Rosselló-Gonzá v. CalderóN-Serra, No. 04-2610 (Fed. 1st Cir. 1/28/2005), 04-2610.
| Decision Date | 28 January 2005 |
| Docket Number | No. 04-2610.,No. 04-2612.,No. 04-2613.,No. 04-2611.,04-2610.,04-2611.,04-2612.,04-2613. |
| Parties | 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. 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. IN RE GERARDO A. CRUZ, Petitioner. IN RE STATE ELECTIONS COMMISSION, AURELIO GRACIA-MORALES, President of the State Elections Commission, Petitioners. |
| Court | U.S. Court of Appeals — First Circuit |
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO; [Hon. Daniel R. Domínguez, U.S. District 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.
Before Torruella, Circuit Judge, Stahl, Senior Circuit Judge, and Howard, Circuit Judge.
CORRECTED OPINION
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 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.
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 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 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 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, Gracia's decision was memorialized in a written resolution of the Commission.
1. The Federal and State Court Actions
On November...
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