High court rules against its own power to choose SEC chairman
By John McPhaul
In a majority decision, the Puerto Rico Supreme Court late last week declared unconstitutional part of the Electoral Code of 2020, which it gave the high court the power to choose the chairman of the State Elections Commission (SEC) and his alternate.
“This decision does not create any problem in the SEC administration. Our intervention has never been necessary,” reads the opinion of Associate Justice Rafael Martínez Torres. “While the Executive and Legislative Powers do not reach an agreement, the incumbents will remain in office until the successors are appointed and take office. See: Art. 3.7 (2) of the Electoral Code of 2020, supra.”
“For all the above, the provision of subsection (3) of I Art. 3.7 of the Electoral Code of Puerto Rico of 2020, 16 I LPRA sec. 4517, which establishes that the Supreme Court must appoint the Chairman and Alternate Chairman of the State Elections Commission, is unconstitutional for violating the separation of powers,” he wrote. “Now, the rest of the Electoral Code of Puerto Rico of 2020, Law No. 58-2020, 16 LPPAI sec. 4501 et seq., is not in dispute in this case and remains in effect. Therefore, the political branches must discharge their constitutional duties to fill the vacancies of the Chairman and Alternate Chairman of the State Elections Commission.”
Subsection (3) of Art. 3.7 of the Electoral Code of Puerto Rico of 2020, infra, establishes that in the absence of the appointments of the governor or of the council and consent of both houses of the Legislative Assembly, the Plenary of the Supreme Court of Puerto Rico shall elect the chairman and alternate chairman of the State Elections Commission.
On June 30, the terms of the appointments of the current chairman and alternate chairwoman of the SEC, Francisco Rosado Colomer and Jessika Padilla Rivera, respectively, expired.
Therefore, according to the law, the proprietary electoral commissioners had a term of 30 days to reach a unanimous agreement to fill the vacancies. That did not happen.
Thus on Sept. 7, Gov. Pedro Pierluisi Urrutia submitted for the advice and consent of the Senate and the House of Representatives the nominations of Superior Court judges Jorge Rivera Rueda and Edgardo Figueroa Vázquez, for chairman and alternate chairman, respectively. According to the law, each legislative chamber had 15 days from the receipt of the appointments to act on them.