VAMOS, Concertacion Ciudadana Inc. et al v. Commonwealth of Puerto Rico et al

2020 | Cited 0 times | D. Puerto Rico | September 24, 2020




v. COMMONWEALTH OF PUERTO RICO, et al., Defendants.

Civil No. 20-1426 (FAB)


Plaintiffs VAMOS, Concertación Ciudadana, Inc. , María de Lourdes Guzmán-Rivera, Justo Méndez-Aramburu, Rubén Colón-Morales, Raquel González-Sparks, Jesús Danilo Chinea-Rivera, Pedro Muñiz-García, Ineabelle Colón-Rivera, José González- Gierbolini, Alice Sparks-Horner, José Rodríguez-Báez, Enrique José Estrada-Carrau, and Eliza Llensa-Zuecca (collectively, plaintiffs request declaratory and injunctive relief against defendants Commonwealth of Puerto Rico , the State Electoral Commission , the Office of Electoral Comptroller, Francisco Rosado-Colomer in his official capacity as Chairman of the CEE, 1

Juan Dávila-Rivera

1 Plaintiffs originally named Juan Dávila-Rivera as a defendant in his personal capacity and in his official capacity as Chairman of the CEE. (Docket No. 1.) After Francisco Rosado-Colomer took over the position, the Court ordered him substituted for Juan Dávila-Rivera only in his official capacity. (Docket No. 16.)

in his personal capacity, and Walter Vélez in his personal capacity and in his official capacity as Comptroller of the Office of the Electoral Comptroller (collectively, defendants and sections 7.1(d) and 8.3(a) Status, Act No. 51- (Docket No. 1.) Plaintiffs have also moved for a temporary restraining order and preliminary and permanent injunctions against the defendants to enjoin them from enforcing those provisions. (Docket Nos. 12 13.) Defendants moved to dismiss the claims, and the plaintiffs replied. (Docket Nos. 27, 33, 38 39 & 44.)

For the reasons set forth below, the permanent injunctive relief, (Docket No. 13,) is GRANTED IN PART AND DENIED IN PART. Rosado and Vélez are PERMANENTLY ENJOINED from enforcing article 6, section 7.1(d), and a portion of section 8.3(a) of Act 51. The motions for a temporary restraining order and for preliminary injunctive relief, (Docket Nos. 12 13,) are VACATED AS MOOT. Nos. 27, 33,) are GRANTED IN PART AND DENIED IN PART. All causes of action against the Commonwealth of Puerto Rico, the CEE, and the Office of the Electoral Comptroller are DISMISSED WITHOUT PREJUDICE. The claims made directly pursuant to the Federal Constitution against Rosado and Vélez in their official capacities

are DISMISSED WITH PREJUDICE, while the claims made directly pursuant to the Puerto Rico Constitution against Rosado and Vélez in their official capacities are DISMISSED WITHOUT PREJUDICE. The claims pursuant to section 1983 and directly pursuant to the Federal Constitution against Vélez and Dávila in their personal capacities are DISMISSED WITH PREJUDICE, while the claims directly pursuant to the Puerto Rico Constitution against Vélez and Dávila in their personal capacities are DISMISSED WITHOUT PREJUDICE. I. Background

A. Factual Background

The United States Constitution authorizes Congress to admit new states. U.S. Const. art. IV, § 3, cl. 1 . Thirty-seven states have been admitted, and eleven states readmitted, since ratification of the Constitution. Eric Biber, The Price of Admission: Causes, Effects, and Patterns of Conditions Imposed on States Entering the Union, 46 Am. J. Legal Hist. 119, 125 (2004).

The admission of new states has followed a general process. Id. Support for statehood from a majority of the population in a would-be state has historically been an important factor in the process. Id. at 127.

Puerto Ricans have voted five times in the past half- century on their preference for political organization. Samuel

Issacharoff et al., What Is Puerto Rico?, 94 Ind. L.J. 1, 2 (2019). In 2012 and 2017, Puerto Ricans overwhelmingly voted in support of statehood. Tom C.W. Lin, Americans, Almost and Forgotten, 107 Calif. L. Rev. 1249, 1289 (2019). After the referendums, no meaningful progress in Congress occurred. Id. at 1289 90.

On May 16, 2020, the Governor of Puerto Rico signed into

51 requires a referendum to be held on November 3, 2020, the same day as the general election, regarding whether Puerto Rico should become the 51st state of the United States of America. Act 51 § 2.1. The referendum will ask one question: . Id. § 4.1.

Act 51 also includes rules and requirements pertaining to the campaign associated with the referendum. See id. arts. 6 7. It also instructs that challenges seeking a stay of the

referendum must be brought in the Puerto Rico Supreme Court. Id. § 8.3(a). Some of these provisions are the subject of the

B. Procedural Background

Plaintiffs commenced this action on August 19, 2020. (Docket No. 1.) That is three months after the Puerto Rico legislature enacted Act 51. Then, twenty days later, plaintiffs

moved for a temporary restraining order and for preliminary and permanent injunctions. (Docket Nos. 12 13.)

Defendants moved to dismiss and opposed equitable relief on September 18, 2020. (Docket Nos. 27 28, 33, 35, 38 39.) Defendants met the deadline set by this Court. See Docket No. 24.

Id. On that date, plaintiffs sought an extension. (Docket No. 36.) The Court granted the extension. (Docket No. 37.) Plaintiffs finally made their filing on September 23, 2020. 2

(Docket No. 44.) II. Justiciability

have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress . . . Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). The

ensuring itself that it has power to adjudicate the claims. Steel , 523 U.S. 83, 98 102 (1998).

2 questions about the urgency of their requests for equitable relief. See, e.g., , 370 F.3d 151, filing of a motion for preliminary injunction, not attributable to intervening rights. This is particularly true here, because the referendum is set to occur just over a month from the date of this Opinion and Order.

The following pages in this section may seem complex, but Id. at 101. The limits on federal court are necessary to, among other things, the independence of state and territorial governments and the separation of powers within the federal government. Id.; Victory Carriers, Inc. v. Law, 404 U.S. 202, 212 (1971).

To help the reader, here is a preview of this section. Most

justiciable. The only claims that survive this section are the claims pursuant to 42 U.S.C. section 1983 concerning violations of the Federal Constitution against Rosado and Vélez in their official capacities. This table also summarizes the analysis in this section:

[Continued on Next Page]

Parties Bases of Claims Action Reason Commonwealth of Puerto Rico, CEE, and Office of the Electoral Comptroller

Section 1983, Federal Constitution, and Puerto Rico Constitution

Dismissed without prejudice


Rosado and Vélez in official capacities

Section 1983 Not



Rosado and Vélez in official capacities

Federal Constitution Dismissed

with prejudice

Claims can be vindicated through section 1983 Rosado in official capacity, Dávila in personal capacity, and Vélez in official and personal capacities

Puerto Rico Constitution

Dismissed without prejudice

No supplemental jurisdiction

Dávila and Vélez in personal capacities

Section 1983 and Federal Constitution

Dismissed with prejudice

Equitable relief unobtainable

A. Claims Against the Commonwealth of Puerto Rico

Federal courts have limited authority in suits against state governments. States are immune from suits in federal court brought by their own citizens. Hans v. Louisiana, 134 U.S. 1, 20 21 (1890). The Commonwealth of Puerto Rico is treated like a state

for these purposes. Consejo de Salud de la Comunidad de la Playa de Ponce, Inc. v. González-Feliciano, 695 F.3d 83, 102 n.15 (1st Cir. 2012). This immunity is derived from long-existing principles of sovereign immunity . Ex parte New York, 256 U.S.

490, 497 (1921). the nature of the relief sought. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). A state may consent to suit,

implications from the text as [will] leave no room for any other Edelman v. Jordan, 415 U.S. 651, 673 (1974) (alteration in original) (internal quotation marks omitted).

States are also not suable persons pursuant to section 1983. , 502 U.S. 197, 201 (1991); , 491 U.S. 58, 64 (1989); Brown v. Newberger, 291 F.3d 89, 92 (1st Cir. 2002); López- Acosta v. Toledo, Civ. No. 06-2193, 2009 WL 10719749, at *5 n.8 (D.P.R. Feb. 9, 2009) (Delgado-Colón, J.). The Commonwealth of Puerto Rico is treated like a state for purposes of whether it is a person suable pursuant to section 1983. Rosario-Urdaz v. Rivera- Hernández, 350 F.3d 219, 222 (1st Cir. 2003). The reasons for this rule include the balance between the federal government and state governments Will, 491 U.S. at 64 67.

Surprisingly, in this case, the Commonwealth of Puerto Rico raises neither its Eleventh Amendment immunity nor its section 1983 suability. See Docket No. 33. This raises the

question of whether the Commonwealth has waived the immunity defense or otherwise consented to suit.

A party does not waive an Eleventh Amendment immunity defense by failing to raise it at the outset of a proceeding, and courts may sua sponte consider the defense because Eleventh Amendment immunity is a limitation on the Co jurisdiction. Reese v. Michigan, Civ. No. 99-1173, 2000 WL

1647923, at *2 (6th Cir. Oct. 24, 2000) (per curiam); Plain Local Sch. Dist. Bd. Of Educ. v. DeWine, Civ. No. 19-5086, 2020 WL 5521310, at *9 (S.D. Ohio Sep. 11, 2020). Additionally, courts presume that a state has not consented to waive its immunity. College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 682 (1999).

In light of those rules, all claims against the Commonwealth of Puerto Rico fail. The Commonwealth is entitled to immunity, González-Feliciano, 695 F.3d at 102 n.15, and there is no indication in the record of a waiver of that immunity, Edelman, 415 U.S. at 673; Reese, 2000 WL 1647923, at *2. Therefore, all claims against the Commonwealth are DISMISSED WITHOUT PREJUDICE.

Plaintiffs allege that the Commonwealth of Puerto Rico is an indispensable party in this case. (Docket No. 1 at p. 5.) As just noted, all claims against the Commonwealth of Puerto Rico are dismissed. If plaintiffs were correct about indispensability,

See Fed. R. Civ. P. 19(b). Fortunately for plaintiffs, they are incorrect. The Commonwealth is not indispensable because, among other reasons, the other defendants (two governmental officials in

interests, and equity demands the Court not dismiss the case. , 512 F.3d 9, 18 19 (1st Cir. 2008); Gallagher v. N.Y. State Bd. Of Elections, Civ. No. 20-5504, 2020 WL 4496849, at *11 13 (S.D.N.Y. Aug. 3, 2020).

B. Claims Against the CEE and the Office of the Electoral

Comptroller Some state and territorial agencies share in the Eleventh Amendment immunity of their state or territory. An agency Pastrana-Torres v. Corporación de P.R. Para La Difusión Pública, 460 F.3d 124, 126 (1st Cir. 2006); see Pennhurst, 465 U.S. at 100. The issue of whether an agency is an arm of the goals of the Eleventh Amendment Fresenius Med. Care

Cardiovascular Res., Inc. v. P.R. & The Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 63 (1st Cir. 2003).

In the first circuit, there are two component questions to determining whether an agency is an arm of the state. Pastrana-

Torres, 460 F.3d at has structured the entity to share its Eleventh Amendment im Id. Id. If not, ges s treasury if the entity is found liable. This analysis centers on whether the state has obligated Id. (citation omitted). That question can be answered in the affirmative based on either express provisions of law or historical practice. See id. at 128; Fresenius, 322 F.3d at 72. If the second question is answered in the affirmative, the agency is immune. Pastrana-Torres, 460 F.3d at 126.

In Pastrana-Torres, the First Circuit Court of Appeals examined whether the Corporación de Puerto Rico Para La Difusión Pública ( WIPR an arm of the Commonwealth. Id. at 125. The Pastrana-Torres court noted structural factors pointing away and towards an intention to share immunity, and could not conclude that the Commonwealth structured WIPR to share its sovereignty. Id. at 126 27. The Pastrana-Torres court then considered whether the Commonwealth was Id. at 127 28. The Pastrana- Torres court explain

debts. . . . the Commonwealth may have assumed this obligation by binding itself to provide virtually all of the funds that WIPR Id. at 128. The Pastrana-Torres court concluded that the Commonwealth had not assumed the obligation pay WIPR raised its own revenue and the Commonwealth only paid for shortfalls in the budget. Id.

In Fresenius, the court concluded that the Puerto Rico not an arm of the state. 322 F.3d at 59. Like the Pastrana-Torres court, the Fresenius court was unable to conclude that the Commonwealth structured PRCCCC to be an arm of the state. Id. at 72. Examining , the Fresenius court held that the against PRCCCC. Id. The Fresenius court determined that the

Commonwealth, as a matter of law and practice, did not obligate Id. left itself free to provide or not provide funds to PRCCCC as it

from sources other than the Commonwealth Id.

This Court concludes that the CEE and the Office of the Electoral Comptroller are arms of the state. It is not necessary

to determine whether the Commonwealth structured the two agencies to be arms of the government because, even if the answer to this question is inconclusive, the Commonwealth has obligated itself to The enabling statutes of both agencies state that the Commonwealth of Puerto Rico will fund their operations. P.R. Laws Ann. tit. 16, § 622h; Act No. 58 §§ 3.1(3)(a) (e). 3

If necessary, the Commonwealth commits to provide additional resources to the Office of the Electoral Comptroller. Id. § 622h. The governor and legislature are obliged to provide additional resources to the CEE during election years. Act No. 58 § 3.1(3)(f). It is true that CEE is authorized to solicit and receive donations to strengthen its technological innovation, id. § commitment to funding the agency is sufficient to render it an arm of the state.

Like the Commonwealth, the CEE and the Office of the Electoral Comptroller do not assert Eleventh Amendment immunity. See Docket Nos. 27, 33; cf. Docket No. 27 at pp. 8 10 (discussing Eleventh Amendment without asserting immunity). As the Court has

3 The Puerto Rico legislature amended the Election Code on June 20, 2020. Act. No. 58-2020 (June 20, 2020). An official translation of the amended statute is not available. The parties do not cite Act No. 58 in their recent filings, nor do they argue that the amendments are material to this action. A review of the Sindicato Puertorriqueño de Trabajadores v. Fortuño, 699 F.3d 1, 5 n.2 (1st Cir. 2012).

done with respect to the Commonwealth, the Court considers the issue of Eleventh Amendment immunity sua sponte. Because the two agencies are arms of the Commonwealth, all claims against them are DISMISSED WITHOUT PREJUDICE.

C. Claims Against State Officials in Their Personal and

Official Capacities The Court now turns to the remaining claims, which are brought against three officials Rosado in his official capacity, Dávila in his personal capacity, and Vélez in his personal and official capacities. (Docket Nos. 1, 16.) The claims, along with their motions for equitable relief, seek declarations, injunctions, and a temporary restraining order concerning violations of the Federal and Puerto Rico Constitutions. (Docket Nos. 1, 12 13.)

Claims against state officials are generally barred if Pennhurst, 465 U.S. at 101 (internal quotation marks omitted). There is an exception to that general rule for a suit challenging the Id. at 102; see Ex parte Young, 209 U.S. 123, 160 (1908). Pursuant to the exception, federal courts may award declaratory relief or an Pennhurst, 465 U.S. at 102 03; Vaquería Tres Monjitas, Inc. v. Irizarry, 587

F.3d 464, 478 (1st Cir. 2009).

The Court first addresses the claims against the officials pursuant to federal law. The equitable relief plaintiffs seek can only be obtained from those individuals in their official capacities. Feit v. Ward, 886 F.2d 848, 858 (7th Cir. 1989); Corsi v. Mueller, 422 F. Supp. 3d 51, 68 69 (D.D.C. 2019); cf. of Envtl. Mgmt. v. United States, 304 F.3d 31, 41 (1st Cir. 2002)

sued in their official capacity for prospective injunctive relief As such, the claims pursuant to section 1983 and the claims

directly pursuant to the Federal Constitution against Vélez and Dávila in their personal capacities are DISMISSED WITH PREJUDICE.

The only remaining claims based on federal law are against Rosado and Vélez in their official capacities. Some of those claims are made pursuant to section 1983 and concern the Federal Constitution. As federal law creates the cause of action, there is federal subject matter jurisdiction for these claims pursuant to 28 U.S.C. § 1331. Gunn v. Minton, 568 U.S. 251, 257 (2013).

Plaintiffs also make federal claims against Rosado and Vélez in their official capacities directly pursuant to the Federal Constitution (rather than through section 1983). See Docket

No. 1. Where, as here, section 1983 provides a means to seek vindication of those same rights, courts do not usually consider claims directly implied from the Constitution. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 731 35 (1989); City of St. Paul, 213 F.3d 1016, 1019 (8th Cir. 2000); Baxter by

Baxter v. Vigo Cty. Sch. Corp., 26 F.3d 728, 732 n.3 (7th Cir. 1994), superseded by statute on other grounds as stated in Holmes v. Marion Cty. Office of Family & Children, 349 F.3d 914, 918 (7th Cir. 2003). The claims made directly pursuant to the Federal Constitution against Rosado and Vélez in their official capacities are DISMISSED WITH PREJUDICE.

Other claims against the officials in their personal and official capacities seek injunctive and declaratory relief based on the Puerto Rico Constitution. (Docket No. 1.) Plaintiffs ask the Court to assert supplemental jurisdiction over these claims. Id. at p. 2. This Court may not exercise supplemental jurisdiction over those equitable claims because they allege that officials violated state law in carrying out their official Pennhurst, 465 U.S. at 121; see Guillemard- Ginorio v. Contreras-Gómez, 585 F.3d 508, 529 30 (1st Cir. 2009). Thus, the claims against Rosado, Dávila, and Vélez based on Puerto


The careful reader will observe that there are only two claims remaining. Those are the claims pursuant to section 1983 concerning violations of the Federal Constitution against Rosado and Vélez in their official capacities.

D. Standing

To press a claim in federal court, a litigant must have standing to do so. This is because the Constitution restricts federal courts to consideration of cases and controversies. U.S. Const. Art. III, § 2; , 568 U.S. 398, 408 (2013).

is the proper party to bring this suit, although that inquiry often Raines v. Byrd, 521 U.S. 811, 818 (1997) (internal quotation marks omitted).

4 Notwithstanding the Pennhurst doctrine, the Court would still decline to exercise supplemental jurisdiction over the claims based on Puerto Rico law. To the extent the plaintiffs wish to assert that the constitutional rights in the Puerto Rico Constitution have a different scope or effect than their counterparts in the Federal Constitution, the claims raise novel or complex issues of state law. 28 U.S.C. § 1367(c)(1). The circumstances are also exceptional and present compelling reasons for declining jurisdiction, id. § 1367(c)(4), because plaintiffs provide absolutely no supporting argument on a distinct scope or effect of the Puerto Rico constitutional provision, and the short timeline of this case does not allow the Court to properly address the issues.

Pagán v. Calderón, 448 F.3d 16, 27 (1st Cir. 2006) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).

To demonstrate standing, a plaintiff must show an injury likely redressable by a favorable judicial decision. Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560 61 (1992); Hochendoner v. Genzyme Corp., 823 F.3d 724, 731 (1st Cir. 2016). Put differently,

To seek injunctive relief, a plaintiff must show that he concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 81 (2000)).

Plaintiffs are an organization 5

and twelve individuals. Plaintiffs have the intent and interest in campaigning associated with the referendum. (Docket No. 1 at pp. 3 5, 13; Docket No. 13, Exs. 2 11.) Plaintiffs wish to contribute their efforts to the campaign, contribute or collect funds, and participate in educational activities. (Docket No. 13, Exs. 2 11.)

5 The First Amendment protections of free speech and association extend to organizations. See Citizens United v. FEC, 558 U.S. 310, 342 (2010) (internal quotation marks omitted) [P]olitical speech does not lose First Amendment protection simply because its source is a corporation.

he standing inquiry is claim-specific: a plaintiff must have standing to bring each and every claim that she asserts. Katz v. Pershing, LLC, 672 F.3d 64, 71 (1st Cir. 2012). Plaintiffs

raise claims associated with four restrictions in Act 51.

certify certain groups to represent alternatives in the referendum campaign violates their rights pursuant to the First Amendment and other constitutional provisions. (Docket No. 1 at pp. 13 15, 18 19.) Plaintiffs also argue that a June 5 deadline which plaintiffs

did not meet and which plaintiffs contend prevents them from campaigning both (i) violates their rights pursuant to the First Amendment and other constitutional provisions and (ii) subjects them to criminal penalties should they engage in referendum campaigning. Id. at pp. 16, 20. Plaintiffs additionally argue that a limit on campaign donations both (i) violates their rights pursuant to the First Amendment and other constitutional provisions and (ii) subjects them to criminal penalties should they exceed the limits. Id. at pp. 20 22. Finally, plaintiffs argue that a provision of Act 51 requiring challenges seeking a stay of the Referendum to be heard in the Puerto Rico Supreme Court violates their rights pursuant to the First Amendment and other constitutional provisions. Id. at pp. 22 23. The Court addresses each claim in turn.

1. Certification of Main Representative and Alliance

Members Plaintiffs have sufficiently demonstrated standing for their claims associated with the main representative and alliance member provisions of Act 51. According to plaintiffs, a main representative has been chosen for each of the two options in the referendum. (Docket No. 1 at p. 18.) from the existence of a main representative are sufficiently actual, imminent, and concrete because plaintiffs intend to campaign on the r certified relegates it to a lower status. And the injuries from those provisions are particularized because the plaintiffs here each seek to be engaged in campaigning associated with the referendum. Finally, because the injuries are fairly traceable to the certification provisions in Act 51, and a favorable judicial decision could prevent the injury by enjoining Rosado and Vélez from enforcing the provisions, the plaintiffs have shown causation and redressability.

Defendants to be main representatives defeats their standing. In support, they cite Hernández-López v. Melecio, 38 F. Supp. 2d 70, 76 (D.P.R. 1998) (Cerezo, J.), in which this Court held that the plaintiffs

did not have standing to challenge a provision of a plebiscite law. The provision stated, similar to Act 51, that political parties had the first opportunity to serve as main representative of an option in the plebiscite. Id. Plaintiffs in that case argued that the provision excluded them from participating in the plebiscite process. Id. The Court noted that plaintiffs provided no indication that a political party had sought to serve as main representative, and thus the provision did not injure plaintiffs. See id.

The decision in Hernández-López is not applicable to the present circumstances. In this case, plaintiffs are not arguing that they wish to serve as a main representative. See Docket Nos. 1, 12 13. Rather, plaintiffs are arguing that the mere existence of the main representative provision of Act 51

hinders their ability to campaign on the referendum. 6

In other words, plaintiffs in this case are concerned with the fact that a main representative exists, whereas in Hernández-López the plaintiffs complained about how a main representative was chosen. P here to seek certification as a main representative is no impediment to their standing on these claims.

2. The June 5 Deadline and Associated Criminal

Penalties and associated criminal penalties in Act 51. According to

6 See, e.g., Docket No. 1 at pp. 13 the government of the Commonwealth of Puerto Rico to determine which political organization will represent any of the political alternatives set forth in the referendum violates the right to free speech . . . id. at p. [sic] in the statute, its statement of motives, or in the legislative record is there any reference as to any factual, legal, statutory, juridical, or constitutional basis or compelling state interest to justify the power granted id. at pp. 16 referendum. That means that if any group of people or political action committee that decides to campaign in favor or against any of the alternatives arises or is created at any time within those five months, it is barred from participating in the campaign, and if they attempt to do so or do so, they may confront a id. at p. 18 an alternative, the statute as set forth herein, grants a favorable sanction to whoever is selected in that respect and in the eyes of the voters. The exercise of such power by the government through the CEE further compels the rest of the groups, parties and political action committees to make alliances or coalitions, behind or in association with either the selected party or group to represent which ever [sic id. government to determine through whatever process which particular group of people can represent in society a particular idea constitutes an unconstitutional delegation of power insofar pursuant [sic] to the First, Fifth and Fourteenth Amendments of the Constitution of the United States, the government cannot make content based determinations regarding the right, liberty, and exercise of speech and regarding who is or is not entitled to represent in society a particular idea. Moreover, it cannot do so as part of

plaintiffs, the June 5 deadline for requesting certification prevents them from campaigning because they did not meet the deadline. Id. at pp. 16, 20. Should they campaign, plaintiffs allege, they risk criminal penalties. Id.

Plaintiffs have shown standing for this claim. The the June 5 deadline and associated criminal penalties are sufficiently actual and imminent. This is because plaintiffs intend to engage in activities arguably proscribed by Act 51 (given their failure to request certification by June 5) and there is a credible threat of prosecution or enforcement should they do so. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 63 (2014). There is no need for the plaintiffs to actually violate the provisions of Act 51. Id.; Steffel v. Thompson, 415 U.S. 452, 462 (1974); Mangual v. Rotger-Sabat, 317 F.3d 45, 56 57 (1st Cir. 2003). ability to participate in referendum campaigning and to speak freely, among other things, are concrete injuries. And the injuries are particularized because the plaintiffs here each seek to be engaged in campaigning associated with the referendum. Finally, because the injuries are fairly traceable to the prohibitions and penalties of the June 5 deadline and the criminal sanctions and a favorable judicial decision could prevent the injury by enjoining Rosado and Vélez from preventing the

, the plaintiffs have shown causation and redressability.

Defendants assert that plaintiffs do not have standing because Act 51 does not prevent plaintiffs from engaging in campaigns associated with the referendum. (Docket No. 27 at p. 2; Docket No. 33 at p. 3.) Defendants point out that VAMOS has already campaigned on the referendum and did not allege that any adverse action has been taken against it. See Docket No. 33 at p. 3 (citing id., Ex. 1). Defendants, however, offer no interpretation of article 6 and section 7.1(d) in support of their argument; in fact, they do not even cite the provisions. (Docket No. 27 at p. 2; Docket No. 33 at p. 3.)

To show standing, plaintiffs need only demonstrate

Driehaus, 573 U.S. at 162 63. o political party, party by petition, citizen group, or political action committee that has failed to meet the certification and reporting requirements provided in the subsection (j) above may assign, donate, and/or lend financial or in-kind resources 6.1(k). While subsection (j) addresses reporting requirements, it says nothing about certification. See id. § 6.1(j). Consequently, the certification requirement discussed in subsection (k) may refer to

the certification requirements associated with the June 5 deadline. Since plaintiffs cannot now meet the June 5 deadline, they are arguably prevented from the activities regulated by subsection (k). The question of whether plaintiffs are actually prevented is addressed below.

3. Campaign Finance Limitations and Associated

Criminal Penalties Plaintiffs have shown standing for their claim associated with the donation and expenditure limitations. Plaintiffs wish to collect and contribute donations. (Docket No. 13, Exs. 2 11.) The campaign finance limitations in Act 51 injure plaintiffs in an actual, imminent, concrete, and particularized manner because they re collect and contribute donations. And because the injuries are fairly traceable to the prohibitions and penalties in article 6 and section 7.1(d) and a favorable judicial decision could prevent the injury by enjoining Rosado and Vélez from enforcing the campaign finance limitations, the plaintiffs have shown causation and redressability. standing to assert the campaign finance-related claim.

4. The Requirement to Seek a Stay of the Referendum in

the Puerto Rico Supreme Court Plaintiffs have also shown standing for the claims that concern section 8.3(a). A broad reading of the complaint

suggests that the plaintiffs want the Court to stay the November referendum because of the alleged unconstitutionality of article 6 and section 7.1(d). See id. at p. 25. As section 8.3(a) purports to prevent them from obtaining that stay in this Court and a favorable ruling from this Court would remedy the injury by enjoining Rosado and Vélez from enforcing section 8.3(a), plaintiffs have standing for their section 8.3(a)-related challenge. to assert this claim.

E. Synthesis

The upshot of this section is that only two claims are justiciable. Those are the claims pursuant to section 1983 concerning violations of the Federal Constitution against Rosado and Vélez in their official capacities.

Also, equitable in nature and pursuant to section 1983, they have no right to a jury trial. Wilson v. Bailey, 934 F.2d 301, 305 n.4 (11th Cir. 1991). Their demand for a jury trial, (Docket No. 1 at p. 25,) is DENIED. III. Permanent Injunction Standard

The plaintiffs move for a permanent injunction to preclude Rosado and Vélez from enforcing article 6 and sections 7.1(d) and

8.3(a) of Act 51. (Docket No. 13 at p. 11.) 7

Injunctive relief eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). This is an Sindi v. El- Moslimany, 896 F.3d 1, 29 (1st Cir. 2018) (internal quotation marks omitted). The plaintiffs shoulder the burden of establishing that:

(1) [they have] suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. The Shell Co. (P.R.) Ltd. v. Los Frailes Serv. Station, Inc., 605 F.3d 10, 19 (1st Cir. 2010) (internal quotation marks omitted). In the permanent Largess v. Supreme Judicial Court, 373 F.3d 219, 223 n.2 (1st Cir. 2004); see

7 Courts can consolidate preliminary and permanent injunction applications. Vaquería Tres Monjitas, Inc. v. LaBoy, 448 F. Supp. 2d 340, 346 47 (D.P.R. 2006) (Domínguez, J.). For consolidation to be proper, the parties must have (i) be heard. Id. The parties have received clear and unambiguous notice of the consolidation and an opportunity to be heard. On September 9, the Court ordered respond to the motion for a temporary restraining order and motion for a preliminary and permanent injunction no later than September 18, 2020. Any reply will be filed no later than September 21, (Docket No. 15.) Then, on September 15, the Court ordered the defendants to answer the complaint, file any appropriate motion, or file any response to the plaintiffs motions, including the motion for preliminary and permanent injunctions, no la shall reply to or otherwise oppose any of the defendants motions or filings no (Docket No. 24.)

and Procedure § 10A.23 (2020) permanent injunction has the added requir ).

A permanent injunction may be entered without an evidentiary hearing where there are no triable issues of fact. United States v. McGee, 714 F.2d 607, 613 (6th Cir. 1983); Socialist Workers Party v. Ill. State Bd. of Elections, 566 F.2d 586, 587 (7th Cir. 1977) (per curiam). The motion for preliminary and permanent injunctions presents a facial attack on provisions of Act 51 and Carpenters v. Kinton, 284 F.3d 9, 19 (1st Cir. 2002). In any

event, the parties do not identify any triable issues of fact. The Court therefore does not order an evidentiary hearing.

A. Facial Challenge

The plaintiffs set forth a facial challenge, contending that article 6 and sections 7.1(d) and 8.3(a) are unconstitutional and void ab initio. (Docket No. 20 at p. 18.) A facial challenge is really just a claim that the law or policy at issue is Bucklew v. Precythe, 139 S. Ct. 1112, 1127 (2019). Plaintiffs of circumstances exists under which the . . . [challenged

provisions of Act 51] United States v. Salerno, 481 U.S. 739, 745 (1987); see, e.g., Hightower v. City of Boston,

that the statute lacks any plainly legitimate sweep, her facial United States v. Sampson, 275 F. Supp. 2d 49, 67 (D. Mass. 2003).

The gravamen of the motion for injunctive relief is that Act 51 impermissibly restricts political participation in the referendum campaign. See Docket No. 13. Rosado and Vélez repeatedly assure the Court that plaintiffs can participate in educational campaigns supporting one of the alternatives. (Docket No. 28 at pp. 2, 6, 10, 23; Docket No. 35 at pp. 4, 8 11, 19 20, 23 24, 35.) This ipse dixit assertion misconstrues the statutory language, evincing a simplistic understanding of Act 51.

To assess whether article 6 and sections 7.1(d) and 8.3(a) comport with the First Amendment, the Court first evaluates the statutory language. United States v. Councilman, 418 F.3d 67, text. . Remarkably, neither Rosado nor Vélez cite Act 51 in their

28, 35.) Instead, they rely on regulations promulgated by government agencies to argue that Act 51 is constitutional. (Docket No. 28, Ex. 1; Docket No. 35, Ex. Ward v. Rock Against

Racism, 491 U.S. 781, 795 (1989). The regulations cannot, however,

save a state law that flouts the Constitution. See United States v. Stevens, 559 U.S. 460, 481 (2010) (alteration in original) (citations and internal quotation marks omitted) (holding that . . . law to conform it to constitutional requirements, for doing so would constitute a serious invasion of the legislative domain, and sharply diminish

cf. Sindicato Puertorriqueño de Trabajadores v. Fortuño, 699 F.3d 1, 10 n.6 (1st Cir. 2012) (citation omitted) (explaining, in the context of administrative exhaustion, that because the provisions of Law 222 that plaintiffs challenge are so constitutionally suspect, any administrative relief that the Election Comptroller could have provided would have been inadequa IV. Section 8.3(a)

Section 8.3(a) purports to channel certain challenges to the Puerto Rico Supreme Court. According to the provision challenge, dispute, or legal action that directly raises, or entails among its consequences, the stay of proceedings involving the holding of the plebiscite during the hours and on date provided in this Act, shall be considered and resolved directly by the Id. § 8.3(a). Plaintiffs seek a declaration that the provision is void as unconstitutional because

the United States over controversies arising regarding the

Amendments as an infringement of both due process and the right to petition the government for the redress of grievances. (Docket No. 1 at pp. 22 23.)

Section 8.3(a) cannot deprive this Court of subject matter jurisdiction. their power to adjudicate Once Congress has conferred subject matter jurisdiction on the federal courts, state law cannot expand or contract that grant of MRCo Inc. v. Juarbe-Jiménez, 521 F.3d 88, 95 96 (1st Cir. 2008) (quoting Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 167 (1939)).

The First Amendment to the Constitution provides that . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble,

Although the explicit text applies to Congress, the protection also applies to the States and territories. United Mine Workers of Am., Dist. , 389 U.S. 217, 221 n.4 (1967); Anderson v. Davila, 125 F.3d 148, 161 (3d Cir. 1997).

The right to petition includes the right of access to the

courts. Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S.

recognized the right to petition all branches of the government, including the courts, for redress of grievances as among the most

Powell v. Alexander, 391 F.3d 1, 16 (1st Cir. 2004) (citation and internal quotation marks omitted). The constitutional guarantee applies to both state and federal courts. Healey, Civ. No. 20-10767, 2020 WL 2198366, at *9 (D. Mass. May 6, 2020).

The Court has not identified the precise standard applicable to claims asserting an abridgement of the right to petition. The

Thomas v. Collins, 323 U.S. 516, 530 (1945). A panel of the Seventh Circuit Court of Appeals stated that an to obtain access to the courts without undue Snyder v. Nolen, 380 F.3d 279, 291 (7th Cir. 2004) (per curiam).

Section 8.3(a) unconstitutionally abridges the right to petition through access to the courts, whichever of the above standards is applied, because it purports to deny access to the federal courts. Accordingly, Rosado and Vélez are PERMANENTLY ENJOINED from enforcing the associated provision in section

8.3(a). V. Article 6

The plaintiffs argue that article 6 is void for vagueness. (Docket No. 13 at p. 10). They also assert that government endorsement of the established political parties is unconstitutional. (Docket No. 13.) The Court agrees.

A. Referendum Campaign Regulations

Article 6 is entitled Act 51 art. 6. This article sets forth guidelines for the referendum campaign. Id.

See id. § 6.1(e). 8

what, precisely, the main representatives and alliance members are

8 citizen group duly certified by the [CEE] may advocate for or against any of the options to be voted on in the same and, in the course thereof, may perform any lawful political activity subject to the limitations provided in this Political parties and citizen groups are generally permitted to participate the [CEE] of their intention within thirty (30) days following the effective date of the special Id. § 4217. The Court need not address the validity of these provisions. The only question presented by the permanent injunction motion is whether article 6 and sections 7.1(d) and 8.3(a) are constitutional.

expected to do regarding the referendum campaign. 9

Article 6

does not specify the characteristics that differentiate the main representative from other referendum participants. Id. § 6.1(a). 10

enumerated in order of priority.

1. The Main Representative Options

one political party or party by petition [to] participate in the 2020 General Election as a main representative for each of the

9 www.merriam- (last visited Sept. 24, 2020). A coalition is Id. Because there is no discernable difference between an alliance and coalition, the Court employs the terms throughout this Opinion and Order interchangeably. 10 The for each option. Act 51 art. 6. Article 6 contains language that implies an alliance is also subject to certification. See id. § 6.1(h) (stating that the certification as main representative,

Id. § 6.1(a). 11

The main representative application was due June 5, 2020, twenty days after the Puerto Rico legislature enacted the statute. Id. There are no extensions. Id.

operating, advertising staff, material, or equipment expenditures

are neither operationally nor financially related to juridical persons ma Id. § 6.1(b).

request or be recognized or certified as main representative,

alliance, coalition for any of the options printed on the Id. § 6.1(c). Option three contains the first reference to an synonymous and convey an association of distinct entities. If no

11 Rican Independence Party Puerto Ricans for P.R. Party v. Dalmau, 517 F. Supp. 2d 604, 606 (D.P.R. 2007) (Gelpí, J.); Civil Action Party v. Commonwealth, 2000 T.S.P.R. 29, 150 D.P.R. 359, 2000 P.R. Sup. LEXIS 18, at *7 . . . in order to participate in the general election for a specific municipality, representative district or senate district, with the intention of running at 16, § 4003(72).

kind has been issued . . . it shall be recognized as vacant for Id.

2. Alliance Requirements

The requirements for alliance members are complex. Article 6 implies that there is a distinction between certified and non-certified organizations. Section 6.1(e) provides:

Any party, citizen group, or political action committee not certified as the main representative of one of the may form an alliance or coalition with the party certified as the main representative. Such fact shall be notified in writing to the Commission and to the Office of Election Comptroller. Id. § 6.1(e) (emphasis added). Essentially, section 6.1(e)

the notice requirement. Section 6.1(i) reverses course, however,

set forth in section 6.1. This section provides:

Any political party or party by petition, citizen group, and political action committee that has failed to notify and meet the requirements to be designated as main representative, alliance or coalition within the terms provided in this Section, shall not be entitled to be considered as main representative, or as part of an alliance, or coalition. Id. § 6.1(i) (emphasis added). Accordingly, section 6.1(i) imposes an additional requirement that alliance members satisfy the conditions in section 6.1. These conditions are more rigorous than merely providing notice to the relevant government agencies.

3. Section 6.1(j): Declaration of Organization,

Financial Reports, and the Puerto Rico Political Campaign Financing Oversight Act Seminar Section 6.1(j) is expansive, applying to the entire electorate. This provision imposes three requirements on any

action committee, and natural or juridical person, whether or not certified as the main representative or alliance member of any of the options p Id. § 6.1(j) (emphasis added).

First, the chairperson and treasurer are required to attend a seminar regarding the Puerto Rico Political Campaign

Laws P.R. Ann. tit. 16, §§ 621-634. Act 51 § 6.1(j). Second, applicants must submit a Declaration of Organization to the Office of Election Comptroller. Id.; see Laws P.R. Ann. tit. 16, § 626. Act 51 § 6.1(j). These obligations are mandatory

aggregate, exceed five hundred ($500) and/or incur[] campaign expenditures of any kind in support or against any of the options Id. From printing handbills to renting an office, even the most

rudimentary grassroots campaign will incur some expense.

Consequently, the requirements set forth in section 6.1 extend to virtually every organization that campaigns on the referendum.

Like the main representative, alliance members must complete the section Id. This provision applies to

certification. Id. Accordingly, either the statute omits the seminar deadline for non-certified organizations, or it requires that all organizations obtain certification.

4. Section 6.2(a): Registration Requirement

Pursuant to section provide proof of registration as required by [the Campaign Financing Act] regardless of whether these shall participate individually, as a main representative, an alliance, or as a coalition Id. § 6.2(a) (emphasis added). Registration is due than June 15, 2020. Id.; see id. § 6.1(d). Reference to

individual participation suggests that the regulatory regime set forth in article 6 extends to all forms of political expression.

5. Section 6.2(b): Board Member and Political

Disposition Disclosures Section 6.2(b) mandates that a political party or

represent said option individually or as an organization, or it shall identify the alliance or coalition under which it shall be Id. § 6.2(b). This provision anticipates that organizations will form alliances with the main representative by June 5, 2020, 150 days before the referendum.

6. Financial Prohibitions and Criminal Liability

Failure to satisfy the Declaration of Organization, reporting and requirements is consequential, resulting in an absolute ban on campaign spending. Section 6.1(k) provides:

No political party, party by petition, citizen group, or political action committee that has failed to meet the certification and reporting requirements provided in the subsection (j) above may assign, donate, and/or lend financial or in-kind resources, to any political party, party by petition, citizen group or political action committee certified as main representative or that is part of an alliance. Id. § 6.1(k). Because section 6.1(j) applies to all organizations

completely sealed regarding political contributions unless it

satisfies the prerequisites in section 6.1(j). Violations of article 6 may also result in a felony conviction and monetary fines. Id. §§ 6.1(l), 6.2(d).

B. Due Process

The Fourteenth Amendment provides that no state shall

U.S. Const. amend. XIV. The vagueness doctrine

of laws for Marriage v. McKee, 649 F.3d 34, 62 (1st Cir. 2011) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)).

The First Amendment protects individuals from statutes Dombrowski v. Pfister, 380 U.S. 479, 482 (1965). This protection

is referred to as the doctrine of overbreadth. Courts approach

Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 479 n.13 (7th Cir. 2012) (internal quotation marks omitted).

A statute is void for vagueness in two circumstances.

intelligence a reasonable opportunity to understand what conduct Hill v. Colorado, 530 U.S. 703, 732 (2000). The

Id. Due process does not demand that the legislature account for every conceivable application of

Ohio Sup. Ct., 894 F.3d 235, 251 (6th Cir. 2018); IMS Health Inc. v Ayotte to be precise to the point of pedantry, and the fact that a statute requires some interpretation does not perforce render it

The Constitution demands McKee, 649 F.3d at 62 (quoting Buckley v. Valeo, 424 U.S. 1, 77 (1976)); see Wis. Right to Life, Inc. v. Barland, 751 F.3d 804, 835 (7th Cir. speech regulations carry an unreasonable risk that speakers will self-censor, so the First The

uncertain that persons of average intelligence would have no choice McKee, 649 F.3d at 62.

The plaintiffs intend to participate in the referendum campaign, but are wary of potential criminal liability. (Docket No. 13.) Pursuant to sections 6.1(l) and 6.2(d),

Any natural or juridical person who fraudulently violates any of the provisions of this Section or who being required hereunder, voluntarily fails or refuses to comply therewith, shall be guilty of an election offense and, upon conviction, shall be punished by imprisonment for a term not to exceed two (2) years or by a fine not to exceed ten thousand dollars ($10,000) for every violation, or both penalties, at the discretion of the Court. Act 51 §§ 6.1(l), 6.2(d). 12

Article 6 sets forth the requirements to be the main representative. The Court cannot ascertain how failure to achieve main representative status is criminal. For example, Article II

a natural born citizen . . . shall be eligible to the office of II, § 1. Those who are not natural born citizens are precluded from presidential office. They are not, however, punished for failing to meet this requirement. Those that violate article 6 are precluded from serving as the main representative or alliance member. In addition, they are subject

[failing 6.1(l), 6.2(d). This broad spectrum of potential criminal liability fails to place the public on notice regarding prohibited activities.

12 Sections 6.1(l) and 6.2(d) are identical.

See NAACP v. Button rules in the area of free expression are suspect. Precision of regulation must be the touchstone in an area so closely touching

main representative and alliance status, Act 51 suffers from an overbreadth of criminal liability. The vague parameters of the main representative and alliance designations fail to place the public on notice regarding proscribed acts. See Citizens United v. FEC ny force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political and debate the propriety of Statehood without fear of imprisonment.

See Meyer v. Grant whether the trucking industry should be deregulated in Colorado is a matter of societal concern that appellees have the right to

Coordination with the main representative may result in criminal prosecution. For example, members of a citizen group who

two-year term of imprisonment and/or a $10,000 fine. Act 51 § 6.1(l). There is no guidance regarding the establishment of an alliance. This ambiguity is amenable to arbitrary enforcement.

See United States v. Davis, 139 S. statutes threaten to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding

expected to

adverse 35 at p. 10.) To substantiate this

organizations and citizens painted a giant NO on top of the Capitol

(Docket No. 35, Ex. 1 at p. 1.) The news article also refers to

Id. at p. organization is immune for prosecution. This argument is flawed.

That an isolated event occurred without incident does not guarantee that law enforcement authorities will tolerate activities that are more provocative. See Griswold v. Conn., 381 U.S. 479, 483 (1965)

or philosophies by membership in a group or by affiliation with Mangual, 317 F.3d at Case 3:20-cv-01426-FAB Document 45 Filed 09/24/20 Page 44 of 73 plaintiff faces a credible threat of prosecution, the evidentiary bar that must be met is extremely low. ).

C. The First Amendment

The plaintiffs contend that a No. 13 at p. 20.) The Court agrees.

The First Amendment of the United States Constitution

establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of peop I. This Amendment is applicable to Puerto Rico. See, e.g., Posadas de. P.R. Assocs. v. Tourism Co., 478 U.S. 328, 331 n.1 (1986)

The Constitut

, 487 U.S. 781, 791 (1988) (quotation omitted).

to engage in association for the advancement of beliefs and ideas

is an inseparable Process Clause of the Fourteenth Amendment, which embraces freedom NAACP v. Ala. ex. rel. Patterson, 357 U.S. 449, 460 (1958); see Padilla-García v. Rodríguez, 212 F.3d 69, 74 (1st Cir.

2000). Freedom of association is rooted in the First Amendment, paranoia over the threat of domestic communists in the late 1940s

and earl The Strange Origins of the Constitutional Right of Association, 77 Tenn. L. Rev. 485, 488-89 (2010). 13

Not every limitation on this freedom, however, is unconstitutional. See, e.g., Allendale Leasing v. Stone, 614 F. Supp. 1440, recognition of freedom of association does not extend to a right

States possess the authority to regulate and administer elections for public office and policy referenda. Pérez-Guzman v. García orderly elections do not just happen. Substantial state regulation is a prophylactic that keeps the election process from Storer v. Brown, 415 U.S. 724, 730 (1974)). The authority to regulate elections, however,

13 Other scholars argue that the Framers recognized the freedom to associate despite the absence of this term in the First Amendment. Nicholas C. Ulen, Corporations, Natural Rights, and the Assembly Clause: An Originalist Critique of Corporate Speech Jurisprudence Citizens United v. FEC, the Supreme Court acknowledged that the Bill of Rights right to speak in association with other individual persons 391 (2010) (Scalia, J., concurring in part).

First Amendment . . . including the freedom of political Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451 (2008) (internal quotation and citation omitted).

1. The Sliding Scale of Judicial Review

The standard of judicial review in the context of Werme v. Merill, 84 F.3d 479, 483 (1st Cir. 1996). A two-tiered inquiry governs

Lyman v. Baker, 954 F.3d 351, 376 (1st Cir. 2020) (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997)). Second,


The severity of the restriction calibrates the scope of judicial review. See Werme rigorousness of the inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation uoting Burdick v. Takushi, 504 U.S. 428, 434 (1992)). Courts endeavor to strike Libertarian Party of Me. v. Diamond, 992 F.2d 365, 370 (1st Cir. 1993); Libertarian Party of N.H. v. Gardner, 638 F.3d 6, 14 (1st Cir. 2011) ( Case 3:20-cv-01426-FAB Document 45 Filed 09/24/20 Page 47 of 73 the First and Fourteenth Amendment claims under [a] sliding scale

Strict scrutiny and exacting scrutiny are the predominant standards of review in actions setting forth constitutional challenges to election regulations. Strict

Susan B. Anthony List v. Driehaus, 814 F.3d 466, 473 (7th Cir. 2016). The exacting scrutiny standard of review is less onerous, but also formidable. See Wash. Post. v. McManus, 944 F.3d 506, 520 (4th Cir. 2019) impossible to satisfy, while exacting scrutiny is merely

diff In fact, the Supreme Court has invalidated four election laws pursuant to this intermediate standard of review. 14 Exacting scrutiny is satisfied by demonstrating that the 14

See Davis v. FEC, 554 U.S. 724, 744-55 (2008) (holding that the FEC failed requirements); Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 204

, 514 U.S. 334, 347-57 (1995) ( misuse of anonymous election-related speech justifies a prohibition of all uses Buckley, 424 U.S. at 39-51 (invalidating an independent expenditure limitation after

, 205 F.3d 445, 454 (1st Cir. 2000) (quoting Buckley, 424 U.S. at

Serafine v. Branaman, 810 F.3d 354, 365 (5th Cir. 2016) (quoting McIntyre, 514 U.S. at 347).

The plaintiffs assert that strict scrutiny is the appropriate standard of review. (Docket No. 13 at pp. 18 19.) -based restrictions on speech Id. at p. 18. Content- based restrictions are presumptively invalid. News Corp. v. Agostini, 12 F. Supp. 2d 206, 217 (D.P.R. 1998) (Laffitte, J.). The motion for injunctive relief sets forth no explanation regarding the specific content purportedly subject to government regulation.

Rosado and Vélez argue that the exacting scrutiny standard of review is proper. (Docket No. 28 at p. 13; Docket No. 35 at p. 25.) The Court need not resolve whether the severity of Act 51 warrants strict scrutiny, because the challenged provisions fail to pass constitutional muster pursuant to the exacting scrutiny standard of review. See McManus, 944 F.3d at

scrutiny should apply to a disclosure law like the one here because

we hold that the Act fails even the more forgiving standard of Minn. Citizens Concerned for Life, Inc. v. Swanson ing scrutiny is appropriate . . .

2. Limitations on Political Participation

The Court is unaware of any jurisdiction beyond Puerto Rico, and the parties cite no authority, in which a state government mandates the appointment of an official representative for a referendum alternative. By assigning the political parties a right of first refusal for the main representative position, article 6 incorporates a partisan disposition characteristic of campaigns for public office. See Justice v. Hosemann, 71 F.3d

partisan contest provides voters who cannot research every candidate with a general Tex.

Democratic Party v. Benkiser, 459 F.3d 582, 588 (5th Cir. 2006)

omitted). Accordingly, Act 51 presents the Court with an anomaly. In evalua

FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 457 (2007).

a. The June 5, 2020 Deadline

. . . decides to campaign in favor or against the alternatives [or] is created [after June 5, 2020, it is] barred from participating in 13 at pp. 24 25.) The Court agrees.

Pursuant to section coalition may request or be recognized or certified as main § 6.1(c). The plaintiffs had to attend the Office of Comptroller

seminar, file a Declaration of Organization, submit financial reports pursuant to the Campaign Financing Act, and provide proof of registration in just twenty days a bureaucratic gauntlet for the most dedicated applicant to complete in less than a month. Id. §§ 6.1(c), 6.1(i), 6.1(j), 6.2(a).

Indeed, section 6.2(a) insinuates that organizations will

ct 51 § 6.2(a). Because Act 51 does

individual participation and alliance formation is vague. See

Buckley that [it] fails to clearly mark the boundary between permissible

the main representative an alliance? What level of coordination and mutual agreement is necessary to form an alliance?

Presumably, the CEE must certify a main representative before the formation of an alliance. Organizations cannot request an alliance without knowing which political party the CEE certified. certification] was made in the month of June once it was too late to get certified before the State Elections Commission of Puerto

13, Ex. 2 at p. 1.) That the plaintiffs may conceivably participate in the referendum campaign as individuals is no reason to excuse undue restrictions on the freedom to associate. See Cal. Democratic Party v. Jones, 530 U.S. 567, 581 (2000) consistently refused to overlook an unconstitutional restriction

upon some First Amendment activity simply because it leaves other ; McCutcheon v. FEC, 572 U.S. 185, 206 (2014) (holding that the ech is protected cannot turn on a legislative or judicial determination that particular speech is useful to the

The certification timeframe coincides with Executive Order 2020-041, signed on May 21, 2020 by Governor Wanda Vázquez-Garced in response to the COVID-19 pandemic. 15

This order

their place of residence or shelter 24 hours a day, 7 days a week Id.

provide any services that may be offered without compromising the Id. The restrictions imposed by Executive Order 2020-041 amplify the severity of the June 5, 2020 deadline.

The deadline in article 6 is more restrictive than the default schedule set forth in the Campaign Financing Act. Laws P.R. Ann. tit. 16, § 626. Political action committees and of Id. The

designation date determines the registration deadline, followed by

contrib § 627. The Campaign Financing Act is consistent with the Maine,

15 Executive Order 2020-041, May 21, 2020 (available at (certified English translation) (last visited Sept. 24, 2020).

New Hampshire, Massachusetts, and Rhode Island election codes, 16 permitting ballot question committees to campaign without adhering - of Act 51. The lack of precedent for a fixed registration deadline -day window is overly restrictive.

The expenditure prohibition in section 6.1(k) compounds the gravity of the June 5, 2020 deadline by forfeiting campaign contributions. According to Act 51, certification and registration is necessary for citizen groups and political action or in-kind resources, to [any party] certified as main representative or that 6.1(k).

The main representative and alliance deadlines are equivalent to the notice period in Sullivan v. City of Augusta,

16 See 21 M.R.S.A. § 1056-B (Maine law providing that ballot question committee register with the commission . . . within 7 days of receiving those contributions -a (New Hampshire law stating that polit time after the final report due following the then-most-recent general Massachusetts, a state ballot comm Political Campaign and Finance] prior to raising any money, and file reports (last visited Sept. 24, 2020); R.I. Gen. Laws § 17-25.2 5 (Rhode Island law stating that a position -question advocate expends a cumulative total that exceeds one thousand dollars ($10,000) for ballot question advocacy and ending the last day of the first full month following such date, to be filed with the board of elections due no later than seven (7) days after the end of the month).

511 F.3d 16, 27 (1st Cir. 2007). The City of Augusta, Maine, required a thirty- Id. The First restrict spontaneous free expression and assembly rights

Id. at 38. The legitimate traffic control and other aspects of public safety, [could] be no longer

Id. Amendment right of free speech and association prevailed. Id. Accordingly, the thirty-day advance application violated the Constitution. Id.

Like the City in Sullivan, Puerto Rico has a legitimate concern: the enforcement of campaign finance laws. Act 51 narrows the registration window, however, by precluding submission of the Declaration of Organization and financial reports within five months of the referendum. Arts. 6.1(c) and 6.1(j). This is the timeframe in which voters are most engaged. See Jones, 530 U.S. at 586 e an election, many voters pay little attention to campaigns and (Kennedy, J., concurring).

The June 5, 2020 deadline preserves the status quo by imposing multiple hurdles for additional participation and stifles spontaneous political expression. See Anderson v. Celebrezze, 460 U.S. 780, 791 (1983) (invalidating an early

parties thus have the political advantage or continued flexibility; for independents, the inflexibility imposed by the March filing deadline is a correlative disadvantage because of the Missourians v. Klahr deadline [making] it unlawful to form a campaign committee within

b. Government Endorsement of the Main

Representative The p

of speech. (Docket No. 13 at p. 23.) They entitling a particular party or group the right and/or power to represent an alternative a

Id. at p. 26. The Court agrees.

state laws, regulations, and schemes that threaten political

associations by favoring one association or political party Hand v. Scott, 285 F. Supp. 3d 1289, 1297 (N.D. Fla. 2018). The main representative is a government sanctioned speaker for the Yes and No alternatives, more so because Act 51 provides no definition for this position. When the legislative

generally assume that the term carries its plain and ordinary City of Providence v. Barr, 954 F.3d 23, 31 (1st Cir. 2020). Th al representative is, inter alia

represent bring clearly be


the Yes or No alternatives. Because the certification scheme in

See Act 51 § 6.1.

Government endorsement of political parties is disconcerting. See, e.g., Anderson, 460 U.S. at 801 (striking a

17 See Merriam Webster Online Dictionary, (available at; - (last visited Sept. 24, 2020).

Elrod v. Burns, 427 U.S. 347, 362 (1976

Citizens United, 558 U.S. at

340 (citing Fir Bellotti, 435 U.S. 765, 784 (1978) speech suggests an attempt to give one side of a debatable public question an advantage in expressing its views to the people, the First Amen be explicit to violate the freedoms of speech and association. See, e.g., Williams v. Rhodes, 393 U.S. 23, 32 (1968) (striking an Ohio law that required the Socialist Labor Party to obtain 15% of the number of ballots case in the previous election to present a candidate, but only 10% from the Democratic and Republican parties).

Rosado and Vélez cite Hernández-López, 38 F. Supp. 2d 70, process is compatible 28 at p. 9; Docket No. 35 at p. 4.) This precedent is inapposite. The Puerto Rico government subsidized the 1998 referendum campaign. 38 F. Supp. 2d at 75. Certified representatives were

with the public in order to arouse interest in the referendum itself and to persuade voters that their particular option is Id. at 72. An organization alleged that Puerto Rico violated the First Amendment because it required

law was approved and [have] a recognized and public history of Id. at 73. The Hernández-López

have previously been a standard bearer of the political ideology

Id. at 75.

Unlike the 1998 referendum law, Act 51 does not allocate public funds to the main representatives. Section section olitical party, party by petition, citizen group, political committee, and natural or juridical person that participates in canvassing

51 § 7.1(a). In fact, the statute mandates political impartiality. According to the Declaration of Public Policy, funds for the referendum are

Id. § 1(h) (citing

Pub. L. 113-

Id. § 3.2. Act 51 provides for a oter education Id. § 4.5(a), (b). Consequently, the state interest that justified the main representative requirements in 1998 (i.e., oversight of government funded activities) is absent from this action.

3. Justification for First Amendment Restrictions

for the Act 51 regulations. Cool Moose Party v. Rhode Island, 183 F.3d 80, 88 (1st Cir. 1999). The defendants offer no countervailing state interests, however, to sustain the infringements on free speech and association. There is no substantial relation between a Citizens United, 558 U.S at 336-67 (citation and quotation omitted); see, e.g., Barker v. Wis. Ethics Bd., 841 F. Supp. 255, 262 (W.D. Wis. 1993) (issuing a permanent injunction precluding Wisconsin from enforcing an ering personal

valid justification for the limitation). Accordingly, article 6

is unconstitutional. VI. Section 7.1(d)

The plaintiffs assert that Section 7.1(d) violates the First Amendment. (Docket No. 13 at pp. 29-30.) This section, which limits the amount of money that natural persons may contribute to the referendum campaign, provides that:

Every contribution in cash or in kind for purposes of the pl thousand eight hundred dollars ($2,800) per natural person. This maximum contribution shall be independent from that authorized by law for political parties and candidates in the General Election year. Such limitation shall apply to contributions made to political parties certified as main representatives of each of the two (2) options, as provided in Section 6.1(a) of this Act. Entities regulated by federal statutes and/or regulations, which are not under the under the jurisdictional of Act No. 222-2011, supra, shall adhere to said federal statutes and/or regulations, the limitations imposed herein notwithstanding. Act 51 § 7.1(d). The $2,800 contribution limitation has First Amendment implications. As the Supreme Court has stated, imposing on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the dept of their expl Buckley, 424 U.S. at 19.

The c Colo. Republican Fed. Campaign Comm. FEC, 518 U.S. 604, 635 (1996). A

intermediary some individual or entity responsible for

Id. at 638. (Kennedy, J, dissenting). In contrast, expenditures

r completely on his own, and not at the request McConnell v. FEC, 540 U.S. 93, 222 n.99 (2003) (internal quotation marks omitted). 18 Restrictions on expenditures are subject to strict scrutiny, while contributions Id. at 134. Accordingly, for Act 51 to pass constitutional muster, the defendants must set forth a sufficiently important interest that is closely drawn to the $2,8000 contribution limitation. See Buckley, 424 U.S. at 25.

18 Expenditures include P.R. Ann. tit. 16, § 621(33). The Campaign Financing Act also differentiates xpenditures, excess expenditures, Id. § 621(34) (37).

the payment or refund of administrative expenses, wages, bonuses, gifts, utilities, equipment, supplies, and services, as well as pledges, advances, or guarantees to a political party, aspirant, candidate, or the campaign committee, or authorized agent, representative, or committee thereof. Id. § 621(23)(a).

Courts have upheld contribution limitations in campaigns for public office to prevent quid quo pro corruption or its appearance. See Republican , 619 F.3d 410, 429-31 (5th Cir. 2010) (holding that contribution limits do not violate First Amendment rights because they prevent corruption in candidate campaigns); Buckley interest in encouraging citizen participation in political campaigns while continuing to guard against the corrupting elections[, however,] simply is not present in a popular vote on

Bellotti, 435 U.S. at 790 (invalidating a state law prohibiting corporations from making expenditures or [r]eferenda are Id.

In Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, the Supreme addressed a statute similar to section 7.1(d) in Act 51. 545 U.S. 290 (1981). A municipal campaign finance statute provided that:

No person shall make, and no campaign treasurer shall solicit or accept, any contribution which will cause the total amount contributed by such a person with respect to a single election in support of or in opposition to a measure to exceed two hundred and fifty dollars ($250). Id. at 292. The municipality cited corruption and the preservation of voter confidence as justifications for the contribution limitation. Rejecting this argument, the Supreme Court noted that unlike c

Id. at 293. Consequently, it struck the provision as unconstitutional id] not advance a legitimate governmental interest significant enough to justify its infringement of First Amendment Id.

Like the statute in Berkeley, section 7.1(d) imposes a contribution limitation in a ballot issue election. The referendum will determine whether the people of Puerto Rico support statehood, not whether a candidate is elected to public office. The risk of corruption does not constitute a sufficiently important government interest. See Legacy Alliance, Inc. v. Condon, 76 F. Supp. 2d

candidate does not exist as to ballot issues, even limitations on contributions cannot survive the necessary exacting scrutiny in R.I Affiliate v. Begin, 431 F. Supp. 2d 227,

244 (D.R.I. 2006) (noting in dicta decision in Berkeley casts grave doubt on the constitutionality of the dollar limits on the amounts that may be contributed with respect to ballot measures, especially when different limits are

engaging in referendum-related expenditures and to make contributions in favor of the alternatives that they wish to suppor 28 at p. 2; Docket No. 35 at p. 26.) This argument conflates expenditures with contributions without monetary limits on how much a person contributes and/or decides to

[spend] 13 at p. 29.) Because the defendants fail to identify a sufficiently compelling government interest that is closely tailored to the contribution limitation, section 7.1(d) is unconstitutional. VII. The Permanent Injunction Factors

Every equitable consideration weighs in favor of the motion for permanent injunctive relief.

A. Success on the Merits

For the reasons set forth above, the plaintiffs succeed on the merits.

B. Irreparable Harm

Asociación de Educación Privada de P.R. v. García-Padilla, 490 F.3d 1, 21 (2007) (quoting Elrod, 427 U.S. at 373). Consequently, the plaintiffs have established that the restrictions in article 6 and sections 7.1(d) and 8.3(a) have inflicted irreparable harm. See, e.g., , 21 F. Supp. 2d, 60 (D. Me. 1998) (granting a motion for a permanent injunction because a

depriving them of . .

C. Balance of the Respective Hardships

The hardship imposed on plaintiffs is grave. Obstructing the right to advocate in the refer to the fundamental principles underlying the First Amendment as Brown v. Hartlage, 456 U.S. 45, 60 (1982).

Vélez and Rosado argue that injunctive relief is with the referendum preparations and calling into question [Act 51] at this 28 at p. 7.) The CEE, Office of the Electoral Comptroller, and other

resources to train, establish procedures and prepare for the Id. Their arguments posit that an injunction will inhibit government authorities from holding the referendum.

The Severability Clause in section 8.6 provides, however, that

[i]f any clause, paragraph, subparagraph, sentence, word, letter, [or article] or part of this Act were held to be null or unconstitutional, the ruling or holding, or judgment to such effect shall not affect, impair, or invalidate the remainder of this Act. The effect of said holding shall be limited to the clause, paragraph, subparagraph, sentence, word, letter, [or article] or part of this Act thus held to be null and unconstitutional. Act 51 §

Ackerley Communs. v. City of Cambridge, 135 F.3d 210, 215 (1st Cir. 1998). The governing question is:

, 324 F. Supp. 2d 74, 78 (D. Me. 2004).

The sole provisions subject to the permanent injunction are article 6 and sections 7.1(d) and 8.3(a). (Docket No. 13.) The remaining sections of Act 51 are extraneous to this action,

falling beyond the purview of the motion for injunctive relief. The unconstitutional sections share a common trait: each provision places external constraints on the public. Pursuant to Act 51, the referendum campaign shall include a main representative, individuals cannot contribute more than $2,800, and litigants seeking to challenge the statute must appear before the Puerto Rico Supreme Court. Act 51 §§ 6, 7.3, 8.3(a). These restrictions are tangential to the responsibilities of the CEE and Office of the Electoral Comptroller.

remain intact. The statute incorporates the Campaign Financing Act, a comprehensive disclosure and reporting regime. Id. § 1.5; see Laws P.R. Ann. tit. 16, §§ 621 64. The CEE chairperson retains

supervising the [Commission] and all election- Laws P.R. Ann. tit. 16, § 4012. Moreover, the referendum is not contingent on the appointment of a main representative. Section 6.1(c) states that the election will proceed without a

Vélez argues that instant action the referendum campaigns were already in place and advertisements have been scheduled in favor and in opposition of

28 at p. 7.) This proposition is a non-sequitur. Political campaigns are dynamic affairs, not static fixtures in public debate. Advertisements that deviate from preconceived expectations do not impede the election. On the contrary, the referendum campaign is enhanced by additional participation and a diversity of perspectives. Accordingly, the balance of the respective hardships militates in favor of injunctive relief. See, e.g., Firecross Ministries v. Municipality of Ponce, 204 F. Supp. 2d 244, 251 (D.P.R. 2002) (Pieras, J.) the balance weighs heavily against Defendants, since they have effectively silenced

D. Inadequacy of Legal Remedies

Legal remedies are insufficient to address the deprivation of constitutional freedoms. Legend Night Club v. Miller, 637 F.3d 291, 302 (4th Cir. 2011). A permanent injunction is a suitable remedy to restore the right of free speech and association. See , 914 appropriate in the context of first amendment violations because

remedies are inadequate to compensate plaintiffs for the loss of free speech.

E. Pubic Interest Public Interest

ACLU v. Álvarez, 679 F.3d 583, 590 (7th

Cir. 2012) (citation and quotation omitted). Accordingly, the permanent injunction First Amendment rights. VIII. Scope of Injunctive Relief

Because article 6 and sections 7.1(d) and 8.3(a) are

scope of the remedy to fit the nature and extent of the Ostergren v. Cuccinelli, 516 F.3d 263, 389 (4th Cir. 2010) (quoting Dayton Bd. of Educ. v. Brinkman, 443 U.S. 406, 420 (1977)). Facial challenges are inherently disfavored

interpretation of statutes on the basis of factually barebones ntal principle of judicial

by preventing laws embodying the will of the people from being

Hightower, 693 F.3d at 76 67 (quoting Wash. State Grange, 552 U.S. at 450-51 (citation omitted)).

The constitutional defects in article 6 and sections 7.1(d) and 8.3(a) are pervasive. For instance, elimination of individual

sections in article 6 cannot salvage the statute. Article 6 elevates the main representative in relation to campaign participants

Amendment rights. Doe v. Reed, 561 U.S. 186, 196 (2010) (citation and quotation omitted).

N.C. v.

Covington, 137 S. Ct. 1624, 1626 (2017). The violations of the First Amendment do not, however, withstand exacting scrutiny First Amendment creates an open marketplace where ideas, most

especially political ideas, may compete without government N.Y State Bd. of Elections v. López-Torres, 552 U.S. 196, 208 (2008)). The people of Puerto Rico are entitled to engage in political discourse regarding the referendum without sacrificing their First Amendment freedoms. IX. Security Bond

Plaintiffs ask the Court to waive the preliminary injunction bond requirement. (Docket No. 13 at pp. 32 33.); see Fed. R. Civ. P. 65(c). Because the Court has consolidated the motions for preliminary and permanent injunctions, the request to waive the preliminary injunction bond requirement is moot. Forest Park II

v. Hadley, 336 F.3d 724, 734 (8th Cir. 2003); Quad-City Cmty. News Serv., Inc. v. Jebens, 334 F. Supp. 8, 18 (S.D. Iowa 1971). X. Conclusion

For the reasons set forth in the Opinion and Order entered today, judgment is entered as follows. (1) The for permanent injunctive relief, (Docket No. 13,) is GRANTED IN PART AND DENIED IN PART. (2) Francisco Rosado-Colomer in his capacity as Chairman of CEE and Walter Vélez in his capacity as Comptroller of the Office of the Electoral Comptroller are PERMANENTLY ENJOINED from enforcing, in Act 51, article 6, section 7.1(d), and the portion of section 8.3(a) requiring challenges to be brought in the Puerto Rico Supreme Court. (3) The motions for a temporary restraining order and for preliminary injunctive relief, (Docket Nos. 12 13,) are VACATED AS MOOT. (4) 27, 33,) are GRANTED IN PART AND DENIED IN PART. (5) All causes of action against the Commonwealth of Puerto Rico, the CEE, and the Office of the Electoral Comptroller are DISMISSED WITHOUT PREJUDICE. (6) The claims made directly pursuant to the Federal Constitution against Rosado and Vélez in their official capacities are DISMISSED WITH PREJUDICE. (7) The claims made directly pursuant to the Puerto Rico Constitution against Rosado and Vélez in their official capacities are DISMISSED WITHOUT PREJUDICE. (8) The claims

pursuant to section 1983 and directly pursuant to the Federal Constitution against Vélez and Dávila in their personal capacities are DISMISSED WITH PREJUDICE. (9) The claims directly pursuant to the Puerto Rico Constitution against Vélez and Dávila in their personal capacities are DISMISSED WITHOUT PREJUDICE.

IT IS SO ORDERED. Judgment shall be entered accordingly. San Juan, Puerto Rico, September 24, 2020.


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