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.
No. 04-2610.
No. 04-2611.
No. 04-2612.
No. 04-2613.
United States Court of Appeals, First Circuit.
Heard December 10, 2004.
Decided December 15, 2004.
Corrected January 28, 2005.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED 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 Anibal 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.
TORRUELLA, Circuit Judge; STAHL, Senior Circuit Judge; and HOWARD, Circuit Judge.
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.
I. BACKGROUND
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 10, 2004, the Rosselló Plaintiffs filed a complaint against the Acevedo Defendants in the District Court that asserted various federal constitutional claims under 42 U.S.C. § 1983 arising out of the November 2, 2004 election. On November 12, 2004, an amended complaint was filed alleging that the Commission's decision to (1) regard the three-mark ballots as valid and count the votes contained therein, (2) suspend the recount pending completion of the general canvass,14 and (3) disregard certain late-filed absentee ballots15 violated a variety of their federal constitutional rights.16 The Rosselló Plaintiffs sought declaratory and injunctive relief in connection with the above challenges.17 The District Court scheduled a hearing for November 18, 2004.18
Meanwhile, on November 16, 2004, the Suárez Plaintiffs, who claim to have cast three-mark ballots, filed suit in the Court of First Instance seeking, among other things, a declaratory judgment as to the validity of the three-mark ballots and an injunction requiring the Commission to adjudicate the ballots.19 The Suárez Plaintiffs insisted that an invalidation of the ballots would deprive them of their right to vote and, thus, their "right to due process of law and to equal protection under the law."20
The Court of First Instance dismissed the Suárez action without prejudice on November 18, 2004 on the ground that no actual controversy existed because the Commission had already upheld the validity of the ballots.21 That same day, the Suárez Plaintiffs, concerned that the validity of the ballots had not been adequately established, requested that the Supreme Court of Puerto Rico review the Court of First Instance's dismissal. The Supreme Court agreed to do so. On the morning of November 20, 2004, the Commissioner of the NPP and the NPP itself, defendants in the Suárez action, removed the action to the District Court. Notice of removal was filed with the Supreme Court at 11:48 a.m. In response, the Suárez Plaintiffs and a defendant in the Suárez action, alleging various procedural defects in removal,22 as well as lack of federal jurisdiction, moved the District Court to remand. Soon thereafter, two mandamus petitions were filed in this court, each one seeking an order requiring that the District Court remand the action.
Despite the removal, the Supreme Court purported to enter a judgment on the Suárez action on the evening of November 20, 2004. By a vote of four to three, it ordered that the three-mark ballots were to be adjudicated as containing valid votes for the marked candidates for Governor and Resident Commissioner, as well as the identified party for purposes of maintaining its principal party status. See supra note 7.
On November 20, 2004, the District Court issued an order in the Rosselló action that the Commission "set aside and segregate" the three-mark ballots and refrain from announcing the winner of the gubernatorial election. Then, on November 24, 2004, the District Court issued an order that: (1) stated that the Supreme Court's judgment was void because the removal rendered the Supreme Court without jurisdiction to enter the judgment;23 and (2) ordered that a recount be conducted by "counting the number of [three-mark] split ballots, identifying and segregating the same, but not adjudicating the ballots." (Emphasis in original.) The Acevedo Defendants appealed from the order that the three-vote ballots not be adjudicated.
II. THE PETITIONS FOR MANDAMUS
We begin with the two Emergency Petitions for Writ of Mandamus that request we exercise our power of mandamus and instruct the District Court to remand the Suárez action to the Puerto Rico courts. These mandamus petitions contest the validity of removal on two principal grounds: (1) the absence of federal question jurisdiction over the Suárez action, and (2) the failure of the removing parties to obtain the consent of all Suárez action defendants (including Petitioners) to removal. Since both petitions are substantially the same, they will be discussed as one.
We note at the outset that we have given the District Court ample opportunity to decide whether removal of the Suárez action was proper, and despite the time-sensitive nature of this case, and three weeks of hearings on the merits of the Rosselló action which has been consolidated with this case for appeal, we are now faced with the extreme decision of whether we should compel remand through a Writ of Mandamus.
In order to stave off the need for mandamus, we invited the District Court to address these mandamus petitions. In response, the court appended a footnote to the opinion of November 30, 2004 in which the District Court asserted jurisdiction over the parallel federal case. Pedro Rosselló, et al. v. Sila M. Calderon, et al., No. 04-2251, slip op. at 3, n. 2 (D.P.R. Nov. 30, 2004). The footnote indicated that a hearing was needed to properly evaluate the jurisdictional issues raised in the pending motions to remand. Specifically, the District Court indicated: (1) that the Suárez Plaintiffs' complaint had alleged violations of due process and equal protection without specifying whether the source of these protections was the Commonwealth or Federal Constitution; (2) that federal jurisdiction might be required under Franchise Tax Board v. Construction Laborers Vacation Trust,
Following a hearing on December 8, 2004, the District Court issued an opinion resolving various challenges to the removal jurisdiction. Manuel R. Suárez, et al. v. Comision Estatal de Elecciones, et al., No. 04-2288, slip op. (D.P.R. Dec. 10, 2004)(hereinafter "Remand Opinion"). In that opinion, the District Court held that "examining the evidence in the light most favorable to the defendants ... an overvote issue may exist[ ] in violation of Due Process and Equal Protection principles under the case of Bonas v. Town of North Smithfield,
A. Availability of Mandamus
Although it is an extraordinary remedy, mandamus can be appropriate in those rare cases in which the issuance (or non-issuance) of an order (1) raises a question about the limits of judicial power, (2) poses a risk of irreparable harm to the appellant, and (3) is plainly erroneous. See Christopher v. Stanley-Bostitch, Inc.,
B. Validity of Removal
We find that the exercise of removal jurisdiction is plainly erroneous in this case because no federal question was presented in the Suárez action either procedurally (because the four corners of the complaint do not plead a federal question) or substantively (because we have decided in the Rosselló action that the federal courts will not intervene in a local electoral dispute). Because we find that remand to the Puerto Rico Supreme Court is necessary due to the absence of a federal question, we do not address the petitioners' second argument, that removal was improper because it did not receive the consent of all defendants to the Suárez action.
1. Well-Pleaded Complaint Rule
A case may be removed to federal court if it presents a "claim or right arising under the Constitution, treaties or laws of the United States." 28 U.S.C. § 1441(b). "The Supreme Court of the United States has made clear that, in deciding (for removal purposes) whether a case presents a federal `claim or right,' a court is to ask whether the plaintiff's claim to relief rests upon a federal right, and the court is to look only to plaintiff's complaint to find the answer." Hernández-Agosto v. Romero-Barceló,
Read as a whole, we cannot say that this complaint presents a claim under the Federal Constitution. No explicit reference to the United States Constitution or any other federal law is contained in the complaint; instead, all references are to Puerto Rico state laws, regulations, and the Commonwealth Constitution. Specifically, paragraph 11 of the complaint bases the Suárez Plaintiffs' claims in the right to vote guaranteed in Article II, Section 2, of the Commonwealth Constitution. The complaint's subsequent references to the plaintiffs' rights to vote and to have their votes counted in accordance with equal protection and due process, while not expressly premised on the Puerto Rico Constitution, logically refer back to the antecedent citation to Article II, Section 2 of the Commonwealth Constitution.
Moreover, it is well-settled that "the plaintiff [is] the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar Inc. v. Williams,
2. Artful Pleading Doctrine
The Respondents invite this court to consider the possibility that the Suárez Plaintiffs engaged in artful pleading, a "corollary of the well-pleaded complaint rule that a plaintiff may not defeat removal by omitting to plead necessary federal questions in a complaint." Franchise Tax Bd.,
3. Federal Ingredient
Respondents also argue that even in the absence of a claim arising under federal law on the face of plaintiffs' well-pleaded complaint, federal removal jurisdiction is still proper under the Supreme Court's statement in Franchise Tax Board that removal would be appropriate "if a well-pleaded complaint established that [the plaintiff's] right to relief under state law requires resolution of a substantial question of federal law."
Federal ingredient jurisdiction remains "controversial," Almond,
[t]he Supreme Court has periodically affirmed this basis for jurisdiction in the abstract ..., occasionally cast doubt upon it, rarely applied it in practice, and left the very scope of the concept unclear. Perhaps the best one can say is that this basis endures in principle but should be applied with caution and various qualifications.
Id. (internal citations and footnote omitted); see also Metheny v. Becker,
Respondents hang their jurisdictional hat on two doctrines that they allege exist in the caselaw of the Puerto Rico Supreme Court. The first stems from the Puerto Rico Supreme Court's statements in a 1964 case that, in accepting the Commonwealth's Bill of Rights, the United States Congress "was to presume — and in fact it is so and ought to be — that the public powers and the courts of the Commonwealth shall render effective and construe the provisions of the [Puerto Rico] Bill of Rights in a manner consistent with the protection afforded ... by the same or similar provisions of the Constitution of the United States." R.C.A. Communications, Inc. v. Gov't of the Capital,
[W]hen the question before us refers to the validity of a state law under a clause of the state constitution that is similar to a clause in the federal Constitution ... the issue is a mixed question of federal and state rights that must be resolved by the federal court, because the validity of the statute under the federal Constitution necessarily disposes of the question under state law.... In these circumstances we must refuse certification, since our decision would be only advisory.
Pan Am. Computer Corp. v. Data Gen. Corp.,
These arguments fundamentally misconstrue the federal ingredient doctrine. Whether a state court will adopt as the meaning of the state's constitution the federal courts' interpretation of parallel language in the United States Constitution is a matter of state law. See, e.g., Nieves,
4. Effect of the Rosselló Decision
Lastly, and perhaps most significantly, the Suárez complaint cannot be said to state a federal question, because, as we will discuss now, the federal courts will not intervene in a local electoral dispute such as this. Although we find that it was plain error for the District Court not to remand the Suárez action back to the Puerto Rico courts on the basis of the well-pleaded complaint rule, and therefore we could issue a Writ of Mandamus compelling remand, we realize that the District Court now has the benefit of both our above discussion and our decision in the Rosselló action. Therefore, we are confident that the District Court will immediately remand the Suárez action back to the Supreme Court of Puerto Rico without the need for mandamus.
III. APPEAL OF THE NON-ADJUDICATION ORDER
We now turn to the appeal of the non-adjudication order that is before us in connection with the Rosselló action. We have repeatedly held that federal courts "normally may not ... undertake the resolution of `garden variety election irregularities.'" Bonas,
A. Nature of Our Review
The Acevedo Defendants are presently before us seeking review of the District Court's issuance of a preliminary injunction to segregate, but not adjudicate, all three-mark split vote ballots cast during the November 2, 2004 election. It appears from the language in the order implementing the injunction that the District Court issued the injunction merely to preserve its jurisdiction, and therefore we will treat it as such.27
B. Temporary Injunctions to Preserve Jurisdiction
Congress has provided "[t]he Supreme Court and all courts established by Act of Congress [with the authority to] issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). Acting pursuant to § 1651(a), a federal court may issue an injunction as a means to preserve its jurisdiction. See, e.g., Klay v. United Healthgroup, Inc.,
Our review is for abuse of discretion. Klay,
C. Federal Jurisdiction Over § 1983 Complaints
Having determined that we must inquire whether the District Court should have intervened in this local election dispute based on the claims alleged in the complaint, our first step necessarily begins at the broadest level — that is, whether the District Court had federal subject matter jurisdiction over the action. See Bonas,
In Griffin, we set forth the analytical framework to evaluate whether a federal court could exercise jurisdiction over a local electoral dispute. See
There is no doubt that the Rosselló complaint alleges the violation of a constitutionally guaranteed right, and thus, presents a colorable claim under § 1983 for subject-matter-jurisdiction purposes. The Federal Constitution protects the right of all qualified citizens to vote in local elections. See Bonas,
As mentioned above, and discussed more extensively below, "[e]lection law, as it pertains to state and local elections, is for the most part a preserve that lies within the exclusive competence of the [local] courts." Bonas,
D. District Court's Decision to Intervene
As discussed above, we review the decision of the District Court to intervene in this local election dispute for abuse of discretion. Klay,
Here, the final decision under Puerto Rico law to adjudicate all three-mark ballots under one consistent standard does not disenfranchise any Puerto Rico voters — indeed, it is the position espoused by the Rosselló Plaintiffs that stands to disenfranchise an estimated 28,000 voters. Thus, because the Rosselló Plaintiffs cannot claim that federal intervention is necessary because a discrete group of voters has been disenfranchised, and because they cannot allege any other harm sufficient to overcome the general rule of non-intervention,29 we conclude that it was an abuse of discretion for the District Court to intervene in this local election dispute.
In Griffin v. Burns, this Court determined that federal intervention into a state election was appropriate where a significant percentage of the qualified and voting electorate was, in effect, denied its vote. See
In Bonas, this Court held that complete disenfranchisement of all voters, by a municipality's decision not to hold a municipal election at all, warranted federal intervention. See
In Barreto Pérez, however, this Court determined that federal intervention was inappropriate in a case challenging the decision of the Supreme Court of Puerto Rico where "[the] case [did] not involve a state court order that dis enfranchise[d] voters; rather it involve[d] a Commonwealth decision that en franchise[d] them."
We emphasized that unlike in Griffin, where the disputed local action involved the disenfranchisement of a discrete group of voters, the local action at issue in Barreto Pérez actually enfranchised voters. See id. Instead of disenfranchisement, the plaintiffs in Barreto Pérez claimed that "votes were `diluted' by the votes of others, not that they themselves were prevented from voting." Id. Moreover, the case was also unlike Griffin in that "had those casting absentee ballots known of their possible invalidity, many might have gone to the polls and voted in person." Id. In Barreto Pérez, however, "there was no such reliance upon an official interpretation of the local election law; no party or person is likely to have acted to their detriment by relying upon the invalidity of ballots with marks outside the ballots' drawn rectangles." Id. The court concluded that the case did not fall "within the purview of Griffin but within the area delineated by the Second Circuit, in Powell v. Power,
The case presented by the Rosselló Plaintiffs, even assuming that all claims alleged in their complaint could be proven, presents even less cause for federal intervention than the circumstances which we found lacking in Barreto Pérez. Here, there is no clearly articulated Commonwealth policy, much less a statute, to indicate the three-mark split vote ballots were invalid. At most, the decision of the Commission merely clarified previously unsettled law. Furthermore, this case is distinguishable from Griffin and Bonas, because "this case does not involve a state court order that disenfranchise[d] voters; rather it involves a Commonwealth decision that en franchises them." Barreto Pérez,
IV. CONCLUSION
For the above reasons:
The Petitions for Writ of Mandamus are DENIED, as the District Court has no choice but to remand the Suárez action to the Supreme Court of Puerto Rico in light our disposition of the Rosselló appeal.
We VACATE the issuance of the preliminary injunction with the direction that the District Court dismiss with prejudice all claims in the Rosselló complaint relating to the adjudication of the three-mark ballots, and all claims relating to the simultaneous general canvass/recount issue. The District Court is also directed to dismiss without prejudice the claims relating to the absentee ballots, and any alleged violations of Puerto Rico Law 197.
Because the supplemental materials proffered by the appellants are unnecessary to our decision, the motions to supplement the record on appeal are DENIED AS MOOT. We likewise DENY the appellees' request for judicial notice.
Leave to file an amicus brief is GRANTED to the Puerto Rico Association of Mayors, the Puerto Rico Commonwealth Employee Association and the Board of Directors of Cumbre Social, the Colegio de Abogados de Puerto Rico (oversized brief), Efraim Cintron Garcia, and Gerardo Ramirez. We acknowledge the assistance of amici.
Any petition for rehearing or rehearing en banc must be filed no later than 12 noon Eastern Standard Time on Tuesday, December 21, 2004. See Fed. R.App. P. 40(a)(1).
Notes:
Notes
Luis Fortuno, the NPP candidate for Resident Commissioner, is also a Plaintiff-Appellee
Sila M. Calderón-Serra, the incumbent Governor, and Acevedo's Incoming Government Transition Committee are likewise Defendants-Appellants
The following are the defendants in the Suárez action: (1) the Commission, (2) the President of the Commission, (3) the three Commissioners, (4) Rosselló, and (5) the NPP
The Resident Commissioner is Puerto Rico's non-voting representative in Congress
The ballot is reproduced in Appendix A of this Opinion
The Commission has determined that such a ballot reflects a vote for the desired candidate and the remaining candidate under the party insignia
As determined by the Commission,see infra, a three-mark split vote ballot reflects a vote for the two marked candidates, as well as a vote for the party. A vote for a party on a three-mark ballot is credited to the party itself (and not to any of its candidates) for purposes of its reclassification as a "principal party," which entitles it to certain benefits, including the right to receive funding. See 16 P.R. Laws Ann. §§ 3003, 3116. A party is a principal party if, for example, it "obtained a number of votes under... its insignia on the ballot of Governor and Resident Commissioner[] of not less [than] seven (7) percent of the total number of votes cast for all the parties' insignias in the preceding general election." § 3003(42) (second alteration in original).
See 16 P.R. Laws Ann. §§ 3007(k), 3013(l).
Each ballot was to be adjudicated by a group of three inspectors, consisting of one representative from each of the three principal parties. If the inspectors were unable to agree, there were additional levels of review at each polling location. The adjudicatory bodies at each level were comprised of one representative from each of the three principal parties
Although this is a somewhat simplified account of the general canvass procedures, the omitted details are irrelevant to this appeal
"Any party affected by a resolution, ruling or order of the [] Commission may, within the ten (10) days following the notice thereof, appeal to the Court of First Instance...." 16 P.R. Laws Ann. § 3016a
It has been alleged that, on some of the three-mark split vote ballots: (1) the mark under the PIP insignia was made in pencil while the marks next to the PDP candidates were made in pen; and (2) the marks next to the PDP candidates were noticeably dissimilar from the mark made under the PIP insignia
There is, however, a dispute as to whether these ballots were adjudicated in a consistent fashion. It has been alleged that some of the ballots were declared void, some were adjudicated as containing valid straight votes for the PIP candidates, and some were adjudicated as containing valid split votes for the PDP candidates, as well as the PIP
The Rosselló Plaintiffs, by their own concession, "have achieved complete and substantial relief" on this claim, and therefore, we need not give it any further consideration
The Rosselló Plaintiffs have conceded, both in their opening brief and at oral argument, that they "have achieved complete and substantial relief" from the Commission with respect to this claim. To be sure, there is still a question as to whether the Commission will follow through with the relief it has promised. But, any claim concerning this open question is not yet ripe
In addition, the Rosselló Plaintiffs have alleged that the Commission violated their constitutional rights when it made "substantial changes" to the rules governing the election after the votes had been cast
The Rosselló Plaintiffs also sought injunctive and declaratory relief in connection with their claim that Puerto Rico Law No. 197, 1 P.R. Laws Ann. §§ 456et seq., "is unconstitutional to the extent that it purports to authorize or allow the transition process [for the next governor] to proceed before the next governor ... has been determined." We need not address this issue. The District Court denied preliminary injunctive relief on this claim, and the Rosselló Plaintiffs did not bother to appeal that ruling. Moreover, whether Law No. 197 allows the transition process to go forward during a recount is a question of local law that will soon be mooted by the recount.
We note that the Rosselló Plaintiffs chose to challenge the decisions of the Commission in federal court rather than exercise their statutory right to appeal to the Court of First InstanceSee 16 P.R. Laws Ann. § 3016a.
The Suárez Plaintiffs also sought declaratory and injunctive relief requiring the Commission to (1) complete the general canvass before conducting a recount and (2) certify the winning gubernatorial candidate by December 22, 2004
The Suárez Plaintiffs filed this action even though the Commission had already decided that the three-mark ballots are valid
Significantly, the Commissioner of the NPP, a defendant in the Suárez action, had requested dismissal on several grounds, one of which was lack of jurisdiction because the Commission had already adjudicated the contested ballots as valid
Because of the disposition of the removal issue on other grounds, we need not address the alleged procedural defects
We agree with the District Court that the Supreme Court's judgment was void. The governing statute provides that the filing of "a copy of the notice [of removal] with the clerk of [the] State court ... effect[s] the removal andthe State court shall proceed no further unless and until the case is remanded." 28 U.S.C. § 1446(d) (emphasis added). The Supreme Court received notice of the removal at 11:48 a.m. on November 20, 2004 but did not issue judgment until that evening. The judgment is thus, as the District Court found, a nullity.
We address the applicability ofBonas below in our discussion of the Rosselló action.
Respondents also note that the Suárez complaint attached and made reference to the complaint filed four days earlier in federal court by Rosselló. No federal claim can be inferred from this reference to the federal action; rather, it was included in the Suárez complaint as factual backgroundSee Suárez complaint at para. 8. Further, even assuming it is proper for us to look outside the four corners of the Suárez complaint to the previously-filed federal action, as we discuss below, the Rosselló complaint does not state a claim warranting federal intervention into this local electoral dispute, and therefore cannot be considered sufficiently substantial to give rise to removal jurisdiction under Franchise Tax Board. See Almond v. Capital Props., Inc.,
We are aware of only one other case dealing with federal removal jurisdiction over a claim filed in state court with ambiguous references to constitutional provisions. InDardeau v. West Orange-Grove Consolidated I.S.D.,
Although we are skeptical that the only purpose or effect of the injunction was to preserve jurisdiction, especially considering the fact that this "jurisdiction-preserving" injunction is still in place after approximately three weeks worth of "marathon hearings" on the merits, we find that our skepticism is irrelevant in light of the manner in which we resolve the case. Furthermore, although we believe that we properly review the non-adjudication order as an appealable interlocutory injunction pursuant to 28 U.S.C. § 1292(a)(1), we note that even if we were incorrect in this conclusion, we would, in the alternative, exercise our discretion to treat the Acevedo Defendants' notice of appeal as a petition for mandamus under the All Writs Act, 28 U.S.C. § 1651(a), thus preserving our jurisdiction in any eventSee, e.g., United States v. Horn,
The standard for determining the existence of original federal jurisdiction under 28 U.S.C. § 1343 is, of course, much more liberal than the standard for determining the existence of removal jurisdiction under 28 U.S.C. § 1441, at least outside of the complete preemption contextSee BIW Deceived,
We do not foreclose the possibility of a case in which federal intervention would be appropriate without a showing of disenfranchisement. The most obvious example of this would be a case involving vote dilutionSee Bush v. Gore,
Here, however, the Rosselló Plaintiffs' claim that the Commission's "change in the rules" after the election somehow "diluted" their vote for their political party of choice is without merit because there was no clear rule prior to the election that the three-mark split ballots were invalid.
The Rosselló Plaintiffs' claim that the three-mark split ballots were adjudicated inconsistently on election night (and immediately thereafter), on the other hand, presents a much stronger claim for federal intervention without a showing of disenfranchisement. That claim, however is rendered moot by the fact that all ballots will be adjudicated in the same uniform manner during the recount. See Bush v. Gore,
TORRUELLA, Circuit Judge (in additional concurrence).
Although I shared equally with my colleagues in analyzing the law and determining the outcome of these cases, I find it appropriate to set forth some additional observations in light of the circumstances surrounding these appeals.
Although, as expressed in our panel opinion, our circuit precedents in Griffin, Barreto Pérez, and Bonas finally decide the issue that the district court should not have intervened in this case, I wish to point out that this conclusion is based on the particular facts of this case, which makes Bush v. Gore,
More important in my opinion, the preeminent truth to be gleaned from the Bush opinion is that the United States is, first and foremost, a nation of laws and that the meaning of these laws is interpreted by the courts, whose rulings become the Law of the Land. Thus, notwithstanding the unprecedented nature of the Bush v. Gore decision, issued in the face of a very divided nation, its binding finality was accepted by the citizenry as a whole, irrespective of individual or collective disagreement with its outcome. Although undoubtedly there was much dissonance, as there may well presently be in Puerto Rico, the nation turned a figurative page and acquiesced. This response reflected our nation's longstanding recognition that:
[c]ompliance with decisions of [the judiciary], as the constitutional organ [interpreting] the supreme Law of the Land, has often, throughout our history, depended on active support by state and local authorities. It presupposes such support.
Cooper v. Aaron,
Indeed, the basic principle articulated by Justice Frankfurter in Cooper is so foundational to our political system that it is literally set in stone on the very walls of this federal courthouse: "[T]he responsibility of those who exercise power in a democratic government is not to reflect inflamed public feeling but to help form its understanding...." Id. I urge the People of Puerto Rico, and the parties in these appeals, to remember these words as they stand at this important crossroads in our shared history as a society joined by our respect for democratic values, underpinned by the rule of law. For, as Justice Frankfurter so ably stated:
[F]rom their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised.... The duty to abstain from resistance to "the supreme Law of the Land" ... as declared by the organ of our Government for ascertaining it, does not require immediate approval of it nor does it deny the right of dissent. Criticism need not be stilled. [However] active obstruction or defiance is barred....
Id. at 23-25,
As important as the outcome of this election may presently be, there are more fundamental issues at stake.
HOWARD, Circuit Judge (in additional concurrence).
I have joined in the court's disposition of these cases. I am less sure about our resolution of certain, discrete issues raised by the Rosselló appeal, and I identify those concerns here.
1. The district court did not categorize the order preventing the Commission from adjudicating the ballots. See Fed.R.Civ.P. 65(d); Ben David v. Travisono,
In the end, we need not decide this issue. Even if the order is properly characterized as only a case management directive, we are entitled to review it under our mandamus power. See Ramirez v. Rivera-Dueño,
2. Notwithstanding our statement that the district court has federal question jurisdiction over the case, we have concluded that the district court abused its discretion by asserting jurisdiction over it. I would rather we characterize the matter somewhat differently. There is no question, of course, that the district court has subject matter jurisdiction of a federal civil rights claim pleaded under 42 U.S.C. § 1983. The issue is whether the pleaded federal claim is justiciable. This question is not a matter of discretion; it is an issue of law. See Bonas v. Town of N. Smithfield,
3. Finally, citing Partido Nuevo Progresista v. Barreto Pérez,
APPENDIX A
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE