Partido Nuevo Progresista v. GERINELDO BARRETO PEREZ
| Decision Date | 24 December 1980 |
| Docket Number | Civ. No. 80-2420. |
| Citation | 507 F. Supp. 1164 |
| Parties | PARTIDO NUEVO PROGRESISTA, Rafael Rodriguez Aguaya Miguel Tirado and Luis Rodriguez Suarez, Plaintiffs, v. GERINELDO BARRETO PEREZ, Administrator, Puerto Rico Elections Commission, Defendant, Partido Popular Democratico, Intervenor. |
| Court | U.S. District Court — District of Puerto Rico |
Héctor M. Laffitte, Giselle López Bajandas, Enrique Bray, Héctor Reichard, Jr., Hato Rey, P. R., for plaintiffs.
Miguel Pagán, San Juan, P. R., for defendant.
Lino J. Saldaña, Santurce, P. R., for intervenor.
This controversy arises as a by-product of the general elections held in Puerto Rico on November 4, 1980 which resulted in the closest political contest in the Commonwealth's history.
Out of approximately 1,700,000 voters who cast their ballots for the four contending parties (the New Progressive Party, NPP; the Popular Democratic Party, PDP; the Puerto Rican Independence Party, PIP; and the Puerto Rican Socialist Party, PSP), the gubernatorial race was won by the NPP contender over the PDP candidate by 3,503 votes, which is less than .5% of the total votes cast.1 The mayoral outcome in several of the municipal elections is also hotly contested, with the results being decided by very few votes: Juana Díaz (14 votes), Trujillo Alto (15 votes), Aguas Buenas (5 votes), Barranquitas (28 votes).
This contest is even more dramatic in House of Representatives District 35 (which is comprised of the Municipalities of Fajardo, Vieques, Culebra, Río Grande, Luquillo and Precinct 102 of Ceiba). In this District the NPP leads the PDP by 5 votes, out of a total of approximately2 48,392 votes cast. Whichever of these two parties wins District 35, it will also win control of the House of Representatives, by one seat. The PDP has already won control of the Senate, 15 seats to the PNP's 12 seats.
Against this stimulating background we come to the controversy in the present case.
Article 1.033(b) of the Electoral Law of Puerto Rico, which has been in effect since December 20, 1977, codified at 16 L.P.R.A. § 3033(b), states as follows:
(Emphasis supplied).
The Procedure Manual for Election Officials ("Manual de Procedimientos Para Funcionarios de Colegio y Coordinadores de Unidad Electoral") prepared by the Election Commission, which is composed of one commissioner from each party as well as the General Administration of Elections, states in Section 32 thereof as follows:
"Any mark of those considered as valid (except for names or initials) that appear in the blank spaces of the write-in column, or in other spaces outside of the columns of the parties shall be deemed as not having been made." (Translation and emphasis supplied).
Other language in that section of the Manual states as follows:
Throughout this Manual there are also various examples of marked ballots, all of which indicate the marking inside the ballot squares.
We also take notice of the fact that throughout the pre-election period the Electoral Commission and the various parties carried out massive, Island-wide voter education programs in the various news media in which the proper method of voting was duly explained and emphasized. In fact, one of the parties here in contention, the PDP, has had as its major party slogan since 1940: "Una sola cruz debajo de la pava" — "One cross only beneath the strawhat."3 (Translation and emphasis ours).
As things would have it however, somewhere between 500 and 1000 voters throughout Puerto Rico marked their ballots outside "the space under the printed insignia or device of the party" or outside "the square in which a candidate's name appears."4 Although the exact number is not presently known5 there is no question that a number of these disputed ballots were cast in Juana Díaz, Trujillo Alto, Aguas Buenas, Barranquitas, and Representative District 35. Furthermore we harbor no doubts but that these disputed votes almost exclusively favor the PDP and are in sufficient numbers to decide the final outcome of those elections.
On November 14, 1980, Gerineldo Barreto Pérez, the Administrator of the Puerto Rico Election Commission, ruled that pursuant to Article 1.033(b) of the Electoral Law, supra, the ballots in question were null and void. This ruling was appealed by the PDP to the Electoral Review Board where it was upheld on November 17, 1980. Thereafter the PDP sought review before the Supreme Court of Puerto Rico. The NPP intervened in the proceeding before the Supreme Court, the consequences of which we shall presently discuss in further detail. On December 2, 1980 the Supreme Court reversed the Electoral Review Board and ordered the validation and counting of these ballots (Case Number 0-80-646, reported at 108 D.P.R. ___ (1980).
On December 4, 1980 the complaint was filed in this case. The Plaintiffs are the NPP, Miguel Tirado González, as a resident of Carolina who voted in that municipality, Luis Rodríguez Suárez also a Carolina voter, and Rafael Rodríguez Aguayo, a San Juan voter-resident. Tirado González is Undersecretary of the NPP and Rodríguez Aguayo is its General Secretary. The Defendant is Gerineldo Barreto Pérez, who as previously indicated, is the Administrator of the Elections Commission. Claiming violation of Federal constitutional rights under the First, Fifth and Fourteenth Amendments of the Constitution, and invoking the protection of the Civil Rights Act, 42 U.S.C. § 1983, Plaintiffs seek a declaratory judgment and injunctive relief to prevent Defendant from counting the questioned ballots.
This Court ordered Plaintiffs to notify all other political parties of the filing of this action, and on December 17, 1980 the PDP intervened herein and filed an answer. The PIP and PSP have not entered an appearance herein.
On December 18 and 19, 1980 a consolidated hearing on preliminary and permanent injunction6 was held with the full participation of all parties hereto.
Intervenor PDP has challenged the jurisdiction of this Court, alleging that the Supreme Court of Puerto Rico has the exclusive jurisdiction to determine the validity of the votes in question pursuant to its interpretation of the Laws of Puerto Rico, and that any appeal from such a decision can be made only to the Supreme Court of the United States within the limited range provided by 28 U.S.C. § 1258. The PDP also claims that since the NPP intervened in the Supreme Court review, the NPP and all persons in privity (which allegedly includes individual Plaintiffs all of whom are NPP officers and/or members) are bound and prevented by the principles of res judicata and collateral estoppel from challenging said decision in this Court. Finally, Intervenor questions the standing of the individual Plaintiffs to challenge the counting of the questioned ballots in any precinct other than that in which they cast their ballot in the November 4, 1980 elections.
All of these questions are closely intertwined.
The jurisdiction of this Court is clearly established by 42 U.S.C. § 1983 and its procedural counterparts in 28 U.S.C. 1343(a)(3) and (4). Examining Board of Engineers, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976); Griffin v. Burns, 570 F.2d 1065, 1070 (C.A.1, 1978).
42 U.S.C. 1983 reads in its pertinent part as follows:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress...."
28 U.S.C. 1343(a)(3) and (4) in their pertinent parts state:
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...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 tim......
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Rosselló-Gonzá v. CalderóN-Serra, No. 04-2610 (Fed. 1st Cir. 1/28/2005), 04-2610.
...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......