oversight

Puerto Rico: Commonwealth Election Law and Its Application to a Political Status Referendum

Published by the Government Accountability Office on 1990-05-02.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

           United   States   General   Accounting   Office
           Report to the Chairman, Committee on              s
.G;AO      Energy and Natural Resources, U.S.
           Senate


:May1990
           PUERTO RICO
           Commonweakh
           Election Law and Its
           Application to a
           Political Status
           Referendum
          United States
GAO       General Accounting Office
          Washington, D.C. 20548

          Human Resources Division

          B-235508

          May 2,199O

          The Honorable J. Bennett Johnston
          Chairman, Committee on Energy and
            Natural Resources
          United States Senate

          Dear Mr. Chairman:

          In 1991, the people of Puerto Rico plan to vote in a referendum to decide
          their future political relationship with the United States. In preparation
          for this referendum, your Committee reported out Senate bill 712
          (S.712) on September 6, 1989. This bill calls for a referendum on Puerto
          Rico’s political status and defines the three status options to be voted
          on: enhanced commonwealth, statehood, and independence. In addition
          to defining the options to be voted on, S.712 sets forth how general
          parameters on the referendum would be conducted, establishes a pro-
          cess for determining the outcome and certifying it to the U.S. govern-
          ment, and defines the federal role in the referendum process.

          Your letter of March 28, 1989, requested that we assess Puerto Rico’s
          electoral law and related matters concerning Puerto Rico’s proposed sta-
          tus referendum. In particular, you asked us to provide answers to the
          following questions about, Puerto Rico’s electoral process:

      . How are Puerto Rico’s elections administered?
      l What safeguards and controls exist to assure the integrity of election
        results‘?
      . What roles do the IJS. Department of Justice and Federal Election Com-
        mission have in Puerto Rico’s elections?
      l What limitations are placed on campaign financing in Puerto Rico and
        how are they administ.ered?
      l What are the rights of nonresident Puerto Ricans to participate in the
        status referendum”
      . What problems have heen experienced in past elections?

          We conducted our review in San Juan, Puerto Rico, and Washington,
          DC. We interviewed officials of the Puerto Rico Commonwealth Elec-
          tions Commission, representatives of the three principal political parties
          of Puerto Rico, and officials from the Commonwealth government. The
          officials from the Commonwealth Justice Department, however,
          declined to meet with us. We also interviewed the U.S. Attorney for
          Puerto Rico and officials of the Departments of the Interior, Justice, and
          State, and the Federal Election Commission.


          Page 1                             GA0/HRD90430   Puerto Rico’s Status Referendum
R-236608




The law includes a number of safeguards and controls to protect the
integrity of election results. Among these are the involvement of repre-
sentatives of the principal political parties at all levels of the electoral
process and stringent registration and voting procedures. However, the
law applies only to the election of candidates and Puerto Rico’s legisla-
ture would need to enact special legislation to extend the law to any
referendum.

The U.S. Department of Justice and the Federal Election Commission
enforce federal laws in elections involving candidates for federal offices.
Many of these laws, however, do not apply to referendums. Further-
more, S.712 does not state clearly whether the Committee wants federal
law to apply. Therefore, the Committee may wish to clarify this aspect
of S.712.

Puerto Rico’s electoral law places limits on political campaign contribu-
tions and expenditures for the election of candidates to office, but these
provisions have not always been complied with or enforced. The special
Commonwealth legislation needed to authorize the 1991 status referen-
dum may also attempt to extend campaign contribution limits to the ref-
erendum. However, in light of U.S. Supreme Court decisions, there is a
question as to whether placing limits on campaign contributions for the
referendum would be constitutional.

The electoral law states that domicile in Puerto Rico is one of the key
qualifications for voting in Puerto Rico’s general elections. However, the
question of whether nonresident Puerto Ricans will be eligible to vote in
the status referendum will need to be decided by Puerto Rico’s
legislature.

Although some problems existed in recent Puerto Rico elections, allega-
tions of election fraud and abuse were isolated. To date, the Common-
wealth Justice Department prosecuted one election fraud case. No
allegations resulted in federal prosecution.


Puerto Rico holds general elections every 4 years for the Offices of Gov-
ernor, Resident Commissioner, and other islandwide and local offices.
The 1977 Electoral Law of Puerto Rico established the Commonwealth
Elections Commission as an independent agency responsible for oversee-
ing all aspects of the electoral process. The Commission is headed by a
chairman and includes one election commissioner from each of Puerto
Rico’s three principal political parties.


Page 3                               GAO/RRMMMO    Puerto Rico’s Status Referendum
                     F&236608




                     office. These laws include criminal and civil statutes, such as those deal-
                     ing with mail and wire fraud, civil rights, and voting rights. U.S. Attor-
                     neys’ offices assist in the investigation and prosecution of alleged
                     election crimes, and the U.S. Attorney for Puerto Rico played a role in
                     monitoring the 1984 and 1988 general elections. The U.S. Attorney’s
                     Office appointed an “election day officer” and set up a telephone hot
                     line for citizens to report any voting irregularities.

                     The Federal Election Commission enforces U.S. campaign finance laws
                     that regulate contributions to candidates for federal office, which, in
                     Puerto Rico, involves only the election of the Resident Commissioner.
                     Consequently, the Commission would have no role in Puerto Rico’s pro-
                     posed status referendum.

                     S.712 provides that the electoral law in effect on July 15, 1989, shall
                     apply to Puerto Rico’s status referendum. The bill also provides for
                     monitoring of the referendum by the U.S. Marshal Service and creates a
                     special federal court to review contested results. S.712, however, is not
                     clear as to the extent to which federal law would apply. (See section 3.)


                     Puerto Rico’s electoral law and regulations limit political contributions
Limitations on       and expenditures on behalf of candidates for public office. The law also
Campaign Financing   details accounting and reporting requirements to be followed by each
                     candidate, political party, and committee, and establishes an electoral
                     fund for public financing of the political parties’ campaigns. The special
                     Commonwealth legislation needed for the status referendum could
                     attempt to extend the law’s campaign financing provisions to the refer-
                     endum. However, in light of several U.S. Supreme Court decisions, there
                     is a question as to whether placing limits on campaign contributions
                     would be constitutional

                     The Commonwealth Elections Commission is responsible for administer-
                     ing the campaign financing provisions of the law and reviewing compli-
                     ance with them. Our limited review of audit and campaign finance
                     reports found that these laws were not always complied with by the
                     political parties or enforced by the Elections Commission. (See section
                     4.)




                     Page 6                              GA0/‘HRB8080   Puerto Rico’s Status Referendum
                       B-236608




                       referendum, and the substantial federal interest in its results, a larger
                       federal monitoring role may be desirable. S.712, as passed by the Senate
                       Energy and Natural Resources Committee, would use U.S. Marshals to
                       fulfill this role. However, other options, such as delegations of congres-
                       sional, state, or international officials appointed by the President, the
                       Congress, or both could be used to fulfill the same function.


                       S.712 is not clear as to the extent to which federal law    would apply to
Matter for Committee   the status referendum. Because of this, the Committee       may wish to
Consideration          amend section 101(d) of the bill to specify that federal    laws applicable
                       to the election of Puerto Rico’s Resident Commissioner      shall apply.


                       A draft of this report was sent for comment to the U.S. Department of
Comments From          Justice and Federal Election Commission, the Governor of Puerto Rico,
Affected Parties       members of the Dialogue Committee on the Status of Puerto Rico, and
                       the chairman of the Commonwealth Elections Commission. All but two
                       of those who commented on the report generally agreed with our find-
                       ings and the accuracy of the report. One of the two-the Statehood
                       Party’s representative to the Dialogue Committee-had        no comments on
                       the overall accuracy of the report, and the other-the election commis-
                       sioner for the Puerto Rican Independence Party-commented         that our
                       report failed to consider the principles of international law as they
                       apply to the referendum process,

                       Several officials offered comments on similar issues: Puerto Rico’s elec-
                       toral structure, its enforcement of campaign finance laws, the eligibility
                       of nonresidents: to vote in the referendum, the 1988 San Juan mayoral
                       election, and the proposed federal role in oversight of the referendum.
                       The officials also commented on a number of other issues. Appendix I
                       summarizes these comments and provides our evaluation of them, and
                       appendixes II through VII contain the comments. Some officials also pro-
                       vided technical comments, which we incorporated where appropriate in
                       this report.




                       Page 7                              GAO/‘HRDOO8O   Puerto Rico’s Status Referendum
Page 9   GAO/HRD90+9   Puerto Rico’s Status Referendum
Section 5
What Are the Rights
of Nonresident Puerto
Ricans to Participate
in the Status
Referendum?
Section 6                                                                                                   29
What Problems Have      No Federal Prosecution of Election Crimes in Puerto Rico                            29
                        Problems Experienced in the San Juan Mayoral Election                               30
Been Experienced in
Past Elections?
Appendixes              Appendix I: Summary of Comments From Affected                                       32
                            Parties
                        Appendix II: Comments From the Election Commissioner,                               38
                            Popular Democratic Party
                        Appendix III: Comments From the Federal Election                                    43
                            Commission
                        Appendix IV: Comments From the Chairman,                                            44
                            Commonwealth Elections Commission
                        Appendix V: Comments From the 1J.S.Department of                                    51
                            Justice
                        Appendix VI: Comments From the Office of the Governor                               53
                            of Puerto Rico
                        Appendix VII: Comments From the Election                                            60
                            Commissioner, Puerto Rico Independence Party
                        Appendix VIII: Major Contributors to This Report                                    64

Figure                  Figure 1.1: Commonwc%alth Elections Commission                                      14
                             Structure


                        Abbreviations

                        CPA       certified    public accountant
                        FBI       Federal     Bureau of Investigation
                        GAO       General     Acc~ounting Office
                        IW        political   action committee


                        Page 11                                GAO/HRDSO-60   Puerto Rico’s Status Referendum
Section 1
How Are Puerto Rico’s
Elections Administered?




appointed by the Chief Justice of the Puerto Rican Supreme Court and
one election commissioner representing each political party.

The registration boards are also comprised of representatives from the
three political parties. These boards remain open all year to register vot-
ers and update electoral lists, but close after each general election to
perform administrative duties. The electoral unit boards supervise the
polling places on election day. They also are responsible for tallying the
votes cast in their respective precincts and reporting these totals to the
local commissions. Figure 1.1 summarizes the structure of the Common-
wealth Elections Commission.




Page 13                             GAO/HRMMMO   Puerto Rico’s Status Referendum
                             Section 1
                             How Are Purrto Rico’s
                             Elertions Administwed?




                             budget request, separate from the Commission’s operating budget, to
                             cover election administration costs.

                             The legislature appropriated $11.4 million for the Commission’s 1988
                             operating budget and an additional $17 million to cover the cost of
                             administering the 1988 elections.

                             At the time of our review, the Commission was in the process of prepar-
                             ing its 1991 operating budget request. According to the Commission’s
                             secretary, the budget proposal will also address the costs of administer-
                             ing the proposed 1991 status referendum. The Commission’s 1991
                             budget requests will bc completed in 1990.


                             The electoral law charges the Commission with
Commission Decides
Election Questions         . studying any problems of an elect,oral nature that may affect the Puerto
                             Rican community and designing an integral plan directed towards
                             greater efficiency, promptness, and the solution of electoral problems
                             and procedures;
                           * approving the work plans and adopting bylaws and internal operating
                             rules for the administ,ration of matters within its jurisdiction;
                           * investigating and resolving matters or controversies submitted for its
                             consideration by any interested party; and
                           . adopting rules and regulations needed to implement the provisions of
                             the electoral law.

                             1%~law, the chairman and the election commissioners must meet weekly
                             to discuss and resolve electoral matters submitted by any member. The
                             Commission’s secretary told us that most of the commissioners’ dcci-
                             sions are decided unanimously. Where the commissioners cannot agree,
                             the chairman decides the question.

                           .~.                        ~~~ _--
Commission Decisions Can     Although the Elections Commission decides all electoral questions, the
Be Appealed in the Local     electoral law provides that any Commission decision can be appealed to
                             the Superior Court of Puerto Rico. A petitioner must file an appeal
Courts                       within 10 days of notification of the Commission’s decision and the
                             Superior Court must decide t.he issue within 20 days of receipt of the
                             petition. The law provides for an expedited review of Commission deci-
                             sions handed down within the 30.day period before an election. In such
                             cases. the petitioner must file within 24 hours of the decision and the



                             Paye 15                            GAO/HRD-90-60   Puerto Rico’s Status Referendum
What Safeguards and Controls Exist to Assure
the Integrity of Election Results?

                         Puerto Rico’s electoral law and regulations contain various provisions
                         designed to protect the rights and interests of voters participating in
                         elections of candidates for municipal and islandwide offices. These
                         include stringent procedures for registering voters, balloting, and tabu-
                         lating election results. The law also provides for participation by the
                         major political parties in all levels of the electoral process. The political
                         parties view this participation as an important control to protect the
                         interests of the parties’ membership and the integrity of the electoral
                         system as a whole.

                         When compared with the election process in the states, a Federal Elec-
                         tion Commission expert told us that Puerto Rico’s election process is
                         sound and that controls present in its system exceed those in some of
                         the states. However, the extent to which electoral law and regulations
                         would apply to the 1991 status referendum depends on the special legis-
                         lation the Puerto Rican legislature must enact for any referendum.


                         The electoral law and regulations detail the rules and requirements gov-
Stringent Registration   erning the general election process-from voter registration to vote tab-
and Voting               ulation and certification of election results. The law also provides for
Requirements             broad participation in the electoral process by the major political
                         parties.

                         In order to register to vote, a person must (1) be a citizen of the United
                         States and of Puerto Rico, (2) reside in Puerto Rico, and (3) be at least 18
                         years old. Under the law, a voter must register in person at the registra-
                         tion board in the precinct where he or she lives. Voter registration is not
                         permitted by mail.

                         At the registration board, an applicant completes a registration form
                         and is photographed for a voter identification card. Each identification
                         card has a unique number, which becomes the voter’s permanent electo-
                         ral identification. The applicant must provide his or her signature and
                         documentary evidence showing birthplace, date of birth, citizenship,
                         and legal domicile. Once a voter registers and the local commission
                         approves the application, the voter’s name is placed on an electoral reg-
                         ister at the Commission’s headquarters. If a voter fails to vote in a gen-
                         eral election, he or she is removed from the electoral register and must
                         re-register to vote in subsequent elections.

                         The vote is taken by means of paper ballots. Voters go to preassigned
                         polling places that are open from SO0 a.m. to 3:00 p.m. As provided in


                         Page 17                               GA0/HRD9080   Puerto Rico’s Status Referendum
                             -
Section 2
What Safefeguards and Controls Exist to
Assure the Integrity of Election Results?




When the results of an election show a difference between two candi-
dates of less than 100 votes or l/2 of 1 percent of total votes cast, the
law requires a recount upon request by either candidate. The Commis-
sion performs the recount using the tally sheets received from the vari-
ous electoral units within the Commission. Each member of the
Commission present at the recount certifies the results. The Commission
cannot certify a candidate as the winner of the election until the recount
process is completed.

We discussed Puerto Rico’s election process with a U.S. Federal Election
Commission official familiar with state election laws to determine how
Puerto Rico’s process compares with those of the states. He told us that
he was not aware of any problems with Puerto Rico’s electoral law or
process. In fact, he believes Puerto Rico’s election process is sound, and
that controls present in its system exceed those in some of the states.
For example, his experience shows that greater bipartisan control is
exercised over the election process when election boards or commis-
sions, rather than elected officials, are responsible for the conduct of
elections. The trend among the states is towards the use of election
boards and commissions, as is the case in Puerto Rico.

In summary, Puerto Rico’s electoral process is sophisticated and has sev-
eral built-in safeguards and controls to protect the integrity of election
results. The participatory structure of the Commission further assures
that the interests of the political parties and their members are pro-
tected throughout the electoral process. However, the Puerto Rican elec-
tion law specifically states that, in the event of a referendum, a special
law must be enacted to establish procedures for such an election.




Page 19                                     GAO/HRB9040   Puerto Rico’s Status Referendum
                                  Section 3
                                  What Roles Do the U.S. Department of Justice
                                  and Federal Election Commission Have in
                                  Purrto Rico’s Elections?




                            . The Civil Rights Act of 1968 (18 IJSC. 245(b)(l)(A)), which makes it a
                              federal offense to use force or the threat of force to injure, intimidate, or
                              interfere with the activities of a poll officer or candidate for political
                              office or a person in the act of voting or poll watching. According to the
                              Department of Justice. this statute, which normally applies only to fed-
                              eral elections, can also be used in local elections if the Attorney General
                              certifies that federal prosecution is necessary to achieve justice (18
                              IJSC., 245(a)(l)).
                            . Patronage statutes (~18U.S.C. 598, 600, 6011, which prohibit the use of
                              federal funds or positions to punish or reward voters. These statutes
                              make it a crime, for example, to grant or withhold federal relief or
                              employment for the purpose of coercing, interfering with, or restraining
                              an individual in exercising the right to vote.
                            . Mail and wire fraud.~~..~___
                                                     statutes (18 USC. 1341, 1343, 1346), which forbid
                              the use of 1J.S.mails or interstate wire facilities to further a “scheme or
                              art,ifice to defraud.” These statutes have been applied to prosecution of
                              schemes to corrupt the ballot box.

                                   The Criminal Division also prosecutes persons for criminal violations of
                                   federal campaign finance laws. The Federal Election Commission is
                                   responsible for civil enforcement of these laws, but refers criminal viola-
                                   tions to the Criminal Division’s Election Crimes Branch.


Civil Rights Division              The Voting Section of the Civil Rights Division enforces several statutes
                                   that also apply to the election of t,he Resident Commissioner. These
                                   include the Voting Rights Act, as discussed above, and:

                            l The [Jniformed and Overseas Citizens Absentee Voting Act (42 IJSC.
                              1973ff), which facilitat,cs absentee registration and voting in federal
                              elections by members of lmiformcd services and persons who reside
                              overseas.
                            . The Voting Accessibility for the Elderly and Handicapped Act (42 USC.
                              1973ee), which requires, in connection with federal elections. that elec-
                              tion officials facilitate BUXX to voter registration and polling places for
                              handicapped and c~ld(~rlyindividuals.

                        -       -.~--        -   __-          ~.~
Executive Office for U.S.          ITS. Attorneys’ of’ficcts t,hroughout the country assist in the investiga-
Attorneys                          tion and prosecution of alleged election crimes. Approval for full investi-
                                   gation, however. must first be obt,ained from the Election Crimes
                                   Branch.



                                   Page 21                                       GAO/HRD-SO-60   Puerto Rico’s Status Referendum
  Section 3
  What Roles Do the U.S. Department   of Justice
  and Federal Election Canmission   Have in
  Puerto Rico’s Elections?




  Any challenge of the referendum results may be brought only on the
  basis of an electoral irregularity that is so significant as to affect the
  outcome of the referendum and call into question the choice certified by
  the Governor. The special court is provided exclusive jurisdiction over
  such proceedings, and is empowered to grant appropriate relief to pre-
  serve the electoral process’s integrity. The Attorney General is also
  empowered under the bill to intervene at the request of the court to
  assist in gathering and presenting evidence.
. Provides for the appointment of a federal information officer to trans-
  late and distribute information on the referendum. The bill provides for
  the President to appoint the information officer from a list of candidates
  provided by Puerto Rico’s political parties.




  Page 23                                          GAO/HlUMO43O   F’uerto Rico’s Status Referendum
                         Section 4
                         What Limitations Are Placed on Campaign
                         Financing, and How Are They Administered?




                         For Puerto Rico’s 1967 plebiscite, special Commonwealth legislation
                         made $385,000 available to each political party. The legislation also lim-
                         ited the amount any person could contribute to a party or committee
                         representing a status option to a total of $300, and required a special
                         contributions report to be filed after the plebiscite election.

                         The Dialogue Committee on the Status of Puerto Rico tentatively agreed
                         that the special Commonwealth legislation necessary to authorize the
                         1991 status referendum should provide for adequate and equal public
                         financing for the campaigns of the three status options. The committee
                         also agreed that the legislation should prohibit the use of public funds to
                         campaign for any option or influence the outcome of the referendum.

                         The contribution limits imposed by the 1967 special plebiscite law pre-
                         ceded U.S. Supreme Court decisions that invalidated laws limiting con-
                         tributions made in support of referendum proposals. In two cases, the
                         Supreme Court invalidat,ed state and local laws that limited contribu-
                         tions by individuals or corporations to further a particular position on a
                         state referendum proposal.’ The Court held that such limitations were
                         unconstitutional infringements of the First Amendment right of free
                         expression. Thus, any attempt to extend campaign financing provisions
                         of the electoral law that would limit campaign contributions to the 1991
                         status referendum is vulnerable to a challenge that it is unconstitutional.

                         The U.S. Congress provided funding for Puerto Rico’s three major politi-
                         cal parties’ participation in the 1991 referendum. Public Law 101-45
                         appropriated $1.5 million for grants in equal amounts not to exceed
                         $500,000 to each party for expenses incurred in the legislative process.


                         The Elections Commission’s Auditing Department is responsible for
Campaign Financing       reviewing political parties’ compliance with the electoral law’s campaign
Provisions Have Not      financing provisions. The department monitors the political parties’
Been Strictly Complied   reports to the Commission but contracts with a local firm of certified
                         public accountants (WAS) to audit each party’s election year receipts
With or Enforced         and expenditures.

                         To obtain an overview of political parties’ compliance with the cam-
                         paign finance provisions of the electoral law, we reviewed (1) the CPA’S


                         ‘Citizens Against Rent Control v City of Berkeley, 454 U.S. 290 (1981), First National Bank of Boston
                         v. Bdlottl, 435 U.S. 765 (19781.




                         Page 25                                         GAO/HID-9060      Puerto Rico’s Status Referendum
Section 4
What Limitations Are Placed on Campaign
Financing, and How AR They Administered?




election. In 1986, the Commission’s chairman ruled that the two parties
exceeded the electoral law’s limits on media expenditures and the Com-
mission prepared to take legal action to impose penalties prescribed
under the law. Before the Commission acted, the political parties
appealed the Commission’s decision to Puerto Rico’s Superior Court.

In 1987, the court decided in favor of one political party, ruling that
expenses included in the Commission’s computations did not constitute
communications media expenditures within the meaning of the law. In
1988, the court remanded the other party’s case back to the Commission
for additional documentation about the expenditures in question. As of
December 1989, no further action had taken place on this case.




Page 27                                    GAO/HRD90-60   Puerto Rico’s Status Referendum
Section 6

What Problems Have Been Experienced in
Past Elections?

                     The U.S. Attorney’s Office in Puerto Rico investigated several allega-
                     tions of election fraud, but to date, no cases have resulted in federal
                     prosecution. One case of election fraud allegation, however, is still under
                     investigation. An Elections Commission official told us that the Com-
                     monwealth Justice Department prosecuted one election fraud case and
                     that another case is under investigation. Also, a problem concerning the
                      1988 San Juan mayoral election is still unresolved.


                     The U.S. Attorney for Puerto Rico told us that no federal election fraud
No Federal           or abuse cases were prosecuted in Puerto Rico. The U.S. Attorney’s
Prosecution of       Office referred several election complaints to the Federal Bureau of
Election Crimes in   Investigation (FBI), but none were prosecuted as they proved to be
                     unfounded. By way of comparison, approximately 150 cases involving
Puerto Rico          election fraud and abuse are prosecuted each year in the United States.
                     The U.S. Attorney provided the following information about past elec-
                     tion fraud and abuse allegations in elections in which candidates for the
                     Office of the Resident Commissioner were running.

                     An allegation was made concerning vote tampering during Puerto Rico’s
                     1980 general elections. The complaint alleged that votes were changed
                     when a breakdown in the Election Commission’s reporting system
                     occurred. Before t,he system failure, the Commonwealth Party guberna-
                     torial candidate was leading in the election. After the system was
                     restored, the incumbent Statehood party candidate was leading and won
                     the election by less than a 3,500 vote margin (0.2 percent of total votes).
                     A recount was takcbn of all votes cast for governor and the incumbent
                     governor was certified as the winner. No further action was taken by
                     the ITS. Attorney’s Office.

                     Two complaints were filed with the US. Attorney’s Office during the
                      1984 general elections. One complaint, received just before election day,
                     alleged that one of the political parties had a so-called super computer
                     that could override the Election Commission’s computer system. The
                     IJS. Attorney’s Office investigated the allegation, located the computer,
                     and observed that it was not used on election day. No further action was
                     taken because no evidence existed that the computer could be used in
                     the manner alleged.

                     The other complaint alleged that a local bank provided a campaign con-
                     tribution to one of the principal political parties in violation of Puerto
                     Rico’s election law. After investigating the allegation, the U.S. Attor-
                     ney’s Office found that the alleged contribution was, in fact, a loan from


                     Page 29                             GAO/HRD.90-60   Puerto Rico’s Status Referendum
Section 6
what Problems     Have Been Experienced   in
Past Elections?




The Commission complied with the court’s ruling and implemented spe-
cial procedures on election day that allowed affected voters to vote even
though their names did not appear on the voting lists. The Commission
distributed a number of special envelopes to each polling place; how-
ever, it was alleged that the number of envelopes distributed was insuf-
ficient, and, in some cases, local officials had to improvise in handling
the affected voters’ ballots. A number of these ballots were questioned
and, therefore, not counted in the San Juan Mayoral election. The may-
oral race was closely decided and a recount was ordered. The recount
showed that the election was decided by 29 votes-a margin smaller
than the number of ballots questioned under the special procedures as
well as for other reasons. As a result, the losing candidate contested the
election in the Puerto Rican court system and as of <January 1990, this
matter was unresolved.




Page 31                                        GAO/BRD-9040   Puerto Rico’s Status Referendum
                         Appendix 1
                         Summary of Comments   From
                         Affected Parties




                         Several comments addressed our discussion in section 4 about the
Enforcing Puerto         enforcement of Puerto Rican campaign finance laws by the Elections
Rican Campaign           Commission. The Commonwealth Party election commissioner noted
Financing Laws           that political financing, as treated in the electoral law, is not a clear cut
                         issue, and that all three political parties are responsible for the law’s
                         enforcement within the structure of the Commission. The Governor’s
                         Office said that our discussion of campaign financing is flawed, incor-
                         rect, unsubstantiated, and should be omitted from the report. In particu-
                         lar, both officials, along with the Statehood Party official, said we did
                         not note that fund raising in Puerto Rico is conducted mainly through
                         mass fund-raising activities, such as telethons, radiothons, and rallies.
                         The officials believed that sums raised through a large number of small
                         contributions in events such as these need not be itemized.

                         We agree that contributions of $100 or less need not be itemized in
                         reports to the Elections Commission. We confirmed with the Commis-
                         sion’s secretary, however, that all contributions of more than $100 are
                         to be reported, regardless of how they are raised.


                         The Commonwealth and Independence parties commented on our discus-
Eligibility to Vote in   sion in section 5 about who shall be permitted to vote in the referendum.
the Referendum           The Commonwealth election commissioner said that we did not analyze
                         the complex issues surrounding absentee voting. He stated that the
                         party is open-minded with respect to allowing nonresidents to vote in
                         the referendum, but believes that several administrative and legal issues
                         must first be resolved

                         The Independence Party’s election commissioner said that the eligibility
                         criteria established under Puerto Rico’s electoral law are unfair and
                         inadequate in a self-determination referendum, and should be different
                         from the existing law. The Independence Party maintains that it is
                         unfair for transient 1i.S. citizens from the United States and others, such
                         as federal and military personnel or corporate managers, to vote in the
                         referendum by simply complying with the normal electoral law’s resi-
                         dence requirements. 7%~ party holds that eligibility to vote in the refer-
                         endum should not be cxt.ended to any person who does not have a
                         demonstrated interest in, or commitment to, the future social, political,
                         or economic development. of Puerto Rico. Rather, voting rights should be
                         limited to, among others, native-born Puerto Ricans, mainland-born
                         residents of Puerto Rican parentage, and non-Puerto Ricans who have
                         lived in Puerto Rico for at least 20 years.



                         Page 33                              GAO/HRD-90450   Puerto Rico’s Status Referendum
Appendix I
summary of comments   From
Affected Parties




Alaska or Hawaii were conducted pursuant to local processes, with no
particular application of federal laws or specialized supervision.

The Statehood Party’s Dialogue Committee representative, on the other
hand, told us that the electoral system is flawed because it is run by
politicians. Therefore, federal oversight and monitoring of the referen-
dum, as provided for by S.712, is necessary to protect the integrit,y of
the referendum process.

The Independence Party’s election commissioner commented that his
party was troubled by the involvement of the FBI in monitoring past
Puerto Rico elections. He said that the Dialogue Committee on Puerto
Rico’s Political Status agreed that neither the FBI nor any other federal
intelligence agency should be involved in the referendum process. Such
involvement would disregard Dialogue Committee agreements and
would be counter to international legal precepts regarding self-
determination.

We stand by our conclusion that there is no need for more intensive fed-
eral monitoring beyond those procedures used in past elections by the
U.S. Attorney’s Office. These procedures need not involve use of the FBI
in the referendum. With respect to the application of federal law to the
referendum, we point out that S.712 is not clear on this issue. Commit.tee
staff advised us that the Senate Committee on Energy and Natural
Resources intended that federal laws applicable to the election of Puerto
Rico’s Resident Commissioner should be applied to the status referen-
dum. Because the bill is not clear on this issue, the Committee may wish
to amend section 10 1(d) to clarify this matter.

The Justice Department raised a concern about the monitoring role to be
played by the IJS. Marshals Service in the referendum. Justice was con-
cerned that unless the term “monitoring” is more specifically defined in
the law, marshals may be assigned functions beyond those that are per-
missible activities for law enforcement officers. S.712 requires that the
Attorney General provide for adequate monitoring by U.S. Marshals.
Therefore, in our opinion he has the discretion to decide the Marshals
Service’s role in the referendum within the confines of permissible
activities.




Page 36                            GAO/HRD9060   Puerto Rico’s Status Referendum
                      Appendix I
                      S-my      of Comments   Fhm
                      Affected Parties




                      Puerto Rican people. The party further argues that normal constitu-
                      tional parameters regarding electoral events in the United States do not
                      constitute the measuring standard for Puerto Rico’s unique situation.

                      We disagree. While Puerto Rico, as a commonwealth, is self-governing,
                      the State Department does not consider it a separate sovereign entity
                      outside the federal system. Further, the party’s criticism of our analysis
                      of Supreme Court decisions does not show how these cases are inconsis-
                      tent with the concept of self-determination and other principles of inter-
                      national law.

                      The Independence Party also said that if our report is based on the
                      unstated premise that only federal and Puerto Rican laws need be con-
                      sidered, then it would be overly limited and analytically flawed. We rec-
                      ognize that S.712 intends that a referendum for Puerto Rico’s self-
                      determination be in harmony with principles of international law. How-
                      ever, recognition of the principles of international law does not preclude
                      applying U.S. constitutional guarantees to the referendum process.


Statehood Party       The Statehood Party’s representative to the Dialogue Committee also
Comments              had specific comments:

                  . He believes that we did not clearly express the importance that the pro-
                    posed referendum will have on the lives of Puerto Ricans. We agree that
                    the proposed referendum is of great importance to Puerto Ricans. Other
                    recent GAO studies cited in this report have discussed this matter
                  l He believes we are incorrect when we say that special Commonwealth
                    legislation is necessary for any referendum or plebiscite. He said that
                    special legislation is not needed because the Puerto Rico Legislature
                    passed a general referendum law in or about 1968. Our review showed
                    that the Puerto Rico electoral law passed in 1977 requires that special
                    legislation be enacted for any referendum or plebiscite.
                  l He also believes we are incorrect in saying that an allegation of vote
                    tampering was made during the 1980 general election, resulting from an
                    Elections Commission system breakdown. He said, on the contrary, that
                    no such allegation was made. We confirmed with the US. Attorney for
                    Puerto Rico that such an allegation was filed with his office. However, it
                    was not substantiated.




                      Page 37                             GAO/HRDSOSO   Puerto Rico’s Status Referendum
            Appendix II
            Comments From the Election       Commissioner,
            Popular Democratic Party




    Is.   Linda     G. Morra                                                         Page    -                2
                                                                                                                  1
    February       5, 1990




    fines     to    mayor political           parties  for           the   1984      elections.            Our
    decisions       were overruled          by the Courts.

            It must be pointed            out that    political        financing          as treated
    in the electoral           law is not a clear         cut legal        issue.        The fact    of
    these     reversals      of our decisions,        and that      at this        moment       we are
    not certain         as to our jurisdiction         over Political             Action    Groups--
    pending      a judicial       opinion      in a case where             the New Progressive
    Party     has     the onus       and has not presented          it's      evidence--clearly
    shows the uncertainties               in this  area of the law.

              Yet, it      must  be    clear      for     the     record,     that       all   three
    political         parties    are     responsible          for    enforcement       within     the
    structure         of     the Commission,          and     such    enforcement,           as has
    occurred,      is the result       of consensus         between     the parties       based on
    the state      of the law.       It is mostly         a problem        of    applicable        law
    than of the application            of law.

             As    it    respects         the       amounts        informed        by   the    political
    parties,       where your draft              mentions        a disproportionate             figure      of
    income versus           reports       of     $100.00       plus,      donations,      it respond        to
    fund raising         activities         typical         to Puerto         Rico.       Large sums        of
    money       are    received         in      massive        activities          such as telethons,
    radiothons,        birthday        parties,       rallies,         etc.      These funds         are     to
    be     informed        as      such     and      need      not      be    itemized,       hence        the
    disparity.

            The    San Juan      mayoral      election       case.

             Section         6 of        the    Draft,        addresses      the      issue       of   that
    election.             It      erroneously          state      that   the      special       procedure
    established         by the Supreme Court                of    Puerto   Rico      was due         to the
    fact       that     II...       registered         voters     were deleted        from the voters
    registration           lists"      and that      the Commonwealth            Party     commissioner
    objected        to    a proposal           by the other         two commissioners           to have a
    special       procedure         for these      voters.        Such a statement            is clearly
    erroneous.

              NO one         ever     alleged       that       voters       were "deleted"          from the
    register.           In fact,      such a deletion            is a crime          as typified       in the
    election        law.       The allegation         was that         clerical        errors    cause some
    voters       not to have access             the registry,            which was admitted              to be
    a normal          occurrence        in    the administration                  of over two millions
    voters       registry.         A very       neuralgical            issue        developed,        and was
    addressed           by     the    Supreme       Court,         i.e.,        whether       the State    was
    paternalistically              responsible        for voter           participation          or whether
    the       voter        shared     that      responsability               with      the state      and the
    political         parties.




L




              page39                                             GAO/HRD-90-60PuertoRico'sStatusReferendum
                           AppendixlI
                           Comments      From the Election       Chnmissioner,
                           PopularDemocraticParty




                I&.    Linda      G. Morra                                                                   Page     -               4
                February        5,  1990




                         The draft             also addresses                the issues           of participation              in the
                referendum         by        non resident               Puertoricans              and      that monitoring            be
                provided          by       other         entities            and      not the U. S. Marshals.                      This
                special       absentee             voting          is      superficially               contemplated             in the
                draft      and      it's       complexity              not analyzed.                 Although         my Party        is
                open minded as to allowing                           Puertoricans               residing        in     the various
                states      to      vote,        the      following            must       be first           determined:           What
                viable      mechanisms             may be            used       to      register          non      residents        and
                account       for        their       electoral             qualifications?                Which of the local
                requirements             applicable            to Island           residents         may be waived              to the
                absentee          without            affecting             the       equal        protection         of the laws,
                i.e.,       political              party           fiscalization                  of       each      registration
                petition,              voter           identification                   cards,           voter         challenging
                procedures,            etc.?        What         jurisdiction             will       the Commonwealth              have
                viz       a viz          the       other         states         where          Puertoricans          reside       as it
                respects          voter          registration?                 HOW will              such         a significant
                undertaking              be      financed,             not      only        in the actual            registration
                procedures,            but in advertisements                         and the         explanation          of issues
                by the        three        formulas            towards         and      intelligent           vote?         May non-
                resident        Puertoricans              living         in other         countries           have a right            to
                participate            under         the equal             protection           clause        of both U.S. and
                P.R. Constitutions?

                        As it respects              external         monitoring           of the election,                 I agree
                with       the     draft's          recommendation                that        it be accomplished                 by a
                Congressional             Committee         or an        international              organization.                This
                is     germane          to     Puerto         Rico's       electoral          tradition          of suspicion,
                which      is the basis           of the system,               and where electoral                  laws    derive
                from distrust               of the political               parties,         reason        for which ours is
                a stringent           system      focused        on prevention                and why          no significant
                fraud      incidents           have been          detected.             If it is recognized                 in the
                draft      that     there      is a "...political                   sensitivity             surrounding          this
Now on pp 6-7   referendum...",                P.12,        and      admitting            that        the Statehood            issue
                requires         some type of             intervention              by      the       federal      government,
                said     intervention            must be through              means less liable                  to criticism.
                The mere fact             that      President         Bush        publicly          supported         Statehood,
                that    U.S. Marshals             are assigned             duties       exclusively            by the federal
                government,           and that        these      U.S. Marshals              will      affect,      either        with
                their        presence          or     actual         action,          the voting            procedures,          will
                undoubtedly           cause doubts            as to        the      impartiality               of     the United
                states         in     the      referendum            with       the very obvious                 impact      in the
                international             community         which will          be attentive              to the referendum
                judging        from       the interest             of the         United         Nations       Decolonization
                Committee,         Non-Aligned           Nations,          and      the       Latin         American       nations
                which view Puerto                Rico as an integral                  part       of Hispanic          America.

                       Finally,           I      must stress              that    the Draft     does not address                   the
                organizational                structure    of       the      State    Electoral     Commission  in




                           page41                                                     GAO/HRD9060PuertoRico'sStatusReferendum
Appendix III

Cbnments From the Federal
Election Commission



                                           FEDERAL ELECTION COMMISSION
                                           W*SHINCTON.
                                                    ” < 20463
                                                                    February        7,      1990




                   MS.    Linda    G. Morra,      Director
                   Intergovernmental          and Management            Issues
                   Human Resources         Division
                   U. S. General        Accounting         Office
                   Washington,       D.C.    20548

                   Dear   Ma.    Morra:

                             This  letter   responds        to your    January  18 request      for   our
                   comments       on your   draft      report     to the Chairman      of the Senate
                   Committee       on Energy      and Natural       Resources   regarding     the Puerto
                   Rican      Commonwealth      election       laws  and their    application       to a
                   political       status   referendum.

                            We have reviewed         the report      and find      your    description       of the
                   election      laws of Puerto         Rico    true   and accurate        to the best       of our
                   knowledge.         We also    concur      in your     assessment      that,      under   current
                   law,     the Federal     Election       Commission       would    have no role         to play
                   in Puerto       Rico's   proposed       status    referendum.

                           We commend       you for   a well         written        report         and   thank   you   for
                   the    opportunity       to review   it.

                                                                    Sincerely            yours,



                                                             &!t&
                                                                    Chairman




               L

                            Page 43                                             GAO/HRD9060PuertoRico'sStatusReferendum
            Appendix IV
            Comments From the Chairman,
            Commonwealth Elections Commission




Comments by Marcos A. Rodriguez-Estrada,                Chairman                                                    of the State      Elections
Commission       of the Commonwealth         of Puerto    Rico,                                                    on the Draft       Report    on
Puerto     Rico's     Coamwnwealth     Election    Laws and                                                       their   Application        to a
tWi:lcal       Status    Referendum,      prepared     by the                                                     U.S.  General      Accounting
         , as requested        by the Chairman         of the                                                     U.S.  Senate's      Committee
on Energy and Natural         Resources.



I.            We are             very       pleased               with             the        fact         that        the      Draft            Report

      repeatedly                 recognizes              the            soundness                  of      our       election           laws            and

      process.              As      it      is        pointed                out         in    the         report,           and      as         it     has

      been       frequently                 stated                by         several            observers               well          acquainted

      with         electoral               processes                    in      other              parts          of     the       world,               our

      election             system          includes                a number                   of        safeguards              and         controls

      that       ensure             the        integrity                 of         the        election                and      the         broadest

      participation                  in the            process.

               Puerto             Rico's              zeal         with            its         electoral               system           makes             it

      for     a very          difficult,                If        not        impossiole,                   environment                for        fraud.

      Although              there          have         been             isolated                  instances             of        allegations

      of     fraud           and         irregularities,                            these            have          proven          groundless,

      and no convictions                         of     fraud            have          been made.



II.                  It     is     pertinent                 to        note        that        our       voting          system             is        based

      on     the          hand-counting                  paper               ballot.                 Contrary            to      some of                the

      systems             based          on computerlred                           vote         counting               now in          use            where

      material             proof          IS     not          always               produced                and       available,                  in     our

      system          ballots              are         carefully                    preserved                 to       be       recounted                 if

      necessary.




             Page 46                                                                           GAO/HRb90-60                  Puerto Rico’s Status Referendum
              Appendix IV
              Comments From the Chairman,
              Ckmunonwealth Elections Commission




                                                                                                                                                             -

                                                                                                                                                                 3

                No registration,                             issuance              of      electoral                identification                    card

      or      any       other             electoral                 transaction                    can         be      done            without         the

      participation                  of     the        political               parties.



IV.             Although              the         Election                Law           establishes                 that          the      Chairman

       of       the          State          Elections                  Commission                   shall             be          of     the        same

       political              persuasion                    as that           of     the      candidate               that         has obtained

       the      most votes                 for        the        position            of Governor                 of        the     Commonwealth

       of       Puerto            Rico,                in         practice,                his       role             is         more       of        the

       representative                       of         the         public           interest,               and         similar             to      that

       of        the          President                     of        the           U.S.           Senate:                 only          when         the

       Commissioners                      fail          to         reach           agreement              is        that           he    exercises

       his      voting           prerrogative.

                     The     Chairman              also            acts       as        the      Executive                 Director            of     the

       Commission.



V.                   We are          also         pleased              that          the       Report           recognizes                 that       the

       controls              present             in         our     electoral                 system           exceed            those       in     some

       of the          states         of         the        United          States.

                     Voter       registration,                        the          issuance          of        voter             identification

       cards,              the       custody                 of      voters              information                   files,             balloting

       and the             tabulation                  of     electoral                 results,           among other                    important

           related           aspects,              are            given            extraordinary                      attention                by     the

       Commission                to ensure                  confidentiality,                       reliability                    and accuracy.

       T.      16 LPRA, 5. 3016.




                Page 47                                                                          GAO/HRD-9060                    Puerto Rico’s Status Referendum
                            Appendix lV
                            Comments From the Chairman,
                            Commonwealth Elections Commission




                                                                                                                                                                                  5   I
Nowon   p.15   VII.            The             Draft            Report                 states              on        Page      21        that         many         of      the

                      Commissioners'                               decisions                        are         informal                 and          are       decided

                      unanimously,                        and           that           when            the       Commissioners                    cannot             agree,

                      the     Chairman                decides                  the        question.

                               As         it         is,           that           statement                     is     misleading.                    There          is      no

                      such     things                  as       an        informal                   decision             of      the       Conission.                     The

                      decisions                 of        the           Cormrission,                      be     them         unanimous,               approved              by

                      a majority                     or      decided                   by        the         vote       of     the        Chairman,              related

                      to     electoral                     matters                   or        administrative                       matters,               written           or

                      on     tape,              are         -all          formal                 decisions               of      the        Commission,                   and,

                      as such,            become matters                               of       public          record.             T.16         LPRA, s.            3014.

                               And,             of        course,                 as        the           Report         points           out,        the      Election

                      Law      provides                     the           recourses                       to         challenge             any        or       all         the

                      decisions                and         to       appeal                to        the      Superior            Court          and the          Supreme

                      Court     of         the         Commonwealth                            of     Puerto           Rico.        T.16         LPRA,       Ss.        3016b

                      and 3016~.

                               With             respect                 to       the           number           of      decisions               and        resolutions

                      issued         in          1988              --        31           formal             decisions              and         resolutions,                 as

Now on p 15           stated         on Page                    21 --             it        might            be useful              to    observe            that         that

                      number         is         counservative,                              especiallly                  during           an election                   year,

                      when     the             Commission                      has          to        implement               and        supervise            not         only

                      a general                 election                  but          also           Presidential                  and     local           primaries.

                      That     number                 then              refers              only          to     a small             number           of     decisions

                      and      resolutions                              approved                    unanimously,                    and          signed         by         the

                      Chairman            and certified                            by the              Secretary;              they        are      but      a reduced




                             Paye 49                                                                                   GAO/HRD-SOA0               Puerto Rico’s Status Referendum
Appendix V

Comments From.the U.S. Department of Justice



                                                                               U.S. Department of Justice




                FEB 2U1990
              Linda     G. Mona
              Director,     Intergovernmental                     and
                 Management      Issues
              U.S. General       Accounting              Office
              Washington,       D.C.    20548

              Dear    Ms.     Morra:

              The following            information          is being     provided        in response       to your
              request        to the Attorney             General!     dated     January     18, 1990, for
              comments         on the General            Accounting      Office       (GAO) draft      report
              entitled,          "Puerto      Rico:      Commonwealth        Election      Laws and Their
              Application           to a Political            Status    Referendum."          The Department
              agrees       in general         with     the findings        of the report:          however,      we
              would like          to bring        attention        to the provision         of 5.712 which
              requires         the Attorney          General       to provide       for monitoring         of the
Now on D 22   referendum          by U.S. Marshals              (page 36).       The Department          believes
              that      the term "monitoring"                 needs to be better           defined,      and
              would like          GAO to note the difficulty                  that     the use of this
              term,       as opposed        to a more specific             term,      would create       for the
              U.S. Marshals            Service        (USMS).

              As a federal            law enforcement             agency,         the USMS could              undertake
              the responsibility                of maintaining              law and order              at the 1,602
              polling        locations        used in Puerto              Rico during             the election.
              However,         monitoring         could     be read to include                    functions        beyond
              the maintenance              of law and order;                e.g.,       preventing          election
              fraud      within       the polling          place;       accompanying              the ballot         boxes
              from secure           storage       sites      to polling           places:         remaining        with    the
              voting       equipment         while      in use at the polling                     sites;      managing
              the voting           equipment        during      the actual            election;          and/or
              securing         the voting         equipment         for transport               to the election
              commission.             Under 18 U.S.C.             592, at least               some of these
              functions          are impermissible              activities            for armed law
              enforcement           officers.           We believe          that      the most appropriate
              course       of action         would be to recommend                    to Congress           that     it
              limit      the proposed           USMS responsibilities                     to that        of maintaining
              law and order,              and to the extent               that      it intends           the other
              activities          to be carried            out by federal               officials,          it assign
              those      responsibilities               to other        individuals.




                         Page51                                                   GAO/HRD~PuertoRico'sStatusReferendum
Comments From the Office of the Governor of
Puerto Rico




                                                                       February 25,199O



               Ms. Linda G. Morra
               Director
               Intergovernmental and Management Issues
               Human Resources Division
               U.S. General Accounting Office
               Washington, DC. 20548

               Dear Ms. Morra:

               I am pleased to submit our comments on the Draft GAO Report Puerto Rica
               Commonwealth Election Laws and their Aunlication to a Political Status
               Referendum (52555QS).

               In general, the report presents a fair and correct assessment of the integrity of
               Puerto Rico’s electoral system, and its ability to administer a political status
               referendum such as the one proposed in S-712.

               Puerto Rico has a proud democratic tradition, and a firm commitment to the
               rule of law. Our electoral system reflects this tradition and commitment.
               We are privileged to have one of the most sophisticated and safest electoral
               systems in the world. It is based on an elaborate mechanism of checks and
               balances, which guarantees that all the principal political parties actively
               participate at every stage of the electoral process, from registering the voter,
               to counting the votes, and administering the election process. Throughout
               our history, electoral matters have traditionally been decided by consensus of
               the political parties, relying on the clash of competing interests to produce a
               fair process.




                Page 53                                 GAO/HRD90-60     Puerto Rico’s Status Referendum
         Appendix VI
         Comments From the Office   of the Governor
         of Puerto Rico




    Ms. Linda G. Morra
    February 23,199O
    Page 3


    supervision of the process. It should be noted, for example, that referendum
    elections held in the U.S. territories which became States have historically
    been conducted pursuant to local processes, with no particular application of
    federal laws or specialized federal supervision, see eenerallv PI.. 85-508 (July
    7,1958), 72 Stat. 339 (Admission of Alaska), P.L. 86-3 (March l&1959), 73 Stat.
    4 (Admission of Hawaii). Such has also been the case with referendum
    elections held in other U.S. insular jurisdictions, and Commonwealths.

    The report highlights the recent controversy regarding the San Juan
    Mayoralty election yet fails to even mention the one unfortunate exception
    to our honourable tradition of dealing with electoral matters by consensus,
    and of adherence to the rule of law -the highly controversial 1980 elections.
    It also fails to consider the root causes of this shameful scandal. The
    controversy surrounding these elections is not due exclusively to the fact
    that the winning margins were so thin. In fact, the controversy arose three
    years prior to the election, in response to the irregular process by which the
    electoral system was suddenly changed, without the consent of the
    opposition parties.

    In December of 1977 the New Progressive Party administration, which then
    controlled the governorship and both houses of the legislature, amended the
    electoral law and fundamentally changed the electoral system. The change
    was vehemently opposed by the opposition parties, and their electoral
    commissioners, yet it was approved by a partisan vote in the legislature,
    against the long-standing tradition of amending the electoral law and
    regulations only by consensus of all parties. The change involved altering
    the structure of the Electoral Court, which was an independent body
    composed of judges in charge of supervising the electoral process and
    adjudicating disputes. Instead, the NPP administration established an
    executive agency to run the electoral system headed by an administrator
    named by the governor. Thus, an independent judicial body was replaced by
    an executive agency of political appointees. The new entity, the Junta
    Revisora Electoral, had authority over all aspects of the electoral process.
    The traditional “dosed college” system whereby all electors gathered to vote
    at the same time (and which made double voting virtually impossible), was
    abolished. Instead an open system was designed, where each elector would
    have a photo I.D. card, which would be punched when he voted. This
    required a complete reorganization of the electoral system and reregistering
    and photographing all eligible voters.


L



          Page 56                                     GAO/HRD90-60   Puerto Rico’s Status Referendum
-
                      Appendix VI
                      Comments From the Office   of the Governor
                      of Puerto Rico




                Ms. Linda G. Morra
                February 23,199O
                Page 5


                The 1980 elections also resulted in unprecedented and undue intervention
                by the federal judiciary in Puerto Rico’s electoral process. The report should
                have briefly mentioned this history in order to fully understand the reasons
                for the high sensitivity toward federal intervention in local elections.

                During the 1980 elections, there were several instances where the U.S.
                District Court for Puerto Rico directly and inappropriately intervened in the
                electoral process, only to be subsequently and repeatedly revoked by the U.S.
                Circuit Court of Appeals and the U.S. Supreme Court. In Partido Nuevo
                Progresistn u. Burrefo Pt?rez, for example, after a definitive ruling on Puerto
                Rican law by our Supreme Court, the federal district court in a ruling by
                Chief Judge Juan R. Torruella enjoined the Puerto Rico’s Elections
                Commission from counting ballots which were m&marked by the electors,
                but which clearly showed the elector’s intent.       On a motion for stay and
                expedited appeal, the First Circuit reversed, 639 F.2d 825 (1980).

                In another case, the federal district court enjoined the application of Puerto
                Rico’s election law in the appointment of successors to an elected official, in
                Cintrdn Garth us. Romero Bnrcelb, siding with the New Progressive Party.
                Within a matter of days, the First Circuit Court of Appeals again reversed the
                decision, 671 F.2d 1 (1st Cir. 1982).

                In addition to these general observations, there are several minor points
                which should be clarified in the report.

                In various places the report fails properly to describe the nature of the 1967
Now   on p 2.   plebiscite. For example, on pages l-9, the report states that the 1%7 plebiscite
                was held among the alternatives of statehood, independence and “continued
                commonwealth.” The 1967 plebiscite gave a mandate for the enhancement
                of Commonwealth status, not simply the preservation of the status quo. The
                exact wording of the ballot proposition, as spelled out in the Plebiscite Law of
                December 23,1966, was as follows:

                  “A vote in favor of Commonwealth shalt mean:
                  (1) The reaffirmation of the Commonwealth establishedby mutual agreement
                  under the terms of Public Law 600 of 1950and Joint Resolution 447 of 1952of
                  the Congressof the United Statesas an autonomous community permanently
                  associatedwith the United Statesof America;
                  (2) The inviolability of common citizenship as the primary and indispensable
                  basis of the permanent union betweenPuerto Rico and the United States;




                       Page 57                                     GAO/HRDSQGO   Puerto Rico’s Stahls Referendum
                          Appendix VI
                          Comments From the Office   of the Governor
                          of Puerto Rico




                r   Ms. Linda G. Morra
                    February 23,1!39CI
                    Page7


                    Puerto Rican law does not presently require separate itemization of
                    contributions at these events. Therefore, it is improper to conclude or infer
                    from the example reported that there has been widespread non-compliance
                    with the reporting requirement. Likewise, as to the discussion regarding the
                    PACs, it should be noted that under the U.S. Supreme Court’s ruling in
                    Buckley D. Valeo the Commission’s authority to regulate independent
Now   on p 26       political efforts is sharply circumscribed. (page 431.

                    In closing, I feel that the report provides a good general assessment of the
                    integrity and soundness of the electoral system of the Commonwealth of
                    Puerto Rico. The GAO has done a commendable job of carefully studying an
                    elaborate electoral system, the laws and regulations that guide it, and
                    considering its implications in such a short time period. Furthermore, you
                    have sought diverse reactions to the report from all parties involved,
                    proving the validity of the underlying principle of our electoral system:
                    broad and open participation is the best safeguard to human error. Finally, I
                    would strongly appreciate that you publish this and all other reactions to the
                    report, in order to assure the widest possible dissemination of the variety of
                    views on this subject.




                           Page 59                                     GAO/HRB9OSO   Puerto Rico’s Status Referendum
                           Appendix VII
                           CommentaFromtheElection           Commissioner,
                           Puerto Rico Independence       Party




                 I   Federal
                     Puerto
                     meeting
                                    Involvement
                                The Dialogue
                                   Rico's     three
                                    in Washington,
                                                      Committee
                                                         principal
                                                                    established

                                                              D.C. last
                                                                       political
                                                                                      by the presidents
                                                                                      parties
                                                                             year that,
                                                                                                   agreed,
                                                                                             among other
                                                                                                                of
                                                                                                             at a

                     things,        there     should       be no involvement        of the FBI or any
                     other       Federal      intelligence         presence      in the referendum
                     plXlC.2SS.       Accordingly,           we are troubled       by the possible
                     implications           of the statement            in your Draft         Report,    at page
Now on p.   22       35:

                               "Assistant       U.S. attorneys           and Federal      Bureau     of
                               Investigation          agents     handled    phone calls       on election
                               day [in past         Puerto     Rico elections        as part     of a
                               monitoring       role].      The U.S. Attorney          for Puerto       Rico
                               believes      that     this   type    of federal      presence      is an
                               important       deterrent       to election      fraud."
                             It is clear         that    this     appears       to disregard         Dialogue
                     Committee       agreements.         Furthermore,            it fails      to explain         how
                     FBI involvement            harmonizes        with    international           legal      precepts
                     regarding       self-determination--particularly                        those      that
                     require      free     and open electlons             wlthout       undue interference
                     on the part         of the metropolitan              power.      Finally,       it fails        to
                     take    into    account--as         indeed       the   fuil    Draft      Report       fails    to
                     consider--that           the proposed          referendum        is one on self-
                     determination          of a people.

                     Financinq,        Contributions,          and Campaiun           Spendinq
                              The fact      that    the Draft       Report      fails     to consider        the
                     nature      of the proposed          referendum        as part       of the process            of
                     self-determination             of the Puerto         Rican       people     has a direct
                     impact      on your Report's           analysis      regarding         this    second      issue
                     area.      The Draft       Report    concludes,        after      a cursor-y      analysis
                     of two U.S. Supreme              Court    cases,     that      "any Commonwealth
                     legislation         extending      financing       provisions          that    would     linit
                     campaign       contributions         for the status            referendum       may be
Now on p    25       found unconstitutional."                 (Draft    Report,        p. 40.1

                              'Tne seif-determination               cf a peopie         is parr. of d process
                     contemplated          by and arising           under     international             law. L%%%,
                     U.N. Gen. Assembly             Res. 1514 (XV) and 1541 (XV) (1960),                               as
                     well     as the cases        of Western          Sahara,       ICJ Repts.          1975,       and
                     Namibia       (Southwest       Africa),        ICJ Repts.         1971,      inter       alia.     AS
                     such,      the proposed        referendum         is not a run-of-the-mill
                     election;        it is different            from administrative                elections          Of
                     candidates         running     for political           office;       and it         is different
                     from any plebiscites,                referenda,        01 other        ballot         questions
                     frequently         included      in the normal           electoral         process.




                                                                     -2-




                               Page 61                                           GAO/HRD-9060        Puerto Rico’s Status Referendum
       Appendix VII
       Comments From the Election Commissioner,
       Puerto Rico Independence  Party




Conclusion
         Your Draft        Report     fails    to consider            any of the above
aspects,      which go to the heart               of the Congressional                   intent
to provide         for Puerto       Rico's     self-determination.                   I urge an
in-depth       revision       of your report           to consider,           discuss,         and
suggest      solutions        to the problems            arising       under these           issue-
areas.     Although         I spent     a considerable            amount of time with
your visiting           staff    last     summer explaining               these     matters,        I
shall     be glad to spend any necessary                       additional         time to help
the GAO to formulate               a more nearly           adequate         analysis        of the
totality       of the legal          questions       raised       by Puerto          Rico's
status     in its       people's      process      for self-determination.


                                           Sincerely,



                                           k!!k?R,,              '=a
                                           Electoral      C      hissioner
                                           Puerto    Rica
                                                     4            Independence          Party




                                                 -4-




       Page 63                                               GAO/HRD-9060        Puerto Rico’s Status Referendum
Requests for copies of GAO reports     should be sent to:

U.S. General Accounting    Office
Post Office Box 6015
Gaithersburg, Maryland     20877

Telephone   202-275-6241

The first five copies of each report   are free. Additional   copies are
$2.00 each.

There is a 25% discount    on orders for 100 or more copies mailed to a
single address.

                                                                  made
Appendix VIII

Major Contributors to This Report


                    John M. Kamensky, Assistant Director, (202) 2756169
Human Resources     Robert F. Derkits, Assignment Manager
Division,
Washin&on, D.C.

                    Robert G, Crystal, Assistant General Counsel
Office of General   Mary W. Reich, Attorney Advisor
Counsel,
Washington, D.C.

                    William C. Petersen, Evaluator-in-Charge
New York Regional   *Joseph L. Santiago, Evaluator
Office




(118843)            Page 64                            GAO/HRD-9060   Puerto Rico’s Status Referendum
                         Appendix VII
                         Comments From the Election Commissioner,
                         Puerto Rim Independence   Party




                         Because      Puerto       Rico is a people,               the territorial           extent
                 of which       was "ceded"          by Spain to the United                  States--as        you
Nowonp   2       State     on page 3 of your Letter                   to Se". J. Bennet               Johnston--
                 it requires        analysis         under     international            law.    Because      Puerto
                 Rico is an "unincorporated                   territory"           under     the U.S.
                 Constitution--e                the Insular         Casa       of the U.S. Supreme
                 Court     in the early           part   of the century,               as well      as the more
                 recent      Harris     v. Rosario          (1980)--,        it requires
                 COnStitUtiOnal           treatment        under      the    Territory         Clause     of the
                 U.S. Constitution              which bestows           upon Congress           the power to
                 make all       needful       rules     and regulations              and to dispose          of
                 territories.

                          Accordingly,        normal      constitutional            parameters        regarding
                 electoral        events    in the United            States     do not constitute             the
                 measuring        standard      for Puerto        Rico's      unique      situation.        It is
                 therefore        in this     context      that      you should        analyze       Puerto
                 Rico's      1977 Election         Law's     limitations          on campaign
                 contributions,           in addition        to other        Dialogue       Committee
                 agreements         to provide       adequate        funding      that    will     guarantee
                 fair     and equitable        participation            for all      three     referendum
                 alternatives.

                 Votino      Requirements
                         For all      of the reasons             explained       above,     the voting
                 requirements         must also         be different.          The criteria
                 established         under     Puerto       Rico's      1977 Election         Law, arguably
                 adequate       for normal        administrative            elections       under Puerto
                 Rico's      current     status,        are grossly         unfair      and inadequate        in
                 a self-determination               referendum.           What is at stake            in this
                 instance       is the process            for the Puerto           Rican    people's
                 expression         of opinion        regarding         the ultimate        political
                 status      of the Island.           It is different            therefore        from a
                 referendum         on whether        to expand         the limits       for public
                 borrowing,         or to repeal          a property        tax,    or any of a
                 multitude        of other       normal      referendum         questlons.

                         For a transient            U.S. citizen            from anywhere         else  in the
                 United     States        to be allowed         co vote          in trlls  referendum      oy
                 simply     complying        with     normal       election         law residence
                 requirements           is patently        unfair.        The same may hold true             for
                 persons     in the military,              federal        intelligence        officers,
                 corporate       managers       or executives,              or any others         who do not
                 have a demonstrated              interest         in,    or commitment         to the future
                 social,     political,         or economic            development        of Puerto     Rico.




                                                                -3-
             i



                          Page 62                                           GAO/HRD-90-60      Puerto Rico’s Status Referendum
Appendix VII

Comments From the Election Commissioner,
Puerto Rico IndependenceParty


                                                       *ADO   LI*RE *soa*m   DE NEna   “IN
                                       COMISION    ESTATAL DE ELECCIONES DE PUERTO RICO




                   MS. Linda       G. Morra,    Director
                   Intergovernmental         and Management                  Issues
                   United     States    General    Accounting                Office
                   Washington,       D.C. 20548


                   Dear    Ms.    Morra:

                            Thank you for extending              the period         for these         comments
                   through       Mr. John M. Kamensky,             Assistant        Director        of Human
                   Resources.         I also  wish to congratulate                you and your staff
                   for your       interest    and efforts          at acquaintiilg           yourselves        with
                   many of the important               issues    which      the proposed          referendum
                   on Puerto        Rico's   political        status      presents.        Your Eraft
                   Report      of January      18, 1990 is a positive                 step     in this
                   direction.

                            There      are three         major    issue-areas           which    are of direct
                   Concern        for the Puerto            Rican     Independence          Party      (PIP):   (1)
                   Federal        involvement          in the referendum             election,         (2)
                   financing,          contributions           and campaign           spending,       and (3)
                   voting       requirements           in the proposed            referendum.         In each of
                   these      issue-areas,           your Draft         Report      does    not provide       any
                   indication          of how your staff              analyzed        the international
                   legal      problems        which      I personally         raised       with    youl
                   representatives             concerning         substantive           and procedural
                   requirements           under      self-determination              doctrine       and
                   jurisprudence.

                            If the unstated           premise       of the Draft       Report     is that
                   only     Federal       and Puerto       Rlcar,     laws need be considered,            the
                   Draft      Report      would be overly           limited     and analytically
                   flawed.      For the impression             which        it would   convey--that       only
                   Puerto      Rican      and U.S.      laws Reed apply--would              lead    the U.S.
                   Congress        and the Puerto          Rican      people    astray    from the
                   explicit        legislative        intent      of S. 712 to provide            for Puerto
                   Rico's      self-determination             on the basis         of applicable
                   principles          of international           law.




               L

                           Page 60                                                GAO/HRD-90-60   Puerto Rico’s Status Referendum
                      Appendix Vl
                      Comments From the Office   of the Governor
                      of Puerto Rico




                Ms. Linda G. Morra
                February 23,199O
                Page 6


                  (3) The authorization to develop Commonwealth in accordance with its
                  fundamental principles to a maximum of self-government compatible with a
                  common defense, a common market, a common currency and the
                  indissoluble link of the citizenship of the United States;

                  (4) That no change tn the relations between the United Statesand Puerto Rico
                  shall take place unless previously approved by a majority of the electors
                  voting in a referendum held to that effect.”

                The discussion as to the number of employees in the Elections Commission
                should stress that all of the employees are evenly rwuited from the three
                political parties. It should further note that registered political parties in
                Puerto Rico are provided by law with substantial economic and
                infrastructure assistance to assure an equitable opportunity for all, including
                minority and opposition parties, to participate in the public life of the
                Commonwealth.          Few jurisdictions provide as much assistance to
                opposition parties as the Commonwealth.

                The absentee ballot discussion is not accurate. Present Puerto Rican law
                permits absentee balloting to only a limited category of voters, namely full-
                time students, and military personnel. Other individuals outside of Puerto
Nowon   D 18.   Rico may not presently vote through absentee ballots. (page 27).

                The section on safeguards and controls to assure the integrity of the electoral
                system should stress that Puerto Rican law provides for full judicial review
                of the results, and the historical record evidences a vigilant judiciary
                protecting the due process rights of voters and the sanctity of the electoral
                system. Indeed, the Puerto Rican Constitution specifically guarantees the
                “expression of the will of the people by means of equal, direct, and universal
                suffrage and shall protect the citizens against any coercion in the exercise of
                the electoral franchise.” The report should further note that our Electoral
                Commission’s decisions are immediately reviewable by the Superior Court,
                with appeal to the Supreme Court, and that the Puerto Rican Constitution
                includes all the procedural and substantive protections of the United States
                Constitution.

                The discussion of campaign financing is flawed, incorrect, unsubstantiated,
                and should be omitted. The report fails to recognize that fund raising in
                Puerto Rico is conducted primarily through mass activities, such as
                telethons, rallies or other mass collection efforts, and that due to the
                impossibility of separately itemizing the thousands of small contributions,




                       Page 58                                     GAO/HRD-90-60   Puerto Rico’s Status Referendum
      Appendix VI
      Comments From the Office   of the Governor
      of Puerto Rico




Ms. Linda G. Morra
February 23,199O
Page4


On September 8 of 1980, a mere two months before election day, the electoral
system was again amended by the New Progressive Party administration,
over the vehement opposition of all other political parties. In part
responding to the administrative deficiencies of the Electoral Commission
appointed by the Governor, this change resulted in the establishment of a
hybrid “half-open” system where voters with newly issued elector I.D. cards
could vote in open colleges and those without them could vote in closed
college. This complicated system led to substantial litigation over every
aspect of the law and the process. Given the closeness of the election and the
magnitude of the litigation, the final results were not known until more
than a year after election day, specifically with respect to several mayoralties
and the membership of the House of Representatives.

The cloud of doubt that surrounded the 1980 result evidences the
importance of our historical tradition of operating through consensus. It is
no accident that the only instance in modern Puerto Rican history where the
entire electoral system was modified without the consensus of all political
parties is also the only election whose results have been questioned by
independent observers.

This disaster obligated a return to the prior tradition, and in 1981, with a
Popular Democratic Party controlled legislature and a New Progressive Party
governor, a multi-partisan Special Committee to Revise the Electoral Process
was established to reconstruct Puerto Rico’s traditional electoral system on
the basis of a consensus between the parties. The present system is a result of
the work of that Committee, which established an Electoral Commission in
which all parties share the work and jointly make all necessary decisions.
The president of the Commission, which in the absence of a consensus has
the final word, has to be himself chosen through the consensus of the three
parties. Competing interests thus balance the process. This whole procedure
of full representation of each party at every stage of the process was
reestablished after the 1980 elections in order to avoid the specific problems
experienced with a Commission staffed by political appointees of the party in
power.

It is this electoral system, with the ample safeguards which have been agreed
upon by all parties, which wiIl govern the referendum election. This is why,
S-712 “freezes” electoral law as of July 15, 1989 effectively preventing a
recurrence of the 1980 scenario, and assuring it will be safe from fraud.




       Page 56                                     GAO/HRD9@60   Puerto Rico’s Status Referendum
                               Appendix VI
                               Comments From the Offke   of the Governor
                               of Puerto Rico




                       Ms.   Linda   G. Morra
                       February 23,199O
                       Page 2


                       We have some specific comments on several important areas of the report,
                       which we feel could be further improved, to assure accurate and
                       comprehensive coverage of the issues involved.

                       As you correctly note in your report, electoral controversies involving
                       allegations of fraud have been few and isolated during the past eight years.
                       These, in turn, have taken place in elections where the margin of victory is
                       as small as less than one half of one percent of the vote, often amounting to
                       a few dozen votes. In elections as closely contested as these, no electoral
                       system can be immune from human error, and thus, controversy.

                       The report’s finding regarding the fundamental soundness of our electoral
                       system is inconsistent with its apparent encouragement of an increased
                       federal role over the referendum election, both with respect to the
                       application of federal law and the extent of federal monitoring. See eenerallv
Now on pp. 56, and 7   pages 5 and 13.

                       No special federal monitoring role is called for, or justified.          The
                       fundamental soundness of our electoral system, which the report
                       acknowledges, does not require it. Contrary to the suggestion that “because
Now on pp. 6 and 7.    of the political sensitivity surrounding the referendum” (p. 13) an enhanced
                       federal role is called for, political sensitivity argues for committing the
                       referendum process exclusively to Puerto Rican authorities.              The
                       referendum election is an act of self-determination by the Puerto Rican
                       people. In order for the result to receive widespread international
                       recognition, it is essential to minimize and eliminate all forms of outside
                       intervention. In fact, an increased federal presence, given the underlying
                       soundness of our electoral system, is likely to defeat the stated goal of
                       avoiding doubts as to the results of the referendum, and in fact pose
                       troubling questions as to the legitimacy of the process.

                       Nor is there any justification for extending federal law to the status
                       referendum. S.712, as presently drafted, clearly has no intention that federal
                       law govern the referendum election. It specifically provides that Puerto
                       Rican law shall govern. What is required, and what the report should
                       recommend, is an express statement that federal laws will not apply to the
                       referendum election, except as may be otherwise specificaIly provided. As an
                       act of self-determination, the election must properly be a local election,
                       administered pursuant to Puerto Rican law. Moreover, the undefined
                       extension of the body of federal laws would advance no identified or
                       articulated purpose, and would only complicate the administration and




                               Page 54                                     GAO/HRD-90-60   Puerto Rico’s Status Referendum
   Appendix V
   Comments From the U.S. Department
   of Justice




                                                                              Page   2
We appreciate        the   opportunity      to comment   on the draft     report
and hope that        you   find   our    comments both   constructive     and
beneficial.

Sincerely,




   for   Administration




   Page 62                                      GAO/HRD9040   Puerto Rim’s Status Referendum
                         Appendix N
                         Comments From the Chairman,
                         Commonwealth Elections Commission




                                                                                                                                                                 1

                                                                                                                                                        6

              part       of    a larger            volume         of     decisions             that         are        integrated              into

              official          minutes            and      records           of      proceedings                    which        are     public

              documents.

                         As    to         the      statement             that          20      of       those              decisions            and

              resolutions              were        decided        by the           Chairman,               it        should        be cleared

              that       no more           than      1 per        cent        of      the     Consnission's                   total       number

              of electoral                decisions          were        decided            by his         vote.



Nowonp   18              In    the        first        paragraph               on      Page          28,         the        word        precinct

              shouldbe           substituted                 by        the      word         unit,              so     as      to       read       as

              follows:              the     election            unit         board,         comprised                 of     . . . . verifies

              and approved                the     unit's        suimnary.             The unit              sunanary          then       goes...

              The unit          sumnaries             are      facsimilied..."

                         The    Electoral                Law      establishes                the       nature               and       functions

              of     the       Local            Election          Commission                and       Electoral                Unit        Board.

              T.l 6 LPRA Ss.               3022d and 3026a.




                          Page 50                                                                 GAO/HRD-9060                 Puerto Rico’s Status Referendum
         Appendix IV
         Comments Prom the Chairman,
         Cknnmonwealth Elections Commission




                                                                                                                                                         4

VI.           lr          is         important                to         indicate                   that            Puerto            Rico         has

      consistently                   had     one         of        the         highest              electoral                 participation

      indexes        in        the    democratic               world.

              In       the       United           States,                for         example,                no more             than       75% of

      those        who can             vote        are         registered,                        and        only         50% or           less     of

      those     registered,                  do vote.

              In     Puerto             Rico,        on the               other            hand,           99% of            those         who can

      vote    are      registered,                 and of               those,             from      84% to 90% do vote.

              Many               factors              account                       for            this              constantly                   high

      participation,                  among them:



                   ---A         sincere           belief            in     participatory                       democracy;

                          A strong                sense            of      the            value         of         the     vote       as

                           the        only         civilized                          instrument                     of       change

                           and reform;

                   ---The             nature         of       our          society,                 small,               close       and

                           intimate,              with        a highly                      developed                conscience

                          of         civic         involvement                        in      all            those          matters

                           related                to the            commonwealth;

                   ---A          natural          enjoyment                    of     politics                and political

                           activities;               and,

                   ---A          body        of    electoral                    legislation                    that         fosters

                           participation,                      provides                    funds             for         political

                           parties,               and         ensures                 that           each            and         every

                           capable           voter         goes          to         the     polls.




          Page 48                                                                           GAO/HRD-90-60                  Puerto Rico’s Status Referendum
             Appendix              IV
             Comments From the Chairman,
             Commonwealth Elections Commission




                                                                  -

                                                                                                                                                                                 2

                       It        might        also         be relevant                      to         cite          a comprehensive                         article

        titled              Annals             of        Democracy                -     Counting                      Votes,          in     the         November

        J,        1988             issue             of         the         New         Yorker                    Magazine,                 in         order            to

        appreciate                   the       benefits                of    our        present                      system.



III.              Our            electoral                 system            is        also                based          on       the       participation

       at        all              levels              of         the           election                         process               and          the             shared

       responsibility                         of     the         representatives                                of     the     principaLpolitical

       parties              in     Puerto            Rico.

                  Thus,                 the         administration                           and                operations                  of         the          State

       Elections                   Commission,                    as         well            as             the         implementation                         of       the

       different                   electoral                   events          held              on         the        Island,             are         the         shared

       responsibility                          of        the      three               Commissioners.                             They          are          the        ones

       who        administer                       the         decision-making                                process            and         who            determine

       policy,              goals          and objetives                      within                  the       framework              of        the        law.

                  But             the         participation                       and                 shared            responsibility                         of       the

       political                   parties                in     the         electoral                        process            is        not         limited              to

       the       higher                 levels            of     decision;                       it        permeates               the       lowest                levels

       of electoral                      activity               as well.

                   For            example,                no      distribution                             or         collection                 of      electoral

       materials                   can        be done                 unless           it             is      done        by     representatives                            of

       the       parties                constituted                   into        a "junta."

                  Another                  example,                   no     electoral                          materials                can           be      printed

       unless               it      is        done         under            the        supervision                        of     representatives                            of

       the       parties.




                 Page 46                                                                                    GAO/HRD90+0                    Puerto Rico’s Status Referendum
Appendix IV

Comments From the Chairman, Commonwealth
Elections Commission


                                                     Cmnwealth     of Puerto Rico
                                                PERT0 RIul !mIE ELECTIOII amIssIon
                                                               Box 2353
                                                  San Juan, Puerto Rico 00902-2353

              .IC. MRCOS A. RODRIGUEZ-ESTRADA
                          President


                                                                            February      13,   1990



                Ms. Linda G. Morra,          Director
                Intergovernmental        and Management       issues
                Human Resources       Division
                U.S. General      Accounting       Office
                Washington,      D.C.    20548

                Dear   Ms. Morra:

                       Thank you for giving       us the opportunity        of submitting    our comments
                to the Draft     Report     to the Chairman      of the U.S. Senate         Committee     on
                Energy    and Natural      Resources,   on Puerto       Rico's    Commonwealth   Election
                Laws and their   Application      to a Political     Status    Referendum.

                        I also thank Attorney      Mary W. Reich and Messrs.            William  C. Petersen
                and Joseph       L. Santiago     for   their   careful      analysis      of our electoral
                system,      and again,    Messrs.    Peterson    and Santiago,          who, jointly    with
                Mr. John M. Kamensky,        made the oral      presentation         of the report    to our
                Election     Commission.

                       At that meeting,     held on Thursday,       January   18, 1990, it was agreed
                by the plenum of the Commission          that    the Chairman    and the Commissioners
                representing     the three     political    parties     of Puerto   Rico would    submit
                their   own separate    conments.

                       Herewith,       please   find   my comments     on the   matter.




                 Enclosure




                             Page 44                                     GAO/HRD9@60       Puerto Rico’s Status Referendum
         Appendix U
         Comments Prom the Election            Commissioner,
         Popular Democratic Party




ns. Linda         G.    I(orra                                                             Page      -               5
February        5,     1990




proper       perspective.              The Commission                wa6 designed            to allow        parity
of      all     political           parties         in       their          access        of         the     system
irrespective            of    which party              in government.                 Not only          does each
commissioner            has a full           staff       and       budget      paid       by the          state     to
fiscalize             every         and       all        activities,             either         electoral           or
administrative,               but       throughout             the       Agency's         sensitive            areas
"political          balance"          a6 required              by law,         is strictly             observed--
employment            of     equal        number         of      workers         per      political          party.
Sensitive           materials           are      kept        under        locks       controlled           by each
political         party;       sensitive         documents           are transported                 by teams of
three        workers,          one      per      party,          etc.        Each political               party     is
allotted        $200,000.00           per year,          except        in electoral            year       which     is
$400,000.00,            for     administration               purpose,        plus materials               and free
access       to the Commission               computer,           employment            of over           125 party
identified            workers         for      fiscalizatlon                and      "political             balance
projects".            Thus it         is highly            improbable,           barring         incompetence,
that        anything         occurs        without           the      direct         knowledge            of     each
political           party,        which          is        the        purpose           of         that      proven
organizational              design.
         Thank       you    for    your     attention.



                                                                         Cordially,




           Page 42                                                   GAO/HRD9060PuertoRico'sStatusReferendum
          Appendix11
          Comments From the Election (kxnmissioner,
          Popular DemocraticParty




ns.   Linda       G. l4orre                                                               Page     -               3
February        5, 1990




          It     was      my position             then,       and     still        is,     even though           the
Supreme          Court        rejected         my arguments,               that          the      voter        must
ascertain           himself          that      he    is     duly      registered             when the state
provides         the      many outlets            of information              as it          does in Puerto
Rico--computer              print-out        are distributed            to all         political          parties
at all       levels       throughout         the Island,         voting        information            cards      for
each voter            are printed            and delivered          to each house                by all      three
political          parties        whereby       each       voter      receives             the      card three
times,         funds        are      allocated         for      each       party       to administer             the
process         ($200.000.00           per year,         $400.000.00             election           year,      plus
Commission            funds,)          plus     $2M spent           by the Commission                   in media
outlets.
           The Puerto       Rico's      Supreme Court             decision     clearly        established
that       only voters        not in the lists               "because       of errors      adscribed        to
the Commission"             had access           to      the      special      procedure,            and not
because          of    deletions,          and       upon       addressing         the paternalistic
versus        shared     responsability            issue,       it decided       that    the state        was
totally        responsible         for the integrity                of the voting        list      and that
the voters          needed not verify              if they were in the list.                      Thus the
establishing           of     a procedure            whereby        a voter      could     vote and his
eligibility            determined          after         the      election,        causing,           in    an
extremely            close         electSi            like          San Juan's,          very        complex
litigation.

         At this      point    it could       be significant            to    mention        that     local
courts       hlstory        has     shown       that    the interpretation                of electoral
controversies          have been upheld             by federal        appellate        jurisdiction,
while      the      local      U.S.      District         Court       has     been        consistently
reversed,       because      of undue intromission                 in purely        local      electoral
affairs,       and     even that         federal       court       declined       to entertain           the
San Juan Case.             Of much       more impact          was the         1980 gubernatorial
election,         decided        by    less       than     one percent          of difference            and
which generated            more controversies,             political        and judicial.

         The    application           of   federal        laws.

         The draft      incorrectly         assumes that         S.712 provide          for federal
laws to       apply     in     the referendum.              5.712      indicate       that     federal
monitoring      be provided,          but      not     that      federal        law     apply.         It
specifically        provide       for local        laws to apply         and even sets a cut-
off date for amendments                 to     local      electoral         law     prior        to the
referendum.           It do provide            for     monitoring        by U.S. Marshals            and
for a special         federal       appeals        court     with      specific         and limited
jurisdiction.




          page40                                                   GAO/HRD90-60PuertoRico’sStatusReferendum
Appendix II

Comments From the Election Commissioner,
Popular Democratic Party

                                                                                                                                1

                                                       E.sdo   Llbe   *wcmdo     dc Pumc   RKO
                                                 COMlSlONESTATALDEELECClONE.5
                                                            AFanmlO
                                                                  m



              LCDO. EUDALDOBAEZ-GALIB
                      COMlSlONADo
               PARTKmPOPULARDEMoclUT,CO
                                                                                             February     5,   1990




                  Ms. Linda G. Plorra
                  Dfrector
                  Intergovernmental         and Management                     Issues
                  United     States    General  Accounting                     Office
                  Washington,       D.C. 20548




                  Re:    B-235508



                  Dear    MS. Horra:

                          I   have      reviewed          my draft          of the report        on Puerto       Rico's
                  election6        law       and    it's      application           to    a political            status
                  referendum,        requested           by the Chairman         of the Committee           on Energy
                  and Natural        Resources         of the U.S.          Senate.       Although       your letter
                  is addressed          to the President            of the State         Electoral       Commission,
                  of which       I     am a member             for      the     Popular       Democratic       Party--
                  advocate       of        enhanced        Commonwealth--it              was     decided       by     the
                  Commission       that      each member file           his     separate      views    irrespective
                  of the      views     of      each other.           Thus,      the Commission,           as a body,
                  will    not file      it's     position.

                         The     report      accurately        describe        Puerto     Rico's     electoral
                  system      as     sound,      sophisticated             and   with     several      built-in
                  safeguards       and controls       to protect       the integrity       of     an election.
                  Nevertheless          I  have     detected      sons inaccuracies          which,    although
                  not essential         to the     healthy     description         of the      system made by
                  your Office,       must be mentioned.

                         Compliance          with      campaign                contributions            and    expenditures
                  provisions.
                          All     provisions         in  our      electoral        law which    are clearly
                  applicable        to    particular     financial       situations    in which political
                  parties      did     not follow       established        procedures,      were raised     and
                  adludicated.           The Commission        imposed      over two million    dollars     in




                          Page38                                                     GAO/HRD90-60PuertoRico'sStatusReferendum
                         Appendix I
                         Summary of Comments   From
                         Affected Parties




                         Puerto Rico officials also commented on a number of other issues. These
Other Comments           comments are summarized below.


Commonwealth Party       Commonwealth Party officials raised several specific issues:
Comments             l The Commonwealth Party’s election commissioner said we incorrectly
                       assumed that S.712 provides for federal laws to apply in the referen-
                       dum. On the contrary. we state that S. 712 is unclear as to the extent to
                       which federal law would apply, and suggest that the Committee clarify
                       this issue.
                     l The Commonwealth election commissioner supports our suggested
                       option-which     he terms as a recommendation-that       external monitor-
                       ing be accomplished by a congressional committee or an international
                       organization. He believes that using U.S. Marshals to monitor the refer-
                       endum would raise doubts in the international community about the
                       impartiality of the 1Tnited States government in the referendum process.
                       We suggest that monitoring alternatives, other than those provided in
                       S.712, could be used for the referendum.
                     . The Governor’s Office commented that our report highlights the recent
                       controversy regarding the 1988 San Juan mayoral election, but did not
                       mention events leading up to the controversial 1980 election. This con-
                       troversy arose in 1977, when the electoral law was amended without the
                       consensus of the three political parties, and fundamentally changed the
                       electoral system. This, and subsequent amendments to the electoral law
                       made without political consensus, resulted in doubts surrounding the
                        1980 election results. We did not discuss the historical problems or
                       events in the evolution of Puerto Rico’s electoral law because all parties
                       presently accept thr integrity of the electoral system.


Independence Party       The Independence Party raised three basic concerns about our report
Comments                 relating to: the extent of federal involvement, voter eligibility require-
                         ments for the referendum, and campaign financing. We previously dis-
                         cussed the party’s concerns about federal involvement and voting
                         requirements. With respect to the issue of campaign financing, the Inde-
                         pendence Party was critical of our conclusion that any Commonwealth
                         legislation extending campaign financing provisions that would limit
                         contributions for the referendum may be found unconstitutional. The
                         party maintains that this conclusion does not consider the nature of the
                         proposed referendum as part of the process of self-determination of the




                         Page 36                            GAO/HRD-SO-60   Puerto Rico’s Status Referendum
                       Appendix I
                       Summary of Comments    From
                       Affected Parties




                       We did not attempt to address the issues surrounding absentee voting.
                       Our objective was to determine what voting rights nonresident Puerto
                       Ricans have under current electoral law. As the electoral law stands,
                       nonresidents cannot vote in Puerto Rican elections. As stated in section
                       5, the Dialogue Committee indicated that it would address the question
                       of who shall be permitted to vote in the referendum, and the issues
                       raised by the Commonwealth Party and Independence Party officials
                       could properly be addressed by the committee.

                       With respect to the Independence Party’s position that voter eligibility
                       should be more restrictive than under present law, the Justice Depart-
                       ment testified, in July 1989,l that Puerto Rico is bound by the equal pro-
                       tection guarantees of the Fifth and Fourteenth Amendments. Voting
                       qualifications based upon place of birth, parentage, or an excessively
                       long residence requirement violate those equal protection guarantees.


                       The Commonwealth Party’s election commissioner expressed concern
1988SanJuan            about our characterization in section 6 of problems surrounding the
Mayoral Election        1988 San Juan mayoral election, and provided additional details about
                       what happened in this election. The Statehood Party’s Dialogue Commit-
                       tee representative told us that the election results were not counted
                       fairly, and that we did not appropriately highlight the significance of
                       this problem as evidence of a systemic weakness in the electoral system.

                       In responding to these comments, we revised section 6 to more clearly
                       present the facts concerning this election. We believe, however, that the
                       problems experienced were administrative in nature, and do not involve
                       systemic weaknesses in the electoral system.


                       All three political parties commented on the proposed federal oversight
Federal Oversight of   role, the application of federal law in the referendum process, or both.
the Referendum         Commonwealth Party officials maintained that no special federal moni-
                       toring role is called for or justified, and that an increased federal pres-
                       ence is likely to raise doubts about the results of the referendum and the
                       legitimacy of the process. They further maintained that no justification
                       exists for extending federal law to the status referendum and that S.7 12
                       clearly does not intend for federal laws to govern the election. They also
                       noted t.hat referendum elections held in the former U.S. territories of

                       ‘Statement of Edward S.G Ikwms. Acting Deputy Attorney General, in hearings on S.712 beforc the
                       Senattl Committee on Erwrg~ imd Natural Resourtrs, Washington, D C., .July 11, 1YSS.




                       Page 34                                       GAO/HRD-90.60    Puerto Rico’s Status Referendum
Appendix I

Summary of Comments From Affected Parties L


                          A draft of this report was sent for comment to the U.S. Department of
                          Justice and Federal Election Commission, the Governor of Puerto Rico,
                          members of the Dialogue Committee on the Status of Puerto Rico, and
                          the Chairman of the Commonwealth Elections Commission. We received
                          written comments from Justice, the Federal Election Commission, the
                          Governor’s Office, the Commonwealth Elections Commission chairman,
                          and election commissioners representing the Popular Democratic Party
                          (Commonwealth Party) and Puerto Rican Independence Party (these
                          comments are in apps. II-VII). We obtained oral comments from the New
                          Progressive Party’s (Statehood Party) representative to the Dialogue
                          Committee. No comments were received from the Commonwealth or
                          Independence parties’ representatives to the Dialogue Committee or
                          from the election commissioner for the Statehood Party.

                          Five of the seven commentors generally agreed with our findings and
                          the accuracy of the report. Of t,he remaining two, the Statehood Party’s
                          representative to the Dialogue Committee had no comments on the over-
                          all accuracy of the report, and the election commissioner for the Inde-
                          pendence Party commented that our report failed to consider the
                          principles of international law as they apply to the referendum process.
                          The Federal Election Commission had no specific concerns about the
                          report. The others did.

                          Five issues were addressed by several officials. Our evaluation of com-
                          ments regarding these and ot,her issues are summarized below.

                                           _~     ~~~
                          One issue concerned our description of Puerto Rico’s electoral system.
Puerto Rico’s Electoral   The Governor’s Office and t.he Commonwealth Party’s election commis-
Structure                 sioner believed that our report did not address the Election Commis-
                          sion’s organizational structure and history in proper perspective. These
                          officials provided additional insight into the history and participatory
                          structure of the Commission. They pointed out that the Commission was
                          designed to allow access t,o the electoral system by all political parties,
                          and to provide sufficknt financing to each party, irrespective of which
                          party is in power.

                          In response to these c:omments, we added additional information to sec-
                          tion 1 of the report to more fully describe the Commission’s operations.
                          However, we did not add all of the suggested descriptive information
                          because, in our opinion, t,he report presents sufficient information on the
                          Commission’s structurta and activities.



                          Page 32                             GAO/HRD90-60   Puerto Rico’s Status Referendum
                       Section 6
                       What Problems     Have Been Experienced   in
                       Past Elections?




                       the bank’s owner. It was further determined that the owner had vio-
                       lated banking laws and the owner was eventually prosecuted and con-
                       victed in federal court and is serving a prison sentence.

                       During the 1988 general elections, two allegations of election fraud were
                       filed with the U.S. Attorney’s Office. One concerned vote selling and
                       alleged that residents of a halfway house in San Juan were paid $50
                       each to vote for a particular candidate. The FBI investigated the com-
                       plaint and reported that the allegation was unfounded. The other com-
                       plaint dealt with voter intimidation. Inmates at a Commonwealth prison
                       were allegedly intimidated into voting for a particular political party’s
                       gubernatorial candidate. The FBI investigation of this case is still under-
                       way. However, the 17,s. Attorney for Puerto Rico told us that no signifi-
                       cant evidence has been developed as of January 1990.

                       An Elections Commission official told us that one election fraud case
                       was prosecuted by the Commonwealth Justice Department and another
                       matter relating to the 1988 general election is under investigation. The
                       closed case involved an individual who voted in the 1980 election using
                       a deceased person’s name. The individual was tried in the Puerto Rican
                       court system and convicted of election fraud.

                       Thus, of the several allegations of election fraud and abuse made
                       regarding recent elections, none resulted in federal prosecution to date
                       and only one case was prosecuted by the Commonwealth Justice
                       Department.


                       Problems occurred during the 1988 San Juan mayoral election concern-
Problems Experienced   ing duly qualified voters not appearing on the voter registration lists.
in the San Juan        This led to the mayoral election being contested, and, as of January
Mayoral Election       1990, this matter was still unresolved.

                       Before the election, the Statehood and Independence Parties’ election
                       commissioners alleged that a number of duly qualified and registered
                       voters did not appear on the voter registration lists. The commissioners
                       requested that the Elections Commission provide for special voting pro-
                       cedures on election day. The Commonwealth Party’s commissioner
                       objected, and, ultimately. the Commission chairman decided not to grant
                       these special procedures. This decision was appealed to Puerto Rico’s
                       Supreme Court, which ruled that the Commission must provide special
                       voting procedures for those affected voters,



                       Page 30
What Are the Rights of Nonresident Puerto
Ricans to Participate in the Status Referendum?

                The question of whether nonresidents will be permitted to vote in the
                1991 status referendum has not been decided. Puerto Rico’s electoral
                law states that any citizen of the United States and of Puerto Rico who
                is at least 18 years old and domiciled on the island is qualified to register
                as a voter. The Dialogue Committee on the Status of Puerto Rico, how-
                ever, plans to consider a proposal to allow voting by Puerto Ricans liv-
                ing in the United States.

                The electoral law states that although a voter may have one or more
                residences, for electoral purposes there can be but one domicile that he
                or she has manifested the intention of remaining in. The law further
                states that the voter must maintain access to the residence claimed as
                domicile and live in it with reasonable frequency. It also provides fac-
                tors for determining the basis of a voter’s intention to remain in Puerto
                Rico.

                Commonwealth Elections Commission officials stated that voter qualifi-
                cations presently specified in the electoral law will most likely apply to
                the status referendum. However, Commonwealth government officials
                are still considering ways of changing absentee voting provisions to
                allow voting by Puerto Ricans living on the mainland.

                Plebiscite elections held in other U.S. territories were conducted under
                their existing election laws. ITS. government officials previously
                involved in territorial affairs told us that in the former U.S. territories
                of Alaska and Hawaii, nonresidents were not permitted to vote in plebi-
                scite elections. However, a State Department official told us that
                Palauan citizens residing in Guam and the IInited States were permitted
                to vote in plebiscite elections held recently in Palau, an island of the
                Trust Territory of the Pacific Islands.

                The Dialogue Committee on the Status of Puerto Rico indicated that it
                would consider a proposal to expand the absentee balloting provisions
                of the law to allow for voting by Puerto Ricans living in the United
                States.




                Page 28                              GAO/HRD-9040   Puerto Rico’s Status Referendum
Section 4
what Llmltatiom  Am Placed on Campaign
Financing, and How Are They Administered?




reports for audits of the political parties’ 1984 general election cam-
paigns and (2) selected campaign financing reports filed by the political
parties during the 1988 general election. This review found indications
that the political parties and some PACS did not strictly comply with the
law’s requirements. For example:

The law specifies that PACS spending more than $500 in favor of or
against a party or candidate must register and file reports with the
Commission. The 1984 campaign audit reports for two of the parties
listed 18 PACS that made over $1.1 million in media expenditures in 1984.
However, the director of the Commission’s Auditing Department stated
that none of the PACS registered or filed reports with the Commission, as
required under the law. According to the director, the Commission took
no legal action respecting these apparent violations of the electoral law
because it could not identify the responsible individuals.
Media sources reported that campaign expenditures totaling $181,000
were made by 15 PACS during the 1988 election. Three of the PACS had
registered with the Commission, but none of the 15 PACs filed reports of
receipts and expenditures, as required under the law. According to the
Auditing Department Director, the Commission sent letters to the regis-
tered PACS informing them of their legal obligation to file reports with
the Commission, but none of the PACs responded.
The law requires that political fund raisers file a notarized statement
with the Commission within 5 days following the date of any fund rais-
ing activity. One party filed with the Commission in February 1989 sev-
eral statements that reported fund raising events held in October and
November 1988. No action was taken by the Commission respecting
these apparent violations of law.
The law requires contributions to a candidate or party of more than
$100 ($25 for contributions to PACS) to be reported to the Commission
along with the name and address of the contributor and date the contri-
bution was received. Our limited review of political party reports for the
 1988 election showed relatively few contributions of over $100 itemized
in those reports. For example, one party reported total income from con-
tributions and fund raising activities of over $1 million in September
 1988, but only $1,558 in contributions of more than $100.2

The CPAS also reported that two political parties exceeded the communi-
cations media expenditure limit of $1.5 million during the 1984 general

‘In an explanation of this apparent disparity,   two of the major political parties told us that they
receive a large number of small contribtuions    in mass activities. such as rallies and telethons, which
they believe do not need to be itemized.




Page 26                                            GAO/HRLMOBO         Puerto Rico’s Status Referendum
Section 4

What Limitations Are Placed on Campaign
F’inancing,and How Are They Administered?

                    Puerto Rico’s electoral law and regulations limit political contributions
                    and expenditures on behalf of candidates for public office, but the law
                    does not apply to referendums. Commonwealth legislation would be
                    required to extend the law’s campaign financing provisions to a status
                    referendum. However, in light of several I7.S. Supreme Court decisions
                    that were made after the current Puerto Rican law was enacted, there is
                    a question as to whether placing limits on campaign contributions for
                    the referendum would be constitutional.

                    The Commonwealth Elections Commission is responsible for administer-
                    ing the law’s campaign financing provisions and reviewing political par-
                    ties’ compliance with them. Our limited review of audit and campaign
                    finance reports indicated, however, that political parties did not always
                    comply with the provisions and the Elections Commission did not
                    always enforce them


                    The electoral law limits contributions and expenditures on behalf of can-
Limitations on      didates for public office. The law also establishes an electoral fund for
Contributions and   political parties’ use. Contribution limits vary by the office sought. For
Expenditures for    example, the law limits individuals’ and corporations’ contributions in
                    general election years to $2,500 for a gubernatorial candidate or politi-
Candidates          cal party or both; $500 each for other candidates or political action com-
                    mittees (PACs), which support a candidate or political party or both; and
                    a total of $5,000 for all candidates and PACS.

                    The law also provides for each political party to share in an electoral
                    fund furnished by the Commonwealth government. In general election
                    years, the fund provides $400,000 to each party and its candidate for
                    governor plus additional amounts based on the number of registered
                    voters.

                    For those political parties and gubernatorial candidates that share in the
                    electoral fund, the law limits total campaign expenditures in an election
                    year to a maximum of $5 million in addition to the electoral funds. The
                    law also limits the amount each party may spend in an election year to
                    purchase time and space in the communications media to a maximum of
                    $1.5 million. Moreover, the electoral law requires each political party,
                    candidate, or PAC to keep complete and detailed accounts of contribu-
                    tions received and expenses incurred and to report such accounts peri-
                    odically to the Commonwealth Elections Commission.




                    Page 24                            GAO/HRD9060   Puerto Rico’s Status Referendum
                        Section 3
                        What Roles Do the U.S. Department of Justice
                        and Federal Election Ckmmission Have in
                        Puerto Rico’s Elections?




                        In Puerto Rico, as in the states, the U.S. Attorney’s Office plays a role in
                        monitoring elections. In the past two general elections, the U.S. Attorney
                        for Puerto Rico appointed an Election Day Officer to detect and prose-
                        cute voter fraud offenses. The U.S. Attorney also issued press releases
                        on its role and established and published in local newspapers a hot line
                        for reporting voting irregularities. Assistant U.S. attorneys and Federal
                        Bureau of Investigation (FBI) agents handled phone calls on election day.
                        The US. Attorney for Puerto Rico believes that this type of federal pres-
                        ence is an important deterrent to election fraud.


                        The Federal Election Commission administers the Federal Election Cam-
Role of the Federal     paign Act of 1971 (2 IJ.S.C. 431) and advises the states on the conduct of
Election Commission     elections. The commission has exclusive jurisdiction over civil enforce-
                        ment of the act, which covers three broad areas: public funding of presi-
                        dential elections, restrictions on contributions made to influence federal
                        elections, and disclosure of campaign finance information by candidates
                        and political committees. The commission seeks to promote voluntary
                        compliance with election laws and attempts to resolve violations of law
                        through conciliation before filing civil actions. Criminal matters are
                        referred to the Justice Department for prosecution.

                        Because the Federal Election Campaign Act, by its own terms, pertains
                        only to candidates for federal offices, the commission has no role in
                        Puerto Rico’s elections, except with respect to the financing of the Resi-
                        dent Commissioner’s election campaign. Consequently, under current
                        law, the Federal Election Commission will have no role in Puerto Rico’s
                        proposed status referendum.


                        S.7 12, as reported by the Senate Committee on Energy and Natural
Provisions of S.712     Resources, provides that the election law of Puerto Rico in effect on July
                        15, 1989, shall apply to the status referendum. The bill, however, is not
                        clear as to the extent to which federal laws, such as those discussed
                        above, would also apply.

                        S.712 also provides for federal oversight of the status referendum. The
                        bill:

                      . Requires the Attorney General to provide for monitoring of the referen-
                        dum by U.S. Marshals.
                      . Establishes a three-judge special court to which any aggrieved party can
                        challenge the referendum’s results once the Governor certifies them.


                        Page 22                                        GAO/HRDMBO   Puerto Rico’s Status Referendum
Section 3                                                                                                 -

What Roles Do the U.S. Department of Justice
and Federal Election Commission Have in
Puerto Rico’s Elections?
                          The Justice Department and the Federal Election Commission enforce
                          federal laws that pertain to elections involving candidates for federal
                          offices. These laws cover such areas as registration and voting, civil
                          rights, and campaign financing. In Puerto Rico, the federal laws apply to
                          elections that include candidates for the Office of the Resident Commis-
                          sioner, which is a federal office. Many of the laws do not apply to
                          referendums.

                          S.712, as reported by the Committee on Energy and Natural Resources,
                          provides that the election law of Puerto Rico shall apply to the status
                          referendum, but the bill is not clear as to the extent to which federal
                          laws would also apply. If the Committee wants federal laws to apply, it
                          should clarify this intent in title I of the bill.

                           The bill also provides for federal oversight of the election process. This
                          oversight is to consist of monitoring by the Attorney General, a three-
                          judge special court to hear appeals on the referendum results, and an
                           information officer to translate and distribute information on the
                           referendum.


                          Within the Justice Department, the Criminal Division’s Election Crimes
Role of the Justice       Branch and the Civil Rights Division are responsible for overseeing the
Department                nationwide enforcement of federal laws pertaining to elections involving
                          candidates for federal office. In addition, Justice’s Executive Office for
                          17,s. Attorneys assists in investigating and prosecuting election fraud
                          and abuse.


Criminal Division         The Criminal Division’s Election Crimes Branch prosecutes crimes
                          involving election matf ers under several laws. Among those statutes
                          that also apply to th<, r+~t ion of Puerto Rico’s Resident Commissioner
                          are:

                      l   The Voting Rights Act of 1965 (42 U.S.C. 1973), which, among other
                          things, prohibits any voting qualification, standard, or practice that
                          would result in the denial or abridgement of any citizen’s right to vote
                          on the basis of race or language minority. The act makes it a federal
                          crime, in connection with federal elections and certain other elections, to
                          knowingly or willfully give false information as to name, address, or
                          period of residence fat the purpose of establishing eligibility to register
                          or vote; to conspire with another to encourage the above; and to vote
                          more than once in an c+lc.tion.


                          Page 20                              GAO/HRB9080   Puerto Rico’s Status Referendum
Section 2
What Safeguards and Contmls Exist to
Assure the Integrity of Election Results?




the electoral regulations, inspectors from each political party are sta-
tioned at each poll. One inspector matches the voter’s identification card
with the copy on file and verifies that the voter appears on the registra-
tion list. Once the voter is certified, the inspector marks the voter’s fin-
ger with indelible ink to preclude his or her voting again. The inspectors
from the other parties then issue the voter two ballots; one for
islandwide candidates, the other for municipal candidates. The voter
then signs the register next to his or her name and completes the ballots.
The completed ballots are dropped into designated ballot boxes in the
presence of the poll inspectors.

Certain groups of individuals, such as military personnel, students, and
migrant workers, may also vote by means of absentee ballots. When
such voters know that they will not be in Puerto Rico on election day,
the voter or a family member completes a request form for an absentee
ballot. Once the Commission verifies that the person is a qualified voter,
it sends an absentee ballot to the requester by certified mail.

After the polls close, poll workers tabulate the vote and each party’s
representative verifies and signs a summary of the vote. Poll workers
forward these summaries to the election precinct, which tabulates the
votes for all polls in its jurisdiction.

The electoral unit board, comprised of representatives of each party,
verifies and approves the unit’s summary. The unit summary then goes
to the local elections commission, which again verifies the election
results and enters the summary data into the Elections Commission’s
computer. The unit summaries are facsimilied to a central location
where the Elections Commission verifies the summaries against the data
entered into its computer system.

During each of these stages, the political parties receive a copy of each
summary verified and approved by their respective representatives. At
each level, the parties have the opportunity to challenge vote totals,
and, if a total is challenged, the Commission must resolve any disputes.
The parties view this participation as an important control in protecting
the interests of their members and the integrity of the electoral system
as a whole.

After counting all ballots and resolving any disputes, the Elections Com-
mission certifies the final election results.




Page 18                                     GA0/HRB9040   Puerto Rico’s Status Referendum
                               Section 1
                               How Are Puerto Rico’s
                               Ektinns   Administered?




                               court has 5 days to resolve the matter. Superior Court decisions on elec-
                               toral matters can further be appealed to the Supreme Court of Puerto
                               Rico. In 1988, four Commission decisions were appealed to the Superior
                               Court. These included a Commission decision regarding special voting
                               procedures for the 1988 general elections. (see section 6 for further dis-
                               cussion of this decision).


                               The electoral law provides that special legislation approved by the Com-
A Status Referendum            monwealth legislature is necessary for every referendum or plebiscite
Will Require Special           held in Puerto Rico. The law further specifies that the legislature pro-
Legislation                    vide the mechanisms for financing any referendum or plebiscite it may
                               order and determine the amount of money, if any, to be authorized and
                               granted to the political parties and citizen groups for their campaigns.
                               The electoral law also specifies that the Elections Commission is respon-
                               sible for directing, implementing, and supervising any referendum or
                               plebiscite.

                               Commission officials believe that the current electoral law will be
                               extended to the status referendum.


Dialogue Committee             To foster dialogue and consultation on the proposed political status ref-
                               erendum, the Governor established the Dialogue Committee on the Sta-
Established to Assist in       tus of Puerto Rico by executive order on June 29, 1989. The Committee,
Drafting the Referendum        composed of the presidents of the three principal political parties and
Legislation                    their representatives, is tasked with searching for consensus among the
                               parties on political status issues and communicating those views to the
                               United States Congress.

                               The Dialogue Committee met on July 12, 1989, in Washington, DC., and
                               reached a series of preliminary agreements about the proposed status
                               referendum. It agreed, among other things, that

                           . the referendum should be held according to the Electoral Law of Puerto
                             Rico, and the law should be “frozen” 6 months before the referendum;
                           l the law should assure adequate and equal public financing of the three
                             options for the campaign; and
                           . the Dialogue Committee would consider a proposal to expand the absen-
                             tee voting system in order to include Puerto Ricans living in the United
                             States.




                               Page 16                             GAO/HRD90-60   Puerto Rico’s Status Referendum
                                               section 1
                                               How Are Puerto Rico’s
                                               Elections Administered?




Figure 1.1: Commonwealth   Elections   Commission       Structure




                  d                          Commission


                                              Chairman              I



             Election                          Election                            Election
           Commissioner                     Commissioner                        Commissioner
                                                                    i

                                                    I

                                       Commission Headquarters
                                           Division/Offices




                                                Source Commonwealth      Electrons Commlsslon



                                                The Commission Chairman prepares the budget and submits it to the
Electoral Budget                                election commissioners for discussion. Once approved by the commis-
Yrocess                                         sioners, the budget request goes to the Governor who submits it to the
                                                Commonwealth legislature for approval. The legislature cannot reduce
                                                the Commission’s operating budget from one fiscal year to the next. By
                                                law, the budget appropriation must equal or exceed the previous year’s
                                                appropriation. In election years, the Commission prepares a special



                                                Page 14                                         GAO/‘HRD-9080   Puerto Rico’s Status Referendum
Section 1

How Are Puerto Rico’s Elections Administered?-


                       The Commonwealth Elections Commission, established by the 1977 revi-
                       sion to the electoral law of Puerto Rico, is responsible for conducting
                       general elections every 4 years for islandwide and local municipal
                       offices, including the election of candidates to the offices of Governor
                       and Resident Commissioner. The electoral law defines the Commission’s
                       composition, functions, and responsibilities and provides for its financ-
                       ing and authority over election matters.


                       The Elections Commission is an autonomous agency responsible for
Structure of the       overseeing all aspects of the elections process. It consists of a chairman
Commonwealth           and an election commissioner from each of the principal political parties:
Elections Commission   the Popular Democratic Party (Commonwealth Party), the New Progres-
                       sive Party (Statehood Party), and the Puerto Rican Independence Party.

                       Electoral law governs the selection of commissioners. Each political
                       party selects its candidate for election commissioner and petitions the
                       Governor, who appoints the candidates as the parties’ commissioners.
                       Once appointed, the commissioners serve at the discretion of the politi-
                       cal parties they represent.

                       The election commissioners must vote unanimously to elect the Commis-
                       sion Chairman, who also acts as the Commission’s Executive Director.
                       The electoral law requires the chairman to be a member of the same
                       party as the Governor. The Governor, who does not have a direct role in
                       the selection of the chairman, can effectively veto the choice of a chair-
                       man through his party’s election commissioner.

                       The Elections Commission employs approximately 750 people during
                       nonelection years and about 1,100 in election years. Commission offi-
                       cials advised us that political parties’ representation occurs at all staff
                       levels within the Commission. All parties share in the electoral decision-
                       making process by serving in key control functions in the computer
                       center, maintaining voter records, printing and distributing electoral
                       materials, and presiding on registration boards.

                       The electoral law also provides for establishing a local elections commis-
                       sion for each election precinct. One of the primary functions of the local
                       commission is to supervise the municipal registration and electoral unit
                       boards. Each municipality must have at least one registration board and
                       an electoral unit board, each comprised of one or more representatives
                       from each political party. Each local commission has a chairman



                       Page 12                             GAO/HRB90-60   Puerto Rico’s Status Referendum
Contents


Letter
Section 1
How Are Puerto Rico’s     Structure of the Commonwealth Elections Commission                             12
                                                                                                         14
                          Electoral Budget Process
Elections                 Commission Decides Election Questions                                          15
Administered?             A Status Referendum Will Require Special Legislation                           16

Section 2                                                                                                17
What Safeguards and       Stringent Registration and Voting Requirements                                 17
Controls Exist to
Assure the Integrity of
Election Results?
Section 3                                                                                                19
What Roles Do the         Role of the Justice Department                                                 19
                          Role of the Federal Election Commission                                        22
U.S. Department of        Provisions of 5.7 12                                                           22
Justice and Federal
Election Commission
Have in Puerto Rico’s
Elections?
Section 4                                                                                                24
What Limitations Are      Limitations on Contributions and Expenditures for                              24
                               Candidates
Placed on Campaign        Campaign Financing Provisions Have Not Been Strictly                           2.5
Financing, and How             Complied With or Enforced
Are They
Administered?




                          Page 10                           GAO/HlUNOSO    Puerto Rico’s Status Referendum
523660.9




Copies of this report will be sent to the Commonwealth Governor’s
Office, Elections Commission, the Dialogue Committee on the Status of
Puerto Rico, the Department of Justice, the Federal Election Commis-
sion, and other appropriate congressional committees. Copies will also
be made available to interested parties upon request.

Please call me on (202) 275-1655 if you or your staff have any questions
about this report. Other major contributors to this report are listed in
appendix VIII.

Sincerely yours,




Linda G. Morra
Director, Intergovernmental
   and Management Issues




Page 8                             GA0/HRLb9060   Puerto Rico’s Status Referendum
                        5235508




                        The question of whether nonresidents will be permitted to vote in the
Rights of Nonresident   1991 status referendum has not yet been decided. tinder Puerto Rico’s
Puerto Ricans to        current electoral law, any citizen of the United States and of Puerto Rico
Participate in the      who is at least 18 years old and domiciled on the island is qualified to
                        register as a voter.
Referendum
                        Commonwealth Elections Commission officials stated that the existing
                        statutory voter qualifications will most likely apply to the status refer-
                        endum. This would be consistent with status referendums held in the
                        former U.S. territories of Alaska and Hawaii where existing election
                        laws did not permit voting by nonresidents.

                        However, the Dialogue Committee on the Status of Puerto Rico indicated
                        that it would consider a proposal to expand the absentee balloting provi-
                        sions of the electoral law to allow for voting by Puerto Rican citizens
                        living in the llnited States. (See section 6.)


                        The U.S. Attorney for Puerto Rico told us that several allegations of
Problems Experienced    election fraud and abuse were made in recent general elections in which
in Past Elections       candidates for the Office of Resident Commissioner were running, but,
                        to date, no cases resulted in federal prosecution. An Elections Commis-
                        sion official told us t,hat the Commonwealt,h Justice Department prose-
                        cuted one election fraud case and is investigating another case.

                        Problems occurred during the 1988 San -Juan mayoral election, Because
                        of an allegation that a number of duly qualified voters did not appear on
                        the voter registration lists, Puerto Rico instituted special voting proce-
                        dures These procedures, however, resulted in a number of ballots being
                        questioned. The vote count in the San Juan mayoral election was close
                        and a recount showed that the election was decided by only 29 votes-a
                        margin of votes smaller than the number of questioned ballots, The los-
                        ing candidate contestcad the election in the Puerto Rican court system,
                        and, as of .January 1999, this matter was still unresolved. (See section
                        6.)

                                                                                                         -
                        While Puerto Rico’s election process is basically sound, some highly pub-
Conclusions             licized problems oc-cur-red in past elections. Of the several allegations of
                        fraud and abuse, however, only one case has been substantiated to date.
                        Our review did not indicate a need for more intensive federal monitoring
                        beyond those procedures used in past elections by the JJS. Attorney’s
                        Office. Neverthckss. because of the political sensitivity surrounding this


                        Page 6                              GAO/HRD-YO-60   Puerto Rico’s Status Referendum
                        B236608




                        Puerto Rico’s electoral law provides that special Commonwealth legisla-
                        tion is necessary for any referendum or plebiscite held in Puerto Rico. A
                        June 1989 executive order of the Governor established the Dialogue
                        Committee on the Status of Puerto Rico to assist the legislature in draft-
                        ing the referendum law. The committee, composed of representatives of
                        each of the political parties, will assist in deciding referendum issues,
                        including who will be eligible to vote in the referendum and what public
                        financing will be made available for the parties’ status campaigns. The
                        committee has reached several preliminary agreements including, for
                        example, that the law should assure adequate public financing for the
                        status campaigns. [For further information about Puerto Rico’s electoral
                        structure, see section 1.)


                        Puerto Rico’s electoral law contains various provisions designed to pro-
Electoral Safeguards    tect the rights and interests of voters and assure the integrity of election
and Controls Assure     results. The law and resulting regulations contain safeguards and con-
the Integrity of        trols covering all aspects of the electoral process. These include strin-
                        gent procedures for voter registration, balloting, and the tabulation of
Election Results        election results.

                        Puerto Rico’s electoral law provides for participation of the major politi-
                        cal parties in all levels of the electoral process. The political parties view
                        this as an important control in protecting the interests of the parties’
                        membership and the integrity of the electoral system as a whole. Repre-
                        sentatives of the political parties verify voter qualifications, validate
                        ballots cast, and certify election results at each level within the Com-
                        monwealth Elections Commission’s structure.

                        When compared with the election process in the states, a Federal Elec-
                        tion Commission expert told us that Puerto Rico’s election process is
                        sound and that controls present in its system exceed those in some of
                        the states. (See section 2.)


                        The Just,ice Department and the Federal Election Commission enforce
Roles of the U.S.       federal laws that pertain to elections involving candidates for federal
Department of Justice   office. In Puerto Rico. these federal laws pertain to elections that include
and Federal Election    candidates for the Office of Resident Commissioner. Many of the laws,
                        however, do not apply to referendums.
Commission
                        The Justice Department enforces various federal laws intended to
                        ensure the integrity of an election involving candidates for federal


                        Page 4                               GAO/HRDSMO    Puerto Rico’s Status Referendum
                   E-235508




                   We reviewed Puerto Rico’s electoral law and related regulations, the
                   Commonwealth Elections Commission’s reports and decisions, and docu-
                   ments related to the litigation of electoral and campaign finance issues
                   in the 1984 and 1988 general elections. We also made a limited review of
                   political party campaign financing reports and post-election audit
                   reports for the political parties’ election year campaign activities. In
                   addition, we reviewed relevant federal laws and court decisions and
                   determined their applicability to Puerto Rico elections.

                   We conducted our review from May to September 1989 in accordance
                   with generally accepted government auditing standards.


                   Spain ceded Puerto Rico to the United States in 1898. In 1900, the Con-
Background         gress authorized a resident commissioner to the United States as a non-
                   voting member of the U.S. House of Representatives. And, in 1917,
                   Puerto Ricans became U.S. citizens. Administered initially as a territory,
                   the island progressed toward greater home rule, and was formalized as a
                   commonwealth of the United States with its own constitution in 1952.
                   The Puerto Rican people held a referendum in 1967 on three political
                   status alternatives: independence, statehood, and enhanced common-
                   wealth status. About t,hrce-fifths of the voters supported enhanced com-
                   monwealth status.’

                   In 1988, Puerto Rico’s three major political parties addressed the issue
                   of Puerto Rico’s status in platforms they presented to the electorate. In
                   January 1989, a letter and joint declaration to pursue resolution of the
                   status issue were signed by the leaders of the three major political par-
                   ties. President Bush, in his 1989 State of the IJnion Address, reaffirmed
                   the right of the Puerto Rican people to self-determination and expressed
                   his preference for statehood. He urged the Congress to take steps to
                   allow the people to decide their political status in a referendum.


                   Puerto Rico’s 1977 electoral law and election process appear to be
Results in Brief   sound. The electoral law established the Commonwealth Elections Com-
                   mission, an autonomous agency composed of a Chairman and an election
                   commissioner from each of the principal political parties. The Commis-
                   sion is responsible for overseeing all aspects of the elections process.

                    ‘For more background information. see l’uerto Rxo. Update of Selected Information Contained in a
                    1981 GAO Report (GAOIHRD-89.1(14FS,      Aug. 9, 1989) and Puerto Rico: Information for Status
                    Deliberations (GAO/HRD-9&70HR.     Mar. 7, lQ90).




                   Page 2                                          GAO/HRIN@SO      Puerto Rico’s Status Referendum