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


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  •                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
    

Document Info

Docket Number: 12-2328, 12-2329

Citation Numbers: 703 F.3d 146

Judges: Howard, Lipez, Per Curiam, Torruella

Filed Date: 11/5/2012

Precedential Status: Precedential

Modified Date: 8/5/2023