PDP hopefuls ask US court to declare ‘Yes-or-No’ referendum illegal

By The Star Staff

Three Popular Democratic Party (PDP) legislative candidates have asked the U.S. District Court to declare that Act 51, the law calling for a yes-or-no statehood plebiscite, is illegal because it goes against the equal protection clause of the U.S. Constitution.

Marco A. Rigau, president of the San Juan Municipal Assembly and a Senate candidate; Jimmy Zorrilla, a PDP candidate for the House of Representatives for San Juan Precinct 3; and Yaramarys Torres, a PDP candidate for an at-large House seat, are suing State Elections Commission (SEC) President Juan Ernesto Dávila Rivera, arguing that the status plebiscite has no other purpose but to affect election results.

The plaintiffs noted that the Consolidated Appropriations Act (CAA) of 2014 is an omnibus spending bill that gathers several appropriation bills together in one larger bill. Through the CAA, the U.S. Congress appropriated $2.5 million for “objective, nonpartisan voter education about, and a plebiscite on, options that would resolve Puerto Rico’s future political status, which shall be provided to the SEC.”

On May 16 of this year, Gov. Wanda Vázquez Garced signed Act 51 into law, thereby enabling a status vote and establishing the rules for the holding of a plebiscite in November to resolve the century-old problem of Puerto Rico’s territorial status.

In the Report of the House Ways and Means Committee, Congress established the requirements for the transfer of the $2.5 million to the SEC. The requirements are that the “voter education materials, plebiscite ballot, and related materials are not incompatible with the Constitution and the laws and policies of the United States.”

Act 51 says “the intent of Congress was not to limit, diminish, or delegitimize the right of the U.S. citizens in Puerto Rico to exercise their self-determination regardless of the application of a federal plebiscite law.”

“Logically, if the Attorney General considers any element to be ‘incompatible,’ he should present his arguments so this Legislative Assembly can take them into consideration,” the law says. “This Act provides a reasonable amount of time for the U.S. Attorney General to exercise his ministerial duty of issuing the certification.”

Section 3.1 of Act 51 established June 30 as the deadline for completing any transaction, certification, and disbursement related to the holding of the plebiscite.

In a letter dated July 29, the U.S. Attorney General’s office raised timing issues as well as “substantive concerns with the plebiscite materials that make them incompatible with the policies of the United States.”

According to the Attorney General’s office, “multiple aspects of Act 51-2020 make clear that it approaches the question of Puerto Rico’s future status from a decidedly pro-Statehood, and anti-territorial, point of view.”

“In that context, the Department’s approval and funding of the plebiscite may be seen as an endorsement of these views and a rejection of the other available status options,” the Attorney General’s office said, stating further that “the plebiscite appears to be based in part on a determination by the Legislature of Puerto Rico with which the Department disagrees, namely that the 2012 and 2017 plebiscites ‘constitute a direct rejection of the current territory status.’ The Department cannot support a plebiscite in tension with that policy judgment, as it would further suggest that the United States is no longer neutral about the options for Puerto Rico’s future status.”

The Attorney General’s office also stated that “the Department [of Justice] is concerned that statements in the plebiscite materials may cause voters to misperceive the effect of a majority vote in favor of Statehood.”

Despite the Attorney General’s position refusing to notify Congress of the approval of the materials for the Nov. 3 plebiscite, and that it was unable to obligate the appropriated federal funds, the SEC said the vote will go on.

In their lawsuit, the plaintiffs contend that “[t]he November 3 plebiscite, as ordered by Law 51, improperly interferes with the election of a federal officer -- namely, Puerto Rico’s Resident Commissioner, inasmuch as pro-Statehood voters may be more inclined to vote in the general elections for the pro-Statehood candidate for Resident Commissioner, considering that a Statehood ‘yes or no’ plebiscite will take place on that same date.”

“Since the U.S. Attorney General has already stated that the results of the plebiscite will be of no consequence and will not bind the Federal Government, the real purpose of the plebiscite is no other than helping the pro-Statehood party and its candidates to prevail in the general elections,” the lawsuit said.

Meanwhile, the 14th Amendment of the U.S. Constitution states that a state shall not make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive a person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.

The United States Supreme Court has also held that the power of a state to determine the manner of holding elections must be exercised in a manner consistent with the Equal Protection clause of the Fourteenth Amendment.

The case is Rigau vs SEC case number 3:20-cv-01385-WGY.

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