{"id":3347,"date":"2022-02-10T11:00:00","date_gmt":"2022-02-10T15:00:00","guid":{"rendered":"https:\/\/revistajuridica.uprrp.edu\/inrev\/?p=3347"},"modified":"2022-02-10T11:00:00","modified_gmt":"2022-02-10T15:00:00","slug":"election-mismanagement-meets-a-global-pandemic-puerto-ricos-2020-local-primaries","status":"publish","type":"post","link":"https:\/\/derecho.uprrp.edu\/inrev\/2022\/02\/10\/election-mismanagement-meets-a-global-pandemic-puerto-ricos-2020-local-primaries\/","title":{"rendered":"Election Mismanagement Meets a Global Pandemic: Puerto Rico\u2019s 2020 Local Primaries"},"content":{"rendered":"\n\t\t\t\t\n

Art\u00edculo<\/strong><\/p>\n\n\n\n

Por: Ricardo del Campillo Alberty<\/strong>*<\/p>\n\n\n\n

Introduction<\/strong><\/p>\n\n\n\n

\u201cWhile it is this Court\u2019s 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.\u201d[efn_note]Pierluisi v. Comisi\u00f3n Estatal de Elecciones, 2020 TSPR 82, at 36. (Oronoz, C.J., concurring).[\/efn_note]  <\/p>\n\n\n\n

The ongoing COVID-19 pandemic has severely affected governmental operations in countries around the world;[efn_note]Coronavirus Disease (COVID-19) Dashboard, <\/em>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\u2019s 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. <\/p>\n\n\n\n

This article will examine the sequence of events that led to the unprecedented suspension of Puerto Rico\u2019s 2020 Electoral Primaries, and how Puerto Rico\u2019s 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\u2019s electoral law. Part III discusses Puerto Rico\u2019s 2020 primaries as they occurred. Part IV discusses how Puerto Rico\u2019s Supreme Court analyzed the primaries\u2019 postponement and how it adjudicated the issue.<\/p>\n\n\n\n

I. General background on Puerto Rico election law<\/strong><\/p>\n\n\n\n

Puerto Rico’s constitutional provisions regarding elections<\/strong><\/p>\n\n\n\n

The preamble of the Constitution of the Commonwealth of Puerto Rico, establishes the democratic character of the island\u2019s political system, stating that \u201cthe will of the people is the source of public power . . . and free participation of the citizen in collective decisions is assured.\u201d[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<\/em> Pub. L. No. 447 of July 3, 1952, ch. 567, 66 Stat. 327 (1952).[\/efn_note] Article II, Section 2 of Puerto Rico\u2019s Bill of Rights assures that \u201c[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.\u201d[efn_note]P.R. CONST.  art II, \u00a7 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, \u00a7 4.[\/efn_note] Thus, the Constitution expressly delegates to Puerto Rico\u2019s 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.<\/em>[\/efn_note]  <\/p>\n\n\n\n

Statutory provisions concerning the celebration of primaries<\/strong><\/p>\n\n\n\n

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.<\/em>[\/efn_note] To that end, through the 1977 Electoral Law, Puerto Rico\u2019s legislature created the State Elections Commission (\u201cCEE\u201d) (acronym in Spanish), the island\u2019s electoral administrative organism.[efn_note]C\u00f3digo Electoral de Puerto Rico para el Siglo XXI, Ley N\u00fam. 4 de 20 de diciembre de 1977 LPRA \u00a7\u00a7 3001\u20133380, (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 Qui\u00f1ones Garc\u00eda, Los Antecedentes de la Distribuci\u00f3n Interpartidista del Poder en la Estructura Administrativa de la Comisi\u00f3n Estatal de Elecciones,<\/em> 57 REV. JUR. U.P.R. 317, 330 (1988) (discussing the CEE\u2019s historical background and amendments to its structure following Puerto Rico\u2019s contentious 1980 general election).[\/efn_note] The Commission\u2019s general administrative structure has changed over time, but its general mandate to organize and oversee all aspects of Puerto Rico\u2019s electoral events has remained the same.[efn_note] See<\/em> Puerto Rico Election Code for the 21st Century, 16 LPRA \u00a7\u00a7 4011\u20134025 2020) (repealed 2020); see also<\/em> C\u00f3digo Electoral de Puerto Rico, Ley N\u00fam. 58-2020, 16 LPRA \u00a7\u00a7 4511-4527 (2020).[\/efn_note]\n\n\n\n

An important consideration in assessing Puerto Rico\u2019s 2020 primaries is that two different electoral statutes applied to its proceedings at different times.  On June 20, Governor Wanda V\u00e1zquez signed the 2020 Electoral Code of Puerto Rico (\u201c2020 Electoral Code\u201d) into law, which repealed and replaced the 2011 Electoral Code.[efn_note]Ricardo Cort\u00e9s Chico, Wanda V\u00e1zquez Garced Convierte en Ley el Nuevo C\u00f3digo Electoral<\/em>, EL NUEVO D\u00cdA (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\u2019s 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 \u201cshall be held on the first Sunday of June of the year in which the General Election is to be held,\u201d which was June 7, 2020.[efn_note]See <\/em>Puerto Rico Election Code for the 21st Century, 16 LPRA \u00a74119 (2020) (repealed 2020); see also <\/em>C\u00f3digo Electoral de Puerto Rico, Ley N\u00fam. 58-2020, 16 LPRA \u00a7\u00a7 4511-4527 (2020).[\/efn_note] This deadline therefore was never met. <\/p>\n\n\n\n

The role of political parties in primary elections<\/strong><\/p>\n\n\n\n

The Supreme Court of Puerto Rico has recognized that political parties exercise primary control over the island\u2019s electoral system and are considered \u201cquasi-governmental\u201d entities.[efn_note]See<\/em> McClintock v. Rivera, 2007 TSPR 171, at 598\u2013599.[\/efn_note] Puerto Rico\u2019s 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.<\/em> 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 <\/em>Puerto Rico Election Code for the 21st Century, 16, LPRA \u00a7\u00a7 4111, 4137 (2020) (repealed 2020); see also <\/em>C\u00f3digo Electoral de Puerto Rico, Ley N\u00fam. 58-2020, 16 LPRA \u00a7\u00a7 4611, 4633.[\/efn_note] The codes also create a Primary Commission for each political party, composed by the CEE President and each party\u2019s Election Commissioner.[efn_note]Puerto Rico Election Code for the 21st Century, 16, LPRA \u00a7\u00a7 4116, 4520 & 4611, (2020) (repealed 2020), \u00a7\u00a7 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\u2019 decisions must be unanimous, but in the absence of unanimity the, CEE President casts the deciding vote.[efn_note]Id<\/em>. at \u00a74611.[\/efn_note] The CEE must also ratify each party\u2019s internal primary rules and regulations, as approved by their respective governing bodies, before primaries are celebrated.[efn_note]Id.<\/em>[\/efn_note] Thus, the Constitution, the electoral statutes and regulations established by each party, and the CEE govern Puerto Rico’s primaries. <\/p>\n\n\n\n

II. Puerto Rico\u2019s 2020 local primaries: a timeline<\/strong><\/p>\n\n\n\n

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\u2019s side, incumbent Governor Wanda V\u00e1zquez, whom assumed the governorship in August of 2019, would face Pedro Pierluisi. [efn_note] See <\/em>Patricia Mazzei & Frances Robles, Ricardo Rossell\u00f3, Puerto Rico\u2019s Governor, Resigns After Protests, <\/em>N.Y TIMES (June 24, 2019), https:\/\/www.nytimes.com\/2019\/07\/24\/us\/rossello-puerto-rico-governor-resigns.html (former PNP Governor Ricardo Rossell\u00f3 resigned on July 14, 2019, following widespread protests in following the government\u2019s failed response to Hurricane Maria, among other issues).[\/efn_note] The latter served as Puerto Rico\u2019s Resident Commissioner in the U.S. Congress from 2009-2017.[efn_note]See <\/em>D\u00e1nica Coto, Puerto Ricans, Upset at Botched Primary, Demand Answers,<\/em>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 Yul\u00edn Cruz, and the Mayor of Isabela, Carlos \u201cCharlie\u201d Delgado.[efn_note]Id.<\/em>[\/efn_note] <\/p>\n\n\n\n

The first Primary postponement: the COVID-19 lockdown<\/strong><\/p>\n\n\n\n

The first challenge to holding Puerto Rico\u2019s primaries on the statutory date of June 7 was its direct conflict with the government\u2019s COVID-19 mitigation efforts. On March 12, 2020, Puerto Rico\u2019s Governor V\u00e1zquez declared a state of emergency due to the island\u2019s first suspected cases of COVID-19. [efn_note]See <\/em>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 \u201cOE-2020-023 Eng,\u201d then click on descargar<\/em>.)[\/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 <\/em>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 \u201cOE-2020-023 Eng,\u201d then click on descargar<\/em>.)[\/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<\/em> D\u00e1nica Coto, Puerto Rico Rolls Back Openings Amid Spike in COVID-19 Cases<\/em>, 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] <\/p>\n\n\n\n

The government\u2019s struggle to contain the virus directly affected the CEE\u2019s ability to organize the primaries by the statutory date of June 7.[efn_note] Id.<\/em>[\/efn_note] Governor V\u00e1zquez\u2019 executive orders mandated the closure of all government offices, including those of the CEE.[efn_note]Supra <\/em>note 23.[\/efn_note] On May 1, 2020, in an attempt to address concerns regarding the primaries, Governor V\u00e1zquez issued a new executive order that allowed the CEE to partially resume operations, and exempted essential CEE employees from lockdown provisions.[efn_note]See<\/em> Executive Order No. 2020\u2013038, 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<\/em>).[\/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 <\/em>Gloria Ruiz Kuilan, Se Atrasan los Trabajos en la CEE por Desinfecci\u00f3n del Edificio Principal,<\/em> EL NUEVO D\u00cdA(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<\/em>.[\/efn_note] The CEE President, Juan D\u00e1vila, whom had no previous experience managing electoral events in any capacity,[efn_note]See <\/em>Gloria Ruiz Kuilan, Juan Ernesto D\u00e1vila: un juez sin peritaje electoral, <\/em>EL NUEVO D\u00cdA (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\u2019s ability to coordinate the primaries by June 7. [efn_note] See <\/em>Gloria Ruiz Kuilan, En Aprietos la CEE para Cumplir con las Fechas de los Eventos Electorales, <\/em>EL NUEVO D\u00cdA (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]  <\/p>\n\n\n\n

In response, the Legislative Assembly began to discuss possible alternative dates. Although the House of Representatives\u2019 Speaker presented a bill to change the primary date to July 12, Senators Thomas Rivera Schatz and An\u00edbal Torres, the PNP and PPD Presidents, favored early August. [efn_note] See <\/em>Gloria Ruiz Kuilan, La CEE reanudar\u00e1 operaciones ma\u00f1ana de forma limitada para coordinar las primarias<\/em>, EL NUEVO D\u00cdA, (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 An\u00edbal 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\u2019s statutory date of June 7, the legislature approved and the Governor signed into law, Joint Resolution 37-2020 on the Senate Resolution 556 (\u201cJoint Resolution 37-2020\u201d), 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. <\/em>at 8.[\/efn_note] The Joint Resolution gave the CEE  two months to make up for lost time due to the COVID-19 pandemic.<\/p>\n\n\n\n

The Electoral Code of 2020 becomes law<\/strong><\/p>\n\n\n\n

Shortly after the primaries\u2019 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 V\u00e1zquez controversially signed the 2020 Electoral Code into law. [efn_note] See <\/em>Ricardo Cort\u00e9s Chico, supra <\/em>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, <\/em>Jay Fonseca, Ganar las Elecciones Aunque el Pueblo Vote en Contra, <\/em>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 V\u00e1zquez initially stated that she would not sign the 2020 Electoral Code because it was not supported by any minority political party. [efn_note]See <\/em>Cort\u00e9s Chico, supra <\/em>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\u2019s validation would erode public trust in both the upcoming primaries and the November 3rd<\/sup> general elections.[efn_note] See, L\u00edderes pol\u00edticos le Piden a la Gobernadora de Puerto Rico que no Firme el C\u00f3digo Electoral<\/em>, UNIVISI\u00d3N (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 V\u00e1zquez signed the 2020 Electoral Code into law, despite the fact that only the PNP, her own political party, supported it.[efn_note]See <\/em>Cort\u00e9s Chico, supra <\/em>note 11.[\/efn_note] <\/p>\n\n\n\n

The 2020 Electoral Code\u2019s restructuring of the CEE aggravated an already complex primary process. While one of the 2020 Electoral Code\u2019s main objectives was to restructure the CEE to reduce its operational costs, [efn_note] See <\/em>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 <\/em>Yartiza Rivera Clemente, A Cumplir con Nuevo C\u00f3digo Electoral, <\/em>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 D\u00e1vila discharged two of the Commission\u2019s most experienced officials, who represented minority parties, because Article 14.4 of the 2020 Electoral Code eliminated their positions from the CEE\u2019s organizational structure. [efn_note]See <\/em>C\u00f3digo Electoral de Puerto Rico, Ley N\u00fam. 58-2020, 16, \u00a7 4863 (2020); see also<\/em> Osman P\u00e9rez M\u00e9ndez, PIP Condena Despidos en la CEE a Tono con el Nuevo C\u00f3digo Electoral<\/em>, 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 <\/em>Osman P\u00e9rez M\u00e9ndez, supra <\/em>note 41.[\/efn_note] The dismissals also brought apprehension to CEE\u2019s employees currently working on primary preparations, as they began to fear for their own job security.[efn_note]See <\/em>Gloria Ruiz Kuilan, \u201cIncertidumbre\u201d al Interior de la CEE Ante Cambios que Impondr\u00e1 el Nuevo C\u00f3digo Electoral, <\/em>EL NUEVO D\u00cdA (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. <\/p>\n\n\n\n

Final preparations (or lack thereof) for the Primaries<\/strong><\/p>\n\n\n\n

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<\/em>, El Nuevo D\u00eda (July 18, 2020), https:\/\/www.elnuevodia.com\/noticias\/politica\/notas\/mar-de-fallas-en-la-cee-para-las-primarias\/.[\/efn_note] The CEE President D\u00e1vila and the parties began to blame each other for the delays.[efn_note]See id.<\/em>[\/efn_note] The opposition claimed that D\u00e1vila\u2019s inexperience and unwillingness to include them in the preparations would adversely affect the course of action.[efn_note]Id.<\/em>[\/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<\/em>. (Edwin Mundo echoed the worries that minority parties had voiced months before approval of the 2020 Electoral Code); La CEE permitir\u00e1 la continuaci\u00f3n del voto adelantado del PNP durante las primarias del 9 de agosto, <\/em>El Nuevo D\u00eda (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 D\u00e1vila\u2019s 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<\/em>.[\/efn_note] <\/p>\n\n\n\n

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, Ca\u00f3tico cuadro en la CEE a dos semanas de las primarias, <\/em>El Nuevo D\u00eda (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.<\/em>[\/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\u2019s early voting period, which began on August 1.[efn_note]See La CEE permitir\u00e1 la continuaci\u00f3n del voto adelantado del PNP durante las primarias del 9 de agosto, <\/em>El Nuevo D\u00eda (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 D\u00e1vila assured that the primaries would run smoothly.[efn_note]See<\/em> Gloria Ruiz Kuilan, supra <\/em>note 44.[\/efn_note] <\/p>\n\n\n\n

August 9: The day of the Primaries <\/strong><\/p>\n\n\n\n

The CEE published its rules on the primaries (\u201c2020 Primary Rules\u201d) on July 27, 4 days before the PNP\u2019s early voting processes began.[efn_note]Comisi\u00f3n Estatal de Elecciones, Reglamento para la celebraci\u00f3n de primarias de los partidos pol\u00edticos (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 Comenzar\u00e1 el Embalaje de Maletines, <\/em>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 <\/em>Ricardo Cort\u00e9s Chico, Recibir\u00e1n las papeletas hasta el \u00faltimo minuto, <\/em>El Nuevo D\u00eda (Aug. 4, 2020), https:\/\/www.elnuevodia.com\/noticias\/politica\/notas\/recibiran-las-papeletas-hasta-el-ultimo-minuto\/.[\/efn_note] The PPD\u2019s Election Commissioner raised concerns that the party was still awaiting the delivery of around 250,000 ballots, while the PNP\u2019s Election Commissioner estimated that 381,000 of their ballots had not been packaged.[efn_note]Id.<\/em>[\/efn_note] Despite worries from PNP and PPD officials regarding the timely arrival and packaging of electoral materials and personal protective equipment, CEE President D\u00e1vila assured that the primaries would not experience delays.[efn_note]See id.<\/em>[\/efn_note] <\/p>\n\n\n\n

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 <\/em>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\u2019s voting precincts had received their ballots.[efn_note]See <\/em>Cristina Corujo, Puerto Rico Primaries Turn Chaotic After Ballot Delay, Residents Demand Answers, <\/em>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]Comisi\u00f3n 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 mediod\u00eda, <\/em>El Nuevo D\u00eda (Aug. 9, 2020) https:\/\/www.elnuevodia.com\/noticias\/locales\/notas\/empleados-de-la-cee-siguen-haciendo-maletas-de-papeletas-en-horas-del-mediodia\/.<\/em>[\/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 <\/em>2020 Rules for Party Primaries, supra <\/em>note 53, at 18.[\/efn_note]  <\/p>\n\n\n\n

When it became clear that most voting centers would not open on August 9, the PNP and PPD\u2019s primary commissioners met with the precandidates\u2019 representatives to discuss possible solutions. [efn_note]Gloria Ruiz Kuilan, Solo la CEE puede detener la votaci\u00f3n primarista, <\/em>El Nuevo D\u00eda (Aug. 9, 2020) https:\/\/www.elnuevodia.com\/noticias\/locales\/notas\/empleados-de-la-cee-siguen-haciendo-maletas-de-papeletas-en-horas-del-mediodia\/.<\/em>[\/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.<\/em>[\/efn_note] Senators Thomas Rivera Schatz and An\u00edbal Torres, the PNP and PPD presidents, requested that CEE President D\u00e1vila 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, <\/em>El Nuevo D\u00eda (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.<\/em>[\/efn_note] Voting centers that had been able to open would remain open for eight hours.[efn_note] Id.<\/em>[\/efn_note] <\/p>\n\n\n\n

Shortly after, \u00c1ngel 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]Comisi\u00f3n Estatal de Elecciones, Certificaci\u00f3n 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.<\/em>[\/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.<\/em>[\/efn_note] Violations of the Postponement Agreement\u2019s provisions would be subject to the sanctions established by the 2020 Electoral Code.[efn_note]Id.<\/em>[\/efn_note] The Postponement Agreement was soon challenged in court.[efn_note]Pierluisi-Urrutia v. Comisi\u00f3n Estatal de Elecciones, 204 DPR 841 (2020).[\/efn_note] <\/p>\n\n\n\n

The suspended Primary reaches Puerto Rico\u2019s Supreme Court: Pierluisi v. Comisi\u00f3n Estatal de Elecciones<\/em><\/strong><\/p>\n\n\n\n

The Supreme Court of Puerto Rico consolidated the challenges brought against the Postponement Agreement in Pierliuisi v. Comisi\u00f3n Estatal de Elecciones<\/em>.[efn_note]Id.<\/em>[\/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. <\/em>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. <\/em>at 866.[\/efn_note] <\/p>\n\n\n\n

The lawsuits and requested remedies<\/strong><\/p>\n\n\n\n

On the night of the botched primaries, PNP pre-candidate Pedro Pierluisi challenged the validity of the Postponement Agreement\u2019s prohibition to divulge results from voting centers that opened on time.[efn_note]Id. <\/em>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<\/em>, 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. <\/em>at 850.<\/em>[\/efn_note] Both Pierluisi and Bhatia asked for the disclosure of partial results for votes already cast.[efn_note] Id.<\/em> [\/efn_note] The San Juan Court of First Instance later consolidated Pierluisi and Bhatia\u2019s claims.[efn_note]Id.<\/em>[\/efn_note] Pierluisi then appealed to the Puerto Rico Supreme Court for certification<\/em>, which was granted.[efn_note] Id.<\/em>[\/efn_note] <\/p>\n\n\n\n

The American Civil Liberties Union (ACLU) also brought suit on behalf of voter Carmen Qui\u00f1ones, a voter whose voting center never opened. [efn_note] Id. <\/em>at 851.[\/efn_note] Qui\u00f1ones alleged that neither the CEE nor the party Primary Commissions had the legal power to suspend the primaries.[efn_note]Id.<\/em>[\/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.<\/em>[\/efn_note] Lastly, PPD precandidate Charlie Delgado and Governor V\u00e1zquez also challenged the Postponement Agreement.[efn_note]Id<\/em>. 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<\/em>. at 852.[\/efn_note] Governor V\u00e1zquez 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<\/em>. at 853.[\/efn_note]  <\/p>\n\n\n\n

Applicable Law <\/strong><\/p>\n\n\n\n

The Court established that both constitutional and statutory considerations govern electoral challenges. [efn_note] Id.<\/em>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<\/em>. at 854 (discussing the function of PR Const. art. II, \u00a7 2).[\/efn_note] Consequently, the Legislature may not approve any law that infringes on citizens\u2019 right to exercise their electoral franchise.[efn_note]See Id<\/em>. 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\u2019s 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. <\/em>at 856.[\/efn_note] While Puerto Rico\u2019s electoral law grants political parties considerable autonomy and responsibility in driving the island\u2019s electoral processes, the Supreme Court has a mandate to intervene when an action impedes voters\u2019 ability to exercise their constitutional right to suffrage.[efn_note] See id.<\/em>[\/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<\/em> Pierluisi, 204 DPR at 857.[\/efn_note] <\/p>\n\n\n\n

The Court\u2019s statutory application to the controversy<\/strong><\/p>\n\n\n\n

The Court recognized that this was a novel issue in Puerto Rico\u2019s electoral history, as well as the first electoral event where the 2020 Electoral Code applied. [efn_note] Id. <\/em>at 865.[\/efn_note] The first issue before the Court was the validity of the Postponement Agreement between each party\u2019s Primary Commission.  Article 7.1 of the 2020 Electoral Code states that each party\u2019s Primary Commission is in effect until the primary\u2019s results are certified.[efn_note] Id. <\/em>at 859.[\/efn_note] Until then, all decisions by the Primary Commissions are to be taken unanimously between the CEE\u2019s President and the Election Commissioners.[efn_note]Id<\/em>.[\/efn_note] Article 13.1 of the 2020 Electoral Code establishes that the judicial branch will defer to CEE\u2019s judgment in its administrative decisions.[efn_note]Id<\/em>. (quoting P.R. LAWS ANN. tit. 16, \u00a74841 (2020)).[\/efn_note] However, the constitutional supremacy of the right to vote outweighs such deference.[efn_note]Id. <\/em>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<\/em> any electoral event established by law. [efn_note] Id<\/em>. at 860-61 (emphasis added).[\/efn_note] Thus, the statute\u2019s explicit language appeared to prohibit the Postponement Agreement. <\/p>\n\n\n\n

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<\/em>.at 864.[\/efn_note] As such, the Postponement Agreement was consistent with the constitutional mandate of protecting the electorate\u2019s guaranteed right to suffrage under never-before-seen circumstances.[efn_note]See id.<\/em> 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\u2019s fundamental right to a universal, free, secret, and direct suffrage.[efn_note] Id. <\/em>at 864.[\/efn_note] <\/p>\n\n\n\n

The Court then evaluated the validity of the Postponement Agreement\u2019s 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\u2019s results within the twenty-four (24) hours following the celebration of the primaries.[efn_note]P.R. LAWS Ann. tit. 16, \u00a74630 (2020).[\/efn_note] Additionally, Article 10.6(1) requires that the CEE consolidate all voting centers\u2019 results to publish a partial tally \u201cno later than 10:00 p.m. on the day in which the voting occurred.\u201d[efn_note]P.R. LAWS ANN. tit. 16, \u00a7 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. <\/em>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.<\/em>[\/efn_note] <\/p>\n\n\n\n

The Court then held that the Postponement Agreement\u2019s prohibition on releasing any partial results enforced the constitutional protections afforded to votes already cast.[efn_note]See id. <\/em>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. <\/em>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<\/em>.[\/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\u2019 right to equal, secret and direct votes. [efn_note]Id.<\/em>[\/efn_note] <\/p>\n\n\n\n

The ruling and its aftermath <\/strong><\/p>\n\n\n\n

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.<\/em> 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.<\/em>[\/efn_note] The Court also prohibited the publication of any unofficial vote tallies carried out on August 9.[efn_note]Id.<\/em>[\/efn_note] With its holding, the Court implicitly ratified the Postponement Agreement.[efn_note]Id.<\/em>[\/efn_note] <\/p>\n\n\n\n

In her concurrence, Chief Justice Oronoz emphatically stated that neither the CEE nor the PNP and PPD\u2019s Primary Commissions had the legal power to postpone the primaries. [efn_note] Id<\/em>. 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\u2019s jurisdiction may \u201cdirectly or indirectly impede, paralyze, interrupt or delay\u201d a voting process unless Puerto Rico\u2019s Supreme Court so determines.[efn_note]Id<\/em>. (citing P.R. LAWS ANN. tit. 16, \u00a74841 (2020)).[\/efn_note] Hence, the CEE President and the parties\u2019 Election Commissioners acted beyond their statutory power in reaching the Postponement Agreement.[efn_note]See id<\/em>. at 880.[\/efn_note]  Nonetheless, Chief Justice Oronoz recognized that there was no perfect remedy to the situation.[efn_note]Id. <\/em>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. <\/em>at 880.[\/efn_note]  <\/p>\n\n\n\n

On August 16, the remaining voting centers opened without significant setbacks. Pedro Pierluisi comfortably defeated Governor V\u00e1zquez in the PNP primaries, while Mayor Charlie Delgado won the PPD primary with over sixty percent of the vote. [efn_note]D\u00e1nica Coto, Puerto Rico Governor Loses Primary of Pro-statehood Party<\/em>, AP News (Aug. 16, 2020), https:\/\/apnews.com\/article\/virus-outbreak-election-2020-us-supreme-court-ap-top-news-puerto-rico-ed440d53d3d565f9320305dc0739803c.[\/efn_note]  <\/p>\n\n\n\n

V.<\/strong> Conclusion <\/strong><\/p>\n\n\n\n

In the primary election process of 2020, the Supreme Court of Puerto Rico had to balance the adherence to statutory considerations with the process\u2019 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\u2019s 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\u2019s 2020 Primaries show that courts sometimes prioritize constitutional provisions over statutory requirements after balancing all interests that influence electoral issues. <\/p>\n\n\n\n

<\/p>\n\n\n\n

\n\n\n\n

* El autor es estudiante de tercer a\u00f1o 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, \u00c1lvaro Vidal Batiz, por su apoyo durante el proceso de publicaci\u00f3n. <\/p>\n\t\t","protected":false},"excerpt":{"rendered":"

Art\u00edculo Por: Ricardo del Campillo Alberty* Introduction \u201cWhile it is this Court\u2019s 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.\u201d[efn_note]Pierluisi v. Comisi\u00f3n Estatal de Elecciones, 2020 TSPR 82, at 36. (Oronoz, C.J., concurring).[\/efn_note]  The ongoing<\/p>\n

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