Diffenderfer v. Gomez-Colon
| Decision Date | 02 September 2008 |
| Docket Number | Civil No. 08-1918 (JAF). |
| Citation | 587 F.Supp.2d 338 |
| Court | U.S. District Court — District of Puerto Rico |
| Parties | Sylvia DIFFENDERFER, et al., Plaintiffs, v. Ramon E. GÓMEZ-COLÓN, et al., Defendants. |
Claudio Aliff-Ortiz, Michael C. McCall, Simone Cataldi-Malpica, Aldarondo & Lopez Bras, Guaynabo, PR, for Plaintiffs.
Plaintiffs, Sylvia Diffenderfer and Robert McCarroll, bring this action on behalf of themselves and as representatives of a class of eligible voters in Puerto Rico who do not speak Spanish, against Defendants, Ramón Gómez-Colón, President of the State Electoral Commission of the Commonwealth of Puerto Rico ("SEC"); Gerardo Cruz-Maldonado, Electoral Commissioner of the Popular Democratic Party ("PDP"); Juan Dalmau-Rodríguez, Electoral Commissioner of the Puerto Rican Independence Party ("PIP"); Nelson Rosario-Rodríguez, Electoral Commissioner of the Puerto Ricans for Puerto Rico Party ("PPR"); and Walter Vélez-Rodríguez, Secretary of the SEC, challenging Puerto Rico's Spanish-only ballot system. Docket No. 1. In addition to monetary damages and attorneys' fees, Plaintiffs seek an injunction requiring the Commonwealth of Puerto Rico to print ballots for the 2008 elections in both English and Spanish. Id.
For the reasons stated below, we find in Plaintiffs favor and grant injunctive relief as requested.
Unless otherwise noted, we derive the following factual summary from the pleadings, motions, and exhibits, Docket Nos. 1, 18, 19, 21, 25, 26, 39, and from the facts developed at the show-cause hearing, Docket No. 44.1
According to the 2000 national census, 14.4 percent of Puerto Rico residents over age five speak only English.2 Nevertheless, ballots for Commonwealth elections are and always have been printed in Spanish only, with three general exceptions.3
Lead Plaintiffs are two residents of the Commonwealth of Puerto Rico who cannot speak, understand, read or write in Spanish. Diffenderfer is a United States citizen and resident of Gurabo who has lived in Puerto Rico for the past fourteen years. She has not registered to vote or attempted to vote in previous elections because she felt that she would be unable to fill out the ballot correctly, since she does not read or understand Spanish. However, she registered to vote in the November 2008 election because she had heard that the ballots would be bilingual. McCarroll is a United States citizen and resident of Carolina who has lived in Puerto Rico for the past fifteen years. He registered to vote in Puerto Rico prior to the 2004 election and attempted to vote in 2004 but found the ballots to be confusing. Plaintiffs McCarroll and Diffenderfer seek to represent all persons in Puerto Rico who speak, understand, read, and write in English, but not in Spanish.
Defendants are members of the SEC, which is composed of a chairman and four electoral commissioners. 16 L.P.R.A § 3004 (2000 & Supp.2005). Each electoral commissioner represents one of the four political parties registered with the SEC.4 Id. Election regulations must be agreed upon by a unanimous vote of the commissioners; absent a unanimous decision, the chairman alone determines official policy on the matter. 16 L.P.R.A. § 3214 (2000).
At an SEC meeting on April 16, 2008, José Enríquez Meléndez Ortiz ("Meléndez"), alternate commissioner for the NPP, proposed that ballots be printed in both Spanish and English. The commissioner for the NPP stated that he was in favor of bilingual ballots, while the commissioner for the PIP opposed them. The commissioners for the PDP and the PPR both stated that they would let the SEC know the positions of their parties at a later date. The SEC chairman decided to table the issue until the second week of May 2008. However, the SEC never discussed bilingual ballots again.
Over the next several months, Meléndez repeatedly asked the SEC secretary whether the chairman had made a determination as to whether ballot materials would be printed in both English and Spanish. The secretary repeatedly responded that there had been no resolution. On July 31, 2008, the chairman issued a one-page resolution denying the request for bilingual ballots. Pls.' Ex. 2. The resolution adopted a 2004 resolution determining that the Voting Rights Act, 42 U.S.C. §§ 1973 to 1973aa-6, did not apply to Puerto Rico. Pls.' Ex. 3.
On August 19, 2008, Plaintiffs filed the present complaint in federal district court, requesting declaratory and injunctive relief, nominal damages, and attorneys' fees. Docket No. 1. On August 26, 2008, Defendant Gómez-Colón filed a brief, Docket No. 18, and Defendant Cruz-Maldonado filed a motion to dismiss, Docket No. 20, and a motion opposing class certification, Docket No. 26. On the same day, Defendant Rosario-Rodriguez filed an answer and a memorandum of law urging us to grant the injunctive relief requested by Plaintiffs. Docket Nos. 19, 21. Also on the same day, Plaintiffs filed a brief. Docket No. 25. On August 27, 2008, we held a show-cause hearing as to why we should not grant the injunctive relief requested by Plaintiffs. Docket No. 33.
In its pre-hearing brief and initially during the show-cause hearing, Defendants sought to establish that it would be impossible to print bilingual ballots in time for the November 2008 election.5 However, Defendants failed to introduce any authoritative testimony to this effect. Despite Defendants' avoidance of the matter, we insisted on hearing the testimony of Angel Figueroa, the manager of the printing company that has been contracted to print the 2008 ballots. Figueroa testified that he could print bilingual ballots in time, at an additional cost. On August 29, 2008, Plaintiffs submitted a letter from Figueroa stating that the increase in cost would be $26,472.00.6 Docket No. 39.
This court has jurisdiction under 28 U.S.C. §§ 1331 and 1343. Under Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), we may grant prospective injunctive relief to prevent a continuing violation of federal law. Although Plaintiffs were not parties before the SEC, and never sought state court review, there is no exhaustion requirement to their claims.
In our Order to Show Cause, Docket No. 5, we stated that we expected to hear and receive all the available testimonial and documentary evidence, including any relevant testimony by Defendants. At the conclusion of the hearing, the parties did not object to our statement that they had presented all evidence relevant to the issues at bar. Therefore, there is no impediment to treating this matter as a trial on the merits under Federal Rule of Civil Procedure 65(a)(2).
Plaintiffs request class certification under Federal Rule of Civil Procedure 23. Docket No. 1. Only Defendant Cruz-Maldonado opposes. Docket No. 26.
Rule 23 provides that we may certify a class if: "(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will adequately protect the interests of the class." Fed.R.Civ.P. 23(a).
The class of monolingual English speakers eligible to vote in Puerto Rico is numerous enough that joinder of all members is impracticable. All members of this class are, by definition, unable to vote using a Spanish-only ballot without some assistance. All therefore possess a common legal claim for the right to use bilingual ballots. The representative Plaintiffs, Diffenderfer and McCarroll, appear to have typical constitutional claims. Finally, they both testified that they would pursue the legal action to its conclusion; therefore, we find that they will adequately protect the interests of the class. None of Cruz-Maldonado's arguments convince us otherwise. See Docket No. 26.
Accordingly, we certify this case as a class action.
Defendants argue that Plaintiffs' claims are barred by Puerto Rico's one-year statute of limitations because Plaintiffs have lived in Puerto Rico for several election cycles and have not challenged Puerto Rico's Spanish-only ballot system. Docket No. 20; see Morales-Tañon v. P.R. Elec. Power Auth., 524 F.3d 15, 18 (1st Cir.2008) (). However, "[t]he continued enforcement of an unconstitutional statute cannot be insulated by the statute of limitations." Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516, 522 (6th Cir.1997) (quoting Va. Hosp. Ass'n v. Baliles, 868 F.2d 653, 663 (4th Cir.1989)) (internal quotation marks omitted). Accordingly, Plaintiffs' claims for injunctive relief are not time-barred.
Plaintiffs raise a number of arguments against Puerto Rico's Spanish-only ballot system. Because we find that the Spanish-only ballots violate the Voting Rights Act, the Equal Protection Clause, and the First Amendment, we grant the injunctive relief requested, for the reasons stated below.
The application of the Voting Rights Act ("VRA") is a matter of first impression in a mainly Spanish-speaking jurisdiction like Puerto Rico. Section 2 of the VRA prohibits any state or political subdivision from imposing any "standard, practice, or procedure" that "results in a denial or abridgement of the right of any citizen of the United States to vote" on the basis of race, color, or membership in a language minority group. 42 U.S.C. §§ 1973(a), 1973b(f)(2). Originally, the VRA applied only to practices that discriminated on the basis of race; however, in 1975 Congress extended the VRA to members of certain language minorities. Pub.L. No. 94-73, 89 Stat. 400 (1975). After the Supreme Court held that § 2 required a plaintiff to...
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Diffenderfer v. Gomez-Colon
...the Voting Rights Act, the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment. See Diffenderfer v. Gomez-Colon, 587 F.Supp.2d 338 (D.P.R.2008). On September 5, 2008, Ramon Gomez-Colon, the President of the filed a notice of appeal.1 In the meantime, the Commission ......