Opinión y Orden del Juez Daniel R. Domínguez
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COURT OF
PEDRO
ROSELLO, et al., Plaintiffs
v.
CIVIL NO. 04- 2251 (DRD)
SILA M. CALDERON,
et al., Defendants
Véase
Opinión Per Curiam del
Tribunal Supremo y otras.
AMENDED
OPINION AND ORDER
This
opinion and order addresses this courts’ jurisdiction relating to the military
Absentee Votes, the absentee votes in
general and the split votes all relating to the 2004 gubernatorial election
held in Puerto Rico. This Court had advised the parties on the 19th
of November 2004, that an opinion as to jurisdiction was to follow
(Docket No. 80). This Court’s holding of marathonic
hearings as detailed below has prevented an earlier ruling on this matter.
Article III are courts of limited jurisdiction. Article III §2 of the
United States Constitution provides that “[T]he judicial power
shall extend to all cases, in Law and Equity, arising under this Constitution, the laws of the United States, and
treatises made, or which shall be made, under their authority...”.
In the instance case, its is clear that causes
of action are one which “arises under” the Federal Constitution.
The complaint alleges violations of due process, equal protection and violation
of the 14th
Amendment concerning absentee ballots of military personnel and others covered
under absentee citizens in that the
procedure under Puerto Rico Law was not followed. Consequently, the absentee
voters (both military and general absentee votes) were untimely mailed thereby
causing a total disenfranchisement of these voters. (See Amended Complaint ¶¶22,24,25).
Plaintiffs
further alleged that the validity of split ballots marked with an “X” under a party insignia and two “Xs”, that is, one “X” for the Governor candidacy
and one additional “X” for the Commissioner Resident violated due
process and equal protection under the 14th Amendment asserting that said votes are
null because they registered two votes for Governor and Resident Commissioner. Further and most critical to this
Court Plaintiffs averred that the split ballots are not being counted
uniformly and in violation of the “one person
one vote” principle, that violates
the equal weight required to be accorded to
each voter. The issue that raises this controversy at the level of constitutional protection,
consists of allowing voting for two candidates for the same public office, causing
an overvote. “[T]he
idea that one group can be granted
greater voting strength than another is
hostile to the one man, one vote basis of our representative government”. Moore v. Ogilvie, 394 U.S. 814, 819, 89 S.Ct.
1493, 1496 (1969).
Plaintiffs’ claims
are asserted pursuant to 28 U.S.C. §1983. The Supreme Court has acknowledged as a basis for District Court
jurisdiction claims to redress deprivations of fundamental voting rights secured by the Equal Protection and
Due Process of the Fourteenth Amendment. Baker v. Carr,
369 U.S. 186, 200n.19, 82 S.Ct. 691, 701 (1962)(Collecting cases)(reversing three
judge district panel finding of
no jurisdiction where complaint alleged state statute debased plaintiff votes,
denying equal protection of the law.)
Neither should the court postpone the exercise of its jurisdiction under Pullman abstention.
Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643 (1941). If an underlying state statute, “even though never interpreted by a state
tribunal, is not fairly subject to an interpretation which will render
unnecessary or substantially modify the federal constitutional question, it is
the duty of the federal court to exercise its properly invoked jurisdiction.” Harman v. Forssenius, 380 U.S.
528, 534-535, 85 S.Ct. 1177, 1181-1182 (1965). Pullman
type of abstention is discretional in nature. Harman
v. Forssenius, 380 U.S. at 534, 85 S.Ct. at 1181. The Court shall not abstain for
various potent reasons.
First,
the instant case is not merely a facial attack on the constitutionality
of a local state statute; it constitutes
mainly an “as applied challenge”, consequently requiring a hearing in order to develop
a record. This Court has been receiving evidence, including this date, for six
days. On November 18, 2004, this Court
received evidence from 9:15 a.m. until 10:15 p.m.; on November 19, 2004, from
9:15 am. until 8:00 p.m.; on November 20th 2004 (Saturday), from 9:45 a.m. until 10:00
p.m.; on November 22, 2004 from 10:30 a.m. until ll:10 p.m. On Tuesday 23rd of November 2004, no evidence was received because the parties
argued extensively the scope of the recount order issued by the District Court
on the record the night of Saturday, November 20th 2004.
The Court opened session at 10:00 a.m. and
rendered in the afternoon a verbal decision read on the record on the
scope of the recount subsequently reduced, after amendments, to writing at
Docket No. 102, Amended Order as to the
scope of the electoral recount.[1] Finally, on November 29, 2004, the
Court held session from 2:15 p.m. until 11:45 p.m.[2] (The Court
waited for all continental counsel to arrive from the Thanksgiving Holiday.)
However,
the strongest reason not to abstain is simply because the Puerto Rico
Supreme Court twice has unambiguously ruled
that when a case involves “mixed questions of federal and state law that
must be ruled by the federal court because the validity of the statute under
the federal constitution necessarily
disposes of the question...[O]ur
opinion [the local Supreme Court’s] would be purely advisory.” Cuesnongle v. Ramos, 19 P.R. Official Trans. 493
(1987)(citing Pan American Comp.
Corp. V. Data General Corp., 112
D.P.R. 789 (1982). In Pan American
Com. Corp., Id., the Supreme
Court of Puerto Rico rejected the certification because the federal court would
remain with the jurisdiction as to the federal question under the U.S.
Constitution. The certification in Cuesnongle v. Ramos, Id., was made directly from the First Circuit to the Supreme Court of
Puerto Rico. That certification was also rejected for the same reasons
in Pan American, supra.
The Cuesnongle certification involved whether the Puerto
Rico Consumers law was applicable to a
university. The certification permitted the local court to decide the matter
purely on local state grounds, the local court to avoid interpreting the
local Constitution. The complete reasoning of the Supreme Court of Puerto Rico
expressed in Cuesnongle v. Ramos, Id.,
(plurality opinion) stated:
Thus the situation is similar to the one in Pan
Ame.,
supra. We are dealing
with a controversy on the constitutionality of a state law under the
Constitution of Puerto Rico, which is similar to a provision of the federal
Constitution. “[T]he question is a mixed question of federal and state law that must be ruled upon federal
court because the validity of the statute under the federal [C]onstitution necessarily disposes
of the question under state law. Pan
Ame., supra, at 794. Our decision
would be purely advisory. Although we recognize
that, on past occasions, the Court has shown great deference towards our
decisions, in the context of this case, the question could be adjudicated under
federal tests quite different from ours.
Since Pan Ame.,
supra, we established that certification is in order
only when the validity of a statute is challenged under a state constitutional provision with no equivalent in the
Federal Constitution. Ibid. Reetz v. Bozanich, 397
U.S. 82, (1970); White v. Edgar, 320
A.2d 668, 677 (1974); Abrams v. West Va. Racing Commission, 263
S.E.2d 103 (1980).
For the
foregoing reasons, we cannot answer the certification before our consideration. (Emphasis ours).[3]
Here the challenge is under Equal Protection and Due Process which are protections secured under both Commonwealth and U.S.
Constitutions. Therefore, the “most direct, speedy and inexpensive way...to
obtain an authoritative interpretation” of local law is not a possibility by
repeated mandates of the Supreme Court of Puerto Rico rejecting certifications
when the District Court retains jurisdiction as to Constitutional dispositions
parallel to that of the Commonwealth.
When the case returned to the Circuit Court, Cuesnongle v.
Ramos, 835 F.2d 1486, 1496 (1st Cir.
1987), then Chief Judge Coffin, writing for the Court, expressed concern that
the Certification Rule of the local
Supreme Court “eviscerated [the certification process in Puerto Rico] in those
cases where a federal constitutional question might remain even after
the resolution of state law issues. The logic would also preclude Pullman
abstention in Puerto Rico whenever a constitutional issue is reserved by
plaintiff for federal consideration.
It may be that there are federal constitutional
considerations that are relevant to some degree to many, if not all, questions
of state statutory interpretation.
Nevertheless, if
the Supreme Court of Puerto Rico does in fact refuse to answer certified questions
on this basis, then the certification process in Puerto Rico will be eviscerated in those cases where a federal
constitutional question might
remain
even after the resolution of the state law issues. This logic would also preclude Pullman abstention
in Puerto Rico whenever a federal constitutional issue is reserved by the
plaintiff for federal consideration. (Emphasis in the
original).
Cuesnongle v. Ramos, 835 F.2d at 1496.
The Court
now briefly examines the absentee vote controversy. Aurelio Gracia, Chairman of the Puerto Rico Elections
Commission, admitted at the hearing that regulations required that all absentee vote ballots be sent thirty (30) days
prior to the elections, for those in the U.S. and forty-five (45) days for those outside the United States. (Transcript November 19, 2004, pp. 26, 41). He also
accepted that all absentee ballots were mailed from October 15 to October 30,
2004. Those dates are clearly beyond the limits authorized by law as accepted
by the Elections Commission’s Chairman. (Transcript November
19, 2004, p. 26). Further, the Chairman accepted that he did not know if there was a notice prepared to the
absentee voters within the envelope including the voting materials
wherein the voters were advised of their right to vote notwithstanding late
receipt of the ballot or even receipt after November 2, 2004.
The Chairman ruled that all ballots cast and received will be counted
pursuant to Regulations
(30 and 45 days from sending) even though the law establishes that they
must be cast prior to November 2, 2004. (16 P.R. Laws Ann. §3238; §5.037 of the
Electoral Law.) The issue lies with the remedy since the Commission is using
the sending date as the critical date.[4]
Recently,
the Court received a request for leave to File Amicus Curiae
Brief together with a Declaration under
Penalty of Perjury (Docket No. 104) of a Major stationed at Mac Dill Air Force
Base wherein the soldier states that he
timely requested the absentee ballot in late July/August 2004 and
received the same on November 18, 2004 postmarked as mailed from San Juan, P.R.
(00901) on November 15, 2004. The Court harbors no doubt in asserting
jurisdiction on the due process claim
because plaintiffs have a fundamental right created by the Puerto Rico Election
Law and have suffered an equal protection violation in a class of voters
(military and absentee voters) in further violation of the First Amendment
right to vote thereby creating a total disenfranchisement of said absentee
voters.
As to the split ballots issue, there are two important federal
principles involved; one is that “the states have broad powers
to determine the conditions under which the right of suffrage may be exercised” McDonald
v. Bd. of Elections Commissioners of Chicago, 394 U.S. 802, 807, 89 S.Ct.1404, 1407 (1969)(quoting Lassiter v. Northampton County Board of
Elections, 360 U.S. 45, 50, 79 S.Ct. 985, 989
(1959). However, the other is that “[t]he right to vote is protected in more than the initial
allocation of the franchise. Equal Protection applies as well to the manner of
its exercise.
Having once granted the
right to vote on equal terms, the State may not, by later arbitrary and
disparate treatment, value one person’s vote over that of another.” Bush
v. Gore, 531 U.S. 98, 104-105, 121 S.Ct. 525, 530 (2000)(quoting Harper v. Virginia Bd. of
Elections, 383 U.S. 663, 665,
86 S.Ct.
1079(1966). (Emphasis ours.) ([O]nce
the franchise is granted to the electorate, lines may not be drawn which
are inconsistent with the Equal Protection Clause of the Fourteenth
Amendment”). The Court must be watchful of actions by a state, “to avoid
arbitrary and disparate treatment of its electorate”. Bush v. Gore, Id.
Further, disparate treatment leads to “debasement or dilution of the weight of a citizen’s vote just as effectively as by
wholly prohibiting the free exercise of the franchise”. Bush v. Gore,
Id., (quoting Reynolds v. Sims, 377 U.S. 533, 535, 84 S.Ct. 1362 (1964).
In
addressing the overvote issue plaintiffs have
established an actionable claim under the Equal Protection and the Due Process
Clause of the Fourteenth Amendment. Plaintiffs claim that an election is a
constitutional exercise of a voter’s right to select public officials and is
not an exercise to elect a party. 16 P.R.
Laws Ann. §3205. Plaintiffs then challenge the validity of a ballot cast
under a insignia of a party as a “straight ballot” which is defined as a
“[voter casting] his/her vote for the
entire slate of a single political party,” 16 P.R. Laws Ann.
§3003(31), (emphasis ours), and at the same time in the same ballot
containing exclusively the candidates for Governor and Resident Commissioner
ballots are cast under another party. Plaintiffs claim that the definition of
“split ballot” contained under the law at 16 P.R. Laws Ann. §3003(33), allowing
the voter to vote for “any combination of candidates” is to be read in
conjunction with the definition of a “straight ballot” resulting in that the
total repudiation of the only two candidates under the party insignia nullifies the vote as a double contradictory vote.
Plaintiffs’ argument is further substantiated by the
instructions
to the voter contained in each ballot in the “how to
vote split” instruction wherein it is
stated that “to vote split, a valid
mark (X) is made under the emblem of your preferred party and a mark is
made next to another candidate outside the column of your party, or you write
the name of another person of your choice under the corresponding position in
the last column for direct nomination” (Emphasis
ours). Plaintiffs urge that the definition of a mark refers to a singular “X” under either the Governor or
the Resident Commissioner but not both. The requirement at the last sentence
that “you can vote for only one
candidate for Governor and one candidate for Resident Commissioner” refers to the rule that two votes for the same
candidacy annuls the vote. 16 P.R. Laws Ann. §3262.[5]
Further Rule 81 of the Regulation for the General Elections and General Canvassing of 1984 allows
for the candidacy of Governor and in a separate paragraph for Resident Commissioner but the definition is not in the conjunctive. Moreover, in the
Procedure Manual for the General 2004
Election, (Ex. 1), published by the Electoral Commissioner providing guidance
for the officers at the tables
and/or to be used as guidance for instructions to the table representatives of
the parties, the example provided is one of one “X” for the party and one other “X”
in the candidate for Governor or for Resident Commissioner. Similar
manuals for the 1996 and 2000 elections also have the same previously described
example. In none of the Manuals of Procedure for previous elections
wherein the split ballot form of voting for gubernatorial and resident commissioner vote is illustrated in a separate
ballot, covering the elections of 1996, 2000, and 2004, there is an
example describing voting in split ballot fashion for a party and for both the Governorand the Resident Commissioner which is claimed by
defendants as the most obvious example. Finally,
when the matter of the described split votes was originally raised by the NPP
representatives at the Commission’s
Offices at the General Canvassing on November 10, 2004, and November 11,
2004,[6] the same ballots were adjudicated
differently by floor supervisors of the PIP and PPD representatives as either straight PIP votes or PIP mixed votes which
circumstantially showed that this type of vote containing three “Xs” was
something new even for the floor supervisors of party representative performing
the general canvassing at the Electoral Commission.[7]
Further, and perhaps most critical, an inference has been created that
these split ballots were
not being equally or uniformly treated at
high levels at the Commission, by supervisory high echelon Party
electoral representatives, and also not equally treated at the individual
polling places and further that for two full days equal votes from different
areas of Puerto Rico were not being uniformly and equally treated. The Court
notes that all the evidence on this matter remains in the tally sheets of each
polling unit in the possession of the Commission and that producing said evidence is extremely burdensome and further
potentially delays the election results. Plaintiffs have also elaborated other cogent constitutional
arguments based on the instructions to the electors in the voting ballot
leading to an overvote/equal protection violation.
The Court clarifies that
defendants have barely began to produce evidence and hence the Court is merely reproducing the evidence that
plaintiffs have produced. The facts stated herein are
not facts adopted by the court because the record
is incomplete. The Court is further aware that the Supreme Court of Puerto Rico has issued an
opinion under local law as to the validity of the split votes. The velocity in
which the Puerto Rico Supreme Court rushed to judgment “is not a general excuse for ignoring equal protection guarantees”,
Bush v. Gore, 531 U.S. at 108, 121 S.Ct.
at 532. See particularly, Justice Rivera-Pérez dissenting opinion. However, the District Court must
examine a mixed question of fact and federal constitutional
law pursuant to federal guidelines to determine whether the potential overvotes are invalid.
Based on the evidence received at this stage, the Court is asserting
jurisdiction as to both the absentee ballots and the split ballots controversy. They both present
plausible disparate treatment issues under the Equal Protection and Due Process
Clause of the Fourteenth Amendment. Bush v. Gore, 531
The Court is not, at this time, adjudicating the ballots, or nullifying
them as overvotes, or even enfranchising ballots
(absentee ballots). The Court understand that it must, under case and controversy principles, exercise self restraint
and not opine on the split ballot matter until said split ballots are deemed to be determinable to the
election for Governor (the court reminds the parties that there are many split ballots involving only two
“X’s”, one under a party and another for Governor or for Resident Commissioner that are not being
challenged and may ultimately lead to an outcome not requiring the court to make a ruling on the validity of the
challenged votes). The Court, however, following
federal standards, may not order the adjudication of the challenged ballots
because “count first and rule upon legality afterwards, is not a recipe
for producing election results that have the public acceptance democratic
stability requires.” Bush v. Gore, 531
Finally, the Court acknowledge that it “may not superintend the
step-by-step conduct of local electoral contest or undertake the resolution of ‘garden variety
election irregularities’”, Bonas v. Town of North Smithfield, 265 F.3d 69 (1st Cir. 2001)(citation omitted). This case, unlike Partido Nuevo Progresista v. Pérez, 639 F.2d 825 (1st Cir. 1980), does
not entail garden-variety election irregularities,
but is more akin to Bonas, supra. See
Wherefore the Court
asserts jurisdiction over the Plaintiffs’ claims.
IT IS SO ORDERED.
In
S/DANIEL R. DOMINGUEZ
DANIEL R. DOMINGUEZ
US DISTRICT JUDGE
Véase Voto Suplementario del Juez Asociado señor FUSTER BERLINGERI.
Véase Opinión Disidente del Juez Asociado Señor Rivera Pérez
Véase Opinión Disidente del Juez Asociado Corrado del Ríos.
Véase Opinión Disidente del Juez Asociado Rebollo López.
Véase Orden y Opinión Disidente del Juez Asociado Rivera
Presione Aquí para regresar al Menú anterior y seleccionar otro caso.
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[1] The
statute is further no longer uncertain since the Supreme Court has interpreted
the statutes in an opinion dated
[2] For this
reason, the extensively long injunctive hearing sessions, the Court has not
been able to address the
remand request of Co-defendants in Civil Case No. 04-2288(DRD), Manuel R.
(Manny) Suarez-Jimenez v. Comision Estatal de Elecciones. However, the Court
issued on Friday November, 26 2004, a Scheduling Order setting a hearing for
Friday, December 10, 2004 which is being advanced to Wednesday, December 8,
2004. All extension of time previously filed are to
be denied. The Court notes however, that Plaintiffs complaint alleges due
process and equal protection in ¶¶ 12 and 26 but in such broad forms failing to
specify the source under the Puerto Rico and/or the Federal Constitution.
Moreover, the remand has imbued problems as to the realignment of the parties
since both Plaintiffs and some Defendants in the removed case
have the same interests (the validity of the split ballots). Finally,
notwithstanding artful pleadings avoiding federal jurisdiction, Plaintiffs’ voting rights claims may have imbued within them
federal claims to be addressed under the doctrine set forth by Franchise Tax
Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 22, 103 S.Ct. 2841 (1983). These matters require a hearing. This
constitutes the District Court’s answer to the Mandamus petition under Fed.R.App.P.21(b)(4).
[3] In Pan American, Id., the court clearly
stated that certification will only be accepted when the statute constitutional disposition “has no federal constitutional equivalent”. Pan American Comp. Corp. v. Data General Corp., 112 D.P.R. at 794. (Spanish
version.) (Translation ours).
[4] ut there is
a federal law regulating the matter, The Overseas Citizens Absentee Voting Act,
42 U.S.C. 1973(ff), which may provide other remedies. Both laws are applicable
to Puerto Rico as to the Resident Commissioner vote which is in the same ballot
as that of the Governor. Moreover, there is a federal law, 50 App. U.S.C.A.
§594, regulating states being prohibited from altering the residence of
military personnel while they are serving in the military for the purposes of
federal and state elections. See generally, Bush v. Hillborough
County Canvassing Board, 123 F.Supp.2d 1305 (D.C.N.D. Florida 2000)(Declaratory Judgment declaring provisions of Florida’s
state law as to absentee ballots unconstitutional.) In Bush,
Id. At 1311, the Court concluded that pursuant to the intent of the law
to protect the absentee voters:
“H.R.Rep.
No. 99-765, at 10, 1986 U.S.C.C.A.N. at 2014 (emphasis added). The Committee
concluded by stating: [W]hen overseas voters fail to receive their absentee
ballots in time to vote and return the, they are clearly and effectively
disenfranchised. Whether State procedures are not conductive to providing
adequate transit time, or whether ballots are mailed late despite the best
efforts of everyone involved, in their case the effect–disenfranchisement–is
the same.
...
A...solution...is to ensure
that affected voters – those whose absentee ballots are not mailed in a timely
manner – nonetheless have an opportunity to vote. Id. At 12-13, 1986
U.S.C.C.A.N. at 2016-17.” 9(Emphasis in the original).
[5] 16 P.R. Laws Ann. §3262 states that:
“[I]f there are more candidates marked on a ballot for the same position than
those authorized to the voter, the vote for that position shall be annulled,
but the votes in favor of the candidates that were correctly selected for the
other positions on the ballot shall be counted”.
[6] The
matter was not raised by the NPP representatives during the first two days of the General Canvassing.
[7] See testimony of Doris P. Burgos,
Nov. 20, 2004, p. 117-123; testimony of Tony González Nieves, November 20, 2004, p.
163-182; and testimony of Jorge Ruíz
García, November
20, 2004, p. 41-68.