By Damaris Suárez and Vanessa Colón Almenas | Center for Investigative Journalism
On the road to the 2024 elections in which voters will be able to register and activate electronically, the State Elections Commission (CEE, in Spanish) has not inactivated, as provided in the Electoral Code, voters who are registered in the United States even though the agency has the information.
The Alternate President of the CEE, Jessika Padilla Rivera, acknowledged that although the agency receives this information from the jurisdictions with which it has collaborative agreements, they do practically nothing with it unless that voter is recused by someone who has personal knowledge of that fact or by an official of a political party. The Commission has agreements with 15 jurisdictions.
“I have the notification [of the challenge of the voter] and, right there, I raise a flag that this is a voter eligible to vote in another jurisdiction,” said Padilla Rivera. But the only action that the CEE takes is to inform the secretariat so that they are aware that the notice of the voter’s registration in the United States has arrived.
The Electoral Code, approved in June 2020, establishes the steps to follow when “the Commission detects duplicates between the content of the registration of an active voter in Puerto Rico with that information obtained through its collaboration agreements.” The CEE “must notify in writing to the last and most recent address reported by the voter, whether in the Puerto Rico Electoral Registry or in any other U.S. jurisdiction, explaining the specific discrepancy, and will grant the voter a 15-day period to accept, correct or reject such discrepancy.”
However, the CEE does not do this, an investigation by the Center for Investigative Journalism (CPI, in Spanish) revealed. It does not even have a list with the names of people registered as voters in the United States as a tool to alert and prevent a voter not domiciled in Puerto Rico from requesting absentee voting, early voting or coming to vote in person, Padilla Rivera and Eduardo Nieves Cartagena, director of the CEE’s Office of Information Systems and Electronic Processing (OSIPE, in Spanish), acknowledged to the CPI.
“If the voter registered as an active voter in Puerto Rico has as their last and most recent address a domicile as an active voter in any other jurisdiction of the United States other than Puerto Rico, it will be enough cause for the Commission to inactivate or exclude their registration from Puerto Rico´s Registry of Voters following the notification procedure and the terms provided in this Law,” states Article 5.4 of the Electoral Code.
This provision of the Electoral Code was discussed on several occasions by the CEE’s plenary session under past president Francisco Rosado Colomer, according to Proyecto Dignidad Electoral Commissioner Nelson Rosario.
On April 26, 2021, the electoral commissioners decided that notifications from other jurisdictions had to be sent to the CEE’s Exclusions Unit to “channel them and work with the corresponding Local Commissions,” according to a certification reviewed by the CPI.
But another document dated June 10, 2021, refers the matter to the Regulations Committee to prepare a single ruling that includes all categories of exclusions. The commissioners postponed its discussion and the Regulation to Process Recusals, Exclusions and Inactivation was approved more than two years later, or around five months ago. To date, not a single voter has been inactivated due to dual jurisdiction, Claribel Lanausse, Alternate Electoral Commissioner of the Puerto Rican Independence Party (PIP, in Spanish), confirmed.
As explained by Padilla Rivera, the CEE allows the challenge of a voter to be done strictly through the recusal process initiated by third parties and not by the agency itself, contrary to the law that governs this electoral body. The Registry of Voters was not purged to eliminate duplicate addresses during the 2020 elections, although then president of the CEE, Juan E. Dávila Rivera, agreed in June of that year to do so according to the guidelines imposed by the Electoral Code (Law 58- 2020), approved that same month.
“The process to remove a person from the list, to exclude them from the list due to dual residence or dual jurisdiction, is a recusal process. This is what the Code provides, that is, it is not an automatic process,” the director of OSIPE said.
The Puerto Rico Electoral Code states that, at a minimum, a voter must be a citizen of the United States, be 18 years old, and meet the electoral domicile requirements in Puerto Rico established in the Electoral Law.
Historically, the CEE has relegated its responsibility to keep the list of voters clean without understanding the importance it has for the transparency of the democratic process, lawyer and electoral expert, Eudaldo Báez Galib, told the CPI.
He argued that with the increase of Puerto Ricans living in the United States, the ease of mobility, and the electronic tools that facilitate registration, reactivation, and request for early voting makes it imperative that the CEE promote greater oversight since “anyone can get on a plane, vote and go back to the United States or simply request an early vote.”
“The challenges (of the voters) are an additional mechanism so that this registry is kept as pure as possible, but that does not relieve the CEE of that responsibility, which is essential because the purpose of the CEE is to maintain a constitutionally pure electoral process,” Báez Galib pointed out.
Inactivating a voter if they are recused does not mean that the voter is removed from the registry, but rather that the person would have to be activated again in the Puerto Rico registry when they prove that they are a voter residing on the island, according to the Electoral Code. In the notifications that the CEE receives from some US jurisdictions, the last four digits of the Social Security of those registered appear, although not in all of them, Nieves Cartagena said. Through the electronic registration, the Commission also knows the last four digits of the voters’ Social Security number, which would serve to verify that it is the same voter. The CEE did not respond to questions about how many of these notifications it has received.
The Director of the OSIPE said they do not inactivate the voter despite the claim that they moved to the United States because a person can register there, but then return to live on the island and in that case can participate in the electoral events here.
“It isn’t an automatic process because let’s assume that I live in Florida today. I registered there to vote, and it turns out that in August I came back to Puerto Rico. I can’t do it (recuse) automatically. I must prove that the person is no longer a resident of Puerto Rico and the weight of that proof rests with the recusant,” said Nieves Cartagena.
Double address unverified
Both officials got into contradictions when answering how the information of registered voters in other jurisdictions is disclosed so that a recusal process can be initiated. When interviewed, initially Nieves Cartagena and Padilla Rivera said the information was delivered to the political parties at the beginning of the recusal period, but later they said that the notification of that voter is disclosed only if someone goes to the CEE to inquire about that specific voter, because they know that they moved out of the island.
Another problem generated by the CEE’s inaction with voters with dual electoral jurisdiction is that the recusal process ends April 30, but the application for absentee voting and early voting closes in September. This would allow a voter with intent to defraud to request to vote remotely after the recusal period has concluded, to vote in the elections in Puerto Rico and in the United States.
Likewise, they could vote only in Puerto Rico even if they no longer have their residence here. This could happen even though the CEE has been alerted ahead of time that that voter registered in some state. In Puerto Rico, people can register to vote in the general elections until October 6. The elections are in November.
According to the U.S. National Conference of State Legislatures, more and more states are cross-checking their records with other states to identify voters who have moved and thus be able to detect duplicate registration and, therefore, double voting. Likewise, this entity indicates that states can compare the addresses of the electoral registry with the U.S. Post Office, which has a database that compiles some address changes.
In the Electoral Code, Puerto Rico legislators imposed on the CEE the duty to establish collaboration agreements between public and private entities in and outside of Puerto Rico to corroborate and electronically update voter data and home addresses.
It is estimated that about 55,000 and 43,000 people emigrated to the U.S. in 2021 and 2022, respectively, according to the Puerto Rico Institute of Statistics. In 2022, the state with the largest Puerto Rican population is Florida (1.2 million). It is followed by New York (994,949) and Pennsylvania (491,432).
Inaction to purge Electoral Registry is an old issue
A controversy over the CEE’s inaction in the exclusion of voters appearing in U.S. jurisdictions was brought up in 2020 by the then Popular Democratic Party (PDP, in Spanish) electoral commissioner, Lind O. Merle Feliciano.
Merle Feliciano appealed to the Court to review a determination by then CEE president, Dávila Rivera, who denied the request to exclude 5,551 voters, flagged at that time, from the electoral registry that year as registered in Puerto Rico and the United States, to prevent a double vote from being cast.
Mere Feliciano argued that the 2011 Electoral Code — also stated in the one approved in 2020 — imposed on the CEE the duty to keep reliable and updated information in the registry to avoid electoral fraud, among other things.
Merle Feliciano said the issue was not one of recusal due to address, because the address registered in Puerto Rico did not correspond to the true address, but rather that they had two electoral addresses simultaneously. For electoral purposes, there can only be one address as established by the Electoral Law.
During this controversy, the new Electoral Code was approved, and the Merle Feliciano withdrew the appeal because the CEE agreed to evaluate and implement the “new purging mechanism provided by Act No. 58-2020, known as the Puerto Rico Electoral Code of 2020,” states the ruling by Judge Rebecca De León Ríos.
The Movimiento Victoria Ciudadana (MVC, in Spanish) Electoral Commissioner Lillian Aponte believes the electoral process is quickly approaching and, as in 2020, the CEE is not prepared for the event, which seriously affects democracy in Puerto Rico.
“The Voter Registry is riddled with errors, omissions, and incorrect information, which is due to several factors, including design problems, lack of capacity, and simple inefficiency. The CEE has taken too long to update the information on transfers of voters to other jurisdictions or states, which prevents knowing how many voters are registered in Puerto Rico and simultaneously in another jurisdiction, which violates the Electoral Code and it’s the CEE’s responsibility to resolve it. However, this problem, like many others, remains unresolved,” she said.
“When each state sends different and insufficient information it complicates the process for the CEE to conclude that that voter should be inactivated,” said the Puerto Rican Independence Party’s (PIP, in Spanish) Electoral Commissioner Roberto Iván Aponte.
TICK TOCK: The clock is ticking but the CEE doesn’t move
The CEE’s inaction to prevent people not residing in Puerto Rico from voting is not the only problem that this agency faces for the 2024 electoral event.
Waiting for possible amendments to the Electoral Code, the CEE did not lift a finger during the first nine months of this administration to establish the electronic electoral systems that the Code requires to have in place for the electoral cycle that has already begun. This has caused a chain of delays and operational failures that could cause a repetition of the disaster that occurred in the 2020 elections, the CPI found.
“The Commission stopped the work, and that was like that, full stop, because (the Legislature) were going to amend the Electoral Law,” the OSIPE director acknowledged.
The agency waited until mid-November 2023, 15 days before the start of the candidacies filing process, to process and request the necessary funds from the Office of Management and Budget (OGP, in Spanish) to comply with the purchase of the technology — the modems, tablets, and others — required by the Electoral Code, in addition to completing other phases of development of the Electronic Voter Registry.
The Code mandated that this registry be available for use no later than July 1, 2022. It was not until October 30, 2023, that the CEE made it available to the public.
The Code expressly says that it is not up to the CEE to determine whether to adopt the technological systems provided for in the Law nor the dates for their launch.
According to electoral experts consulted by the CPI, these delays put at risk the tight electoral calendar being met. For the primaries, neither the PDP nor the NPP will use electronic early voting and absentee voting requests, as they have confirmed to the CPI.
The expectation is that the Administrative Board for Early Voting and Absentee Voting electronic system (e-JAVAA, in Spanish) will be available Feb. 29, which would have only given the parties between 40 and 45 days for their voters to complete that process.
“The e-JAVAA isn’t ready, so our early voting requests for the primaries are on paper,” said PDP Electoral Commissioner Karla Angleró.
When she arrived at the CEE in June 2023, Angleró questioned why technological projects were discussed without having the certification of the necessary funds and without having spoken with the OGP. She said, for example, they were seeking to approve the e-JAVAA when the CEE only had $238,000 available for a system that costs $1.2 million. Angleró said the same thing happened with the e-poll books, which are the electronic lists of eligible voters that will replace the hard copy lists at the polling stations during the elections.
“This Code is from 2020, it’s not new and they knew about everything that was electronic that had to be implemented for these elections. “They shouldn’t have waited until November or December,” Angleró said.
“Everything is delayed, without a doubt. Just months before the general elections, technological issues are just as worrisome because they are just as delayed as the Commission in terms of regulations and we have already seen and evidenced what the delay was with the Electronic Registry and the impact it has had on the candidacy process,” said the MVC electoral commissioner.
Consistent non-compliance with the Electoral Code
It was in mid-September 2021 that work began in order to get the electronic systems going, when the CEE contracted Project Support Inc, presided by Edwin Velázquez Bosques, to begin the analysis and conceptual model of the Electronic Voter Registry.
“This process of establishing requirements [for the Electronic Voter Registry] also took a long time, because it was a complex system and there was participation from all parties,” Nieves Cartagena added.
For the PIP electoral commissioner, the OSIPE director’s explanations stray from reality. “It seems to me that this is more of an excuse since the possibility of amendments to the Electoral Code was being discussed over the four-year period and that shouldn’t have stopped the technological projects.”
Deadlock between CEE and Dominion delayed purchase of modems for ballot counting machines
In January 2022, the Puerto Rico Telecommunications Bureau said that starting in February of that year, mobile telephone service providers would gradually eliminate their 3G networks, the technology used by electronic counting machines to transmit the results at electoral events.
Although the CEE knew since than that the 6,075 electronic counting machines would be obsolete for the 2024 electoral events, it was not until November 14, 2023, a year and a half later, that it submitted the request to the OGP for the acquisition of the 5,500 modems that would allow the machines to transmit the results, according to the documents reviewed by the CPI.
The past president of the CEE, Rosado Colomer, was aware of the need to replace the modems in 2022, but they were not acquired then because he believed it was up to Dominion Voting System to assume the cost of the equipment as they are the company’s electronic counting machines. Dominion alleged that this investment was not up to them, the current Alternate President confirmed.
The Commission chose to settle in Court to avoid a legal dispute. Dominion, which is the supplier of the modems, agreed to sell them at cost and they were purchased from them.
“We had two alternatives: either we sue Dominion to get this going, or I don’t get involved in a legal dispute in an election year, because then we would have to go to the tally [manual count] and so I [better] buy the modems. And that negotiation took time,” she argued.
Without this update, the machines — which were first used in the 2016 election — would only be able to count ballots but would not be able to transmit results from polling stations, Rivera Padilla said.
3G technology is the abbreviation for the third generation of mobile voice and data that was established in 2002 and gave life to mobile internet. Mobile telephone service providers eliminated 3G networks, which were based on old technology, to make room for more advanced service networks such as the fourth and fifth generation (4G and 5G) that have higher speeds.
The request for $1,287,000 to buy the modems was submitted on November 14, 2023, along with the request for $11.8 million to purchase 9,400 tablets for electronic registration on electation day, $918,000 for the electronic early voting process, and $280,000 for two machines to scrutinize the early votes, according to the OGP’s electronic platform.
The Fiscal Control Board (JCF, in Spanish) — who manages Puerto Rico bankruptcy process —approved the request along with another request for funds for payroll payments to temporary employees and orientation campaigns on December 22.
OGP Director Juan Carlos Blanco said in an interview with the CPI that, although the need to transfer that money to the CEE during 2023 was discussed, the request was put off until November so that it included the equipment purchase quotes.
When the CPI asked him why it took so long to get the quotes and documents, extending until November, almost in the election year, Blanco said he didn’t know the details, but that in his conversations with the Alternate President she was aware of the time and the proximity of the deadlines provided in the Electoral Code.
According to Blanco, they decided to work it this way to facilitate the process of questions and requests for information that the JCF usually makes as part of its evaluation of budget requests and speed up the approval process that sometimes takes the fiscal entity more than a month to complete.
The president says the process is going well
The CEE’s Alternate President says it is just “a perception that people have, but the reality is that the Commission didn’t drag its feet, the Commission isn’t dragging its feet.”
“We’ve worked knowing the dates established by the Electoral Code,” she said. “We must recognize that the Electoral Code has been ambitious in the dates and in the projects that it has imposed on us, and that the CEE must do them. The first challenge we face is the budget,” she added.
The Alternate President and the Director of OSIPE said they hope to begin receiving the modems starting in March, the tablets or laptop computers (e-poll books) on February 29; and that they can have the electronic system of the Administrative Board for Early Voting and Absentee Voting (e-JAVAA) ready by February 29.
However, the bid to buy the tablets was just awarded at the beginning of February, said PDP electoral commissioner Angleró. These devices — which would replace voters’ paper attendance lists at polling stations — will arrive between the second and third week of March, she added. The parties’ primary is June 2.
“That will be the litmus test for those devices. I want to make sure that, in case the e-poll book does not work, there are lists of voters on paper, so I requested a copy of the voter list,” the PDP electoral commissioner said.
The 6,075 electronic counting machines were leased in 2015 at a cost of $38.2 million. According to the contract, after a final payment of $3 million they will become the CEE’s property this year.