Colon-Marrero v. Mundos-Rios , 703 F.3d 146 ( 2012 )

United States Court of Appeals
For the First Circuit
____________________________
No. 12-2328
MYRNA COLON-MARRERO; JOSEFINA ROMAGUERA AGRAIT
Plaintiffs - Appellees
v.
EDWIN MUNDO-RIOS, as Electoral Commissioner of the New Progressive Party (NPP)
Defendant - Appellant
EDER E. ORTIZ-ORTIZ, as Electoral Commissioner of the Popular Democratic Party (PDP)
Defendant - Appellee
HECTOR J. CONTY-PEREZ, as President of the Puerto Rico State Elections Commission;
ROBERTO I. APONTE-BERRIOS, as Electoral Commissioner of the Puerto Rico
Independence Party (PIP); JULIO FONTANET-MALDONADO, as Electoral
Commissioner of the Movimiento Union Soberanista (MUS); ADRIAN DIAZ-DIAZ,
as Electoral Commissioner of the Puertorriquenos por Puerto Rico (PPR);
CARLOS QUIROS-MENDEZ, as Electoral Commissioner of the Partido del
Pueblo Trabajador (PPT); LILLIAN APONTE-DONES, as Electoral Commissioner
of the Partido del Pueblo Trabajador (PPT)
Defendants
____________________________
No. 12-2329
MYRNA COLON-MARRERO; JOSEFINA ROMAGUERA AGRAIT
Plaintiffs - Appellees
v.
HECTOR J. CONTY-PEREZ, as President of the Puerto Rico State Elections Commission
Defendant - Appellant
EDER E. ORTIZ-ORTIZ, as Electoral Commissioner of the Popular Democratic Party (PDP);
Defendant - Appellee
EDWIN MUNDO-RIOS, as Electoral Commissioner of the New Progressive Party (NPP);
ROBERTO I. APONTE-BERRIOS, as Electoral Commissioner of the Puerto Rico
Independence Party (PIP); JULIO FONTANET-MALDONADO, as Electoral
Commissioner of the Movimiento Union Soberanista (MUS); ADRIAN DIAZ-DIAZ,
as Electoral Commissioner of the Puertorriquenos por Puerto Rico (PPR);
CARLOS QUIROS-MENDEZ, as Electoral Commissioner of the Partido
del Pueblo Trabajador (PPT); LILLIAN APONTE-DONES, as Electoral
Commissioner of the Partido del Pueblo Trabajador (PPT)
Defendants
__________________
Before
Torruella, Lipez and Howard,
Circuit Judges
__________________
JUDGMENT
Entered: November 5, 2012
Per Curiam. We concluded in our order of October 18, 2012 that it would be
improvident to grant plaintiff's requested relief with only 18 days remaining before the general
election. Federal Court intervention on the eve of the election is even more improvident. We are
wholly unpersuaded by the district court's rationale for doing so. Moreover, the district court entered
its orders of November 3 and 4 after we had unanimously denied a similar request for relief in our
order of November 2. The two orders of the district court entered as Docket Numbers 79 and 80 in
the district court action 12-cv-01749-CCC are hereby vacated forthwith.
So ordered.
"Dissenting opinion follows"
Torruella, Circuit Judge, (Dissenting).
I am once again forced to dissent from the decision taken by a majority of this panel.
I believe that the district court acted correctly in seeking to preserve its jurisdiction under the All
Writs Act, that the order does not conflict with the Per Curiam this Court issued on November 2,
2012 and that vacating said order at this point will indeed bring about the uncertainty and confusion
that the panel has feared all along.
The Per Curiam this Court issued on November 2, 2012 clearly stated that the Court
was "persuaded that plaintiff had established a likelihood of success on her federal election claim
under HAVA," but that it was yet to be determined if the remedy could include the reinstatement
of voters in the list of voters for the general elections, as opposed to their reinstatement in the list
of voters for the election for Resident Commissioner alone. Therefore, what the Court considered
to be undetermined is whether it could order the I-8s to be reinstated as active voters in the general
elections. It also found that there were no findings as to the feasibility of ordering the reinstatement
of the voters in question only as to the election for Resident Commissioner. According to the Per
Curiam, the lack of findings as to the feasibility of reinstating the I-8s for purposes of the election
for the Resident Commissioner, along with doubts regarding its own competency and authority to
craft a same day recusal procedure, were major concerns for the majority.
Not content with having succeeded in preventing the I-8s' reinstatement, Defendant-
Appellant sought an order from the Commonwealth's court system to have the State Elections
Commission ("CEE," for its initials in Spanish) produce the I-8 lists so that poll workers could bar
the people appearing on said list who show up at the polling stations from casting provisional ballots
through the "added-by-hand" procedure contemplated the Puerto Rico Election Code and the
provisional ballot contemplated in HAVA.
The Supreme Court of Puerto Rico initially denied Defendant-Appellant Mundo's
attempt to have the case lifted from the Court of First Instance to the Supreme Court by means of
a intrajurisdictional certification. The Supreme Court, in denying the initial request, gave the Court
of First Instance specific instructions on how it expected the latter to decide the issue on the merits.
It also made it clear that I-8 voters who attempted to vote "added-by-hand" could face up to three
years of jail time. Because the Court of First Instance did not act with the speed the Supreme Court
deemed appropriate, the Supreme Court decided to reconsider its prior denial and take up the case
de novo. Thereafter, in a Per Curiam opinion issued on November 3, 2012, it found that I-8 voters
should not be allowed to vote in the "added-by-hand" polling stations and that any such voter who
attempted to do so could face up to three years imprisonment. As Plaintiff-Appellee points out, the
Supreme Court only interpreted the I-8 voters' right to cast provisional ballots under the Electoral
Code. It thus "left the federal issue to be adjudicated . . . by the [District] Court." Response to
Appellant Mundo-Ríos' Emergency Motion for a Stay Pending Appeal and/or Urging Immediate
Vacatur, and in the Alternative a Writ of Mandamus, at 6.
Given the above scenario Plaintiff-Appellees requested that the district court issue
a remedy to safeguard the right of the I-8 voters to cast provisional ballots pursuant to HAVA. The
district court thus issued an order under the All Writs Act, 28 U.S.C. § 1651(a) with the sole and
exclusive purpose of preserving its jurisdiction over Plaintiff-Appellees' federal and constitutional
law claims. The order states that it "does not contemplate the actual, immediate reactivation on
November 6 of any I-8 voters." It does, however, seek to "preserve its power to ultimately resolve
the controversies before it instead of engaging in an exercise of futility."
In my view the district court's order does not contradict the Per Curiam issued by this
Court on November 2, 2012. The Per Curiam related to the Court's reasons for denying a preliminary
injunction which sought the reinstatement of the I-8 voters to the active voter list. The effect of
having issued the preliminary injunction would have been that the ballots cast by the I-8s on election
day would have been considered valid live ballots since the moment they were cast. The ballots that
would have been cast pursuant to the district court's order, by contrast, would have been provisional
ballots that would have only been counted once the validity of the constitutional and federal law
claims was established.
I consider the district court's order to be a valid attempt by the district court to
preserve its jurisdiction to determine if relief for Plaintiff-Appellees' constitutional and federal law
claims is proper. On November 2, 2012, I reluctantly joined the other members of the panel in
denying Plaintiff-Appellants' request for emergency relief. I note, however, that I did so only because
I did not consider that this Court could fashion such a remedy moments after the Per Curiam issued.
Evidently, the situation is different now that the district court has taken appropriate steps to preserve
its jurisdiction. In my view, the district court's order deserves deference and should be left untouched
especially given that the President of the CEE, Defendant-Appellant Héctor Conty-Pérez has
manifested both on the radio and via the written media in Puerto Rico that he has already fully
complied with the district court's orders. The undersigned personally heard him state on the radio
that ballots were sent to the "added-by-hand" polling stations to accommodate the I-8s who seek to
cast provisional ballots and that the district court's order had been translated, published and would
be posted tomorrow at every polling station. This Court's vacation of the district court's order will
in fact now bring about the chaos that has been predicted.
I dissent.
cc:
Carmen Consuelo Cerezo, Judge, US District Court of Puerto Rico
Frances Rios de Moran, Clerk, US District Court of Puerto Rico
Carlos Del Valle Cruz, Rafael Garcia-Rodon, Carlos Hernandez Lopez, Juan Saavedra-Castro, Jose
Nieto-Mingo, Claudio Aliff-Ortiz, Seth Erbe, David Indiano-Vicic, Johanna Emmanuelli Huertas,
Josege Martinez-Luciano, Pedro Ortiz-Alvarez, Emil Rodriguez Escudero, Marcos Valls-Sanchez,
Nelson Cordova-Morales, John Mudd