Tuesday, September 22, 2020

Puerto Rico Supreme Court: Primaries continue Sunday

By on August 13, 2020

Chief Justice Maite D. Oronoz Rodríguez (File)

Orders process to continue in precincts that remained closed or did not open for full eight hours; bans disclosure of results until primaries end

SAN JUAN – The Puerto Rico Supreme Court issued a unanimous ruling Wednesday ordering the continuation of the New Progressive Party (NPP) and Popular Democratic Party (PDP) primary elections next Sunday, Aug. 16, as scheduled by the Puerto Rico State Elections Commission (SEC), in precincts in which voting could not take place because ballots were not delivered, as well as in those that received the electoral material but did not begin the voting process. 

The island’s highest court also banned the disclosure of vote tallies, specifically preliminary results from Sunday’s balloting, until the primary process ends next Sunday.

Moreover, the court determined that voting be renewed in precincts that were not open for the full eight hours, as required by the Electoral Code and Primary Regulations. Polling stations should open on Sunday between 8:00 a.m. and 4:00 p.m., following Primary Regulations, the court said, adding that voters who were unable to cast ballots on Sunday because of the closure of polling stations will be able to do so next Sunday. 

The high court justices rejected the petition made by Gov. Wanda Vázquez Garced to redo voting at polling places that opened late due to delayed deliveries of election material, determining that votes cast already in Sunday’s primary are valid and will not be annulled. The governor had argued in her lawsuit against the SEC and NPP and PDP electoral commissioners that “uncertainty and confusion” over SEC’s abrupt suspension of the primaries on Sunday led to “thousands of voters” leaving open polling places without casting ballots. 

Still, the court-ordered reopening of these precincts for Sunday’s vote would largely address Vázquez’s concerns. The governor acknowledged as much in her reaction to the ruling, saying she “appreciated” that the court had done “justice” to electors who were sidelined in Sunday’s botched primary vote.

“Today justice is done to all those who returned again and again to the polling stations and could not exercise their right to vote, because their polling place never opened, did not have the required ballots, or did not provide the stipulated eight hours to exercise their right,” the governor said in a statement.

In fact, the majority of the court sided with the governor’s position that the disclosure of  preliminary and official election results should be banned until the end of the primary process, which she argued as necessary to avoid influencing electors who have not been able to vote and allow all candidates to go through the election process under “equal conditions.” 

On this issue, the court was divided, with a majority of six of the eight justices agreeing with Vázquez in banning the disclosure of such information, saying this is needed to “protect and guarantee the constitutional right of voters.”  

Her contender for the NPP gubernatorial nomination, former Resident Commissioner Pedro Pierluisi, and PPD primary gubernatorial candidate Eduardo Bhatia had asked the court to order the SEC to issue preliminary results based on tallies by vote-counting machines at polling stations to avoid media speculation and “manipulation” over who was ahead in the polls. 

Earlier in the day on Wednesday, the island’s top court had ordered the halting of the Popular Democratic Party (PDP) process to begin counting votes and issuing results at 36 electoral precincts in which the party’s primary elections were completed on Sunday. 

“To reveal the election results at this moment could clearly influence and have an effect on persons who have not voted, to the detriment of electors who have cast their vote and did not count on such information when they did,” the court said in an opinion signed by Associate Justice Roberto Feliberti Cintrón, and which was backed by Chief Justice Maite D. Oronoz Rodríguez and associate justices Anabelle Rodríguez Rodríguez, Edgardo Rivera García, Luis F. Estrella Martínez, and Ángel Colón Pérez. 

These justices said that disclosing polling results before the conclusion of the voting process could have the effect of discouraging the participation of electors that have still not voted, given that they will get the impression that their vote no longer counts or would not make a difference. Calling this situation ‘unjust and unreasonable,” the justices said that a voting process under these circumstances would not be done “on equal footing.” 

Associate justices Erik Kolthoff Caraballo and Mildred Gail Pabón Charneco, who decided not to “intervene” in the court’s decision halting the counting of PDP ballots, wrote a dissenting opinion on the matter, in support of Pierlusi’s and Bhatia’s position. They said that “the security and transparency” in the handling of voting results, which they said are specifically regulated by the respective party’s primary rules, have priority over the alleged influence of disclosing preliminary results on voters who have not cast ballots. 

“The remedy may be worse than the disease,” wrote Kolthoff, referring to the leaks by polling officials of primary results since Sunday that have not been certified by the parties or the SEC. 

Both Kolthoff and Pabón said that each party voting regulation has “precise” steps to ensure that the tally of votes cast is not compromised. They called for the closing of vote-scrutiny machines that are still open at polling places where voting has been completed, which would generate a vote tally that should be reported to the SEC.  

According to data submitted by Dávila during the top court hearing in which arguments from the parties were heard, voting was not carried out at 63 precincts in which NPP primaries were being held, while the same occurred at 72 precincts in which the PDP primaries were being held. The island has a total of 110 electoral precincts, which means that electors in about two-thirds of local electoral precincts were not able to cast their ballots on Sunday due to the failure of the SEC to deliver ballots and other electoral material to them. 

The court, which attributed the botched Sunday primary to “crass negligence” by the leadership of the SEC and the special primary commissions with the participation of the two political parties, said that the agency “must take the necessary measures to start the voting on time in the remaining polling stations” and “promptly disclose” voting results at the end of the process.  

“We expect that, in the name of democracy, there are no more failures, inefficiencies, errors or delays,” the court said. “Any other result or deviation to what is stated here would be clearly unacceptable.” 

Dávila pledged in a statement after the ruling was issued that he will work with the NPP and PDP electoral commissioners to implement the court’s ruling and prepare for voting on Sunday. 

“I want to urge the People of Puerto Rico to have confidence in our electoral system,” he said. “We will have to take all affirmative actions to safeguard the confidence of the People in their institutions and in their electoral process, which is the pillar of our Democracy. We will evaluate and adopt the corresponding measures to ensure that the voting process is orderly and that the expectations of the voters who participate in this process and of the general public are honored.”

Puerto Rico Civil Rights Commission President Nieve de los Ángeles Vázquez announced the submission of a friend of the court motion to the island’s top court, requesting that the organization be allowed to become an observer of the continuation of the primary process scheduled for next Sunday’s. 

“Due to the importance of this controversy for the exercise of the constitutional and civil rights of citizens and, given that the Civil Rights Commission is an impartial entity empowered by law to intervene in situations in which these rights are violated, we request this Honorable Court designate us as observers of any electoral process related to the interrupted primaries ,” reads the legal recourse presented late Wednesday. 

Voters ‘harmed’ 

In backing the unprecedented decision reached by the SEC chief in consensus with NPP Electoral Commissioner María Santiago Rodríguez and PDP Electoral Commissioner Lind O. Merle Feliciano early Sunday afternoon to suspend primary voting at polling stations that had not received ballots and not disclose voting results, the court acknowledged that primary organizers had no precedent to follow or provision in the Electoral Code to cover this situation. 

The justices said that they were faced with guaranteeing the voting rights of “two groups of Puerto Ricans: those who exercised their right to vote and those who saw their exercising [of the right to vote] at the polls postponed in equal conditions.” 

“We do not find a greater degree of public interest in Puerto Rico today than to give certainty and legitimacy to the democratic processes,” said the court in justifying its taking up of the case, prompted by lawsuits filed at San Juan Superior Court by the NPP gubernatorial candidates, two of the three PDP gubernatorial candidates, and a Trujillo Alto citizen, represented by the American Civil Liberties Union (ACLU), who was turned back from a polling station that had not received ballots. 

“[I]t is undeniable that the management and celebration of this electoral event, characterized by its ample public interest, was not consistent with constitutional and statuary postulates that are required by the right to universal, free, secret and direct suffrage,” the court said, noting that “without a doubt” voters have been the “most harmed” in the process. The court said that the botched primary cannot be an obstacle that allows the annulment of the right to vote of “thousands of electors” who could not cast ballots, and who have the same weight as other voters.   

Nonetheless, the court rejected Bhatia’s contention that the primary vote had to be held “as soon as possible,” before Sunday, to avoid “possible manipulations and fraud,” saying it found no basis for these allegations. 

In his opinion, Kolthoff said that the same argument could be made, particularly concerning the unequal attainment of information, concerning early balloting and votes cast by bedridden electors, which are done before the elections are held. The associate justice, shooting down arguments to wholly redo the voting due to vote equality concerns, said that these voters “implicitly waive their right to an equal vote regarding all the information that the rest of us citizens get the week before the day of the election.” 

The court said that the ruling will allow Trujillo Alto elector Carmen Damaris Quiñones Torres, who is in the ACLU lawsuit, to exercise her right to vote at the Francisco Prisco Fuentes School in Precinct 106 in the region of Carolina, which will be required to open on Sunday. 

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