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Puerto Rico SEC suspends primaries after failure to deliver ballots

By on August 10, 2020

Although supported by party heads, candidates blast move; several file court challenges; Gov. Vázquez calls for firing of SEC head 

SAN JUAN – In an unprecedented move, the Puerto Rico State Elections Commission (SEC) suspended the island’s primary elections early Sunday afternoon after being unable to deliver ballots to more than half of the island’s election precincts and rescheduled voting at these locations for next Sunday, Aug. 16. 

The decision—reached hesitantly between SEC President Juan Ernesto Dávila, New Progressive Party (NPP) President Thomas Rivera Schatz and Popular Democratic Party (PDP) President Aníbal José Torres—included allowing the rest of the polling locations that received ballots to complete the process Sunday while not disclosing these results until the other polling places complete their voting process. 

Many voters were turned away from polling places that had not received ballots and told to return later; however, Rivera said that by early afternoon Sunday, ballots had not been delivered to 59 of the 110 electoral precincts.  

Primaries were being held for the NPP and PDP gubernatorial nominations as well as for a number of House and Senate and mayoral posts.  

The SEC decided to close polling schools that had not received the ballots by 2 p.m. and postpone voting in those locations until next Sunday, while continuing at polling places that had received the ballots. Voters were seen voting past 7 p.m. 

Trucks filled with ballots were still being sent out of SEC headquarters in Hato Rey afternoon Sunday to polling stations at municipalities outside the San Juan metro area. This task is usually completed during the early morning hours of the election event. 

Dávila attributed the chaotic situation to a delay in the printing of the primary election ballots by Cayey-based Printech Inc., which was claimed to have failed to deliver more than 500,000 ballots for Sunday’s event, and although reportedly was granted a close to $3 million contract by the SEC to print the ballots.

Countering criticism by NPP and PDP officials, a legal adviser for Printech said on Monday that the SEC had not made any payments for printing the ballots. 

Attorney José Antonio Fusté said in a statement that the printing process was closely monitored by political party commissioners, as mandated by law and cannot take place without their presence. 

“Since the establishment of the new electronic ballot processing system in the 2016 general election, our printing press has been supplying in an uninterrupted way and in full compliance with the norms established by the [SEC],” Fusté said, noting that 75 percent of Printech’s production is exported to oversees locations in the United States and Central and South America for the past 25 years that require “high security.” 

“This occasion is was not the exception. For this primary process, our work was done according to the requests and purchase orders made by the SEC,” he said 

“I certainly have the responsibility deposited in me as chief executive of the State Elections Commission, along with the political party electoral commissioners, the planning and execution of this electoral process. I am not avoiding my responsibility,” Dávila said during a radio interview Sunday during which he was asked whether he would resign.  

“My resigning will not solve the problem,” he replied, adding that the electoral commissioners from the NPP and PDP have participated in the decisions by the SEC. The SEC president is appointed by the party in power, in this case, the NPP. 

“I understand the frustration that the people of Puerto Rico could have, especially at the units where voting could not take place today [Sunday],” said Dávila, who had overseen a special election last November and the recent local Democratic primaries. “Now we have to ensure, with the ballots and materials at [the SEC], to restructure the process so that next Sunday we can continue the vote.” 

The vote counting machines were turned off and results will not be divulged until all votes are counted, the SEC president said, noting this was the agreement reached with the NPP and PDP. 

On Monday, Dávila said that trucks filled with ballots cast and other electoral material used in Sunday’s primaries were arriving at the Roberto Clemente Coliseum, noting that NPP and PDP electoral commissioners are supposed to “execute the logistics of receiving and guarding the electoral material.” 

He said that NPP officials were already at the site, but that “coordination with the PDP electoral commissioner” for such a task had yet to be done. He said that the SEC Internal Security Office and personnel from the office of the SEC president were available to address “any situation in which the [political] parties need administrative collaboration to execute the logistics.” 

FOMB decries ‘dysfunctional voting process’ 

The SEC president acknowledged problems in the process of the packing of the electoral cases and lack of transportation for their delivery, attributing this to a lack of funding to the entity in this fiscal year’s budget, as certified by Puerto Rico’s Financial Oversight & Management Board (FOMB). 

However, the oversight board issued a statement saying it was “deeply shocked at the dysfunctional voting process” that took place in Sunday’s primaries, calling it “unacceptable.” 

FOMB said that the voting interruptions were “the result of an inefficient organization at the agency” that that just two weeks ago confronted problems with the printing of ballots for a primary election originally scheduled for June 7. 

“This is not a problem of lack of funds. The funds for voting material were approved on March 16,” FOMB said in the statement, adding that all SEC requests with required information were approved, including supplier quotes, to “guarantee safe and efficient elections.” 

The oversight board stated that it authorized an SEC budget of $42.6 million for current fiscal year 2021, which began on July 1, and which includes $9 million that were not spent in fiscal 2020 and were carried over into the current budget. The previous fiscal year SEC budget totaled $36.5 million. 

FOMB also said that the SEC could tap into the $2.2 billion in federal Covid-19 emergency aid assigned to Puerto Rico to “compensate for any cost related to election efforts during the pandemic.” Moreover, the SEC has a permanent staff of 656 employees, “considerably more than what Puerto Rico law requires,” the federally created entity said. 

Gov. Wanda Vázquez Garced, who was on the ballot with former Resident Commissioner Pedro Pierluisi, in the race for the NPP gubernatorial nomination, called for the resignation of Dávila. 

“On several occasions he said that [the SEC] was prepared… I think it’s clear that the [SEC] has been highly irresponsible,” the governor said. 

Supreme Court intervenes

Both Pierluisi and the local chapter of the American Civil Liberties Union (ACLU) quickly filed their respective court challenges to the SEC decision to delay voting until Sunday, calling for the resumption of voting at polling places that did not receive ballots and disclosure of vote tallies at polling stations that completed voting. 

Pierluisi campaign attorneys Carlos Sagardía and Vanessa Santo Domingo-Cruz said in their lawsuit, filed at San Juan Superior Court, that the SEC move “constitutes a forceful attack against the democracy of American citizens residing in Puerto Rico and against the rights of citizens to manifest their political will at the polls and ensure that their vote is counted.”    

The lawsuit states that the SEC is obligated by electoral law to establish a system to publicly disclose precinct election results as they are submitted, and report a partial result by 10 p.m. on election night. 

On Monday, PPD primary gubernatorial candidate Eduardo Bhatia filed a lawsuit in local court demanding that votes already cast on Sunday be counted. He said that if the court rules in his favor, legislation to complete primary voting would not have to be approved.  

“I am convinced that the law is clear. If it is considered that the process has to end and it is not a new primary, there is no need to legislate from my perspective,” said Bhatia upon arrival at a meeting of the PDP governing board at party headquarters at Puerta de Tierra. 

Bhatia’s legal counsel, attorney José Antonio Andreu, stressed in a television interview the “transparency” of reporting voting results to avoid “media manipulation and speculation.” He said that the lawsuit calls for the resumption of primary voting “as soon as possible” before Sunday.

On Monday, Puerto Rico’s Supreme Court said it accepted the Electoral Review appeal filed by Pierluisi for the results of the votes cast Sunday to be disclosed.

The court granted the SEC and the electoral commissioners until 2 p.m. Tuesday to express why the results of of the votes already cast should not be revealed.

Pierluisi’s attorneys argue that if the court does not intervene in the situation, an “irreparable damage would be caused to Puerto Rican democracy consisting of the hijacking of an electoral process and the postponement of the vote count as provided in the applicable regulation, including the results, without there being a legal statute that gives the SEC authority to proceed in this way.” 

The San Juan Superior Court ordered the SEC on Sunday night to show cause for not granting the remedy requested by Pierluisi by midday on Monday. 

The ACLU lawsuit, also filed at San Juan Superior Court, states that the SEC closing of the polls on Sunday was an “illegal and unconstitutional” move, requesting that the court order the electoral entity to continue voting in extended hours. The legal action was presented don behalf of a voter identified as Carmen Damaris Quiñones, a resident of Trujillo Alto, who could not exercise her right to vote at the Francisco Prisco Fuentes School due to a lack of ballots.  

The lawsuit argues that neither the SEC nor the electoral commissioners have the authority under the Puerto Rico Constitution, the Electoral Code of 2020, or Joint Resolution 37-2020 to postpone, suspend, extender or schedule primary elections for another date. The ACLU also requested that the court order the SEC to disclose information on how it carried out the process to organize Sunday’s primaries, including the process of hiring, creation, printing, packaging, and placement in polling places of ballots; and log of handling, printing, production, and transfer of ballots, or any other document or information handling mechanism related to this. 

The ACLU also petitioned the court, in the event the court decides that the primary elections should continue on Sunday, Aug. 16, that all primaries begin anew on that day so that all electors cast their votes on the same day to “preserve the purity of the processes.” 

“Today, August 9, 2020, the [SEC] had one sole responsibility: to ensure that the vote could be exercised in the lawful primaries. If it did not achieve this, we have a bad omen for the November 2020 elections,” the ACLU said in a statement.  

The court later dismissed ACLU’s request for the mandamus order against the SEC declaring the primary election suspension illegal and unconstitutional, but summoned the parties to a hearing at 11 a.m. Tuesday, to be broadcast via teleconference, to consider the preliminary injunction requested by the ACLU against the SEC action. 

Also attending the meeting, PDP primary gubernatorial candidate and Isabela mayor Charlie Delgado Altieri said he would present a resolution to resume voting as soon as possible and start the vote-counting process on Monday. He had said on Sunday that he might also challenge the primary results in court. 

Delgado attributed the chaotic voting process on Sunday to the new electoral law that was filed by the Senate president and signed by Gov. Vázquez. Opponents of the law argue that it concentrates too much power in the hands of the SEC head, who happens to be a majority party appointee.  

“What the NPP has done is massacre the democracy of this country…, we warned that this would occur,” he said.   

The other PDP gubernatorial candidate, San Juan Mayor Carmen Yulín Cruz Soto, criticized PDP President Torres and PDP electoral commissioner Lind Orlando Merle Feliciano for approving the SEC determination to suspend the voting until next Sunday for polling stations that did not receive ballots and other electoral materials. 

“The [PDP] cannot endorse, not even with its presence, the decision of a government that wants is to steal the elections,” she said upon arriving at the PDP meeting, claiming that she “knows” Torres did not want to support such a decision.   

Cruz said she was going to submit a resolution requesting that the primary election be held again, but that votes already cast by convicts and bedridden patients as well as early voting ballots be counted.  

The voting delay and expected court challenges to the primary results could imperil the general elections scheduled for Nov. 3, given that the ballots for the election cannot be printed until the results of the primaries are certified. 

Industry concern with blow to credibility 

Meanwhile, Puerto Rico Manufacturers Association (PRMA) President Carlos M. Rodríguez issued a statement on Monday calling for all SEC officials responsible for the primary process, including Dávila, to be removed from their posts, saying they “must publicly assume responsibility for the debacle that has been generated in the country.” 

Rodríguez requested that Gov. Vázquez call a special session of the Legislative Assembly to organize a new primary process “within the due process of the law” and that “does not leave space for future challenges.”  

“We are just over 100 days away from the general elections and this chaos generated in a smaller-scale electoral event leaves much to be desired and depicts us in the world public arena as a country with a lack of capacity, a lack of credibility and corruption,” the PRMA chief said. “In view of the steps being taken to reactivate manufacturing in Puerto Rico, this situation affects the possibilities of attracting investment and confronting those who criticize our institutions.” 

Rodríguez added: “For the first time in our history thousands of people were deprived of their right to vote, at a moment in which we are facing a pandemic crisis that has made the process more difficult than normal.” 

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