# United State s Court of Appeals For the F irst Circuit

No. 12-2145 MYRNA COL ÓN-MARRERO, Plaintiff - Appellant,

v. HÉCTOR J . CONTY-PÉREZ , as President of the Puerto Rico State Elections Commiss ion; EDWI N MUNDO -RÍ OS, as Elector al Commiss ioner of the New Progressive Par ty (NPP); EDER E. ORTI Z -ORTI Z , as Elec toral Commissi oner of the Popular De mocratic Party (PDP); ROBERTO I . APONTE-B ERRÍ OS, as Elector al Commiss ioner of the Puerto Rico I ndepende nce Party (PI P); J UL I O FO NTANET -MAL DONAD O, as Elec toral Commissi oner of the Movimiento Unión S obera nista (MUS); ADRI AN DÍAZ -DÍAZ , as Elec toral Commissi oner of the Puertorr iqueños por Puerto Rico (PPR); CARL OS QUI RÓS-MÉNDEZ , as Elec toral

Commi ssioner of the Par

tido del Pueblo Trabaja dor (PPT), Def endants - A

ppellees. Be fore L y nch, Chief Judge , Torrue lla, Boudin, L ipez, Howard a nd Thompson, Circuit J udg es.

ORDER OF COURT Entered: Oc tober 24, 2012

The petition for rehe aring having been denied by the panel of judge s who decide d the case , and the petition for rehe aringen banc havingbeen submitted to the ac tive judge s of this court and

a majority of the judge s not having voted that the case be hear d en banc, it is order ed that the petition for r ehea ring and the pe tition for rehe aringen banc be denie d. TORRUELLA, Circuit Judge, dissentin g . This is clea rly a case of exceptional importance and rehe aring en banc should be g rante d pursuant to Fe d. R. App. P. 35(b)( 1)(B ). The rig ht to voteof 330,9 02 United States citizens for the only fede ral office that g ives a voice to the citizens of

Puerto Rico befor e Cong ress is at stake

. As rec ently as last Fr iday , this Court issued a per curiam opinion stating that, "[i]n the First Amendment contex t, the likelihood of succe ss on the merits is the linchpin of the preliminary injunction analy sis. As the Supreme Court has explained, ' [t ]he loss of First Amendment fre edoms, for even minimal periods of time, unquestionably constitutes irrepa rable injury .' Elrod v. Bur ns, 427 U.S. 347, 373 (1976)." Sindicato Puertorrique ño de Traba jadore s v. For

tuño, No. 12-2171, slip op. at 17 (1st Cir. Oct. 19, 2012). On October 11, 2012, the panel in this case deter mined that the likelihood of succe ss on the merits had been demonstrated here

. I t stated that, "[h]aving hear d argument and car efully revie wed the rec ord and the parties' filings, we are of the view that plaintiff- ap p el l ant has demonstrated a likelihood of succe ss on the merits o f h er challeng e to Art. 6.012 of the Electora l Code of Puerto Rico for the Twenty -F irst Century , Act No. 78, J une 1, 2011. We also conclude that plaintiff-a ppellant has made the requisite showing of the potential for irrepa rable harm, her inability to vote in the upcoming Puerto Rico g ener al elec tion, if the preliminary relief reque sted is denied." That is the law of the case . Acc ording to a rec ent Supreme Court decision, Pepper v. United States, 131 S. Ct. 1229, 1250-51 (2011), "w hen a court decide s upon a rule of law, that decision should continue to g overn the same issues in subsequent stag es in the same c ase." (citation omitted). The only rea son this Court rema nded the case , but decide d to reta in jurisdiction, was beca use said fac tors wer e found to exis t and only as to the other two was it unable to form a decision due to the insufficie ncy

of the re cord. We thus order ed the District Court to conduct an emer g ency evident i ary hear ing to make finding s of fac t reg arding the third and fourth p ro n gs of the Planned Parenthood standard. See

-2-Planned Parenthood L eag ue v. Be llotti , 641 F.2d 1006, 1009 (1st Cir. 1981). Said hear ing entailed a sig nificant amount of eff ort and c osts to every

one involved. The District Court fully complied with our order and ce rt i fi ed its finding s reg arding the fea sibili ty of g ranting relief if this Court acte d quickly

. As per Fe d. R. Civ. P. 52(a) (6), "[f]indings of fac t, whether based on oral or other evidenc e, must not be set aside unless clea rly err oneous, and the revie wing court must g ive due reg ard to the trial court' s opportunity to judge the witnesses." No such clea rly err oneous finding has b een made, nor can it proper ly be made based on the rec ord

cer tified by the District Court. Constructora Mazda v. Ba nco de Ponce, 616 F.2d 573, 576 (1st Cir. 1980) (the clea

rly err oneous rule applies in all nonjury case s even when finding s are based solely on documentar

y evidenc e or on infe renc es fr om undisputed facts). This case is of cruc ial importance to the elec torate of Puerto Rico. The reme dy found by the District Court to be appropr iate, which is based on the fac ts in the rec ord, not speculative doomsday predic tions, can still be put into eff ect and allow the voters remove d in contravention to Fe dera l law, to exercise this most fundamental of a ll constitut ional rig hts. At a mi nimum, I fail t o see how any of t he ar gu ments made by the Defenda nts-Appellee s, or the pa nel majority , have a

ny rele vance or ca

n be applied to the Plaintiff- Appellant. At the ver y least, a r emedy

as to her should issue a llowing he r to vote. By the Court: /s/ Marg are t Carter, Cler

k

cc: Hon. Carmen Consuelo Ce rezo, Ms. F ranc es de Moran, Clerk, United States District Court f or the Distr i ct o f P u er t o Rico, Carlos A. Del Valle Cruz, Rafae l E. Gar cía- Rodón, Carlos M. Her nández-L ópez, J u an Saavedr a Castro, J osé L

. Nieto-Ming o, Seth A. Erbe, David C. I ndianoVicic, J org e Martínez-L

uciano, Pedro E. Ortiz-Álvare z, Emil J

. Rodrígu ez -Escudero, Nelson N. Córdova-Mor ales, F ranc isco J . González-Mag az, Sasha Samberg -Champion & Jessica D. Silver.

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