Despite the judicial and political disputes that the 2020 Electoral Code would go through profound amendments, the current electoral cycle began with the statute practically intact due to the lack of leadership and the internal struggles within the Partido Popular Democrático (Popular Democratic Party) as well as the Partido Nuevo Progresista´s (New Progressive Party) reluctance to scale back its control over the State Elections Commission (CEE, in Spanish).

Although several bills aimed at revoking  or substantially amending the Electoral Code approved by the New Progressive Party (PNP, in Spanish) were presented in January 2021, none managed to become law given that party’s opposition in making transcendental changes, said José “Conny” Varela Fernández, chairman of the House of Representatives’ Commission for the Study and Evaluation of Puerto Rican Constitutional Law and Electoral Matters, as well as more than a dozen sources consulted by the Centro de Periodismo Investigativo (CPI).

Internal struggles within the Popular Democratic Party (PPD, in Spanish), which heads both the House of Representatives and the Senate, also kept it from fulfilling its campaign promise to change the Electoral Code during this four-year term. The House of Representatives and the Senate each moved in their own direction. After Rep. Varela Fernández worked for almost a year on a Substitute Bill, on May 27, 2022, Senate President José Luis Dalmau, and his delegation presented a different bill.

The changes to the Electoral Code that were proposed in the House of Representatives were hindered by decisions in the Senate presidency, and by Ramón Torres and Jorge Colberg Toro as electoral commissioners, to whom the then PPD president delegated the task of proposing the amendments to be made to the statute, sources involved in this process told the CPI.

The Senate sought a bill that would get the endorsement of the PNP, and the Governor’s signature, and although it did not include the substantial amendments promised to the voters, at least they assured some progress for the PPD within the CEE. House Speaker Rafael “Tatito” Hernández Montañez, agreed with this strategy, but alleges he did not intervene in the decisions of the commission that worked on the measure until 2023, when he said there was a shutdown in the process, and they had to approve the amendments that were viable.

The PNP’s negotiation for the amendments in the Legislative Assembly was not led by lawmakers, but by Edwin Mundo Ríos, whom the PNP president — Governor Pedro Pierluisi, since January 2021 — had entrusted to head the Commission for the Evaluation and Possible Reforms and Amendments to the Electoral Code.

“I sat all the parties at the table. But I must admit that when we started these meetings, Edwin Mundo said the only thing he was willing to change was the hours of the polling stations and the age for early voting ballots,” Varela Fernández said.

“This is not true. The truth is that a lot of the PPD amendment proposals were accepted”, Mundo Ríos claimed.

Mundo Ríos said “there was never an atmosphere” in the Legislature to reach a consensus among all parties. “I have to confess, because it wasn’t just me, we all dug our heels into our positions and that’s the truth.”

The PPD could approve a measure with the votes of its delegation, that of the Puerto Rican Independence Party (PIP, in Spanish), the Movimiento Victoria Ciudadana (Citizens Victory Movement) and the Proyecto Dignidad (Dignity Party). Although it did not need the PNP to approve the bill, it did need the Governor’s signature to make it law, since the Legislative Assembly cannot go above a pocket veto. In case of an express veto, two-thirds vote would be needed to override it, which the legislative minorities do not have.

For the vice president of the PIP, María de Lourdes Santiago, the PPD lost the opportunity to strike a consensus bill for a new Electoral Code. While cosmetic amendments were proposed in the Senate, at the House under Varela Fernandez’s leadership, minorities were presented with what should be amended, instead of starting from scratch to address the defects that, in their opinion, the current Electoral Code has, Santiago said.

“We insisted with Rep. Varela Fernández, and in all forums, that we all have to sit down and start from scratch and not try to patch a measure that had worked so poorly,” said the Senator.

Finally, in July 2023, a bill endorsed by all legislative delegations except the PNP was approved, but it was vetoed by Governor Pierluisi, in agreement with his party’s conference committee.

“At the last minute, at the request of [PPD President] Jesús Manuel [Ortiz], there was a review in which we were able to participate line by line, in which we managed to incorporate many of the things that seemed important to us. But that bill did not prosper either. And the result is that the Popular Democratic Party endorsed the permanence of the PNP Electoral Code,” said Sen. Santiago.

So far, the only amendment that has been made to the Electoral Code is one approved in January 2024 that added that, as of the monthly meeting that the local commissions hold to evaluate voter transactions and the deaths notified by the Demographic Registry, “the political parties or the voters of the precinct will have 10 days to present the requests for recusals that they consider appropriate.” Act 58-2020 did not establish a term. The bill was presented by Dalmau Santiago and by PNP Senate Minority Speaker, Thomas Rivera Schatz.

The Fiscal Control Board was a Deciding Factor

The Commission that Varela Fernández chaired discussed two bills: one that sought to revoke the Electoral Code and create a new one (House Bill 4); and another that only proposed amendments (House Bill 114.) In September 2021, the Commission presented a report for a Replacement Bill, which included proposals from both measures.

In the meantime, Dalmau presented his Bill 909 and the Senate approved it. The House commission included it as part of the Substitute Bill that had not passed.

“Mundo chose to work in the Senate on another measure [Senate Bill 909] to amend the Electoral Code,” Varela Fernández said.

The participation of Torres and Colberg Toro, PPD commissioner and alternate commissioner at that time, was decisive for the legislation to move forward with PNP-PPD support presented in the Senate, at least four sources from different political parties said.

“Openly, they were in favor of several cosmetic amendments that worked across both parties. And yes, the participation of Colberg Toro and Torres was pivotal in the negotiation of those amendments in the Senate included in Bill 909. That’s the impression that I have had through the work of the Senate Government Commission on the measure,” Santiago told the CPI.

According to the secretary and alternate electoral commissioner of the PPD, Gerardo “Toñito” Cruz, initially the PNP leadership only supported changes that expanded early voting. While the rest of the political parties, he said, sought to perfect the process and modalities of early voting to avoid the possibility of fraud and irregularities that were alleged in the 2020 electoral events.

“They [the PNP] never had any intent to modify or even sit down to discuss changes in that legislation, in the critical areas that embarrassed the [State Elections] Commission on the last election day [of 2020],” Cruz said.

Cruz confirmed that Mundo Ríos and Colberg Toro led the discussions of the issues that should have been modified in the legislative bill.

Dalmau rejected being interviewed by the CPI and referred the questions to Colberg Toro as he was the person he appointed to work on the amendments to the Electoral Code during his presidency.

Colberg Toro told the CPI that they decided to work on a different bill than the one from the House because they believed that bill would not pass the scrutiny of the Fiscal Control Board (JCF). He said the bill did not comply with the provisions of the JCF’s fiscal plans, which ordered 32% in annual budget cuts to the CEE’s budget, the elimination of more than 300 positions and the consolidation of the Permanent Registration Boards as an operational reduction.

“When the first report [of the House Bill] was submitted, we did an analysis and we believed that what the House, or at least the Commission [on Electoral Affairs] was proposing at that time, was to restore the previous system that did not comply with the fiscal plan, particularly because it ordered the restitution of all the positions that the fiscal plan eliminated, that is, the $8.5 million cuts that the [Fiscal Control] Board ordered two years before,” said Colberg Toro.

He denied that there was no dialogue with the minority parties. He assured that together with Torres he met with the commissioners of the PIP, Citizens Victory Movement (MVC, in Spanish) and the Dignity Project (PD, in Spanish) to begin the process, and the minorities chose not to participate.

But the vice president of the PIP, Santiago, and the general coordinator of the MVC and San Juan mayoral candidate, Manuel Natal, disagreed.  

“There was only one meeting at the CEE in which all the commissioners were present and the PNP left the table because they didn’t want to discuss the amendments, but rather the electoral commissioners gave them the amendments to see if they would be integrated or not. They didn’t want to have that discussion and sit down and work on the amendments together. After that meeting, Edwin Mundo and Jorge Colberg began to negotiate separately,” MVC electoral commissioner Lillian Aponte Dones told the CPI.

Meanwhile, PD electoral commissioner Nelson Rosario Rodríguez said the absence of agreements was due to a lack of leadership in the PPD under Dalmau’s presidency.

“Because of the struggles and indecisions [of the PPD] there was no one to close the deal with,” said Rosario Rodríguez.

Santiago said that during the process the PNP and PPD, based on the lack of funds,  refused to amend the Electoral Code in order to grant equal participation in the CEE to minority parties.

“If what there is to distribute is $5, it’s one dollar for each one [of the parties]. But the math cannot be, it’s $5, so it’s $3.50 for the PNP and $1.50 for the PPD or vice versa. That  cannot be the logic. We didn’t ask for more. There has to be an equitable participation and fiscal process, with whatever there is,” Santiago said.

For Colberg Toro “[Senate Bill] 909 corrected all the deficiencies that we were able to push, including those that the minority parties requested, such as regulating early voting in a fair manner. But to say that we discriminate against the minority… The minorities simply didn’t want to participate because they’re asking for unreasonable things.”

He rejected allegations from sources within his party who told the CPI that he accepted virtually all the PNP’s amendments. Colberg Toro rejected attempts to question his loyalty to the PPD. “There are foolish people who have no idea what happened,” he said.

Meanwhile, Mundo Ríos agreed with Colberg Toro in classifying some amendments presented by minorities as unfeasible. He pointed out, for example, that the MVC conditioned the dialogue on including the concepts of two-round system elections and coalition candidacies, which for Mundo Ríos was not viable under the current political scenario. The MVC electoral commissioner rejected that statement, noting that, although it is true that they supported both issues, the dialogue was never conditioned. She said the MVC also proposed restoring the electoral balance in the CEE, greater oversight about the absentee and early voting and democratizing the way in which the president of the CEE is elected, among other amendments.

In Mundo Ríos’ opinion, while Colberg Toro and Torres represented the PPD in the CEE there was more openness, in contrast to the secretary and alternate electoral commissioner of that party, Gerardo “Toñito” Cruz.

“The bill that Dalmau submitted was more likely to be what could be achieved, and we agreed on 90% of it. The other three parties did not agree because they were still entrenched in the two-round system, coalitions, and those issues [that neither the PNP nor the PPD approved] were left out of the discussion,” Mundo said about Senate Bill 909.

In the legislative discussion of the Substitute Bill (of House Bills 4 and 114, as well as Senate Bill 909) amendments to the Electoral Code were included that finally aborted the PNP’s support. That was the legislative version reached after Rep. Jesús Manuel Ortiz was elected president of the PPD, approved by the House and Senate in June 2023 with the vote in favor of the delegations of the PPD, MVC, PIP and PD, together with the independent legislators Luis Raúl Torres and José Vargas Vidot.

The PNP delegation voted against and the PNP Legislative Conference asked Governor Pedro Pierluisi to veto the amendments. And the Governor obliged, giving it a pocket veto.

Pierluisi, who presides over the PNP and is seeking re-election, did not sign the measure, allegedly because it did not lower the minimum age to request early voting to 60 and prevented the president of the CEE from expanding the categories of voters eligible for that type of vote, since that could only be expanded by a unanimous decision of the commissioners. The 2020 Electoral Code sets 80 as the minimum age to request this type of vote.

What the PNP did not achieve through legislation, it achieved with a resolution by the alternate president of the CEE, Padilla Rivera, who last February resolved that voters aged 60 or older can request to vote by mail before November 5, the day on which the general elections will be held.

Post-veto Attempts

Ortiz criticized the Governor’s veto and reminded Hernández Montañez that the PPD’s institutional position on the amendments to the Electoral Code was included in the bill that Pierluisi vetoed.

He issued the warning because after Pierluisi did not sign the legislation, Hernández Montañez negotiated with Mundo Ríos to retake Senate Bill 909 as originally presented without the amendments approved by the Legislature, at least four PPD sources confirmed.

Despite Ortiz’s instructions, Hernández Montañez presented Bill 1822, brought it to a vote and it was approved with the vote of 13 other PPD members of the House on August 21, 2023, which was the first day of the Legislative Session.

In an interview with the CPI, Hernández Montañez acknowledged that Bill 1822 was practically a copy of Senate Bill 909 originally presented by Dalmau, with some additional amendments. He said he did it because he believed that those were the only amendments agreed to with the PNP with the possibility of approval.

This move prompted the president of the PPD to sanction the legislators that voted. But a week later the sanctions were lifted to reach an agreement with the leaders of the House and Senate through which the House would only concur with the bill if the Senate included amendments resulting from agreements with the party’s president.

Ortiz created a working group to include amendments and on September 25, 2023, he referred them to the Senate. However, PNP members, including the Governor, expressed that it was too late to amend the Electoral Code. The bill, referred to the Senate Rules and Calendar Commission, never came to a vote because the PPD, which controls that body, did not move it either.

They Washed Their Hands

The Speaker of the House blamed his counterpart in the Senate for not making changes to the Electoral Code because he failed to fulfill his commitment to submit Bill 909 for approval a few days before the special election that, in May 2023, put Ortiz as president of the PPD. Legislative leaders knew that Ortiz would not support the bill negotiated with the PNP.

The new president of the PPD chose to stop the legislative process to show a political contrast with his predecessor in the PDP presidency and separate himself from the amendments agreed to with the PNP, Hernández Montañez analyzed.

“The PNP knew in advance that it was going to be able to make the move of what they wanted without the need for legislation and the Popular Democratic Party lost the opportunity to be on equal terms with the PNP with those pragmatic amendments,” Hernández told the CPI.

Mundo Ríos agreed that Dalmau’s exit from the PPD presidency stopped the process because Ortiz appointed Gerardo Cruz as the party’s secretary and alternate commissioner. Cruz opposed keeping in the bill just the amendments that had been agreed upon with the PNP. According to Mundo Ríos, that was the reason why the Governor vetoed the legislation.

“That bill limited the powers of the president of the CEE, it limited the age for early voting and a countless number of amendments that I call poison pills to force the Governor to veto it, different from Dalmau’s bill,” said Mundo Ríos, Pierluisi’s current primary campaign director.

Mundo Ríos said Ortiz included amendments that he knew the Governor would veto as a political strategy to court favor with minority parties. He lamented that by making Pierluisi look “bad” the possibility of a consensus bill, which for him was ideal, was thwarted.

“We’ve always been willing to talk, to seek consensus on things that we can approve together, but we aren’t going to approve unilateral things that don’t suit the PNP,” Mundo Ríos said.

“We [at that time] continued to discuss amendments with the PDP and accepted many amendments from the PDP. Tatito’s [Hernández Montañez] bill still included amendments that we didn’t agree with, but since we had to accept things from Tatito for it to be approved, they were included. It isn’t because we didn’t want to let go of power, it’s that we weren’t willing to do two things: coalition parties and the two-round election system. We weren’t willing [to agree],” said Mundo Ríos.

No Electoral Second Rounds, no Recall referendum, or Limitations on the Terms of Mayors

During this four-year term, measures that proposed establishing a second electoral round, holding a recall referendum, unicameralism, increasing the gubernatorial term to six years, separating the election of the governor and legislators, and exploring the possibility of allowing proportional representation of the parties in the Legislative Assembly, among others, were also unsuccessful.

None of these measures, which require constitutional amendments, were approved. Nor have other bills been considered to allow political alliances or coalition parties, establish a three-term limit for mayors, or any other measure to create a special commission that would examine in detail the operation of the electoral processes and the CEE to recommend changes to the Electoral Code.

“We are moving to a Puerto Rico with more political options. This will require looking at the electoral legislation in other aspects, which aren’t ordinarily contemplated in our legislation,” Cruz said. “We must discuss and examine the concept of a two-round electoral system, as well as the desirability of political parties to be able to appear with special agreements on the same ballot. I don’t have the answer today. But there’s no doubt that they are issues that must be discussed with the greatest detachment for the benefit of an island that prides itself on living in a democracy,” added the current alternate electoral commissioner of the PPD, in contrast to the position expressed by Colberg Toro on these issues, which he called “unreasonable issues.”