IN THE UNITED
STATES DISTRICT COURT
FOR THE DISTRICT COURT OF PUERTO RICO
PEDRO ROSELLO, et al., Plaintiffs
v. CIVIL NO. 04- 2251 (DRD)
SILA M. CALDERON, et al., Defendants
AMENDED OPINION AND ORDER
This opinion and order addresses this courts’ jurisdiction relating to the military Absentee Votes, the absentee votes in general and the split votes all relating to the 2004 gubernatorial election held in Puerto Rico. This Court had advised the parties on the 19th of November 2004, that an opinion as to jurisdiction was to follow (Docket No. 80). This Court’s holding of marathonic hearings as detailed below has prevented an earlier ruling on this matter.
Article III are courts of limited jurisdiction. Article III §2 of the United States Constitution provides that “[T]he judicial power shall extend to all cases, in Law and Equity, arising under this Constitution, the laws of the United States, and treatises made, or which shall be made, under their authority...”.
In the instance case, its is clear that causes of action are one which “arises under” the Federal Constitution. The complaint alleges violations of due process, equal protection and violation of the 14th Amendment concerning absentee ballots of military personnel and others covered under absentee citizens in that the procedure under Puerto Rico Law was not followed. Consequently, the absentee voters (both military and general absentee votes) were untimely mailed thereby causing a total disenfranchisement of these voters. (See Amended Complaint ¶¶22,24,25).
Plaintiffs further alleged that the validity of split ballots marked with an “X” under a party insignia and two “Xs”, that is, one “X” for the Governor candidacy and one additional “X” for the Commissioner Resident violated due process and equal protection under the 14th Amendment asserting that said votes are null because they registered two votes for Governor and Resident Commissioner. Further and most critical to this Court Plaintiffs averred that the split ballots are not being counted uniformly and in violation of the “one person one vote” principle, that violates the equal weight required to be accorded to each voter. The issue that raises this controversy at the level of constitutional protection, consists of allowing voting for two candidates for the same public office, causing an overvote. “[T]he idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government”. Moore v. Ogilvie, 394 U.S. 814, 819, 89 S.Ct. 1493, 1496 (1969).
Plaintiffs’ claims are asserted pursuant to 28 U.S.C. §1983. The Supreme Court has acknowledged as a basis for District Court jurisdiction claims to redress deprivations of fundamental voting rights secured by the Equal Protection and Due Process of the Fourteenth Amendment. Baker v. Carr, 369 U.S. 186, 200n.19, 82 S.Ct. 691, 701 (1962)(Collecting cases)(reversing three judge district panel finding of no jurisdiction where complaint alleged state statute debased plaintiff votes, denying equal protection of the law.)
Neither should the court postpone the exercise of its jurisdiction under Pullman abstention. Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643 (1941). If an underlying state statute, “even though never interpreted by a state tribunal, is not fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question, it is the duty of the federal court to exercise its properly invoked jurisdiction.” Harman v. Forssenius, 380 U.S. 528, 534-535, 85 S.Ct. 1177, 1181-1182 (1965). Pullman type of abstention is discretional in nature. Harman v. Forssenius, 380 U.S. at 534, 85 S.Ct. at 1181. The Court shall not abstain for various potent reasons.
First, the instant case is not merely a facial attack on the constitutionality of a local state statute; it constitutes mainly an “as applied challenge”, consequently requiring a hearing in order to develop a record. This Court has been receiving evidence, including this date, for six days. On November 18, 2004, this Court received evidence from 9:15 a.m. until 10:15 p.m.; on November 19, 2004, from 9:15 am. until 8:00 p.m.; on November 20th 2004 (Saturday), from 9:45 a.m. until 10:00 p.m.; on November 22, 2004 from 10:30 a.m. until ll:10 p.m. On Tuesday 23rd of November 2004, no evidence was received because the parties argued extensively the scope of the recount order issued by the District Court on the record the night of Saturday, November 20th 2004. The Court opened session at 10:00 a.m. and rendered in the afternoon a verbal decision read on the record on the scope of the recount subsequently reduced, after amendments, to writing at Docket No. 102, Amended Order as to the scope of the electoral recount. Finally, on November 29, 2004, the Court held session from 2:15 p.m. until 11:45 p.m.2 (The Court waited for all continental counsel to arrive from the Thanksgiving Holiday.)
However, the strongest reason not to abstain is simply because the Puerto Rico Supreme Court twice has unambiguously ruled that when a case involves “mixed questions of federal and state law that must be ruled by the federal court because the validity of the statute under the federal constitution necessarily disposes of the question...[O]ur opinion [the local Supreme Court’s] would be purely advisory.” Cuesnongle v. Ramos, 19 P.R. Official Trans. 493 (1987)(citing Pan American Comp. Corp. V. Data General Corp., 112 D.P.R. 789 (1982). In Pan American Com. Corp., Id., the Supreme Court of Puerto Rico rejected the certification because the federal court would remain with the jurisdiction as to the federal question under the U.S. Constitution. The certification in Cuesnongle v. Ramos, Id., was made directly from the First Circuit to the Supreme Court of Puerto Rico. That certification was also rejected for the same reasons in Pan American, supra.
The Cuesnongle certification involved whether the Puerto Rico Consumers law was applicable to a university. The certification permitted the local court to decide the matter purely on local state grounds, the local court to avoid interpreting the local Constitution. The complete reasoning of the Supreme Court of Puerto Rico expressed in Cuesnongle v. Ramos, Id., (plurality opinion) stated:
Thus the situation is similar to the one in Pan Ame., supra. We are dealing with a controversy on the constitutionality of a state law under the Constitution of Puerto Rico, which is similar to a provision of the federal Constitution. “[T]he question is a mixed question of federal and state law that must be ruled upon federal court because the validity of the statute under the federal [C]onstitution necessarily disposes
of the question under state law. Pan Ame., supra, at 794. Our decision
would be purely advisory. Although we recognize that, on past occasions, the Court has shown great deference towards our decisions, in the context of this case, the question could be adjudicated under federal tests quite different from ours.
Since Pan Ame., supra, we established that certification is in order only when the validity of a statute is challenged under a state constitutional provision with no equivalent in the Federal Constitution. Ibid. Reetz v. Bozanich, 397 U.S. 82, (1970); White v. Edgar, 320 A.2d 668, 677 (1974); Abrams v. West Va. Racing Commission, 263 S.E.2d 103 (1980).
For the foregoing reasons, we cannot answer the certification before our consideration. (Emphasis ours).
Here the challenge is under Equal Protection and Due Process which are protections secured under both Commonwealth and U.S. Constitutions. Therefore, the “most direct, speedy and inexpensive way...to obtain an authoritative interpretation” of local law is not a possibility by repeated mandates of the Supreme Court of Puerto Rico rejecting certifications when the District Court retains jurisdiction as to Constitutional dispositions parallel to that of the Commonwealth.
When the case returned to the Circuit Court, Cuesnongle v. Ramos, 835 F.2d 1486, 1496 (1st Cir. 1987), then Chief Judge Coffin, writing for the Court, expressed concern that the Certification Rule of the local Supreme Court “eviscerated [the certification process in Puerto Rico] in those cases where a federal constitutional question might remain even after the resolution of state law issues. The logic would also preclude Pullman abstention in Puerto Rico whenever a constitutional issue is reserved by plaintiff for federal consideration.
It may be that there are federal constitutional considerations that are relevant to some degree to many, if not all, questions of state statutory interpretation.Nevertheless, if the Supreme Court of Puerto Rico does in fact refuse to answer certified questions on this basis, then the certification process in Puerto Rico will be eviscerated in those cases where a federal constitutional question might remain even after the resolution of the state law issues. This logic would also preclude Pullman abstention in Puerto Rico whenever a federal constitutional issue is reserved by the plaintiff for federal consideration. (Emphasis in the original).
Cuesnongle v. Ramos, 835 F.2d at 1496.
The Court now briefly examines the absentee vote controversy. Aurelio Gracia, Chairman of the Puerto Rico Elections Commission, admitted at the hearing that regulations required that all absentee vote ballots be sent thirty (30) days prior to the elections, for those in the U.S. and forty-five (45) days for those outside the United States. (Transcript November 19, 2004, pp. 26, 41). He also accepted that all absentee ballots were mailed from October 15 to October 30, 2004. Those dates are clearly beyond the limits authorized by law as accepted by the Elections Commission’s Chairman. (Transcript November 19, 2004, p. 26). Further, the Chairman accepted that he did not know if there was a notice prepared to the absentee voters within the envelope including the voting materials wherein the voters were advised of their right to vote notwithstanding late receipt of the ballot or even receipt after November 2, 2004.
The Chairman ruled that all ballots cast and received will be counted pursuant to Regulations (30 and 45 days from sending) even though the law establishes that they must be cast prior to November 2, 2004. (16 P.R. Laws Ann. §3238; §5.037 of the Electoral Law.) The issue lies with the remedy since the Commission is using the sending date as the critical date.
Recently, the Court received a request for leave to File Amicus Curiae Brief together with a Declaration under Penalty of Perjury (Docket No. 104) of a Major stationed at Mac Dill Air Force Base wherein the soldier states that he timely requested the absentee ballot in late July/August 2004 and received the same on November 18, 2004 postmarked as mailed from San Juan, P.R. (00901) on November 15, 2004. The Court harbors no doubt in asserting jurisdiction on the due process claim because plaintiffs have a fundamental right created by the Puerto Rico Election Law and have suffered an equal protection violation in a class of voters (military and absentee voters) in further violation of the First Amendment right to vote thereby creating a total disenfranchisement of said absentee voters.
As to the split ballots issue, there are two important federal principles involved; one is that “the states have broad powers to determine the conditions under which the right of suffrage may be exercised” McDonald v. Bd. of Elections Commissioners of Chicago, 394 U.S. 802, 807, 89 S.Ct.1404, 1407 (1969)(quoting Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 50, 79 S.Ct. 985, 989 (1959). However, the other is that “[t]he right to vote is protected in more than the initial allocation of the franchise. Equal Protection applies as well to the manner of its exercise.
Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104-105, 121 S.Ct. 525, 530 (2000)(quoting Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665, 86 S.Ct. 1079(1966). (Emphasis ours.) ([O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”). The Court must be watchful of actions by a state, “to avoid arbitrary and disparate treatment of its electorate”. Bush v. Gore, Id. Further, disparate treatment leads to “debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise”. Bush v. Gore, Id., (quoting Reynolds v. Sims, 377 U.S. 533, 535, 84 S.Ct. 1362 (1964).
In addressing the overvote issue plaintiffs have established an actionable claim under the Equal Protection and the Due Process Clause of the Fourteenth Amendment. Plaintiffs claim that an election is a constitutional exercise of a voter’s right to select public officials and is not an exercise to elect a party. 16 P.R. Laws Ann. §3205. Plaintiffs then challenge the validity of a ballot cast under a insignia of a party as a “straight ballot” which is defined as a “[voter casting] his/her vote for the entire slate of a single political party,” 16 P.R. Laws Ann. §3003(31), (emphasis ours), and at the same time in the same ballot containing exclusively the candidates for Governor and Resident Commissioner ballots are cast under another party. Plaintiffs claim that the definition of “split ballot” contained under the law at 16 P.R. Laws Ann. §3003(33), allowing the voter to vote for “any combination of candidates” is to be read in conjunction with the definition of a “straight ballot” resulting in that the total repudiation of the only two candidates under the party insignia nullifies the vote as a double contradictory vote. Plaintiffs’ argument is further substantiated by the
instructions to the voter contained in each ballot in the “how to vote split” instruction wherein it is stated that “to vote split, a valid mark (X) is made under the emblem of your preferred party and a mark is made next to another candidate outside the column of your party, or you write the name of another person of your choice under the corresponding position in the last column for direct nomination” (Emphasis ours). Plaintiffs urge that the definition of a mark refers to a singular “X” under either the Governor or the Resident Commissioner but not both. The requirement at the last sentence that “you can vote for only one candidate for Governor and one candidate for Resident Commissioner” refers to the rule that two votes for the same candidacy annuls the vote. 16 P.R. Laws Ann. §3262. Further Rule 81 of the Regulation for the General Elections and General Canvassing of 1984 allows for the candidacy of Governor and in a separate paragraph for Resident Commissioner but the definition is not in the conjunctive. Moreover, in the Procedure Manual for the General 2004 Election, (Ex. 1), published by the Electoral Commissioner providing guidance for the officers at the tables and/or to be used as guidance for instructions to the table representatives of the parties, the example provided is one of one “X” for the party and one other “X” in the candidate for Governor or for Resident Commissioner. Similar manuals for the 1996 and 2000 elections also have the same previously described example. In none of the Manuals of Procedure for previous elections wherein the split ballot form of voting for gubernatorial and resident commissioner vote is illustrated in a separate ballot, covering the elections of 1996, 2000, and 2004, there is an example describing voting in split ballot fashion for a party and for both the Governorand the Resident Commissioner which is claimed by defendants as the most obvious example. Finally, when the matter of the described split votes was originally raised by the NPP representatives at the Commission’s Offices at the General Canvassing on November 10, 2004, and November 11, 2004, the same ballots were adjudicated differently by floor supervisors of the PIP and PPD representatives as either straight PIP votes or PIP mixed votes which circumstantially showed that this type of vote containing three “Xs” was something new even for the floor supervisors of party representative performing the general canvassing at the Electoral Commission.
Further, and perhaps most critical, an inference has been created that these split ballots were not being equally or uniformly treated at high levels at the Commission, by supervisory high echelon Party electoral representatives, and also not equally treated at the individual polling places and further that for two full days equal votes from different areas of Puerto Rico were not being uniformly and equally treated. The Court notes that all the evidence on this matter remains in the tally sheets of each polling unit in the possession of the Commission and that producing said evidence is extremely burdensome and further potentially delays the election results. Plaintiffs have also elaborated other cogent constitutional arguments based on the instructions to the electors in the voting ballot leading to an overvote/equal protection violation.
The Court clarifies that defendants have barely began to produce evidence and hence the Court is merely reproducing the evidence that plaintiffs have produced. The facts stated herein are
not facts adopted by the court because the record is incomplete. The Court is further aware that the Supreme Court of Puerto Rico has issued an opinion under local law as to the validity of the split votes. The velocity in which the Puerto Rico Supreme Court rushed to judgment “is not a general excuse for ignoring equal protection guarantees”, Bush v. Gore, 531 U.S. at 108, 121 S.Ct. at 532. See particularly, Justice Rivera-Pérez dissenting opinion. However, the District Court must examine a mixed question of fact and federal constitutional law pursuant to federal guidelines to determine whether the potential overvotes are invalid.
Based on the evidence received at this stage, the Court is asserting jurisdiction as to both the absentee ballots and the split ballots controversy. They both present plausible disparate treatment issues under the Equal Protection and Due Process Clause of the Fourteenth Amendment. Bush v. Gore, 531 U.S. at 104-105, 121 S.Ct. at 530.
The Court is not, at this time, adjudicating the ballots, or nullifying them as overvotes, or even enfranchising ballots (absentee ballots). The Court understand that it must, under case and controversy principles, exercise self restraint and not opine on the split ballot matter until said split ballots are deemed to be determinable to the election for Governor (the court reminds the parties that there are many split ballots involving only two “X’s”, one under a party and another for Governor or for Resident Commissioner that are not being challenged and may ultimately lead to an outcome not requiring the court to make a ruling on the validity of the challenged votes). The Court, however, following federal standards, may not order the adjudication of the challenged ballots because “count first and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.” Bush v. Gore, 531 U.S. 1046, 121 S.Ct. 512 (2000)(Justice Scalia concurring).
Finally, the Court acknowledge that it “may not superintend the step-by-step conduct of local electoral contest or undertake the resolution of ‘garden variety election irregularities’”, Bonas v. Town of North Smithfield, 265 F.3d 69 (1st Cir. 2001)(citation omitted). This case, unlike Partido Nuevo Progresista v. Pérez, 639 F.2d 825 (1st Cir. 1980), does not entail garden-variety election irregularities, but is more akin to Bonas, supra. See Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978).
Wherefore the Court asserts jurisdiction over the Plaintiffs’ claims.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 30th day of November, 2004.
S/DANIEL R. DOMINGUEZ
DANIEL R. DOMINGUEZ
U.S. DISTRICT JUDGE
 The statute is further no longer uncertain since the Supreme Court has interpreted the statutes in an opinion dated November 20, 2004. The problem is that a removal had been made prior thereto of said case to this Court and that the remedy of the Supreme Court of Puerto Rico orders the adjudicating of all the split ballots leaving the federal court without jurisdiction. The Court further notes the accelerated speed in producing the decision as highlighted by the dissenting opinion of Justice Rivera-Pérez.
 For this reason, the extensively long injunctive hearing sessions, the Court has not been able to address the remand request of Co-defendants in Civil Case No. 04-2288(DRD), Manuel R. (Manny) Suarez-Jimenez v. Comision Estatal de Elecciones. However, the Court issued on Friday November, 26 2004, a Scheduling Order setting a hearing for Friday, December 10, 2004 which is being advanced to Wednesday, December 8, 2004. All extension of time previously filed are to be denied. The Court notes however, that Plaintiffs complaint alleges due process and equal protection in ¶¶ 12 and 26 but in such broad forms failing to specify the source under the Puerto Rico and/or the Federal Constitution. Moreover, the remand has imbued problems as to the realignment of the parties since both Plaintiffs and some Defendants in the removed case have the same interests (the validity of the split ballots). Finally, notwithstanding artful pleadings avoiding federal jurisdiction, Plaintiffs’ voting rights claims may have imbued within them federal claims to be addressed under the doctrine set forth by Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 22, 103 S.Ct. 2841 (1983). These matters require a hearing. This constitutes the District Court’s answer to the Mandamus petition under Fed.R.App.P.21(b)(4).
 In Pan American, Id., the court clearly stated that certification will only be accepted when the statute constitutional disposition “has no federal constitutional equivalent”. Pan American Comp. Corp. v. Data General Corp., 112 D.P.R. at 794. (Spanish version.) (Translation ours).
 4 But there is a federal law regulating the matter, The Overseas Citizens Absentee Voting Act, 42 U.S.C. 1973(ff), which may provide other remedies. Both laws are applicable to Puerto Rico as to the Resident Commissioner vote which is in the same ballot as that of the Governor. Moreover, there is a federal law, 50 App. U.S.C.A. §594, regulating states being prohibited from altering the residence of military personnel while they are serving in the military for the purposes of federal and state elections. See generally, Bush v. Hillborough County Canvassing Board, 123 F.Supp.2d 1305 (D.C.N.D. Florida 2000)(Declaratory Judgment declaring provisions of Florida’s state law as to absentee ballots unconstitutional.) In Bush, Id. At 1311, the Court concluded that pursuant to the intent of the law to protect the absentee voters:
“H.R.Rep. No. 99-765, at 10, 1986 U.S.C.C.A.N. at 2014 (emphasis added). The Committee concluded by stating: [W]hen overseas voters fail to receive their absentee ballots in time to vote and return the, they are clearly and effectively disenfranchised. Whether State procedures are not conductive to providing adequate transit time, or whether ballots are mailed late despite the best efforts of everyone involved, in their case the effect–disenfranchisement–is the same.
A...solution...is to ensure that affected voters – those whose absentee ballots are not mailed in a timely manner – nonetheless have an opportunity to vote. Id. At 12-13, 1986 U.S.C.C.A.N. at 2016-17.” 9(Emphasis in the original).
 16 P.R. Laws Ann. §3262 states that: “[I]f there are more candidates marked on a ballot for the same position than those authorized to the voter, the vote for that position shall be annulled, but the votes in favor of the candidates that were correctly selected for the other positions on the ballot shall be counted”.
 The matter was not raised by the NPP representatives during the first two days of the General Canvassing.
 See testimony of Doris P. Burgos, Nov. 20, 2004, p. 117-123; testimony of Tony González Nieves, November 20, 2004, p. 163-182; and testimony of Jorge Ruíz García, November 20, 2004, p. 41-68.