and the Mayor of Isabela, Carlos “Charlie” Delgado.[efn_note]Id.[/efn_note]
The first Primary postponement: the COVID-19 lockdown
The first challenge to holding Puerto Rico’s primaries on the statutory date of June 7 was its direct conflict with the government’s COVID-19 mitigation efforts. On March 12, 2020, Puerto Rico’s Governor Vázquez declared a state of emergency due to the island’s first suspected cases of COVID-19. [efn_note]See Executive Order No. 2020-20, To declare a state of emergency in view of the imminent impact of coronavirus (COVID-19) on the island. (Mar. 12 2020), https://www.estado.pr.gov/en/executive-orders/ (search “OE-2020-023 Eng,” then click on descargar.)[/efn_note] On March 15, the Governor issued Executive Order 2020-023, which mandated the cessation of all non-essential business and government operations, established a curfew from 9;00 p.m. to 5:00 a.m., and ordered citizens to stay in their homes except in extraordinary circumstances.[efn_note]See Executive Order No. 2020-023, To enable the necessary government and private closures to combat the effects of the Coronavirus (COVID-19) and control the risk of contagion on our island. (Mar. 15, 2020), https://www.estado.pr.gov/en/executive-orders/ (Search “OE-2020-023 Eng,” then click on descargar.)[/efn_note] The propagation of COVID-19 on the island, coupled with a failed economic reopening, forced the Governor to extend stay at home orders until at least July 31. [efn_note]See Dánica Coto, Puerto Rico Rolls Back Openings Amid Spike in COVID-19 Cases, AP NEWS (July 16, 2020), https://apnews.com/bd17a761945be5900d7c78d79c74369b. (on June 16, Puerto Rico’s government attempted to reopen practically every sector shuttered by the March 15 Executive Order 2020-023. (The reopening led to a ten-fold increase in positive cases, which led Governor Vazquez to reinstate the initial stay at home orders until at least July 31).[/efn_note]
The government’s struggle to contain the virus directly affected the CEE’s ability to organize the primaries by the statutory date of June 7.[efn_note] Id.[/efn_note] Governor Vázquez’ executive orders mandated the closure of all government offices, including those of the CEE.[efn_note]Supra note 23.[/efn_note] On May 1, 2020, in an attempt to address concerns regarding the primaries, Governor Vázquez issued a new executive order that allowed the CEE to partially resume operations, and exempted essential CEE employees from lockdown provisions.[efn_note]See Executive Order No. 2020–038, Extending the lockdown and establishing other measures necessary to control and prevent the spread of the coronavirus (COVID-19) in Puerto Rico. (May 1, 2020), https://www.estado.pr.gov/en/executive-orders/ (Search OE-2020-038, then click descargar).[/efn_note] Within a week of reopening, the CEE shut down again after two employees tested positive for COVID-19, prompting a week-long disinfection of the premises, which further delayed preparations. [efn_note]See Gloria Ruiz Kuilan, Se Atrasan los Trabajos en la CEE por Desinfección del Edificio Principal, EL NUEVO DÍA(May 18, 2020), https://www.elnuevodia.com/noticias/locales/notas/cierran-la-cee-tras-dos-empleados-dar-positivo-a-la-prueba-rapida-de-coronavirus/.[/efn_note] The CEE would not reopen until May 25 at the earliest.[efn_note]See id.[/efn_note] The CEE President, Juan Dávila, whom had no previous experience managing electoral events in any capacity,[efn_note]See Gloria Ruiz Kuilan, Juan Ernesto Dávila: un juez sin peritaje electoral, EL NUEVO DÍA (Aug. 9, 2020), https://www.elnuevodia.com/noticias/politica/notas/juan-ernesto-davila-un-juez-sin-peritaje-electoral/.[/efn_note] voiced concerns regarding the Commission’s ability to coordinate the primaries by June 7. [efn_note] See Gloria Ruiz Kuilan, En Aprietos la CEE para Cumplir con las Fechas de los Eventos Electorales, EL NUEVO DÍA (Mar. 31, 2020), https://www.elnuevodia.com/noticias/politica/notas/en-aprietos-la-cee-para-cumplir-con-las-fechas-de-los-eventos-electorales/.[/efn_note]
In response, the Legislative Assembly began to discuss possible alternative dates. Although the House of Representatives’ Speaker presented a bill to change the primary date to July 12, Senators Thomas Rivera Schatz and Aníbal Torres, the PNP and PPD Presidents, favored early August. [efn_note] See Gloria Ruiz Kuilan, La CEE reanudará operaciones mañana de forma limitada para coordinar las primarias, EL NUEVO DÍA, (May 3, 2020), https://www.elnuevodia.com/noticias/politica/notas/la-cee-reanudara-operaciones-manana-de-forma-limitada-para-coordinar-las-primarias/. (At the time, Senator Rivera Schatz was the President of the New Progressive Party (“PNP”), while Senator Aníbal Torres was the President of the Popular Democratic Party (“PPD”) the two main parties of Puerto Rico.[/efn_note] On June 4, three days before the primary’s statutory date of June 7, the legislature approved and the Governor signed into law, Joint Resolution 37-2020 on the Senate Resolution 556 (“Joint Resolution 37-2020”), officially postponing the primaries to August 9, 2020. [efn_note]S. J. Res. 556, 2017-2020 Sess. (P.R. 2020), https://noticiasmicrojuris.files.wordpress.com/2020/08/rcs556-rc_37-2020_firmada.pdf.[/efn_note] Joint Resolution 37-2020 further established an administrative schedule to which the CEE had to adhere, and required the Commission to report any changes to primary rules and regulations to the Legislative Assembly. [efn_note]See id. at 8.[/efn_note] The Joint Resolution gave the CEE two months to make up for lost time due to the COVID-19 pandemic.
The Electoral Code of 2020 becomes law
Shortly after the primaries’ postponement to August 9, the PNP-led Legislative Branch sought to approve the new 2020 Electoral Code. On June 20, 2020, just over a month before the rescheduled primary, Governor Vázquez controversially signed the 2020 Electoral Code into law. [efn_note] See Ricardo Cortés Chico, supra note 11 (neutral political commentators claimed that the legislation was a means for the PNP to perpetuate its control over the CEE and its operations, even when they lost the elections). See also, Jay Fonseca, Ganar las Elecciones Aunque el Pueblo Vote en Contra, PRIMERA HORA (May 13, 2020), https://www.primerahora.com/opinion/jay-fonseca/columnas/ganar-las-elecciones-aunque-el-pueblo-vote-en-contra/?fbclid=IwAR0pGCwtrkiIYmZg8WV1NlhJegY5UN2NKpwpb_Qu7T0jHqZBGrqsaCHNUM8.[/efn_note] Governor Vázquez initially stated that she would not sign the 2020 Electoral Code because it was not supported by any minority political party. [efn_note]See Cortés Chico, supra note 11.[/efn_note] Political commentators and leaders of the minority political parties argued that the legislative process had not been inclusive and that the new code’s validation would erode public trust in both the upcoming primaries and the November 3rd general elections.[efn_note] See, Líderes políticos le Piden a la Gobernadora de Puerto Rico que no Firme el Código Electoral, UNIVISIÓN (May 20, 2020), https://www.univision.com/local/puerto-rico-wlii/elecciones-estados-unidos-2020/lideres-politicos-le-piden-a-la-gobernadora-de-puerto-rico-que-no-firme-el-codigo-electoral.[/efn_note] Nonetheless, Governor Vázquez signed the 2020 Electoral Code into law, despite the fact that only the PNP, her own political party, supported it.[efn_note]See Cortés Chico, supra note 11.[/efn_note]
The 2020 Electoral Code’s restructuring of the CEE aggravated an already complex primary process. While one of the 2020 Electoral Code’s main objectives was to restructure the CEE to reduce its operational costs, [efn_note] See S.1314, 2017-2020 Sess. (P.R. 2019), https://sutra.oslpr.org/osl/SUTRA/anejos/129908/0058s1314%20(Conf)%20(Conf)%20(Rec).doc.[/efn_note] the institution also had to provide alternative voting methods, such as absentee and early voting, in unprecedented volumes due to COVID-19.[efn_note]See Yartiza Rivera Clemente, A Cumplir con Nuevo Código Electoral, EL VOCERO (May 20, 2020), https://www.elvocero.com/gobierno/a-cumplir-con-nuevo-c-digo-electoral/article_0fe4ebe4-b5bc-11ea-a677-dbcaaf9518f4.html.[/efn_note] Those conflicting mandates clashed on June 23, when CEE President Dávila discharged two of the Commission’s most experienced officials, who represented minority parties, because Article 14.4 of the 2020 Electoral Code eliminated their positions from the CEE’s organizational structure. [efn_note]See Código Electoral de Puerto Rico, Ley Núm. 58-2020, 16, § 4863 (2020); see also Osman Pérez Méndez, PIP Condena Despidos en la CEE a Tono con el Nuevo Código Electoral, PRIMERA HORA, (June 23, 2020), https://www.primerahora.com/noticias/gobierno-politica/notas/pip-condena-despidos-en-la-cee-a-tono-con-el-nuevo-codigo-electoral/. (The Puerto Rican Independence Party (PIP) is the third historic party of Puerto Rico).[/efn_note] The dismissed employees were in charge of overseeing necessary primary processes, and it was unclear who would manage those responsibilities in the aftermath of their removal. efn_note]See Osman Pérez Méndez, supra note 41.[/efn_note] The dismissals also brought apprehension to CEE’s employees currently working on primary preparations, as they began to fear for their own job security.[efn_note]See Gloria Ruiz Kuilan, “Incertidumbre” al Interior de la CEE Ante Cambios que Impondrá el Nuevo Código Electoral, EL NUEVO DÍA (June 22, 2020), https://www.elnuevodia.com/noticias/politica/notas/incertidumbre-al-interior-de-la-cee-ante-cambios-que-impondra-el-nuevo-codigo-electoral/.[/efn_note] Overall, there was considerable uncertainty within the CEE just weeks away from the primaries.
Final preparations (or lack thereof) for the Primaries
As of July 18, twenty-one days away from the new primary election date, the CEE had not ordered all the ballots to be printed, confirmed the number of available voting centers, or configured the electronic voting machines. [efn_note]Gloria Ruiz Kuilan, Mar de fallas en la CEE para las primarias, El Nuevo Día (July 18, 2020), https://www.elnuevodia.com/noticias/politica/notas/mar-de-fallas-en-la-cee-para-las-primarias/.[/efn_note] The CEE President Dávila and the parties began to blame each other for the delays.[efn_note]See id.[/efn_note] The opposition claimed that Dávila’s inexperience and unwillingness to include them in the preparations would adversely affect the course of action.[efn_note]Id.[/efn_note] Edwin Mundo, a former electoral commissioner of the PNP and then electoral director of PNP gubernatorial precandidate Pedro Pierluisi, predicted that CEE personnel would need to work sixteen-to-twenty hours a day to complete preparations by August 9.[efn_note] Id. (Edwin Mundo echoed the worries that minority parties had voiced months before approval of the 2020 Electoral Code); La CEE permitirá la continuación del voto adelantado del PNP durante las primarias del 9 de agosto, El Nuevo Día (Aug. 1, 2020), https://www.elnuevodia.com/noticias/politica/notas/la-cee-permitira-la-continuacion-del-voto-adelantado-del-pnp-durante-las-primarias-del-9-de-agosto/.[/efn_note] He stressed that Dávila’s general unfamiliarity with the electoral process and his unwillingness to surround himself with people experienced on electoral matters would lead to disaster.[efn_note]Id.[/efn_note]
By July 26, only six days before the PNP started its early voting process, the CEE had neither approved the primary rules nor configured electronic voting machines. [efn_note]Gloria Ruiz Kuilan, Caótico cuadro en la CEE a dos semanas de las primarias, El Nuevo Día (July 26, 2020), https://www.elnuevodia.com/noticias/politica/notas/caotico-cuadro-en-la-cee-a-dos-semanas-de-las-primarias/.[/efn_note] The CEE had not received all the ballots it needed for the primaries, nor had it approved the COVID-19 security protocols to be implemented in voting centers.[efn_note]Id.[/efn_note] In an omen of what would occur on August 9, administrative deficiencies such as the late arrival of voting materials and faulty voting machines, marred the PNP’s early voting period, which began on August 1.[efn_note]See La CEE permitirá la continuación del voto adelantado del PNP durante las primarias del 9 de agosto, El Nuevo Día (Aug. 1, 2020), https://www.elnuevodia.com/noticias/politica/notas/la-cee-permitira-la-continuacion-del-voto-adelantado-del-pnp-durante-las-primarias-del-9-de-agosto/.[/efn_note] Nonetheless, both the PNP and PPD presidents and CEE President Dávila assured that the primaries would run smoothly.[efn_note]See Gloria Ruiz Kuilan, supra note 44.[/efn_note]
August 9: The day of the Primaries
The CEE published its rules on the primaries (“2020 Primary Rules”) on July 27, 4 days before the PNP’s early voting processes began.[efn_note]Comisión Estatal de Elecciones, Reglamento para la celebración de primarias de los partidos políticos (2020), https://www.ceepur.org/primarias/docs/ReglamentoPrimariasLocales.pdf [hereinafter 2020 Rules for Party Primaries].[/efn_note] Although the packaging of ballots and electoral materials for the island-wide primaries began on August 6, the CEE had not received all the ballots by that time. [efn_note] See Presidente de la CEE Afirma que Comenzará el Embalaje de Maletines, NotiCel (Aug. 6, 2020)https://www.noticel.com/politica/ahora/20200806/presidente-de-la-cee-afirma-que-comenzara-el-embalaje-de-maletines/.[/efn_note] As of the afternoon of August 8, the eve of the primaries, CEE employees were still receiving and packaging ballots to ship them to voting centers throughout the island.[efn_note]See Ricardo Cortés Chico, Recibirán las papeletas hasta el último minuto, El Nuevo Día (Aug. 4, 2020), https://www.elnuevodia.com/noticias/politica/notas/recibiran-las-papeletas-hasta-el-ultimo-minuto/.[/efn_note] The PPD’s Election Commissioner raised concerns that the party was still awaiting the delivery of around 250,000 ballots, while the PNP’s Election Commissioner estimated that 381,000 of their ballots had not been packaged.[efn_note]Id.[/efn_note] Despite worries from PNP and PPD officials regarding the timely arrival and packaging of electoral materials and personal protective equipment, CEE President Dávila assured that the primaries would not experience delays.[efn_note]See id.[/efn_note]
On the morning of August 9, the electorate headed to the voting centers to cast their votes. Section 2.1 of the 2020 Primary Rules stated that all voting centers would open at 8:00 a.m. and close at 4:00 p.m.[efn_note]2020 Rules for Party Primaries, supra note 53, at 18.[/efn_note] However, reports surfaced informing that voting centers across the island had not been able to open on time because they did not receive the required materials. As of 8:00 a.m., less than half of the island’s voting precincts had received their ballots.[efn_note]See Cristina Corujo, Puerto Rico Primaries Turn Chaotic After Ballot Delay, Residents Demand Answers, ABC News (Aug. 9, 2020), https://abcnews.go.com/Politics/puerto-rico-primaries-turn-chaos-ballot-delay-residents/story?id=72285843.[/efn_note] A little after 9:00 a.m., the CEE announced that precincts that had received their ballots and were able to open would adhere to the original voting schedule, while those precincts that did not would open from 11:00 a.m. to 7:00 p.m.[efn_note]Comisión Estatal de Elecciones de Puerto Rico (@ceedepuertorico), Twitter (Aug. 9, 2020, 9:12 AM), https://twitter.com/ceedepuertorico/status/1292448630780112896.[/efn_note] As of midday, CEE employees were still assembling materials needed in voting centers across the island, which made it impossible for all voting centers to open by 11:00 a.m.[efn_note]Alex Figueroa Cancel & Gloria Ruiz Kuilan, Empleados de la CEE siguen haciendo maletines de papeletas en horas del mediodía, El Nuevo Día (Aug. 9, 2020) https://www.elnuevodia.com/noticias/locales/notas/empleados-de-la-cee-siguen-haciendo-maletas-de-papeletas-en-horas-del-mediodia/.[/efn_note] Because the 2020 Primary Rules established that all voting centers would be open for eight hours, there was a high possibility that voting centers would need to remain open until late at night.[efn_note]See 2020 Rules for Party Primaries, supra note 53, at 18.[/efn_note]
When it became clear that most voting centers would not open on August 9, the PNP and PPD’s primary commissioners met with the precandidates’ representatives to discuss possible solutions. [efn_note]Gloria Ruiz Kuilan, Solo la CEE puede detener la votación primarista, El Nuevo Día (Aug. 9, 2020) https://www.elnuevodia.com/noticias/locales/notas/empleados-de-la-cee-siguen-haciendo-maletas-de-papeletas-en-horas-del-mediodia/.[/efn_note] Among the options discussed were suspending the primary elections and counting the ballots already cast or completely cancelling and rescheduling the event to a future date.[efn_note] See id.[/efn_note] Senators Thomas Rivera Schatz and Aníbal Torres, the PNP and PPD presidents, requested that CEE President Dávila suspend the primaries in all voting centers where ballots had not arrived until August 16. [efn_note]Alex Figueroa Cancel, PNP y PPD solicitan que las primarias se suspendan en los colegios electorales donde no han llegado las papeletas, El Nuevo Día (Aug. 9, 2020), https://www.elnuevodia.com/noticias/politica/notas/pnp-y-ppd-solicitan-que-las-primarias-se-suspendan-en-los-colegios-electorales-donde-no-han-llegado-las-papeletas/?utm_medium=Social&utm_source=Twitter#Echobox=1596996929.[/efn_note] Voting centers that had been able to open would remain open for eight hours.[efn_note] Id.[/efn_note]
Shortly after, Ángel Rosa, the CEE Secretary, published Agreement CEE-AC-20-224 (Postponement Agreement). The Postponement Agreement announced that the Primary Commissions of both the PNP and the PPD unanimously agreed that all voting centers that had opened would guarantee a full 8 hours of voting. [efn_note]Comisión Estatal de Elecciones, Certificación de Acuerdo Sobre Primarias Locales del 9 de agosto de 2020 (2020), https://ww2.ceepur.org/sites/ComisionEE/es-pr/Secretaria/Acuerdos/Acuerdo%20sobre%20las%20Primarias%20Locales%202020.pdf.[/efn_note] Voting centers that had not opened by 1:45 p.m. would suspend their primary processes until August 16, 2020, when they would reopen from 8:00 a.m. to 4:00 p.m.[efn_note]Id.[/efn_note] Furthermore, the Postponement Agreement expressly prohibited the reporting of preliminary results from any voting center that opened on August 9.[efn_note]Id.[/efn_note] Violations of the Postponement Agreement’s provisions would be subject to the sanctions established by the 2020 Electoral Code.[efn_note]Id.[/efn_note] The Postponement Agreement was soon challenged in court.[efn_note]Pierluisi-Urrutia v. Comisión Estatal de Elecciones, 204 DPR 841 (2020).[/efn_note]
The suspended Primary reaches Puerto Rico’s Supreme Court: Pierluisi v. Comisión Estatal de Elecciones
The Supreme Court of Puerto Rico consolidated the challenges brought against the Postponement Agreement in Pierliuisi v. Comisión Estatal de Elecciones.[efn_note]Id.[/efn_note] The Court had to evaluate three issues: whether the Postponement Agreement was valid; whether the CEE should divulge official results for the precincts that were open to voting on August 9; and what effect, if any, did the Postponement Agreement have upon votes already cast.[efn_note]Id. at 827.[/efn_note] After weighing all conflicting interests, the Court ordered the primaries to continue on August 16, as stipulated by the Postponement Agreement, in voting centers that never opened on August 9. [efn_note]Id. at 866.[/efn_note]
The lawsuits and requested remedies
On the night of the botched primaries, PNP pre-candidate Pedro Pierluisi challenged the validity of the Postponement Agreement’s prohibition to divulge results from voting centers that opened on time.[efn_note]Id. at 849. [/efn_note] Senator Eduardo Bhatia, a pre-candidate for the PPD, also challenged the Postponement Agreement on the grounds that it was ultra vires, as neither the 2020 Electoral Code, the 2020 Primary Rules, nor the respective primary rules for the PNP and the PPD ratified such an agreement.[efn_note]Id. at 850.[/efn_note] Both Pierluisi and Bhatia asked for the disclosure of partial results for votes already cast.[efn_note] Id. [/efn_note] The San Juan Court of First Instance later consolidated Pierluisi and Bhatia’s claims.[efn_note]Id.[/efn_note] Pierluisi then appealed to the Puerto Rico Supreme Court for certification, which was granted.[efn_note] Id.[/efn_note]
The American Civil Liberties Union (ACLU) also brought suit on behalf of voter Carmen Quiñones, a voter whose voting center never opened. [efn_note] Id. at 851.[/efn_note] Quiñones alleged that neither the CEE nor the party Primary Commissions had the legal power to suspend the primaries.[efn_note]Id.[/efn_note] She requested, among other remedies, that the primaries continue on an extended schedule or, on the alternative, that the Supreme Court take custody of the ballots already cast until the primary elections concluded on August 16.[efn_note]Id.[/efn_note] Lastly, PPD precandidate Charlie Delgado and Governor Vázquez also challenged the Postponement Agreement.[efn_note]Id. at 852-53.[/efn_note] While both alleged that it lacked legal validity, Delgado requested that the event continue within seventy-two hours.[efn_note] Id. at 852.[/efn_note] Governor Vázquez requested that the Court invalidate the Postponement Agreement and order new primary elections in all centers that did not open from 8:00 a.m. to 4:00 p.m.[efn_note] Id. at 853.[/efn_note]
Applicable Law
The Court established that both constitutional and statutory considerations govern electoral challenges. [efn_note] Id.at 854-55[/efn_note] It reiterated that the Constitution guarantees the fundamental right to universal suffrage and that it falls upon the Legislative Assembly to enact any laws necessary to protect that right.[efn_note] Id. at 854 (discussing the function of PR Const. art. II, § 2).[/efn_note] Consequently, the Legislature may not approve any law that infringes on citizens’ right to exercise their electoral franchise.[efn_note]See Id. The Puerto Rico Supreme Court also cited Rosario v. Rockefeller, 410 US 752, 768 (1973) to establish that the right to vote in party primaries and the right to vote in general elections are equally protected by the State.[/efn_note] Puerto Rico’s jurisprudence establishes that where a voter is prevented from exercising their right to vote in a primary, their injury is not remedied by their ability to participate in the subsequent general elections.[efn_note] Id. at 856.[/efn_note] While Puerto Rico’s electoral law grants political parties considerable autonomy and responsibility in driving the island’s electoral processes, the Supreme Court has a mandate to intervene when an action impedes voters’ ability to exercise their constitutional right to suffrage.[efn_note] See id.[/efn_note] The Court then evaluated which electoral statute applied to the controversy. Although Joint Resolution 37-2020, which moved the primary date from June 7 to August 9, was approved under the 2011 Electoral Code, Section 11 of the Resolution specified that any statute that substituted the 2011 Electoral Code would apply to the 2020 primary elections. [efn_note]S. J. Res. 556, 18th Gen. Assemb., 7th Reg. Sess. (P.R. 2020). https://noticiasmicrojuris.files.wordpress.com/2020/08/rcs556-rc_37-2020_firmada.pdf.[/efn_note] Thus, when the 2020 Electoral Code became law, its provisions and the 2020 Primary Rules would regulate all electoral issues arising from the primary elections.[efn_note]See Pierluisi, 204 DPR at 857.[/efn_note]
The Court’s statutory application to the controversy
The Court recognized that this was a novel issue in Puerto Rico’s electoral history, as well as the first electoral event where the 2020 Electoral Code applied. [efn_note] Id. at 865.[/efn_note] The first issue before the Court was the validity of the Postponement Agreement between each party’s Primary Commission. Article 7.1 of the 2020 Electoral Code states that each party’s Primary Commission is in effect until the primary’s results are certified.[efn_note] Id. at 859.[/efn_note] Until then, all decisions by the Primary Commissions are to be taken unanimously between the CEE’s President and the Election Commissioners.[efn_note]Id.[/efn_note] Article 13.1 of the 2020 Electoral Code establishes that the judicial branch will defer to CEE’s judgment in its administrative decisions.[efn_note]Id. (quoting P.R. LAWS ANN. tit. 16, §4841 (2020)).[/efn_note] However, the constitutional supremacy of the right to vote outweighs such deference.[efn_note]Id. at 860.[/efn_note] Article 13.1 further states that no controversy within the internal jurisdiction of the CEE may directly or indirectly impede, paralyze, interrupt, or postpone any electoral event established by law. [efn_note] Id. at 860-61 (emphasis added).[/efn_note] Thus, the statute’s explicit language appeared to prohibit the Postponement Agreement.
The Court, however, did not adjudicate upon the validity or invalidity of the Postponement Agreement, limiting this discussion to establishing that the Agreement recognized that the electorate was the most affected party in this situation.[efn_note] Id.at 864.[/efn_note] As such, the Postponement Agreement was consistent with the constitutional mandate of protecting the electorate’s guaranteed right to suffrage under never-before-seen circumstances.[efn_note]See id. at 865.[/efn_note] Hence, without explicitly stating that the Postponement Agreement was valid, the Court ratified it. The Court nevertheless stated that the CEE’s administration of the primaries was inconsistent with constitutional and statutory tenets regarding the protection of universal suffrage. It thus found necessary to carry out its duty to protect the electorate’s fundamental right to a universal, free, secret, and direct suffrage.[efn_note] Id. at 864.[/efn_note]
The Court then evaluated the validity of the Postponement Agreement’s prohibition on the release of partial results for votes cast on August 9. Article 7.20 of the 2020 Electoral Code establishes that the CEE shall receive a certification of each precinct’s results within the twenty-four (24) hours following the celebration of the primaries.[efn_note]P.R. LAWS Ann. tit. 16, §4630 (2020).[/efn_note] Additionally, Article 10.6(1) requires that the CEE consolidate all voting centers’ results to publish a partial tally “no later than 10:00 p.m. on the day in which the voting occurred.”[efn_note]P.R. LAWS ANN. tit. 16, § 4756 (2020).[/efn_note] The Court interpreted the statutory language to presume that voting would have concluded in a single day, as was customary.[efn_note]Pierluisi, 204 DPR at 860.[/efn_note] Because voting had not concluded, the primary was still an active process.[efn_note] Id. at 860.[/efn_note] Arguing that the Legislature did not contemplate the possibility that a primary could be delayed beyond a day, the Court found no legal basis for the partial release of results before voting had fully concluded.[efn_note]Id.[/efn_note]
The Court then held that the Postponement Agreement’s prohibition on releasing any partial results enforced the constitutional protections afforded to votes already cast.[efn_note]See id. at 864-65.[/efn_note] The Court reasoned that releasing partial results would materially alter the conditions under which different electorate groups exercised their right to vote.[efn_note]See id. at 865.[/efn_note] For example, it would likely affect the mindset of people who had not yet voted, encouraging them to change their vote or ultimately deterring their participation.[efn_note]See id.[/efn_note] Thus, the Court held that the decision to postpone the primaries until August 16, coupled with the prohibition of releasing partial results, effectively protected citizens’ right to equal, secret and direct votes. [efn_note]Id.[/efn_note]
The ruling and its aftermath
The Puerto Rico Supreme Court determined that the primaries would continue on August 16 in all voting centers that never opened or were unable to remain open for the statutorily required eight-hour period. [efn_note] Id. at 866.[/efn_note] Those voting centers would open on August 16 from 8:00 a.m. to 4:00 p.m., pursuant to the 2020 Primary Rules. [efn_note]Id.[/efn_note] The Court also prohibited the publication of any unofficial vote tallies carried out on August 9.[efn_note]Id.[/efn_note] With its holding, the Court implicitly ratified the Postponement Agreement.[efn_note]Id.[/efn_note]
In her concurrence, Chief Justice Oronoz emphatically stated that neither the CEE nor the PNP and PPD’s Primary Commissions had the legal power to postpone the primaries. [efn_note] Id. at 871 (Oronoz, C.J. concurring).[/efn_note] She cited Article 3.5 of the 2020 Electoral Code, which states that no controversy, process, or order under the CEE’s jurisdiction may “directly or indirectly impede, paralyze, interrupt or delay” a voting process unless Puerto Rico’s Supreme Court so determines.[efn_note]Id. (citing P.R. LAWS ANN. tit. 16, §4841 (2020)).[/efn_note] Hence, the CEE President and the parties’ Election Commissioners acted beyond their statutory power in reaching the Postponement Agreement.[efn_note]See id. at 880.[/efn_note] Nonetheless, Chief Justice Oronoz recognized that there was no perfect remedy to the situation.[efn_note]Id. at 872.[/efn_note] While the Court likely erred by implicitly ratifying the CEE Postponement Agreement, it embraced what it considered the best alternative to ensure the constitutional right to vote.[efn_note]See id. at 880.[/efn_note]
On August 16, the remaining voting centers opened without significant setbacks. Pedro Pierluisi comfortably defeated Governor Vázquez in the PNP primaries, while Mayor Charlie Delgado won the PPD primary with over sixty percent of the vote. [efn_note]Dánica Coto, Puerto Rico Governor Loses Primary of Pro-statehood Party, AP News (Aug. 16, 2020), https://apnews.com/article/virus-outbreak-election-2020-us-supreme-court-ap-top-news-puerto-rico-ed440d53d3d565f9320305dc0739803c.[/efn_note]
V. Conclusion
In the primary election process of 2020, the Supreme Court of Puerto Rico had to balance the adherence to statutory considerations with the process’ overarching legitimacy, which was no simple task. In the end, it opted not to explicitly declare the Postponement Agreement void, even though the 2020 Electoral Code seemed to prohibit such an agreement. In ratifying the primary’s postponement, the Court gave primacy to the constitutional right to vote. While it was an imperfect solution, it was probably the best available remedy given the unprecedented circumstances. Puerto Rico’s 2020 Primaries show that courts sometimes prioritize constitutional provisions over statutory requirements after balancing all interests that influence electoral issues.
* El autor es estudiante de tercer año de la Escuela de Derecho de Fordham University. Posee un B.A. en Historia y Relaciones Internacionales de Boston College. El autor quiere agradecer al Director de la Revista In Rev, Álvaro Vidal Batiz, por su apoyo durante el proceso de publicación.
