CASE STUDIES IN EMERGENCY ELECTION LITIGATION

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Close Vote in Puerto Rico 

Rosselló v. Calderón (3:04-cv-2251) 

and Suárez Jimenez v. Comisión Estatal de Elecciones 

(3:04-cv-2288) (Daniel R. Domínguez, D.P.R.) 

The 2004 election of Puerto Rico’s governor depended upon a recount. One of the candidates filed a federal complaint seeking enforcement of a prompt and just resolution of the recount. The district court began evidentiary hearings in mid-November. One issue 

to be resolved was how to count ballots in which a voter cast a vote 

for one party generally but for candidates of other parties for all individual offices. A commonwealth case on this issue was removed 

to the federal court before it was resolved, but Puerto Rico’s supreme court resolved the case anyway. The district court vacated 

the commonwealth court’s postremoval ruling and commenced additional hearings. The court of appeals determined that removal 

was improper. In December, the court of appeals ordered a halt to 

the district court’s intervention in the local electoral dispute. 

Subject: Recounts. Topics: Matters for state courts; enjoining 

certification; removal; recounts; absentee ballots; intervention; 

attorney fees. 

The November 2, 2004, election of Puerto Rico’s governor was very close, 

and the result depended on a recount, including all absentee ballots.1 The 

prostate New Progressive candidate, former governor Pedro Rosselló, and 

eight other voters, filed a federal action at 4:25 p.m. on November 10 against 

the incumbent governor, Sila Calderón, and the apparent winner, Aníbal 

Acevedo-Vilá, both of whom were members of the Popular Democratic Party—the party favoring Puerto Rico’s retaining its status as a territorial commonwealth—as well as the transition committee and the electoral commission, complaining that supporters of Acevedo-Vilá were proceeding quickly 

with the transition but slowly with the vote certification.2

 The complaint included a prayer for a temporary restraining order.3

The court assigned the case to Judge Daniel R. Domínguez, who issued 

an order on November 11 that on November 15 the defendants show cause 

why relief should not be granted and the plaintiffs provide specific jurisdictional bases for relief.4

 At the defendants’ request, Judge Domínguez ordered, 

1. Rosselló-González v. Calderón-Serra, 398 F.3d 1, 4–6 (1st Cir. 2005); see Abby Goodnough, Governor’s Race Keeps Puerto Rico in Suspense, N.Y. Times, Nov. 17, 2004, at A16. 

2. Complaint, Rosselló v. Calderon, No. 3:04-cv-2251 (D.P.R. Nov. 10, 2004), D.E. 1 

[hereinafter Rosselló Complaint]; Roselló-González v. Acevedo-Vilá, 483 F.3d 1, 4 & nn.2–3 

(2007); Rosselló-González, 398 F.3d at 5, 7; see Katie Zezima, Puerto Rico Governor’s Race 

Moves to Higher Court, N.Y. Times, Dec. 14, 2004, at A20. 

3. Rosselló Complaint, supra note 2, at 14–15; see also Motion, Rosselló, No. 3:04-cv-2251 

(D.P.R. Nov. 16, 2004), D.E. 39; Rosselló-González, 398 F.3d at 7. 

4. Order, Rosselló, No. 3:04-cv-2251 (D.P.R. Nov. 11, 2004), D.E. 2. 
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on November 15, that the plaintiffs also file, on November 16, a brief supporting their prayers for relief.5

On November 17, a lawyer and voter for Rosselló filed a pro se motion to 

intervene,6

 which Judge Domínguez denied that day, because the lawyer’s 

allegations were already included in the complaint.7

After evidentiary hearings on November 188 and 19,9 Judge Domínguez 

enjoined certification of the election pending resolution of certain issues, including an issue pertaining to split ballots, on which Judge Domínguez decided to further explore his jurisdiction.10 Judge Domínguez also wanted 

more evidence on the extent to which the outcome of the election depended 

upon resolution of the plaintiffs’ constitutional claims.11

Meanwhile, on November 16, four voters filed an action in Puerto Rico’s 

superior court in San Juan, seeking a ruling validating the split ballots.12

Puerto Rico’s ballot allowed voters to vote for a party or for its individual 

candidates.13 The only two candidates on the ballot at issue were candidates 

for governor and for Puerto Rico’s nonvoting representative to the U.S. Congress, known as Puerto Rico’s resident commissioner.14 In addition to the 

New Progressive Party and the Popular Democratic Party, the Puerto Rico 

Independence Party appeared on the ballot.15 Voters could vote only for a 

party, in which case all of its candidates would receive votes.16 Or voters 

could mark only individual candidates, and they would receive the votes.17

Or voters could vote for a party and one or more individual candidates in 

other parties, in which case the individual candidates selected would receive 

votes and candidates in the selected party for other offices would receive 

5. Order, id. (Nov. 15, 2004), D.E. 33. 

6. Motion to Intervene, id. (Nov. 17, 2004), D.E. 43. 

7. Docket Sheet, id. (Nov. 10, 2004) (D.E. 44). 

8. Transcript, id. (Nov. 18, 2004, filed Nov. 24, 2004), D.E. 103 [hereinafter Nov. 18, 

2004, Transcript]; Minutes, id. (Nov. 18, 2004), D.E. 79. 

9. Transcript, id. (Nov. 19, 2004, filed Nov. 26, 2004), D.E. 118 [hereinafter Nov. 19, 

2004, Transcript]; Minutes, id. (Nov. 19, 2004), D.E. 82. 

10. Second Amended Order, id. (Nov. 20, 2004), D.E. 84; Amended Order, id. (Nov. 20, 

2004), D.E. 83; Order, id. (Nov. 19, 2004), D.E. 80. 

11. Transcript at 10, id. (Nov. 20, 2004, filed Nov. 29, 2004), D.E. 119 [hereinafter Nov. 

20, 2004, Transcript] (“I am not going to jump into that fray unless I realize that those votes 

are the votes that are going to decide the election”); Nov. 19, 2004, Transcript, supra note 9, 

at 159–60 (“the doctrine of case and controversy does not allow me to start writing opinions 

all over the place unless I am satisfied that the opinion will have an outcome determinative 

result”); Nov. 18, 2004, Transcript, supra note 8, at 227 (“the Court does not want to be making academic decisions”). 

12. Rosselló-González v. Calderón-Serra, 398 F.3d 1, 5, 8 (1st Cir. 2005); see Zezima, supra note 2. 

13. Rosselló-González, 398 F.3d at 5–6. 

14. Id. at 5, 21 & n.4. 

15. Id. at 5, 21. 

16. Id. at 5. 

17. Id. at 5–6. 
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votes.18 The biggest question for this election was how to count the several 

thousand ballots on which one party was selected but other parties’ candidates were selected for both of the individual offices.19 These became known 

as three-mark split-vote ballots.20

The superior court dismissed its action as moot, but Puerto Rico’s supreme court granted review.21 While that review was pending, at 11:09 a.m. 

on Saturday, November 20, the defendants removed the action to the federal 

court, which assigned the case to Judge Domínguez.22 That evening, Puerto 

Rico’s supreme court purported to resolve the action by declaring the threemark split-vote ballots valid votes for each of the candidates marked and also 

valid votes for the marked party for purposes of the party’s status as a principal party.23

On November 23, Judge Domínguez declared void the ruling by Puerto 

Rico’s supreme court, because removal had stripped the supreme court of 

jurisdiction over the case.24 On November 26, Judge Domínguez set a hearing 

on December 10 for a pending remand motion.25 On December 15, the federal court of appeals determined that removal was improper.26 Rather than 

order a remand by mandamus, the appellate court expressed confidence 

“that the District Court will immediately remand the Suárez action back to 

the Supreme Court of Puerto Rico without the need for mandamus.”27

For the first action, Judge Domínguez held proceedings on November 20, 

22, and 23.28 On November 23, Judge Domínguez ordered a recount;29 he also 

18. Id. at 6 n.6. 

19. Id. at 6–7; see Nov. 18, 2004, Transcript, supra note 8, at 37–47; see also Manuel RoigFranzia, Puerto Rico Is Caught in Throes of Recount, Wash. Post, Dec. 11, 2004, at A3. 

20. Rosselló-González, 398 F.3d at 6. 

21. Id. at 5, 8. 

22. Notice of Removal, Suárez Jimenez v. Comisión Estatal de Elecciones, No. 3:04-cv2288 (D.P.R. Nov. 20, 2004), D.E. 1; Rosselló-González, 398 F.3d at 5, 8 (noting that the notice of removal was filed with Puerto Rico’s supreme court at 11:48 a.m.); see Nov. 20, 2004, 

Transcript, supra note 11, at 61, 223 (Judge Domínguez’s in-court announcement of the 

removal and expression of doubt that there is a federal question in the removed case). 

23. Suárez v. Comisión Estatal de Elecciones, 163 D.P.R. 347 (2004); Orders, Rosselló v. 

Calderon, No. 3:04-cv-2251 (D.P.R. Nov. 29 & Dec. 1 & 8, 2004), D.E. 120, 158, 193 (English 

translation); Rosselló-González, 398 F.3d at 8; see Nov. 20, 2004, Transcript, supra note 11, at 

218–19; see also Ray Quintanilla, Recount Delayed in Puerto Rico, Wash. Post, Nov. 25, 2004, 

at A11. 

24. Order, Suárez Jimenez, No. 3:04-cv-2288 (D.P.R. Nov. 23, 2004), D.E. 12; see Nov. 20, 

2004, Transcript, supra note 11, at 220–25 (observing that the Puerto Rico court’s deciding 

the question of removal was unprecedented and illegal); see also Quintanilla, supra note 23. 

The court of appeals agreed that the ruling by Puerto Rico’s supreme court was void. 

Rosselló-González, 398 F.3d at 8 n.23. 

25. Order, Suárez Jimenez, No. 3:04-cv-2288 (D.P.R. Nov. 26, 2004), D.E. 17. 

26. Rosselló-González, 398 F.3d at 10–13. 

27. Id. at 13. 

28. Minutes, Rosselló, No. 3:04-cv-2251 (D.P.R. Nov. 23, 2004), D.E. 95; Minutes, id.

(Nov. 22, 2004), D.E. 93; Nov. 20, 2004, Transcript, supra note 11; Minutes, Rosselló, No. 

3:04-cv-2251 (D.P.R. Nov. 20, 2004), D.E. 85. 

29. Further Amended Order, Rosselló, No. 3:04-cv-2251 (D.P.R. Nov. 23, 2004), D.E. 102; 
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ordered that the three-mark split-vote ballots be segregated but that their validity not yet be adjudged.30 Proceedings continued from November 29 

through December 1 and on December 7.31

On December 15, the federal court of appeals vacated the November 23 

orders and ordered the action dismissed because “the federal courts will not 

intervene in a local electoral dispute such as this.”32 Acevedo-Vilá was thereafter certified the winner.33

On January 17, 2006, Judge Domínguez denied motions by both sides for 

attorney fees,34 a decision that the court of appeals affirmed on March 13, 

2007.35

Amended Order, id. (Nov. 23, 2004), D.E. 99; Order, id. (Nov. 23, 2004), D.E. 96; see Zezima, 

supra note 2. 

30. Amended Order, Rosselló, No. 3:04-cv-2251 (D.P.R. Nov. 23, 2004), D.E. 100; Order, 

id. (Nov. 23, 2004), D.E. 98; see Quintanilla, supra note 23; Zezima, supra note 2. 

31. Minutes, Rosselló, No. 3:04-cv-2251 (D.P.R. Dec. 7, 2004), D.E. 191; Minutes, id.

(Dec. 1, 2004), D.E. 171; Minutes, id. (Nov. 30, 2004), D.E. 157; Minutes, id. (Nov. 29, 2004), 

D.E. 135. 

32. Rosselló-González, 398 F.3d at 13–18; see Abby Goodnough, Disputed Ballots in Governor’s Race, N.Y. Times, Dec. 16, 2004, at A40. 

33. See Abby Goodnough, Officials Call Disputed Race for Governor of Puerto Rico, N.Y. 

Times, Dec. 29, 2004, at A16. 

34. Minutes, Rosselló, No. 3:04-cv-2251 (D.P.R. Jan. 17, 2006), D.E. 245. 

35. Roselló-González v. Acevedo-Vilá, 483 F.3d 1 (2007).