Rossello-Gonzalez v. Calderon ( 2004 )

United States Court of Appeals
For the First Circuit
No. 04-2610
PEDRO J. ROSSELLÓ-GONZÁLEZ; LUIS FORTUÑO; MIRIAM RAMÍREZ;
NANETTE GUEVARA; ARNOLD GIL-CARABALLO; LARRY SEILHAMER;
JOSÉ SÁNCHEZ; JUAN F. RAMÍREZ AND JAVIER RODRÍGUEZ-HORTA,
Plaintiffs, Appellees,
v.
SILA M. CALDERÓN-SERRA, individually and in her capacity as
GOVERNOR OF PUERTO RICO; ANÍBAL ACEVEDO-VILÁ; THE INCOMING
GOVERNMENT TRANSITION COMMITTEE; GERARDO A. CRUZ, individually
and in his capacity as a member of the
Puerto Rico Electoral Commission,
Defendants, Appellants.
No. 04-2611
PEDRO J. ROSSELLÓ-GONZÁLEZ; LUIS FORTUÑO; MIRIAM RAMÍREZ;
NANETTE GUEVARA; ARNOLD GIL-CARABALLO; LARRY SEILHAMER;
JOSÉ SÁNCHEZ; JUAN F. RAMÍREZ AND JAVIER RODRÍGUEZ-HORTA,
Plaintiffs, Appellees,
v.
THE PUERTO RICO ELECTORAL COMMISSION, A/K/A THE COMMONWEALTH
ELECTION COMMISSION; AURELIO GRACIA-MORALES, individually
and in his capacity as PRESIDENT OF THE PUERTO RICO ELECTORAL
COMMISSION; THOMAS RIVERA-SCHATZ, individually and in his
capacity as a member of the Puerto Rico Electoral Commission;
JUAN DALMAU-RAMÍREZ, individually and in his capacity as a
member of the Puerto Rico Electoral Commission,
Defendants, Appellants.
No. 04-2612
IN RE GERARDO A. CRUZ,
Petitioner.
No. 04-2613
IN RE STATE ELECTIONS COMMISSION,
AURELIO GRACIA-MORALES, President of the
State Elections Commission,
Petitioners.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
María Soledad Piñeiro, argued on behalf of respondents
Manuel R. Suárez-Jiménez, Enid Abreu-Zurinaga, José A. Alvarez-
Febles and Liany Fernández-Toledo.
Rafael Escalera-Rodríguez, argued on behalf of petitioners
Gerardo A. Cruz and the State Elections Commission.
Richard H. Pildes, Professor of Law, New York University
School of Law, with whom Pedro A. Delgado-Hernández, Ramón L.
Walker-Merino, Eileen Marie García-Wirshing, and O'Neill & Borges,
were on brief, for appellants The Puerto Rico Electoral Commission
and Aurelio Gracia-Morales.
Charles J. Cooper, with whom Charles Fried, Brian S.
Koukoutchos, Vincent J. Colatriano, Derek L. Shaffer, Nicole J.
Moss, and Cooper & Kirk, PLLC, were on brief, for appellant Aníbal
Acevedo-Vilá.
Theodore B. Olson, with whom Miguel A. Estrada, Andrew S.
Tulumello, Matthew D. McGill, Gibson Dunn & Crutcher LLP, James F.
Hibey, William R. Sherman, Howrey Simon Arnold & White, LLP,
Joseph D. Steinfield, Prince, Lobel, Glovsky & Tye, LLP, Luis
Berríos-Amadeo, Andrés W. López, The Law Offices of Andrés W.
López, Andrés Guillemard-Noble, Nachman & Guillemard, Charles A.
Rodríguez, and David C. Indiano, were on brief, for appellees.
Rafael Escalera-Rodríguez, Néstor J. Navas-D'Acosta, Reichard
& Escalera, Zuleika Llovet-Zurinaga, Carlos E. López-López, and
Llovet Zurinaga & López, PSC, were on brief, for appellant The
Honorable Sila M. Calderón.
Pedro E. Ortiz-Álvarez, with whom Johanna Emmanuelli-Huertas,
Jorge Martínez-Luciano, Gina Ismalia Gutiérrez-Galang, and the Law
Offices of Pedro E. Ortiz-Álvarez, PSC, were on brief, for
appellant Gerardo A. Cruz.
Luis Sánchez-Betances, with whom Gerardo De Jesús-Annoni, and
Sánchez Betances & Sifre, P.S.C., were on brief, for appellant The
Incoming Transition Committee.
CORRECTED OPINION
January 28, 2005
TORRUELLA, Circuit Judge; STAHL, Senior Circuit Judge;
and HOWARD, Circuit Judge. The Commonwealth of Puerto Rico held
general elections on November 2, 2004 for a variety of offices,
including Governor and Resident Commissioner. Although over two
million votes were cast, preliminary results indicate that the
candidates from the Popular Democratic Party ("PDP") and the New
Progressive Party ("NPP"), Aníbal Acevedo Vilá ("Acevedo") and
Pedro Rosselló González ("Rosselló"), respectively, are separated
by a very narrow margin -- a few thousand votes. This extremely
close election has raised emotions in Puerto Rico and spawned the
actions that are before us.
Plaintiffs-Appellees include NPP candidate Rosselló and
a number of voters who voted for him in the November 2, 2004
election (collectively, "the Rosselló Plaintiffs").1 Defendants-
Appellants include PDP candidate Acevedo, the Puerto Rico Electoral
Commission ("the Commission"), the president of the Commission,
Aurelio Gracia Morales ("Gracia"), and its three Commissioners
(collectively, "the Acevedo Defendants").2 On November 10, 2004,
the Rosselló Plaintiffs filed suit ("the Rosselló action") in the
United States District Court for the District of Puerto Rico ("the
1
Luis Fortuño, the NPP candidate for Resident Commissioner, is
also a Plaintiff-Appellee.
2
Sila M. Calderón-Serra, the incumbent Governor, and Acevedo's
Incoming Government Transition Committee are likewise Defendants-
Appellants.
-3-
District Court") in which they challenged, among other things, the
validity of certain ballots that were cast in connection with the
November 2, 2004 election. On November 24, 2004, the District
Court issued an order that the Commission identify and set aside,
but not consider, the contested ballots. The Acevedo Defendants
seek review of that order.
Also part of this appeal is an action filed on
November 16, 2004 in the Court of First Instance for San Juan,
Puerto Rico, the local trial court, by four voters (collectively,
"the Suárez Plaintiffs") who claim to have cast, and want to
establish the validity of, the ballots at issue in the Rosselló
action ("the Suárez action").3 After the Court of First Instance
dismissed the Suárez action on November 18, 2004 as moot, the
Supreme Court of Puerto Rico ("Supreme Court") assumed jurisdiction
over the case. Yet, before the Supreme Court took any meaningful
action, the case was removed to the District Court. Motions were
promptly filed to remand the action to the Supreme Court, and we
have since been asked to exercise our power of mandamus and
instruct the District Court to remand the action.
3
The following are the defendants in the Suárez action: (1) the
Commission, (2) the President of the Commission, (3) the three
Commissioners, (4) Rosselló, and (5) the NPP.
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I. BACKGROUND
A. The November 2, 2004 Election
On November 2, 2004, general elections were held for the
offices of Governor and Resident Commissioner.4 The ballot that
was to be cast in connection with those two offices ("the ballot")
listed only the candidates for those two offices under the insignia
of their respective political parties.5 Puerto Rico's three major
parties had candidates on the ballot for Governor: (1) Rosselló,
from the NPP; (2) Acevedo, from the PDP; and (3) Rubén Berríos
Martínez, from the Independence Party ("PIP"). The parties also
had candidates on the ballot for Resident Commissioner.
The ballot instructed voters to vote for only one
candidate for Governor and one for Resident Commissioner. On
election day, voters filled in the ballots in the following ways:
(1) by placing a mark under a party insignia, thereby voting for
all of the candidates in that party's column ("a straight vote");
(2) by placing a mark next to the name of each desired candidate
but not under a party insignia; (3) by placing a mark under a party
insignia and next to a desired candidate of a party other than the
one that had its insignia previously marked;6 or (4) by placing a
4
The Resident Commissioner is Puerto Rico's non-voting
representative in Congress.
5
The ballot is reproduced in Appendix A of this Opinion.
6
The Commission has determined that such a ballot reflects a vote
for the desired candidate and the remaining candidate under the
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mark under a party insignia and marks next to two desired
candidates associated with a party or parties other than the one
that had its insignia previously marked ("a three-mark split
vote").7
Prior to the November 2, 2004 election, the Commission,
acting pursuant to its statutory authority, enacted regulations
which outlined the procedures that were to be followed in
adjudicating ballots, that is, in determining the validity of
ballots and in awarding votes to the deserving candidates.8
According to the procedures in place during the election in issue,
each ballot was to be initially adjudicated, and each vote was to
be tallied, at the polling location at which it was cast.9 If
party insignia.
7
As determined by the Commission, see infra, a three-mark split
vote ballot reflects a vote for the two marked candidates, as well
as a vote for the party. A vote for a party on a three-mark ballot
is credited to the party itself (and not to any of its candidates)
for purposes of its reclassification as a "principal party," which
entitles it to certain benefits, including the right to receive
funding. See 16 P.R. Laws Ann. §§ 3003, 3116. A party is a
principal party if, for example, it "obtained a number of votes
under . . . its insignia on the ballot of Governor and Resident
Commissioner[] of not less [than] seven (7) percent of the total
number of votes cast for all the parties' insignias in the
preceding general election." § 3003(42) (second alteration in
original).
8
See 16 P.R. Laws Ann. §§ 3007(k), 3013(l).
9
Each ballot was to be adjudicated by a group of three
inspectors, consisting of one representative from each of the three
principal parties. If the inspectors were unable to agree, there
were additional levels of review at each polling location. The
adjudicatory bodies at each level were comprised of one
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those reviewing a ballot at a polling location were unable to
unanimously agree on the adjudication of the ballot, it was to
remain unadjudicated and be sent to the Commission, along with the
results of the adjudicated ballots, for review. The Commission was
then to engage in a "general canvass," during which the results of
the adjudicated ballots were to be checked and the contested
ballots were to be counted or rejected according to the judgment of
the three Commissioners -- each of whom represented one of the
three principal parties.10 If they could not reach a unanimous
consensus, the ballot was to be forwarded to the president of the
Commission for a final determination.11
Over two million votes were cast in the November 2, 2004
gubernatorial election. Within seventy-two hours of the closing of
the polls, the Commission issued a preliminary report that Acevedo
was leading Rosselló by 3,880 votes. As a result of the closeness
of the election, and in accordance with its regulations, the
Commission, on November 4, 2004, ordered that a recount occur
simultaneously with the general canvass. But, the next day, the
representative from each of the three principal parties.
10
Although this is a somewhat simplified account of the general
canvass procedures, the omitted details are irrelevant to this
appeal.
11
"Any party affected by a resolution, ruling or order of the []
Commission may, within the ten (10) days following the notice
thereof, appeal to the Court of First Instance . . . ." 16 P.R.
Laws Ann. § 3016a.
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president of the Commission, Gracia, announced that the recount
would not begin until the completion of the general canvass.
During the election, thousands of three-mark split vote
ballots -– as many as 28,000 -– were cast. Apparently, the vast
majority of these ballots contained a mark under the insignia of
the PIP and marks next to the two PDP candidates.12
A number of the three-mark ballots were adjudicated at
the polling centers on election night.13 And, for the first two or
three days of the general canvass, which began on November 8, 2004,
some of the three-mark ballots that had been contested at the
polling centers, and thus, had not been adjudicated, were
determined to be valid. But, on November 11, 2004, a dispute arose
when the NPP Commissioner took the position that the ballots in
question were void. Because the PDP and PIP Commissioners
disagreed, the issue was referred to Gracia. On November 12, 2004,
Gracia decided that the ballots contained valid votes for both the
marked candidates and the marked party, and later that day,
12
It has been alleged that, on some of the three-mark split vote
ballots: (1) the mark under the PIP insignia was made in pencil
while the marks next to the PDP candidates were made in pen; and
(2) the marks next to the PDP candidates were noticeably dissimilar
from the mark made under the PIP insignia.
13
There is, however, a dispute as to whether these ballots were
adjudicated in a consistent fashion. It has been alleged that some
of the ballots were declared void, some were adjudicated as
containing valid straight votes for the PIP candidates, and some
were adjudicated as containing valid split votes for the PDP
candidates, as well as the PIP.
-8-
Gracia's decision was memorialized in a written resolution of the
Commission.
1. The Federal and State Court Actions
On November 10, 2004, the Rosselló Plaintiffs filed a
complaint against the Acevedo Defendants in the District Court that
asserted various federal constitutional claims under 42 U.S.C.
§ 1983 arising out of the November 2, 2004 election. On
November 12, 2004, an amended complaint was filed alleging that the
Commission's decision to (1) regard the three-mark ballots as valid
and count the votes contained therein, (2) suspend the recount
pending completion of the general canvass,14 and (3) disregard
certain late-filed absentee ballots15 violated a variety of their
federal constitutional rights.16 The Rosselló Plaintiffs sought
declaratory and injunctive relief in connection with the above
14
The Rosselló Plaintiffs, by their own concession, "have achieved
complete and substantial relief" on this claim, and therefore, we
need not give it any further consideration.
15
The Rosselló Plaintiffs have conceded, both in their opening
brief and at oral argument, that they "have achieved complete and
substantial relief" from the Commission with respect to this claim.
To be sure, there is still a question as to whether the Commission
will follow through with the relief it has promised. But, any
claim concerning this open question is not yet ripe.
16
In addition, the Rosselló Plaintiffs have alleged that the
Commission violated their constitutional rights when it made
"substantial changes" to the rules governing the election after the
votes had been cast.
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challenges.17 The District Court scheduled a hearing for
November 18, 2004.18
Meanwhile, on November 16, 2004, the Suárez Plaintiffs,
who claim to have cast three-mark ballots, filed suit in the Court
of First Instance seeking, among other things, a declaratory
judgment as to the validity of the three-mark ballots and an
injunction requiring the Commission to adjudicate the ballots.19
The Suárez Plaintiffs insisted that an invalidation of the ballots
would deprive them of their right to vote and, thus, their "right
to due process of law and to equal protection under the law."20
17
The Rosselló Plaintiffs also sought injunctive and declaratory
relief in connection with their claim that Puerto Rico Law No. 197,
1 P.R. Laws Ann. §§ 456 et seq., "is unconstitutional to the extent
that it purports to authorize or allow the transition process [for
the next governor] to proceed before the next governor . . . has
been determined." We need not address this issue. The District
Court denied preliminary injunctive relief on this claim, and the
Rosselló Plaintiffs did not bother to appeal that ruling.
Moreover, whether Law No. 197 allows the transition process to go
forward during a recount is a question of local law that will soon
be mooted by the recount.
18
We note that the Rosselló Plaintiffs chose to challenge the
decisions of the Commission in federal court rather than exercise
their statutory right to appeal to the Court of First Instance.
See 16 P.R. Laws Ann. § 3016a.
19
The Suárez Plaintiffs also sought declaratory and injunctive
relief requiring the Commission to (1) complete the general canvass
before conducting a recount and (2) certify the winning
gubernatorial candidate by December 22, 2004.
20
The Suárez Plaintiffs filed this action even though the
Commission had already decided that the three-mark ballots are
valid.
-10-
The Court of First Instance dismissed the Suárez action
without prejudice on November 18, 2004 on the ground that no actual
controversy existed because the Commission had already upheld the
validity of the ballots.21 That same day, the Suárez Plaintiffs,
concerned that the validity of the ballots had not been adequately
established, requested that the Supreme Court of Puerto Rico review
the Court of First Instance's dismissal. The Supreme Court agreed
to do so. On the morning of November 20, 2004, the Commissioner of
the NPP and the NPP itself, defendants in the Suárez action,
removed the action to the District Court. Notice of removal was
filed with the Supreme Court at 11:48 a.m. In response, the Suárez
Plaintiffs and a defendant in the Suárez action, alleging various
procedural defects in removal,22 as well as lack of federal
jurisdiction, moved the District Court to remand. Soon thereafter,
two mandamus petitions were filed in this court, each one seeking
an order requiring that the District Court remand the action.
Despite the removal, the Supreme Court purported to enter
a judgment on the Suárez action on the evening of November 20,
2004. By a vote of four to three, it ordered that the three-mark
ballots were to be adjudicated as containing valid votes for the
21
Significantly, the Commissioner of the NPP, a defendant in the
Suárez action, had requested dismissal on several grounds, one of
which was lack of jurisdiction because the Commission had already
adjudicated the contested ballots as valid.
22
Because of the disposition of the removal issue on other
grounds, we need not address the alleged procedural defects.
-11-
marked candidates for Governor and Resident Commissioner, as well
as the identified party for purposes of maintaining its principal
party status. See supra note 7.
On November 20, 2004, the District Court issued an order
in the Rosselló action that the Commission "set aside and
segregate" the three-mark ballots and refrain from announcing the
winner of the gubernatorial election. Then, on November 24, 2004,
the District Court issued an order that: (1) stated that the
Supreme Court's judgment was void because the removal rendered the
Supreme Court without jurisdiction to enter the judgment;23 and (2)
ordered that a recount be conducted by "counting the number of
[three-mark] split ballots, identifying and segregating the same,
but not adjudicating the ballots." (Emphasis in original.) The
Acevedo Defendants appealed from the order that the three-vote
ballots not be adjudicated.
II. THE PETITIONS FOR MANDAMUS
We begin with the two Emergency Petitions for Writ of
Mandamus that request we exercise our power of mandamus and
instruct the District Court to remand the Suárez action to the
23
We agree with the District Court that the Supreme Court's
judgment was void. The governing statute provides that the filing
of "a copy of the notice [of removal] with the clerk of [the] State
court . . . effect[s] the removal and the State court shall proceed
no further unless and until the case is remanded." 28 U.S.C. §
1446(d) (emphasis added). The Supreme Court received notice of the
removal at 11:48 a.m. on November 20, 2004 but did not issue
judgment until that evening. The judgment is thus, as the District
Court found, a nullity.
-12-
Puerto Rico courts. These mandamus petitions contest the validity
of removal on two principal grounds: (1) the absence of federal
question jurisdiction over the Suárez action, and (2) the failure
of the removing parties to obtain the consent of all Suárez action
defendants (including Petitioners) to removal. Since both
petitions are substantially the same, they will be discussed as
one.
We note at the outset that we have given the District
Court ample opportunity to decide whether removal of the Suárez
action was proper, and despite the time-sensitive nature of this
case, and three weeks of hearings on the merits of the Rosselló
action which has been consolidated with this case for appeal, we
are now faced with the extreme decision of whether we should compel
remand through a Writ of Mandamus.
In order to stave off the need for mandamus, we invited
the District Court to address these mandamus petitions. In
response, the court appended a footnote to the opinion of
November 30, 2004 in which the District Court asserted jurisdiction
over the parallel federal case. Pedro Rosselló, et al. v. Sila M.
Calderón, et al., No. 04-2251, slip op. at 3, n.2 (D.P.R. Nov. 30,
2004). The footnote indicated that a hearing was needed to
properly evaluate the jurisdictional issues raised in the pending
motions to remand. Specifically, the District Court indicated:
(1) that the Suárez Plaintiffs' complaint had alleged violations of
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due process and equal protection without specifying whether the
source of these protections was the Commonwealth or Federal
Constitution; (2) that federal jurisdiction might be required under
Franchise Tax Board v. Construction Laborers Vacation Trust, 463
U.S. 1, 22 (1983); and finally, (3) that the legal interests of
some Suárez Defendants might require their realignment with the
plaintiffs in that action.
Following a hearing on December 8, 2004, the District
Court issued an opinion resolving various challenges to the removal
jurisdiction. Manuel R. Suárez, et al. v. Comisión Estatal de
Elecciones, et al., No. 04-2288, slip op. (D.P.R. Dec. 10,
2004)(hereinafter "Remand Opinion"). In that opinion, the District
Court held that "examining the evidence in the light most favorable
to the defendants . . . an overvote issue may exist[] in violation
of Due Process and Equal Protection principles under the case of
Bonas v. Town of North Smithfield, 265 F.3d 69 (1st Cir. 2001)."
Remand Opinion at 12-13; see also Bonas, 265 F.3d at 73-74.24
Although it evaluated and rejected the majority of the arguments
against removal before it, the District Court still has not made a
final decision on the ultimate question of whether to remand the
case to the Puerto Rico courts. Nevertheless, the District Court
determined in its December 10 opinion that a federal question had
24
We address the applicability of Bonas below in our discussion
of the Rosselló action.
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been presented in the Suárez complaint. That determination was
plainly erroneous, and our resolution of the Rosselló action today
is decisive of the motion to remand. Because the District Court
plainly erred, and because every additional day spent adjudicating
this issue before the District Court or on appeal before this court
increases the risk of irreparable harm, our intervention by Writ of
Mandamus would be appropriate.
A. Availability of Mandamus
Although it is an extraordinary remedy, mandamus can be
appropriate in those rare cases in which the issuance (or non-
issuance) of an order (1) raises a question about the limits of
judicial power, (2) poses a risk of irreparable harm to the
appellant, and (3) is plainly erroneous. See Christopher v.
Stanley-Bostich, Inc., 240 F.3d 95, 99 (1st Cir. 2001). Moreover,
"the case for mandamus is particularly compelling where the order
poses an elemental question of judicial authority." Id. at 99-100.
The instant petitions clearly meet the first requirement, as they
concern the boundaries of the District Court's power to remove
cases from Commonwealth courts. See, e.g., Hernández-Agosto v.
Romero-Barceló, 748 F.2d 1, 4-5 (1st Cir. 1984) (issuing mandamus
to remand improperly removed action to Puerto Rico court). Second,
the risk of irreparable harm from the continued pendency of removal
jurisdiction is acute: there are now fewer than three weeks
remaining before inauguration day on January 2, 2005. Third, as
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elucidated below, we find that the District Court's failure to
remand is plainly erroneous because the Suárez Plaintiffs presented
no claim of right arising under federal law. See 28 U.S.C. § 1441.
B. Validity of Removal
We find that the exercise of removal jurisdiction is
plainly erroneous in this case because no federal question was
presented in the Suárez action either procedurally (because the
four corners of the complaint do not plead a federal question) or
substantively (because we have decided in the Rosselló action that
the federal courts will not intervene in a local electoral
dispute). Because we find that remand to the Puerto Rico Supreme
Court is necessary due to the absence of a federal question, we do
not address the petitioners' second argument, that removal was
improper because it did not receive the consent of all defendants
to the Suárez action.
1. Well-Pleaded Complaint Rule
A case may be removed to federal court if it presents a
"claim or right arising under the Constitution, treaties or laws of
the United States." 28 U.S.C. § 1441(b). "The Supreme Court of
the United States has made clear that, in deciding (for removal
purposes) whether a case presents a federal 'claim or right,' a
court is to ask whether the plaintiff's claim to relief rests upon
a federal right, and the court is to look only to plaintiff's
complaint to find the answer." Hernández-Agosto v. Romero-Barceló,
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748 F.2d 1, 2 (1st Cir. 1984) (emphasis in original). The
existence of a federal defense is not sufficient for removal
jurisdiction. Franchise Tax Bd., 463 U.S. at 10-11. Thus, we must
turn to the Suárez complaint to ascertain whether, within its four
corners, a federal "claim or right" has been presented. Our
evaluation centers on the complaint's allegations of violations of
"due process" and "equal protection."25 These claims do not
explicitly state whether the source of these constitutional
protections is the Commonwealth or the Federal Constitution.26
25
Respondents also note that the Suárez complaint attached and
made reference to the complaint filed four days earlier in federal
court by Rosselló. No federal claim can be inferred from this
reference to the federal action; rather, it was included in the
Suárez complaint as factual background. See Suárez complaint at
para. 8. Further, even assuming it is proper for us to look
outside the four corners of the Suárez complaint to the previously-
filed federal action, as we discuss below, the Rosselló complaint
does not state a claim warranting federal intervention into this
local electoral dispute, and therefore cannot be considered
sufficiently substantial to give rise to removal jurisdiction under
Franchise Tax Board. See Almond v. Capital Props., Inc., 212 F.3d
20, 23 (1st Cir. 2003).
26
We are aware of only one other case dealing with federal removal
jurisdiction over a claim filed in state court with ambiguous
references to constitutional provisions. In Dardeau v. West
Orange-Grove Consolidated I.S.D., 43 F. Supp. 2d 722 (E.D. Tex.
1999), a federal district court evaluated a situation very much
like the one we face here. In Dardeau, a complaint was filed in
state court that made explicit reference only to state law, but
also claimed a violation of "due process." Ambiguity with regard
to the source of this right was heightened relative to our case
because, while those words appear in the United States
Constitution, the Texas Constitution uses the phrase "due course of
law." Id. at 732. For reasons substantially similar to those we
set out below, the district court nevertheless interpreted the
complaint narrowly to find no federal cause of action to sustain
removal jurisdiction. Id. at 730-34.
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Read as a whole, we cannot say that this complaint
presents a claim under the Federal Constitution. No explicit
reference to the United States Constitution or any other federal
law is contained in the complaint; instead, all references are to
Puerto Rico state laws, regulations, and the Commonwealth
Constitution. Specifically, paragraph 11 of the complaint bases
the Suárez Plaintiffs' claims in the right to vote guaranteed in
Article II, Section 2, of the Commonwealth Constitution. The
complaint's subsequent references to the plaintiffs' rights to vote
and to have their votes counted in accordance with equal protection
and due process, while not expressly premised on the Puerto Rico
Constitution, logically refer back to the antecedent citation to
Article II, Section 2 of the Commonwealth Constitution.
Moreover, it is well-settled that "the plaintiff [is] the
master of the claim; he or she may avoid federal jurisdiction by
exclusive reliance on state law." Caterpillar Inc. v. Williams,
482 U.S. 386, 392 (1987). Thus, the burden to prove that a federal
question has been pled lies with the party seeking removal. BIW
Deceived v. Local S6, Indus. Union of Marine & Shipbuilding
Workers, 132 F.3d 824, 831 (1st Cir. 1997). In light of this
burden, and of the important federalism concerns at play in
considering removal jurisdiction, see, e.g., Franchise Tax Bd., 463
U.S. at 8, we find that any ambiguity as to the source of law
relied upon by the Suárez plaintiffs ought to be resolved against
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removal. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,
108-09 (1941) (removal statute should be strictly construed against
removal).
2. Artful Pleading Doctrine
The Respondents invite this court to consider the
possibility that the Suárez Plaintiffs engaged in artful pleading,
a "corollary of the well-pleaded complaint rule that a plaintiff
may not defeat removal by omitting to plead necessary federal
questions in a complaint." Franchise Tax Bd., 463 U.S. at 22. As
discussed below with regard to federal ingredient jurisdiction, no
federal question is necessary to the resolution of the state claims
raised in the Suárez complaint. Furthermore, we are skeptical of
the applicability of the artful pleading doctrine outside of
complete federal preemption of a state cause of action. See, e.g.,
id. at 23 (stating that the "necessary ground" for the creation of
the artful pleading doctrine "was that the preemptive force of [a
federal statute was] so powerful as to displace entirely any state
cause of action"); Rivet v. Regions Bank, 522 U.S. 470, 475-76
(1998) ("The artful pleading doctrine allows removal where federal
law completely preempts a plaintiff's state-law claim."). And
surely, the United States Constitution cannot be said to wholly
preempt the Commonwealth's grant of similar rights under its own
Constitution. See PruneYard Shopping Ctr. v. Robins, 447 U.S. 74,
81 (1980) (state constitution may afford more, but not less,
-19-
protection than Federal Constitution); see also Nieves v. Univ. of
Puerto Rico, 7 F.3d 270, 275 (1st Cir. 1993) (noting that
"'poverty' is considered a suspect classification under the
Commonwealth constitution, triggering 'strict scrutiny' analysis
unobtainable under the Equal Protection Clause of the United States
Constitution"). Thus, the artful pleading doctrine has no
application to this dispute.
3. Federal Ingredient
Respondents also argue that even in the absence of a
claim arising under federal law on the face of plaintiffs' well-
pleaded complaint, federal removal jurisdiction is still proper
under the Supreme Court's statement in Franchise Tax Board that
removal would be appropriate "if a well-pleaded complaint
established that [the plaintiff's] right to relief under state law
requires resolution of a substantial question of federal law." 463
U.S. at 13. Under this "federal ingredient" doctrine, a case
arises under federal law for purposes of removal when "the
plaintiff's right to relief necessarily depends on resolution of a
substantial question of federal law." Id. at 27-28.
Federal ingredient jurisdiction remains "controversial,"
Almond, 212 F.3d at 23, because
[t]he Supreme Court has periodically affirmed
this basis for jurisdiction in the abstract
. . ., occasionally cast doubt upon it, rarely
applied it in practice, and left the very
scope of the concept unclear. Perhaps the
best one can say is that this basis endures in
-20-
principle but should be applied with caution
and various qualifications.
Id. (internal citations and footnote omitted); see also Metheny v.
Becker, 352 F.3d 458, 460 (1st Cir. 2003) (noting that federal
ingredient doctrine "remains vibrant in this circuit but 'should be
applied with caution'" (quoting Almond, 212 F.3d at 23)). With
this caution in mind, we turn to the respondents' argument.
Respondents hang their jurisdictional hat on two
doctrines that they allege exist in the caselaw of the Puerto Rico
Supreme Court. The first stems from the Puerto Rico Supreme
Court's statements in a 1964 case that, in accepting the
Commonwealth's Bill of Rights, the United States Congress "was to
presume -- and in fact it is so and ought to be -- that the public
powers and the courts of the Commonwealth shall render effective
and construe the provisions of the [Puerto Rico] Bill of Rights in
a manner consistent with the protection afforded . . . by the same
or similar provisions of the Constitution of the United States."
R.C.A. Communications, Inc. v. Gov't of the Capital, 91 P.R.R. 404,
414-15 (P.R. 1964). The second comes into play when a federal
court certifies a question of state law to the Puerto Rico Supreme
Court. According to the Supreme Court:
[W]hen the question before us refers to the
validity of a state law under a clause of the
state constitution that is similar to a clause
in the federal Constitution . . . the issue is
a mixed question of federal and state rights
that must be resolved by the federal court,
because the validity of the statute under the
-21-
federal Constitution necessarily disposes of
the question under state law. . . . In these
circumstances we must refuse certification,
since our decision would be only advisory.
Pan Am. Computer Corp. v. Data Gen. Corp., 112 D.P.R. 780, 793-94
(1982) (translation supplied by this court). According to
Respondents, these two provisions mean that the Supreme Court's
evaluation of the Suárez Plaintiffs' claims under the due process
and equal protection doctrines of the Commonwealth Constitution
will require the resolution of a federal question: whether the
parallel provisions of the United States Constitution would be
violated by the acts in question. Accordingly, Respondents argue,
the District Court has removal jurisdiction under the federal
ingredient doctrine.
These arguments fundamentally misconstrue the federal
ingredient doctrine. Whether a state court will adopt as the
meaning of the state's constitution the federal courts'
interpretation of parallel language in the United States
Constitution is a matter of state law. See, e.g., Nieves, 7 F.3d
at 274. Federal law does not compel such an outcome. Thus, a
determination of whether a violation of the Puerto Rican
Constitution's guarantees of due process and equal protection has
occurred does not "require resolution" of whether the conduct
complained of would violate the Federal Constitution. Franchise
Tax Bd., 463 U.S. at 13 (emphasis added); see also Gully v. First
Nat'l Bank, 299 U.S. 109, 112-13 (1936) ("To bring a case within
-22-
the [removal] statute, a right or immunity created by the
Constitution . . . must be an element, and an essential one, of the
plaintiff's cause of action.") (emphasis added). To decide
otherwise would mean that any case brought under a provision of the
Puerto Rico Constitution that mirrors the language of the United
States Constitution could be removed into federal court.
Accordingly, we find that removal jurisdiction over the Suárez
action is lacking, and it must be remanded to the Commonwealth
court from which it was removed. 28 U.S.C. § 1447.
4. Effect of the Rosselló Decision
Lastly, and perhaps most significantly, the Suárez
complaint cannot be said to state a federal question, because, as
we will discuss now, the federal courts will not intervene in a
local electoral dispute such as this. Although we find that it was
plain error for the District Court not to remand the Suárez action
back to the Puerto Rico courts on the basis of the well-pleaded
complaint rule, and therefore we could issue a Writ of Mandamus
compelling remand, we realize that the District Court now has the
benefit of both our above discussion and our decision in the
Rosselló action. Therefore, we are confident that the District
Court will immediately remand the Suárez action back to the Supreme
Court of Puerto Rico without the need for mandamus.
-23-
III. APPEAL OF THE NON-ADJUDICATION ORDER
We now turn to the appeal of the non-adjudication order
that is before us in connection with the Rosselló action. We have
repeatedly held that federal courts "normally may not . . .
undertake the resolution of 'garden variety election
irregularities.'" Bonas, 265 F.3d at 74 (quoting Griffin v. Burns,
570 F.2d 1065, 1076 (1st Cir. 1978)). We have departed from this
general rule of non-intervention on only two occasions. See Bonas,
265 F.3d at 75-76; Griffin, 570 F.2d at 1079. As we elucidate
below, those two cases are easily distinguished from the case at
hand. Here, Circuit precedent demands application of the general
principle of non-intervention, and therefore, we vacate the
issuance of the preliminary injunction and direct the District
Court to dismiss the case.
A. Nature of Our Review
The Acevedo Defendants are presently before us seeking
review of the District Court's issuance of a preliminary injunction
to segregate, but not adjudicate, all three-mark split vote ballots
cast during the November 2, 2004 election. It appears from the
language in the order implementing the injunction that the District
Court issued the injunction merely to preserve its jurisdiction,
and therefore we will treat it as such.27
27
Although we are skeptical that the only purpose or effect of the
injunction was to preserve jurisdiction, especially considering the
fact that this "jurisdiction-preserving" injunction is still in
-24-
B. Temporary Injunctions to Preserve Jurisdiction
Congress has provided "[t]he Supreme Court and all courts
established by Act of Congress [with the authority to] issue all
writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law."
28 U.S.C. § 1651(a). Acting pursuant to § 1651(a), a federal court
may issue an injunction as a means to preserve its jurisdiction.
See, e.g., Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1099
(11th Cir. 2004). But, for a court to invoke § 1651(a) and issue
an injunction to protect its jurisdiction over an action, there
must be at least the possibility that the complaint states a
justiciable federal claim. Thus, implicit in our review of the
issuance of the injunction is our review of whether the Rosselló
complaint, taking all claims alleged therein as proven, had the
potential to present a justiciable federal claim under existing
Circuit precedent. Mercury Motor Express, Inc. v. Brinke, 475 F.2d
place after approximately three weeks worth of "marathon hearings"
on the merits, we find that our skepticism is irrelevant in light
of the manner in which we resolve the case. Furthermore, although
we believe that we properly review the non-adjudication order as an
appealable interlocutory injunction pursuant to 28 U.S.C. §
1292(a)(1), we note that even if we were incorrect in this
conclusion, we would, in the alternative, exercise our discretion
to treat the Acevedo Defendants' notice of appeal as a petition for
mandamus under the All Writs Act, 28 U.S.C. § 1651(a), thus
preserving our jurisdiction in any event. See, e.g., United States
v. Horn, 29 F.3d 754, 769 (1st Cir. 1994) ("We are fortified in our
resolve to hear and determine this appeal by the knowledge that,
even if no appeal lies as of right, we possess--and can
appropriately exercise--the power of discretionary review via
mandamus, to address the important question raised in this case.").
-25-
1086, 1091 (5th Cir. 1973) ("Once a case is lawfully before a court
of appeals, it does not lack power to do what plainly ought to be
done. . . . [It has] the power . . . to reach the merits of a case
before it on an interlocutory appeal and [to] dismiss the action.")
(internal quotation marks, alterations, and citations omitted); see
also Aerojet-Gen. Corp. v. Am. Arbitration Ass'n, 478 F.2d 248, 252
(9th Cir. 1973) ("[I]t is well established that in [an equity]
case, . . . an interlocutory appeal brings the entire case before
the court.").
Our review is for abuse of discretion. Klay, 376 F.3d at
1096.
C. Federal Jurisdiction Over § 1983 Complaints
Having determined that we must inquire whether the
District Court should have intervened in this local election
dispute based on the claims alleged in the complaint, our first
step necessarily begins at the broadest level –- that is, whether
the District Court had federal subject matter jurisdiction over the
action. See Bonas, 265 F.3d at 73. "Federal courts are courts of
limited jurisdiction, and therefore must be certain that they have
explicit authority to decide a case." Id. (citing Irving v. United
States, 162 F.3d 154, 160 (1st Cir. 1998) (en banc)). "Thus, we
subject the plaintiffs' choice of a federal forum to careful
scrutiny." Id.-26-
In Griffin, we set forth the analytical framework to
evaluate whether a federal court could exercise jurisdiction over
a local electoral dispute. See 570 F.2d at 1070; see also Bonas,
265 F.3d at 73. As this case is brought pursuant to 42 U.S.C.
§ 1983, we turn to the language of the jurisdictional counterpart
of that statute, 28 U.S.C. § 1343(3), which mirrors § 1983, and
provides that "district courts shall have original jurisdiction of
any civil action . . . [t]o redress the deprivation, under color of
State law, statute, . . . custom or usage, of any right, privilege
or immunity secured by the Constitution of the United States or by
any Act of Congress providing for equal rights of citizens . . . ."
28 U.S.C. § 1343(3). Thus, federal jurisdiction hinges on whether
plaintiffs have a colorable claim under § 1983.28 See Griffin, 570
F.2d at 1070; see also Bonas, 265 F.3d at 73-74 ("In other words,
federal courts have jurisdiction over claims arising out of a state
or local electoral dispute if, and to the extent that, the
complaint limns a set of facts that bespeaks the violation of a
constitutionally guaranteed right.").
There is no doubt that the Rosselló complaint alleges the
violation of a constitutionally guaranteed right, and thus,
presents a colorable claim under § 1983 for subject-matter-
28
The standard for determining the existence of original federal
jurisdiction under 28 U.S.C. § 1343 is, of course, much more
liberal than the standard for determining the existence of removal
jurisdiction under 28 U.S.C. § 1441, at least outside of the
complete preemption context. See BIW Deceived, 824 F.2d at 832.
-27-
jurisdiction purposes. The Federal Constitution protects the right
of all qualified citizens to vote in local elections. See Bonas,
265 F.3d at 74. This conclusion, however, does not end our
inquiry. Having determined that the District Court could have
exercised jurisdiction in this case, we must now inquire whether it
should have intervened. See Griffin, 570 F.2d at 170.
As mentioned above, and discussed more extensively below,
"[e]lection law, as it pertains to state and local elections, is
for the most part a preserve that lies within the exclusive
competence of the [local] courts." Bonas, 265 F.3d at 74. We have
thus stated that "with only a few narrow and well-defined
exceptions, federal courts are not authorized to meddle in local
elections." Id. This general rule of non-intervention dictates
that the District Court should not have intervened in this case.
D. District Court's Decision to Intervene
As discussed above, we review the decision of the
District Court to intervene in this local election dispute for
abuse of discretion. Klay, 376 F.3d at 1096. In evaluating
whether federal intervention into a local election dispute is
appropriate, this Court has inquired into factors such as whether
a discrete group of voters has been disenfranchised, whether there
was a state process in place to handle the question posed by the
plaintiffs, and whether the plaintiffs had availed themselves of
that state process. See Griffin, 570 F.2d at 1078-79; Bonas, 265
-28-
F.3d at 75-76; see also Partido Nuevo Progresista v. Barreto Pérez,
639 F.2d 825, 828 (1st Cir. 1980). As we stated in Bonas, however,
"[w]e do not pretend that it is a simple matter to segregate the
run-of-the-mill electoral disputes from those that appropriately
can be characterized as harbingers of patent and fundamental
fairness." 265 F.3d at 75. Indeed, "each case must be evaluated
on its own facts." Id. But, as this Court implied in Barreto
Pérez, there is a heavy presumption in favor of non-intervention if
the party requesting intervention cannot show that a discrete group
of voters has been disenfranchised by the challenged local action.
See 639 F.2d at 828.
Here, the final decision under Puerto Rico law to
adjudicate all three-mark ballots under one consistent standard
does not disenfranchise any Puerto Rico voters -– indeed, it is the
position espoused by the Rosselló Plaintiffs that stands to
disenfranchise an estimated 28,000 voters. Thus, because the
Rosselló Plaintiffs cannot claim that federal intervention is
necessary because a discrete group of voters has been
disenfranchised, and because they cannot allege any other harm
sufficient to overcome the general rule of non-intervention,29 we
29
We do not foreclose the possibility of a case in which federal
intervention would be appropriate without a showing of
disenfranchisement. The most obvious example of this would be a
case involving vote dilution. See Bush v. Gore, 531 U.S. 98, 105
(2000) (per curiam) ("It must be remembered that 'the right of
suffrage can be denied by a debasement or dilution of the weight of
a citizen's vote just as effectively as by wholly prohibiting the
-29-
conclude that it was an abuse of discretion for the District Court
to intervene in this local election dispute.
In Griffin v. Burns, this Court determined that federal
intervention into a state election was appropriate where a
significant percentage of the qualified and voting electorate was,
in effect, denied its vote. See 570 F.2d at 1078-79. In that
case, although it was undisputed that Rhode Island had issued and
counted absentee and shut-in ballots in prior primaries, and that
voters utilizing such ballots had relied on that prior practice and
on instructions from state officials in so doing, the Rhode Island
Supreme Court said the Rhode Island Secretary of State was without
the authority to issue and count absentee and shut-in ballots in a
primary election, effectively disenfranchising all absentee and
shut-in voters that had already voted. Id. at 1075-76.
free exercise of the franchise.'") (quoting Reynolds v. Sims, 377
U.S. 533, 555 (1964)).
Here, however, the Rosselló Plaintiffs' claim that the
Commission's "change in the rules" after the election somehow
"diluted" their vote for their political party of choice is without
merit because there was no clear rule prior to the election that
the three-mark split ballots were invalid.
The Rosselló Plaintiffs' claim that the three-mark split
ballots were adjudicated inconsistently on election night (and
immediately thereafter), on the other hand, presents a much
stronger claim for federal intervention without a showing of
disenfranchisement. That claim, however is rendered moot by the
fact that all ballots will be adjudicated in the same uniform
manner during the recount. See Bush v. Gore, 531 U.S. at 106 (per
curiam) (addressing situation where "the standards for accepting or
rejecting contested ballots might vary not only from county to
county but indeed within a single county from one recount team to
another.").
-30-
In Bonas, this Court held that complete
disenfranchisement of all voters, by a municipality's decision not
to hold a municipal election at all, warranted federal
intervention. See 265 F.3d at 75-76. In that case, after the
voters of North Smithfield, Rhode Island agreed in a 1998
referendum to transition the Town from an odd-year election cycle
to an even-year cycle, with the first even-year election to take
place in 2002, town officials, without authorization, held the 1999
election, but held no election in either 2000 or 2001, effectively
disenfranchising all persons eligible to vote in the 2001 municipal
election. Id. at 71-72.
In Barreto Pérez, however, this Court determined that
federal intervention was inappropriate in a case challenging the
decision of the Supreme Court of Puerto Rico where "[the] case
[did] not involve a state court order that dis enfranchise[d]
voters; rather it involve[d] a Commonwealth decision that en
franchise[d] them." 639 F.2d at 828. That case is remarkably
similar to the case at hand. In that case, the disputed ballots
contained marks outside the designated spaces and squares, and
therefore were allegedly invalid under the literal terms of Article
1.033(b) of the Electoral Law of Puerto Rico, which provided that
stray marks such as the ones on the disputed ballots "shall be null
and void, and deemed unmarked." See id. at 826. The Administrator
of the Election Commission ruled the ballots invalid, and his
-31-
decision was upheld on appeal by the Electoral Review Board. See
id. The Supreme Court of Puerto Rico reversed, finding that
despite 16 L.P.R.A. § 3033(b)'s literal prohibition of counting
such mismarked ballots, the provision could be construed as
permitting the tallying of such ballots where the "intent of the
voter was clear." See id. (discussing Puerto Rico Supreme Court
decision). The PNP subsequently brought suit in federal court
pursuant to § 1983, alleging that the Supreme Court of Puerto
Rico's "retroactive" changing of the law after an election violated
the plaintiffs' rights not to be deprived of their liberty and
First Amendment rights without procedural and substantive due
process of law. Id. at 827. The district court agreed, stating
that "[i]n our opinion the lesson to be learned from Griffin is[]
that changing the rules of the game after it has been played and
the score is known, violates fundamental rules of fair play."
Partido Nuevo Progresista v. Gerineldo Barreto-Pérez, 507 F. Supp.
1164, 1174 (D. P.R. 1980). It found that the "counting of ballots
after an election which, under the rules prevalent at the time of
the vote-casting were considered void and invalid, [was] the
practical and functional equivalent of alteration of ballots or of
stuffing the ballot box." Id. On appeal, this court disagreed.
See Barreto Pérez, 639 F.2d at 828.
We emphasized that unlike in Griffin, where the disputed
local action involved the disenfranchisement of a discrete group of
-32-
voters, the local action at issue in Barreto Pérez actually
enfranchised voters. See id. Instead of disenfranchisement, the
plaintiffs in Barreto Pérez claimed that "votes were 'diluted' by
the votes of others, not that they themselves were prevented from
voting." Id. Moreover, the case was also unlike Griffin in that
"had those casting absentee ballots known of their possible
invalidity, many might have gone to the polls and voted in person."
Id. In Barreto Pérez, however, "there was no such reliance upon an
official interpretation of the local election law; no party or
person is likely to have acted to their detriment by relying upon
the invalidity of ballots with marks outside the ballots' drawn
rectangles." Id. The court concluded that the case did not fall
"within the purview of Griffin but within the area delineated by
the Second Circuit, in Powell v. Power, 436 F.2d 84 (1970), as
inappropriate for federal court review in a civil rights action,
lest the federal court 'be thrust into the details of virtually
every election.' Id. at 86." Id.The case presented by the Rosselló Plaintiffs, even
assuming that all claims alleged in their complaint could be
proven, presents even less cause for federal intervention than the
circumstances which we found lacking in Barrreto Pérez. Here,
there is no clearly articulated Commonwealth policy, much less a
statute, to indicate the three-mark split vote ballots were
invalid. At most, the decision of the Commission merely clarified
-33-
previously unsettled law. Furthermore, this case is
distinguishable from Griffin and Bonas, because "this case does not
involve a state court order that dis enfranchise[d] voters; rather
it involves a Commonwealth decision that en franchises them."
Barreto Pérez, 639 F.2d at 828. Therefore, it was an abuse of
discretion for the District Court to determine that the Rosselló
Plaintiffs' complaint could possibly state a claim with grounds for
federal intervention, and as a result, it was necessarily an abuse
of discretion for the District Court to grant a preliminary
injunction preserving jurisdiction in a case in which our Circuit
precedent clearly required the District Court not to intervene.
IV. CONCLUSION
For the above reasons:
The Petitions for Writ of Mandamus are DENIED, as the
District Court has no choice but to remand the Suárez action to the
Supreme Court of Puerto Rico in light our disposition of the
Rosselló appeal.
We VACATE the issuance of the preliminary injunction
with the direction that the District Court dismiss with prejudice
all claims in the Rosselló complaint relating to the adjudication
of the three-mark ballots, and all claims relating to the
simultaneous general canvass/recount issue. The District Court is
also directed to dismiss without prejudice the claims relating to
-34-
the absentee ballots, and any alleged violations of Puerto Rico Law
197.
Because the supplemental materials proffered by the
appellants are unnecessary to our decision, the motions to
supplement the record on appeal are DENIED AS MOOT. We likewise
DENY the appellees' request for judicial notice.
Leave to file an amicus brief is GRANTED to the Puerto
Rico Association of Mayors, the Puerto Rico Commonwealth Employee
Association and the Board of Directors of Cumbre Social, the
Colegio de Abogados de Puerto Rico (oversized brief), Efraím
Cintrón García, and Gerardo Ramírez. We acknowledge the assistance
of amici.
Any petition for rehearing or rehearing en banc must be
filed no later than 12 noon Eastern Standard Time on Tuesday,
December 21, 2004. See Fed. R. App. P. 40(a)(1).
"Concurrence to follow"
-35-
TORRUELLA, Circuit Judge (in additional concurrence).
Although I shared equally with my colleagues in analyzing
the law and determining the outcome of these cases, I find it
appropriate to set forth some additional observations in light of
the circumstances surrounding these appeals.
Although, as expressed in our panel opinion, our circuit
precedents in Griffin, Barreto Pérez, and Bonas finally decide the
issue that the district court should not have intervened in this
case, I wish to point out that this conclusion is based on the
particular facts of this case, which makes Bush v. Gore, 531 U.S.
98 (2000), inapplicable. The present circumstances do not support
a justiciable federal vote-dilution claim by voters who cast
ballots that were clearly valid under rules changed after the
election. See Bush, 531 U.S. at 106-107 (criticizing as
inconsistent with equal protection Miami-Dade County's alteration,
during recount, between 1990 rules for ballot validity and new, ad
hoc rules). What happened here was not a change in Puerto Rico's
established rules with regard to three-mark split vote ballots, but
rather a clarification of the status of the ballots, whose validity
or invalidity had not before been clearly established as a matter
of Puerto Rico election policy.
More important in my opinion, the preeminent truth to be
gleaned from the Bush opinion is that the United States is, first
and foremost, a nation of laws and that the meaning of these laws
-36-
is interpreted by the courts, whose rulings become the Law of the
Land. Thus, notwithstanding the unprecedented nature of the Bush
v. Gore decision, issued in the face of a very divided nation, its
binding finality was accepted by the citizenry as a whole,
irrespective of individual or collective disagreement with its
outcome. Although undoubtedly there was much dissonance, as there
may well presently be in Puerto Rico, the nation turned a
figurative page and acquiesced. This response reflected our
nation's longstanding recognition that:
[c]ompliance with decisions of [the
judiciary], as the constitutional organ
[interpreting] the supreme Law of the Land,
has often, throughout our history, depended on
active support by state and local authorities.
It presupposes such support.
Cooper v. Aaron, 358 U.S. 1, 26 (1958) (Frankfurter, J.,
concurring).
Indeed, the basic principle articulated by Justice
Frankfurter in Cooper is so foundational to our political system
that it is literally set in stone on the very walls of this federal
courthouse: "[T]he responsibility of those who exercise power in a
democratic government is not to reflect inflamed public feeling but
to help form its understanding . . . ." Id. I urge the People of
Puerto Rico, and the parties in these appeals, to remember these
words as they stand at this important crossroads in our shared
history as a society joined by our respect for democratic values,
-37-
underpinned by the rule of law. For, as Justice Frankfurter so
ably stated:
[F]rom their own experience and their deep
reading in history, the Founders knew that Law
alone saves a society from being rent by
internecine strife or ruled by mere brute
power however disguised . . . . The duty to
abstain from resistance to "the supreme Law of
the Land" . . . as declared by the organ of
our Government for ascertaining it, does not
require immediate approval of it nor does it
deny the right of dissent. Criticism need not
be stilled. [However] active obstruction or
defiance is barred . . . .
Id. at 23-25.
As important as the outcome of this election may
presently be, there are more fundamental issues at stake.
"Concurrence to follow."
-38-
HOWARD, Circuit Judge (in additional concurrence).
I have joined in the court's disposition of these cases.
I am less sure about our resolution of certain, discrete issues
raised by the Rosselló appeal, and I identify those concerns here.
1. The district court did not categorize the order
preventing the Commission from adjudicating the ballots. See Fed.
R. Civ. P. 65(d); Ben David v. Travisono, 495 F.2d 562, 563 (1st
Cir. 1974). As I see it, the order might plausibly be
characterized as an All Writs Act Injunction, a traditional
injunction under Fed. R. Civ. P. 65, or a case management order.
Under the first two possibilities, we have appellate jurisdiction
under 28 U.S.C. § 1292(a)(1); under the third we do not. See
Matter of City of Springfield, 818 F.2d 565, 567-68 (7th Cir.
1987).
In the end, we need not decide this issue. Even if the
order is properly characterized as only a case management
directive, we are entitled to review it under our mandamus power.
See Ramírez v. Rivera-Dueño, 861 F.2d 328, 334 (1st Cir. 1988). In
my view, we should do so, given the jurisdictional issue at the
heart of this case, the coercive and intrusive nature of the order,
the federalism and comity concerns that it raises, and the highly
charged circumstances in which it was issued. And because the
question of the order's propriety cannot be decided without an
analysis of whether the Rosselló action is justiciable, I concur in
-39-
the decision to proceed directly to the merits and to order the
action dismissed.
2. Notwithstanding our statement that the district court
has federal question jurisdiction over the case, we have concluded
that the district court abused its discretion by asserting
jurisdiction over it. I would rather we characterize the matter
somewhat differently. There is no question, of course, that the
district court has subject matter jurisdiction of a federal civil
rights claim pleaded under 42 U.S.C. § 1983. The issue is whether
the pleaded federal claim is justiciable. This question is not a
matter of discretion; it is an issue of law. See Bonas v. Town of
N. Smithfield, 265 F.3d 69, 73-75 (1st Cir. 2001). And it is an
issue of law that implicates the court's "jurisdiction" only in the
sense that justiciability is regarded as a jurisdictional doctrine.
See id.
3. Finally, citing Partido Nuevo Progresista v. Barreto
Pérez, 639 F.2d 825, 827-28 (1st Cir. 1980), we have emphasized
that the "change of rules" claim fails because, even if there was
such a change, it would result in enfranchising some voters rather
than disenfranchising them. But after Bush v. Gore, 531 U.S. 98(2000), I cannot discount the possibility that a viable federal
vote-dilution claim might lie in some circumstances where a post-
election rule change has the effect of causing previously invalid
ballots to be adjudicated. I do, however, think that the vote-
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dilution claims pleaded in this case were properly rejected because
I agree with Judge Torruella that, on the pleadings and the record,
only one conclusion is possible: the Commission's ruling involved
only the clarification of previously unsettled law. In my view,
this is not a "change in the rules" sufficient to implicate federal
interests.
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