Opinion
CIVIL NO. 20-1432 (PAD)
2020-09-14
Belia ARLENE OCASIO, et al., Plaintiffs, v. COMISION ESTATAL DE ELECCIONES, et al., Defendants.
Adriel I. Cepeda-DeRieux, Pro Hac Vice, Dale E. Ho, Pro Hac Vice, Theresa J. Lee, Pro Hac Vice, American Civil Liberties Union Foundation, Inc., Lissette Duran, Pro Hac Vice, Makiko Hiromi, Pro Hac Vice, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Fermin Luis Arraiza-Navas, American Civil Liberties Union, San Juan, PR, for Plaintiffs. Idza Diaz-Rivera, P. R. Department of Justice, San Juan, PR, for Defendants.
Adriel I. Cepeda-DeRieux, Pro Hac Vice, Dale E. Ho, Pro Hac Vice, Theresa J. Lee, Pro Hac Vice, American Civil Liberties Union Foundation, Inc., Lissette Duran, Pro Hac Vice, Makiko Hiromi, Pro Hac Vice, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Fermin Luis Arraiza-Navas, American Civil Liberties Union, San Juan, PR, for Plaintiffs.
Idza Diaz-Rivera, P. R. Department of Justice, San Juan, PR, for Defendants.
OPINION AND ORDER
Delgado-Hernández, District Judge.
Plaintiffs initiated this action under the First and Fourteenth Amendments for declaratory and injunctive relief directing the State Elections Board of Puerto Rico ("CEE" as it is known by its Spanish initials) and its President, to among other things, permit senior citizens – those over 60 years of age – to vote early or by absentee ballot in the November 2020 election, and to update public education materials to reflect this eligibility rule (Docket No. 1, ¶ 10; Docket No. 2, p. 1). Defendants requested that the case be dismissed (Docket Nos. 34, 35). On September 11, 2020, the court granted in part plaintiffs’ request for preliminary injunctive relief, ordering that defendants permit voters of at least 60 years of age to vote early by mail; to extend by ten days-until September 24, 2020 -the deadline for these voters to apply for early voting; and to implement a media orientation campaign to that effect (Docket No. 38). This Opinion and Order sets forth the grounds for the court's ruling.
The CEE is entrusted with overseeing the election process, including updating voting policies as necessary, facilitating registration services, and organizing voting poll locations and ballots (Docket No. 2, p. 16).
I. INTRODUCTION
Plaintiffs are 60-plus years of age registered voters, with medical conditions that make them particularly vulnerable to COVID-19 (Docket No. 1, ¶¶ 16, 17). They intend to vote in the election to be held in Puerto Rico in November 2020. Id. But because the Puerto Rico Electoral Code, Law No. 58 of June 20, 2020, does not grant senior citizens- those over 60 years of age – the right to early or absentee voting, they face the untenable choice between exercising their right to vote in person on election day and placing themselves at risk of contracting a potentially terminal disease. Id. at ¶ 48. In consequence, they seek declaratory and injunctive relief directing defendants to:
1. Implement policies allowing senior citizens access to early and absentee voting for the November elections;
2. Update all public education materials, including written, online, and on-air, to reflect these eligibility rules;
3. To identify voters over 60 years of age as individuals eligible to vote by early voting and absentee ballot during the pendency of the COVID-19 pandemic.
Id. at 26.
Defendants contend the court lacks jurisdiction on account of mootness (Docket No. 34, pp. 4-9). They assert that the CEE's electoral commissioners granted to senior citizens the right to early voting; the President of the CEE authorized senior citizens to vote by mail and ordered that the application form be modified accordingly, and that it be sent to the commissioners and placed at the CEE's website; and on September 10, 2020, the CEE initiated the corresponding media orientation campaign. Id. at pp. 4-9, 11; Docket No. 41. Further, they state that requiring defendants to identify voters over 60 years of age as individuals eligible for absentee and early voting has no relevance to the claims plaintiffs raise (Docket No. 34, p. 11).
II. PROCEDURAL BACKGROUND
On August 20, 2020, plaintiffs filed the complaint (Docket No. 1), and a request for temporary restraining order ("TRO") and a preliminary injunction (Docket No. 2). On August 21, 2020, the court denied the request for a TRO, and ordered that defendants be served with process by August 21, 2020 (Docket No. 5). Further, it instructed defendants to respond to the preliminary injunction request by August 31, 2020, and directed plaintiffs to notify defendants with copy of the order the same day they served them with process. Id.
Defendants did not respond within the deadline as ordered and the next day, plaintiffs requested entry of default (Docket No. 19). The court denied that request. Instead, it ordered defendants to show cause by September 4, 2020, as to why the request for preliminary injunction should not be granted (Docket No. 20). On September 4, 2020, defendants asked for, and were granted until September 11, 2020, to answer and respond to the preliminary injunction petition (Docket Nos. 24 and 25).
On September 4, 2020, plaintiffs filed an emergency motion for reconsideration, opposing the extension (Docket No. 26). The same day, the court ordered that defendants respond to the emergency motion by noontime on September 8, 2020 (Docket No. 27). They did so, reiterating the need for the September 11th deadline (Docket No. 28). The court maintained the deadline, albeit setting it at noontime on that day; scheduled a status conference for September 9, 2020 at 3:00 p.m.; and ordered the parties to confer and discuss a litigation plan to be discussed during the conference (Docket No. 29). The conference was held as scheduled (Docket No. 33). Considering the issues discussed during the conference, the court scheduled a follow up conference for September 11, 2020 at 3:00 p.m. (Docket No. 31). Meanwhile, on September 10, 2020, plaintiffs filed an amended motion for TRO and preliminary injunction (Docket No. 32). And on September 11, 2020, defendants answered the complaint; opposed the request for preliminary injunction; and asked that the case be dismissed (Docket No. 10). On September 11, 2020, the court heard the parties during the conference, providing them with ample opportunity to express their points of view (Docket No. 41). In addition, the court inquired if given the materials on the record, an evidentiary hearing was necessary for the court to rule on plaintiffs’ request for preliminary injunction. Id. The parties expressed that no such hearing was necessary. After a recess, having studied all of the filings in light of applicable caselaw, the court granted in part plaintiffs’ request. Id.
Originally, the conference was set as a video conference via VTC Bridge-PAD (Docket No. 33, p. 1, n. 1). Due to technical difficulties with the bridge, the court decided to hold the conference via telephone bridge. Id. The court authorized the CEE's Legal Advisor to participate in the conference, even though she has not entered an appearance as attorney of record. Id.
III. FACTUAL BACKGROUND
The case must be evaluated against the epidemiological impact of the COVID-19 pandemic and the pandemic's effect on senior citizens and their right to vote. To this end, plaintiffs presented the Declaration under Penalty of Perjury of Dr. Arthur L. Reingold, Division Head of Epidemiology and Biostatistics at the University of California, Berkeley, School of Medical Health (Docket No. 2-1)(describing epidemiologic aspects of the COVID-19 pandemic; population segments at greater risk of infection, including geriatric patients; and characteristics of polling stations as prime area for increased virus transmission); and the Declaration under Penalty of Perjury of Mayra Socorro Ortiz Tapia, MPH, Certified Clinical Gerontologist (Docket No. 2-2) (describing general outlook of COVID-19 pandemic for people over 60 in Puerto Rico, and estimating at 78% their chance of death if contracting COVID-19). The declarations’ findings and conclusions stand unrebutted. Furthermore, defendants admitted paragraphs 20, 21, 23, 24, 25, 30, 31, 41, 42, 43, 44, 45, 46, 54, 55, 56, and 57 of the Complaint. See, Docket No. 35 ("Answer to the Complaint"). The most salient admissions are reproduced in the Appendix. The declarations and admissions place beyond doubt the pandemic's impact on senior citizens and the circumstances under which they must exercise their right to vote.
Defendants submitted no counterstatements or materials of evidentiary value to rebut Dr. Reingold's and Ms. Ortiz-Tapia's declarations.
IV. DISCUSSION
A. Jurisdiction
Defendants contend the case should be dismissed as moot (Docket No. 34). Article III of the Constitution limits federal-court jurisdiction to "cases" and "controversies." U.S. Const., Art. III, § 2. The Supreme Court has interpreted this requirement to demand that "an actual controversy ... be extant at all stages of review, not merely at the time the complaint is filed." Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). Thus, Article III "prohibits federal courts from deciding ‘moot’ cases or controversies-that is, those in which ‘the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.’ " United States v. Reid, 369 F.3d 619, 624 (1st Cir. 2004) (citing United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) ; Gulf of Maine Fishermen's Alliance v. Daley, 292 F.3d 84, 87 (1st Cir. 2002) ). Measured by this standard, the case is not moot.
Generally, voters in Puerto Rico must vote in person on the day of the election. Articles 9.34 and 9.37 of the Electoral Code recognize two exceptions to this general rule: absentee voting and early voting. Absentee voting applies to voters who will not be physically in Puerto Rico on the day of the election. See, Article 9.34 of Electoral Code. Early voting covers voters such as caregivers. See, Article 9.37 of the Electoral Code. The Code does not, however, include senior citizens within this category. But it authorizes the CEE to add categories of voters to the list of individuals eligible for early voting, prohibiting the CEE from subtracting or eliminating the categories set in the statute. See, Article 9.37(3)(providing for authorization and stating prohibition).
The full categories of voters eligible for early voting are: (1) voters required to be at work within Puerto Rico on election day; (2) caregivers (any voter who is the only person available in the family nucleus of their home for the care of children under 14 years of age, persons with disabilities, and bedridden patients being taken care of in the home); (3) hospitalized voters; (4) candidate voters; (5) traveler voters (voters who, after expiration of the term to apply for absentee or early vote, become aware that for any reason, they will be physically absent from Puerto Rico on election day, provided that such knowledge arose before election day; (5) voters with a physical impairment; (6) easy home access voters; (7) voters with special conditions in lodging or accommodation houses; and (8) inmates of penal institutions. See, Article 9.37 of the Electoral Code. Plaintiffs mistakenly alluded to the categories included in the Electoral Code of 2011 as the categories now in place. See, "Plaintiffs’ Memorandum of Law in Support of Their Emergency Motion for a Temporary Restraining Order and Declaratory and Injunctive Relief" (Docket No. 2, p. 17, n. 27); "Notice of Amended Motion for Temporary Restraining Order and Preliminary Injunction" (Docket No. 322, p. 19, n. 20).
Bringing into play this prerogative, on August 25, 2020, the CEE by agreement of the electoral commissioners, added the category of senior (60 +) citizens to the list of voters eligible for early voting in the November 2020 election. See, CEE-AC-20-248, p. 1 (Docket No. 39-1) (certifying electoral commissioners’ agreement to maintain senior citizen category for early voting). On August 27, 2020, due to a disagreement among the electoral commissioners on early voting by mail, the President ruled that voters eligible for early voting, could vote by mail. See, Resolution RS-CEE-145 (Docket No. 39-2)(recognizing availability of vote by mail in early voting). One of the electoral commissioners requested reconsideration, which was denied. See, Resolution RS-CEE-146 (Docket No. 39-3)(denying reconsideration request).
On June 4, 2020, in light of the pandemic, the Legislative Assembly expanded by Joint Resolution the categories of individuals eligible for early voting, including, among others, individuals over 60 years of age (Docket No. 32, p. 19). The Joint Resolution applied only to the primaries to be held in August 2020, giving the CEE approximately two months to prepare for these changes. Id.
Defendants contend that because the commissioners reached an agreement and the Resolutions became final and unappealable on November 4th (Resolution RS-CEE-145) and November 8th (Resolution RS-CEE-146), the case is moot (Docket No. 34, pp. 6-12). The Resolutions, however, are not res judicata. Article 3.4 of the Electoral Code provides that decisions in the CEE shall be made by unanimity of the proprietary commissioners. See, Article 3.4 of Electoral Code (setting forth allocation of decision-making authority within CEE). In absence of unanimity, the President decides, and the decision is considered that of the CEE. Id. In theory, there is no legal impediment that would prevent the commissioners from eliminating the category of senior citizens as eligible for early voting by mail in the November 2020 election.
Defendants argue that the Electoral Code prohibits the CEE from eliminating or subtracting from early voting categories (Docket No. 34, p. 8). Yet the prohibition refers to the categories of early voting included in the Electoral Code, not to those added by the CEE. See, Article 9.37 (3)(while CEE may add to the list or reasons and categories of voters eligible for early voting, it shall never reduce or eliminate those established in Article 9.37). Therefore, the case is not moot.
B. Injunctive Relief
Whether or not to issue a preliminary injunction depends on four factors: (1) plaintiff's likelihood of success on the merits; (2) the potential for irreparable harm in the absence of preliminary injunctive relief; (3) whether issuing the injunction will burden defendants less than denying an injunction would burden the plaintiffs; and (4) the effect, if any, on the public interest. See, Sindicato Puertorriqueno de Trabajadores v. Fortuño, 699 F.3d 1, 10 (1st Cir. 2012) (articulating and applying test); New Comm Wireless Services., Inc. v. SprintCom, Inc., 287 F.3d 1, 8-9 (1st Cir. 2002) (similar). Though each factor is important, "[t]he sine qua non of this four-part inquiry is likelihood of success on the merits." Sindicato Puertorriqueno de Trabajadores, 699 F.3d at 10.
Plaintiffs have a high probability of succeeding on the merits. The First and Fourteenth Amendments "prohibit states from placing burdens on citizens’ rights to vote that are not reasonably justified by states’ important regulatory interests." Common Cause v. Gorbea, 970 F.3d 11, 14 (1st Cir. 2020) (citing Anderson v. Celebrezze, 460 U.S. 780, 788-789, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) and Burdick v. Takushi, 504 U.S. 428, 430, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) ). Under this framework, courts weigh the character and magnitude of the asserted injury to the voters’ rights against the precise interests put forward by the State as justifications for the burden imposed. Id. In passing judgment, the court must determine the legitimacy and strength of each of those interests and consider "the extent to which those interests make it necessary to burden the plaintiff's rights." Anderson, 460 U.S. at 789, 103 S.Ct. 1564. This standard is sufficiently flexible to accommodate the complexities of state election regulations while "protecting the fundamental importance of the right to vote." Obama for Am. v. Husted, 697 F.3d 423, 429 (6th Cir. 2012).
As it stands, the Electoral Code requires at-risk senior citizens to vote in person on election day, generally indoors, and often within reach of dozens if not hundreds of voters for extended periods of time, in enclosed areas where social distancing and sufficient ventilation cannot be guaranteed. Senior citizens should not be forced to choose between risking their health and perhaps their lives by exposing themselves to COVID-19 or disenfranchisement. And, Puerto Rico does not have a strong enough interest to prohibit senior citizens to exercise early voting by mail in the November 2020 electoral event. On the contrary, the CEE recognized – by way of agreement among the electoral commissioners – that senior citizens are eligible for early voting, and by administrative resolutions, that they may vote by mail.
The balance of hardships and public interest support injunctive relief. Plaintiffs will suffer irreparable harm absent injunctive relief. The public interest in ensuring citizens their constitutional right to vote and safeguarding public health and preventing the spread of the COVID-19 virus are served by an injunction. Allowing senior citizens access to early voting by mail will not only ensure that senior citizens can exercise their right to vote safely, but it will also reduce crowding at voting locations during the general elections and decrease the risk of infection for all. And there is no documented basis to believe that this measure may compromise the election's integrity.
Still, to exercise the right to early voting by mail, senior citizens must first apply to the CEE not later than September 14, 2020. The time span within which these citizens are expected to act is problematic. Focusing on the CEE, senior citizens were included as a category of eligible voters for early voting in the November 2020 electoral event by agreement on August 25, 2020, and given the right to vote by mail via administrative resolution on August 27, 2020, a resolution which, by defendants’ account, became final and unreviewable on September 8, 2020. In other words, the complete "early voting by mail" regime was put in place barely six days before expiration of the application deadline.
As mentioned earlier, the Electoral Code does not include senior citizens as voters eligible for early voting, but authorizes the CEE to expand upon that category, which the agency did. The Electoral Code became law on June 20, 2020. So, citizens have had a substantial amount of time to inform themselves as to the categories of early voting included in the Electoral Code. And for that reason, the September 14, 2020 deadline that the Code sets to apply under those categories makes sense, supplemented as it is by a media orientation campaign. But as explained above, the senior citizens are not on the same footing, and "some parts" of the relevant orientation campaign only started on September 10, 2020, four days prior to the deadline (Docket No. 41, p. 2).
Defendants argue that Article 9.38(4) of the Electoral Code provides that early vote has to be requested on or before 50 days prior to the election, that is, by September 14, 2020, and for that reason, any amendment requires legislative action (Docket No. 34, pp. 8-9). Statutory deadlines, however, may be judicially modified as appropriate to safeguard voting rights. See, Democratic National Committee v. Bostelmann, 447 F.Supp.3d 757, 760-761, 770 (W.D. Wis. 2020) (judicial extension of electronic voter registration deadline in light of COVID-19 pandemic); Florida Democratic Party v. Scott, 215 F.Supp.3d 1250 (N.D. Fla. 2016) (ordering extension of voter registration deadline after hurricane hit the state).
See also, Ortiz-Angleró v. Barreto-Pérez, 110 D.P.R. 84, 10 P.R. Offic. Trans. 104 (1980), where the Puerto Rico Supreme Court sustained an injunction against enforcement of a 153-day deadline to register before an electoral event, noting that the deadline infringed the right to vote.
Plaintiffs asked that the September 14th deadline be extended two weeks, until September 28, 2020 (Docket No. 32, pp. 14, 35, 37). They pointed out that the CEE already permits registration for other categories of individuals eligible for absentee voting until October 4, 2020, and thus, any administrative hurdles associated with allowing senior citizens to register until September 28th will likely be minimal and can be addressed during this process. Id. at 35. Reference to "October 4, 2020" appears in the Spanish-version of the early vote application (Docket No. 32-B) – not in the English version (Docket No. 34-3) – and is limited to voters who became aware after the deadline that they would not be in Puerto Rico on election day, a category of early voting expressly recognized in Article 9.37 of the Electoral Code. See, Article 9.37 (e) of Electoral Code (recognizing eligibility of this particular voter category for early vote). Senior citizens are not in that category.
At any rate, it stands to reason that the CEE needs time to review the early vote applications before certifying voter eligibility and remitting ballots on time for those ballots to be cast. In that regard, a ten-day extension – until September 24, 2020 – for senior citizens to apply for early voting is apt. The extension adequately balances the rights of senior citizens with the operational needs of the CEE. Defendants presented no evidence that any extension in the deadline – even the 14-day extension that plaintiffs advocated for – would significantly impair the CEE's internal processes or unreasonably interfere with the CEE's work plans. Thus, the extension would impose only a minimal burden while potentially affording senior citizens the opportunity to exercise their franchise by safely voting by mail. As a corollary, however, a meaningful orientation advertising campaign is necessary in order to inform senior citizens of their right to vote early by mail, and of the adjusted deadline to apply for early vote.
Defendants assert that plaintiffs can only request a remedy for themselves and not for third parties (Docket No. 34, p. 11). The hurdle defendants face is that plaintiffs did complain of restrictions on the voting rights of senior citizens and expressly ask for court relief to those in that category. See, Complaint (Docket No. 1, ¶¶ 3, 10, 57, 59, 61, 65, 66, p. 26); "Plaintiffs’ Memorandum of Law in Support of Their Emergency Motion for a Temporary Restraining Order and Declaratory and Injunctive Relief" (Docket No. 2, pp. 11, 12, 18, 24, 25, 26, 29, 30, 32, 34, 35). Besides, class certification is unnecessary, as the nature of the right asserted – the right to vote – under the U.S. Constitution, necessarily requires that "any declaratory or injunctive relief run to all persons similarly situated." Cromwell v. Kobach, 199 Fed.Supp.3d 1292, 1314-1315 (D. Kan. 2016) (articulating formulation in connection with challenge to a state voter registration requirement, noting that benefits of certification were minimal as compared to the burdens).
Finally, as for plaintiffs’ remaining request, they did not accredit the need for an order requiring defendants to identify voters over sixty years of age as individuals eligible to vote by early voting and absentee ballot during the COVID-19 pandemic. In consequence, their request for an order to that effect must be denied.
V. CONCLUSION
In light of the foregoing, plaintiffs’ request for preliminary injunction was GRANTED IN PART:
(1) To recognize senior (60+) citizens the right to early voting by mail, and to extend until September 24, 2020, the deadline for those voters to apply for early voting;
(2) The measure shall be accompanied by a media orientation campaign to apprise senior citizens of this right and modified deadline. The information shall be posted on the CEE's website, and incorporated in the early voting application form to be used by senior citizens. To prevent confusion, the orientation shall finalize after September 24, 2020.
Given that plaintiffs did not accredit the need for an order requiring defendants to identify voters over sixty years of age as individuals eligible to vote by early voting and absentee ballot during the pandemic, their request for an order along this line is DENIED.
SO ORDERED.
APPENDIX
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
BELIA ARLENE OCASIO, ET AL., Plaintiffs, v.
COMISION ESTATAL DE ELECCIONES, ET AL., Defendants.
CIVIL NO. 20-1432 (PAD)
Defendants’ answer to the Complaint (Docket No. 35).
1. Averment 20. COVID-19, also known as SARS-CoV-2, is an infectious disease caused by a novel coronavirus that has spread throughout the world at an alarming pace. Admitted.
2. Averment 21 . The virus spreads very easily and in a number of ways. For example, the virus can be spread through droplet transmission. In other words, when an infected individual speaks, coughs, or sneezes, they expel droplets which can transmit the virus to others in their proximity. COVID-19 is also aerosolized and can be transmitted by inhaling contaminated tiny droplets that remain in the air. Lastly, the virus is also known to be spread through the touching of contaminated surfaces. Each infected individual is estimated to infect two to eight others, and asymptomatic individuals may also transmit the virus to others. Admitted .
3. Averment 23. Because transmission of the virus can occur via environmental surfaces, there is also risk of spread of the virus at any location where multiple individuals touch surfaces. Admitted .
4. Averment 24 . The range of consequences from contracting COVID-19 is extensive. Individuals who contract the virus typically present with a fever, cough, and shortness of breath, which can escalate to respiratory failure, heart damage, and other life-threatening complications. Other individuals infected with the virus have experienced muscle aches, headaches, chest pain, diarrhea, coughing up blood, sputum production, runny nose, nausea, vomiting, sore throat, confusion, lack of senses of taste and smell, and anorexia. While many infected individuals are entirely asymptomatic, many others—including many senior citizens—have died from the virus. Admitted .
5. Averment 25 . The CDC has classified older adults and those with underlying health conditions as high-risk individuals. The CDC found that the risk for severe illness from COVID-19 increases with age.1 Additionally, people with certain underlying medical conditions may also be at increased risk from COVID-19, including those affected by asthma or hypertension, amongst other conditions. Admitted .
6. Averment 30 . While efforts to control the COVID-19 infection rates in Puerto Rico were initially successful, there has been a recent surge in COVID-19 cases. On March 12, 2020, Governor Wanda Vázquez-Garced issued an Executive Order declaring a state of emergency in Puerto Rico and acknowledging that it was "necessary to devise an action plan in conjunction with all the agencies in order to address this emergency as promptly and efficiently as required." One day later, on March 13, Puerto Rico confirmed its first three cases of COVID-19. Admitted .
7. Averment 31. On March 15, 2020, Governor Vázquez-Garced ordered the closure of public and private nonessential operations, as well as a curfew on all citizens from 9:00 P.M. to 5:00 A.M. Approximately two weeks later, on March 30, the Governor imposed a strict 24-hour, 7 days-a-week lockdown, allowing citizens to leave their homes between 5:00 A.M. and 7:00 P.M. only to receive or provide essential services. Admitted .
8. Averment 44. In response to the COVID-19 outbreak in Puerto Rico, on June 4, 2020, the Legislative Assembly issued a Joint Resolution postponing the date of the primary elections from June 7, 2020 to August 9, 2020. In the Joint Resolution, the Legislative Assembly recognized the potential spread of COVID-19 at voting locations and authorized the CEE to take all necessary measures to ensure the safety and health of the voters for the primaries. The Joint Resolution also expanded eligibility for early voting for the primaries to include (i) individuals over sixty (60) years of age; (ii) those under quarantine due to testing positive for COVID-19; (iii) individuals with chronic lung diseases or asthma (as verified by a qualified doctor in Puerto Rico), (iv) persons with compromised immune systems (e.g., cancer patients), (v) individuals who are morbidly obese, and (vi) other high risk individuals and/or with vulnerable health conditions, pursuant to the World Health Organization Recommendations. The Joint Resolution applied only to the primaries and was silent on any accommodations necessary for the general election in November 2020. Admitted .
9. Averment 45 . On June 20, 2020, Governor Vázquez-Garced signed into law the Election Code 2020, which officially expanded the categories of people qualified to vote early in the general election to include individuals who are in the hospital or require long-term care, have physical impediments, medical conditions, or other mobility constraints. Senior citizens were not included in the expanded categories. Importantly, however, the Election Code also empowered the Commission to add to (but not subtract from) the listed categories of voters eligible for early voting. Admitted.
10. Averment 54 . During the first week of August, Puerto Rico held its early voting and general voting for its primaries. On August 1 (the day designated for early voting for the primaries), late ballots plagued Puerto Rico's voting locations. Many counties did not receive ballots until hours later. With over 21,000 early voters, the late ballots resulted in long and crowded lines filled with the same at-risk communities that early voting was adopted to safeguard. To address the disenfranchisement that occurred, those unable to vote during the early voting period were allowed to vote on the day of the primary (August 9), with "preferential treatment" and a "fast lane" to be provided to accommodate these voters. While this accommodation was made to ensure that citizens had an opportunity to exercise their right to vote, it comes at the expense of their health and safety—these voters (those identified as particularly at-risk of exposure by the Legislative Assembly) were forced to travel to polling locations and be exposed to others twice, and come into contact with even larger crowds at the primaries, further increasing their risk of infection. Admitted .
11. Averment 55 . Voters who sought to cast their ballots in-person during the August 9, 2020 primaries encountered perilous issues. Many voters who traveled to polling stations reported waiting in crowded lines for hours, as ballots were delayed in arriving at polling stations. The delays were so severe that many precincts closed their polling stations early, completely disenfranchising many and resulting in a number of local lawsuits. Admitted .
12. Averment 56. In response to a preliminary injunction motion, the Supreme Court of Puerto Rico issued a ruling directing the CEE to resume the primaries on August 16. Admitted .
13. Averment 57. The steady increase in COVID-19 coupled with Puerto Rico's failure to implement efficient safety measures at its voting locations, necessitate the adoption of early and absentee voting alternatives for senior citizens for the general elections on November 3.