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NO. 12-2145 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

MYRNA COLON-MARRERO Plaintiff - Appellant v. HECTOR CONTY PEREZ, ET AL Defendants - Appellees

INTERLOCUTORY APPEAL FROM THE U.S. DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

BRIEF APPELLEE ADRIAN DIAZ-DIAZ AS ELECTORAL COMMISSIONER OF THE P.P.R.

Nelson N. Crdova-Morales, Esq. CRDOVA MORALES LAW OFFICES 220 Domenech Avenue, PMB 255 San Juan, PR 00918 Phone (787) 302-0163 Fax (787) 302-0164 ncordova@cordovamorales.com

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TABLE ON CONTENTS

INTRODUCTION.....................................................................................................1 STATEMENT OF ISSUE.........................................................................................2 SUMMARY OF THE ARGUMENT........................................................................3 ARGUMENT.............................................................................................................4 Appellant Is Unlikely To Succeed On The Merits..........................................4 Appellants Alleged Irreparable Harm Is Self-Inflicted..................................7 Issuance of Injunctive Relief Burdens Defendants More Than Denying It Would Burden Appellant And Public Interest Weighs in Favor of Denying Injunctive Relief..................................9 CONCLUSION.......................................................................................................11

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TABLE OF AUTHORITIES Cases U.S. Supreme Court Brunner v. Ohio Republican Party, 555 U.S. 5, 6 (2008).........................................6 Crawford v. Marion County, 553 U.S. 181, 193 (2008)............................................4 Examining Board v. Flores, 426 U.S. 572, 599-601 (1976)......................................6 Gonzaga University v. Doe, 536 U.S. 273, 283-286 (2002)......................................7 Harris v. Rosario, 446 U.S. 651, 651-652 (1980).....................................................6 Purcell v. Gonzalez, 549 U.S. 1, 5-6 (2006)............................................................11 Torres v. Puerto Rico, 442 U.S. 465, 469-470 (1979)..............................................5 United States v. Mosley, 238 U.S. 383, 386 (1915).................................................11 Cases Circuit Courts Caplan v. Fellheimer, 68 F.3d 828, 839 (3rd Cir. 1995)...........................................9 Fulani v. Hogsett, 917 F.2d 1028, 1031 (7th Cir. 1990)...........................................9 Gonzalez-Droz v. Gonzalez-Colon, 573 F.3d 75, 79 (1st Cir. 2009).........................4 National Organization v. Daluz, 654 F.3d 115, 117 (1st Cir. 2011).........................3 Salt Lake Tribune v. AT&T, 320 F.3d 1081, 1106 (10th Cir. 2003)..........................7 Sanchez v. Esso Std. Oil, 572 F.3d 1, 44 (1st Cir. 2009).........................................10 Second City v. City of Chicago, 333 F.3d 846, 850 (7th Cir. 2003)..........................7 Simmons v. Galvin, 575 F.3d 24, 41 (1st Cir. 2009)..................................................5 Southwest Voter v. Shelley, 344 F.3d 914, 918-919 (9th Cir. 2003).......................11

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Cases District Courts P.P.D. v. Commonwealth, 24 F.Supp.2d 184, 192-194 (D.P.R. 1998).....................5 Statutes 2 U.S.C. 431(3) (2012)...........................................................................................5 42 U.S.C. 1973gg-1(4) (2012)................................................................................5 42 U.S.C. 15511 (2012)..........................................................................................6 42 U.S.C. 15512 (2012)..........................................................................................6 42 U.S.C. 15541 (2012)..........................................................................................6

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NO. 12-2145 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

MYRNA COLON-MARRERO Plaintiff - Appellant v. HECTOR CONTY PEREZ, ET AL Defendants - Appellees

INTRODUCTION P.P.R. and MR. ADRIAN DIAZ-DIAZ AS ELECTORAL COMMISSIONER For the most part of recent history, Puerto Ricans have had three (3) political options in the local quadrennial elections. That is, with very few exceptions, during the last decades, all political candidates have ran under and been endorsed by one of three (3) political parties; P.N.P., P.P.D., and the P.I.P. As this Court is well aware, the main divergence amongst those parties is the political relationship they proffer between Puerto Rico and the U.S. The aforementioned scenario started to change when, during the nineteen nineties, several grassroots movements worked on organizing into political parties that, instead of focusing their platforms on the Puerto Rico - U.S. political relationship, centered their efforts in solving the overabundance of day-to-today problems Puerto Ricans face. As a result of this, Puertorriqueos por Puerto Rico

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(P.P.R.) was registered for and appeared in the 2008 general elections. Although the P.P.R. received over fifty thousand (50,000) votes and came in third in the overall results, pursuant to state law, it didn't remain registered as a political party with automatic ballot access. If it wanted to appear in the upcoming 2012 elections, it had to submit new supporting citizens petitions and reregister before the State Elections Commission (S.E.C.). The entire reregistering process took over three (3) years. In June 2012, after the process was completed, the P.P.R.'s registration was certified and, later than month, appearing appellee, Mr. Adrian Diaz-Diaz, was appointed Electorate Commissioner of the P.P.R. before the S.E.C. It is in this official capacity, as Electoral Commissioner of the P.P.R., that Mr. Diaz-Diaz was impleaded in the underlying case and appears before this Honorable Court. STATEMENT OF ISSUE The issue in this appeal is whether appellant, a U.S. citizen residing in Puerto Rico who was deactivated from the general registry of voters because she didn't vote in the last quadrennial general elections and didn't comply with the local reactivation procedure, is entitled to a preliminary injunctive order against the President and the Electoral Commissioners of the State Elections Commission directing her reactivation in the registry pursuant to the National Voter Registration Act (N.V.R.A.) and the Help America Vote Act (H.A.V.A.).

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The District Court answered the aforementioned in the negative and denied the preliminary equitable relief sought. Said denial is subject to review by this Honorable Court "...under a deferential standard, reversing only upon finding a mistake of law, a clear error in fact-finding, or other abuse of discretion." National Organization v. Daluz, 654 F.3d 115, 117 (1st Cir. 2011). SUMMARY OF THE ARGUMENT While the P.P.R. and its Electoral Commissioner, Mr. Diaz-Diaz, favor the widest electorate participation possible, their primary concern is the orderly, accurate, and efficient administration of the upcoming general elections. The preliminary injunction sought by appellant, not only endangers achieving these goals, but is legally unsubstantiated. First, appellant is unlikely to succeed because the N.V.R.A. does not apply to Puerto Rico and the H.A.V.A.s enforcement is limited to civil actions filed by the U.S. Attorney General. Additionally, it was appellant want of diligence what caused the outcome which she now characterizes as an irreparable harm. Finally, when one considers the practical effects of the injunctive relief, particularly in light of appellant's lack of expeditiousness, the relative hardships and the public interest weighs in favor of denying injunctive relief.

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ARGUMENT Under Circuit precedent, in considering a motion for a preliminary injunction, a district court must consider: (1) the plaintiff's likelihood of success on the merits; (2) the potential for irreparable harm in the absence of an injunction; (3) whether issuing an injunction will burden the defendants less than denying an injunction would burden the plaintiffs; and (4) the effect, if any, on the public interest. Gonzalez-Droz v. Gonzalez-Colon, 573 F.3d 75, 79 (1st Cir. 2009). As discussed below, appellants claim for equitable relief misses the mark on all four (4) prongs. Appellant Is Unlikely To Succeed On The Merits As recognized by the District Court, appellants claim is substantively prosecuted pursuant to the National Voter Registration Act (N.V.R.A.) and the Help America Vote Act (H.A.V.A.). Since the N.V.R.A. does not apply to Puerto Rico and the H.A.V.A.s enforcement is limited to civil actions filed by the U.S. Attorney General, appellant in unlikely to succeed and the District Courts decision should remain unaltered. On the one hand, the N.V.R.A., also known as the Motor Voter Act, establishes procedures designed to increase the number of registered voters. Crawford v. Marion County, 553 U.S. 181, 193 (2008). Therefore, it has been recognized that the N.V.R.A. restricts states ability to remove names from the

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voters rolls. Simmons v. Galvin, 575 F.3d 24, 41 (1st Cir. 2009). However, the Act defines the term state, for purposes of its construction, as a State of the United States and the District of Columbia. 42 U.S.C. 1973gg-1(4) (2012). In other words, the Act does not include Puerto Rico. While appellant concedes this exclusion, in order to surpass this obstacle, she points at the N.V.R.A.s statement of purposes, which makes reference to Federal office, and asks that it be considered in light of the definition of Federal office in the Federal Election Campaign Act, which includes the post of Resident Commissioner.1 Since the only Resident Commissioner in the Federal Government is that of Puerto Rico, by virtue of this definition in the Federal Election Campaign Act, she argues this Court should extend the N.V.R.A. to Puerto Rico. Simply put, appellant exhorts this Court to toss out the text of the N.V.R.A. in light of its statement of purposes, which, in turn, appellant urges, must be interpreted pursuant to another statutes general definitions. There is absolutely no support for such a significant leap.2 To suggest that, although, contrary to other

Pursuant to the Federal Election Campaign Act: [t]he term Federal office means the office of the President or Vice President, or of Senator in, or Delegate or Resident Commissioner to, Congress. 2 U.S.C. 431(3) (2012). 2 As undemocratic as it is, Puerto Rico is still an unincorporated territory. See Torres v. Puerto Rico, 442 U.S. 465, 469-470 (1979). Legislative history confirms that Public law 600 did not change the Islands status. P.P.D. v. Commonwealth, 24 F.Supp.2d 184, 192-194 (D.P.R. 1998). While the Supreme Court has stated that Puerto Rico is subject to the equal protection guarantee, it has not decided whether it is by virtue of the Fifth or the Fourteenth Amendment. Examining
1

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electoral laws such as the H.A.V.A., Puerto Rico was excluded from the text of the N.V.R.A., but must be included by judicial fiat because the political branches intended so is pure speculation. On the other hand, the H.A.V.A., a statute not intended to increase the number of registered voters, but to improve voting systems standards, explicitly includes Puerto Rico. Pursuant to the statutes text: the term State includes the District of Columbia, The Commonwealth of Puerto Rico, Guan, American Samoa, and the United States Virgin Islands. 42 U.S.C. 15541 (2012). However, the H.A.V.A. does not allow private lawsuits. See 42 U.S.C. 15512 (2012). It limits its enforcement to civil actions filed by the U.S. Attorney General by providing: The Attorney General may bring a civil action against any State or jurisdiction in an appropriate United States District Court for such declaratory and injunctive relief (including a temporary restraining order, a permanent or temporary injunction, or other order) as may be necessary to carry out the uniform and nondiscriminatory election technology and administration requirements under sections 301, 302, and 303. 42 U.S.C. 1511 (2012). And so, in Brunner v. Ohio Republican Party, the Supreme Court vacated an injunctive order entered by a lower court in an action brought pursuant to the H.A.V.A. by a private litigant stating that it was not sufficiently likely that movant

Board v. Flores, 426 U.S. 572, 599-601 (1976). However, what the Supreme Court has squarely recognized is that, under the Territory Clause, Congress is empowered to treat Puerto Rico differently from the States so long as there is a rational basis for its actions. Harris v. Rosario, 446 U.S. 651, 651-652 (1980).

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would prevail on the question whether Congress had authorized private lawsuits under the statute. Brunner v. Ohio Republican Party, 555 U.S. 5, 6 (2008). Ultimately, contrary to appellants bald contention, the unavailability of a private right of action under the H.A.V.A. cant be overcome by prosecuting her claim by means of Section 1983. The statute, while aimed at improving voting systems standards, provides no indication that Congress intended to create new individual rights and, therefore, there is no basis for a private suit under Section 1983. Gonzaga University v. Doe, 536 U.S. 273, 283-286 (2002). Nothing in appellants brief suggests otherwise and, as recognized by the District Court, she is unlikely to succeed. The appealed order should remain unaltered. Appellants Alleged Irreparable Harm Is Self-Inflicted Sister Circuits have recognized that self-inflicted wounds are not irreparable harm. Second City v. City of Chicago, 333 F.3d 846, 850 (7th Cir. 2003); Salt Lake Tribune v. AT&T, 320 F.3d 1081, 1106 (10th Cir. 2003). In Stuller v. Steak N Shake, the Seventh Circuit recently stated that the question of whether an injury is readily avoidable and truly self-inflicted if not avoided--and thus not irreparable harm--depends on the particular circumstances of the case. 2012 U.S. App. Lexis 17921. In this case, according to the operative pleading, [Addendum pgs. 5-19] appellant is a U.S. citizen residing in Puerto Rico. As a registered voter, number

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0171778, she went to the polling place to cast her vote in the 2004 general elections in Puerto Rico. Under state law, her appearance in the 2004 elections kept her active in the registry of voters and gave her automatic ballot access in the 2008 elections. However, unlike in 2004, appellant did not vote in the 2008 general elections. Accordingly, under state law, she had to reactivate herself in the registry. Although in Puerto Rico there is no reactivation in the polling place, plaintiff and all other similarly situated voters had over three (3) years, until September 17, 2012, to reactivate their voting eligibility for the upcoming general elections, scheduled for Tuesday, November 6. Albeit the ample time appellant had to reactivate herself, she did not. Instead, she waited until July 31, 2012, not to reactivate her eligibility, but to challenge in writing her deactivation before the S.E.C. Just a few days after receiving her challenge, on August 9, the Commission ruled and denied appellants challenge and urged her to reactivate herself by the September 17 deadline. Regrettably, after receiving the S.E.C.s ruling, appellant again decided not to reactivate her voting eligibility, and just submitted written grievances before the U.S. Department of Justice. While it is uncertain whether the Department of Justice received and ruled upon appellants claims, what is

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undisputed is the fact that she never reactivated her voting eligibility within the September 17 deadline. In lieu reactivating her voting eligibility under state law on or before September 17, on September 12, 2012, appellant filed the underlying complaint and the next day, September 13, moved the District Court for a preliminary injunction against the President and the Electoral Commissioners of the S.E.C. directing her reactivation in the registry pursuant to the National Voter Registration Act (N.V.R.A.) and the Help America Vote Act (H.A.V.A.). Ultimately, appellants request for preliminary equitable relief was denied, inter alia, because the alleged irreparable harm was self-inflicted. Clearly, appellant's want of diligence caused the outcome which she now finds unacceptable and, therefore, her injury is not to be deemed irreparable.3 See Caplan v. Fellheimer, 68 F.3d 828, 839 (3rd Cir. 1995). The appealed order should remain unaltered. Issuance of Injunctive Relief Burdens Defendants More Than Denying It Would Burden Appellant And Public Interest Weighs in Favor of Denying Injunctive Relief In considering a request for equitable relief, courts should weigh the relative hardships faced by each party. Sanchez v. Esso Std. Oil, 572 F.3d 1, 44 (1st Cir. 2009). Additionally, issuing courts must consider "...the effect of the court's ruling
3

Additionally, the mix of considerations in electoral cases generally calls for early pre-election resolution of election-related disputes. In the context of elections, laches arises when the claim against a state electoral procedure is not judiciously or promptly articulated. See Fulani v. Hogsett, 917 F.2d 1028, 1031 (7th Cir. 1990).

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on the public interest." Id. In this case, appellant claims her right to vote; a clearly protected right. However, as a consequence of appellant's calculated lack of expeditiousness, an injunctive order will jeopardize the integrity of the entire elections, a broader democratic concern. While election day is November 6, absentee ballots have been mailed and the elections have effectively begun. There is simply is no time to update the registry of voters and the issuance of an injunctive order will certainly cause a chaos in the polling-place because the large number of individuals, estimated to be over two hundred thousand (200,000), that might show without being in the registry of voters. The S.E.C. does not have the resources, including the ballots, required to accommodate appellant and all similarly situated individuals. In Puerto Rico, all poll workers are partisan volunteers that, not only administer the process, but manually count and tally all ballots and votes. The issuance of an injunctive order will exponentially increase the number of eligible voters, which, in turn, will increase the number of poll workers required. There is simply no time to recruit all the partisan volunteers needed to guarantee presence of each party in the counting and tallying of the ballots and votes. Simply put, the issuance of an injunctive order will dilute votes and jeopardize the right of all qualified voters to have their votes counted. See United States v. Mosley, 238 U.S. 383, 386 (1915).

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In conclusion, as ably stated by the Ninth Circuit, a federal court should not lightly interfere with or enjoin a state election. Southwest Voter v. Shelley, 344 F.3d 914, 918-919 (9th Cir. 2003). See, e.g. Ely v. Klahr, 403 U.S. 108 (1971); Whitcomb v. Chavis, 396 U.S. 1055 (1970). When an election is imminent and when there is inadequate time to resolve disputes, courts will decline to grant an injunction. See Purcell v. Gonzalez, 549 U.S. 1, 5-6 (2006). That ought to be the case here and the appealed order should remain unaltered. CONCLUSION Based on the aforementioned, Mr. Adrian Diaz-Diaz, as Electoral Commissioner of the P.P.R., respectfully requests this Honorable Court of Appeals to AFFIRM the District Court's denial of preliminary injunctive relief. IT IS HEREBY CERTIFIED that, on this same date, the foregoing document has been electronically filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to all attorneys of record through their registered email. Counsel are Carlos M. Hernandez-Lopez, Jorge Martinez-Luciano, Jose L. Nieto, John E. Mudd, Rafael E. Garcia-Rodon, Carlos A. Del Valle-Cruz, and David Indiano-Vicic. RESPECTFULLY SUBMITTED, in San Juan, Puerto Rico, this 9th day of October, 2012.

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Attorney for Adrian Diaz Diaz as Electoral Commissioner of Puertorriqueos por Puerto Rico (P.P.R.). CRDOVA MORALES LAW OFFICES 220 Domenech Avenue, PMB 255 San Juan, PR 00918 Phone (787) 302-0163 Fax (787) 302-0164 ncordova@cordovamorales.com

S/ Nelson N. Crdova Morales Nelson N. Crdova Morales USCA 89914

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CERTIFICATE OF COMPLIANCE Defendant-Appellee certifies that the instant brief complies with the form requirements set forth in Rule 32 of the Federal Rules of Appellate Procedure, as it has been prepared in M.S. Word in proportionally-spaced Times New Roman, font size 14. Furthermore, the instant brief is in compliance with applicable typevolume limitation, as it is 12 pages, 219 lines, and 2,469 words in length. RESPECTFULLY SUBMITTED, in San Juan, Puerto Rico, this 9th day of October, 2012. Attorney for Adrian Diaz Diaz as Electoral Commissioner of Puertorriqueos por Puerto Rico (P.P.R.). CRDOVA MORALES LAW OFFICES 220 Domenech Avenue, PMB 255 San Juan, PR 00918 Phone (787) 302-0163 Fax (787) 302-0164 ncordova@cordovamorales.com

S/ Nelson N. Crdova Morales Nelson N. Crdova Morales USCA 89914