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

____________________________ No. 12-2328 MYRNA COL ON-MARRERO; J OSEFI NA ROMAGUE RA AGRAI T Plaintiffs - Appellee s

v. EDWI N MUNDO -RI OS, as Elector al Commiss ioner of the New Prog ressive Par ty (NPP) Def endant - Appellant EDER E. ORTI Z -ORTI Z , as Elec toral Commissi oner of the Popular De mocratic Party (PDP) Def endant - Appellee HECTOR J . CONTY-PEREZ , as President of the Puerto Rico State Elections Commiss ion; ROBERTO I . APONTE-B ERRI OS, as Elector al Commiss ioner of the Puerto Rico I ndepende nce Par

ty (PI P); J UL I O FO NTANET -MAL DONAD O, as Elec toral Commi ssioner of the Movimiento Union Sobera nista (MUS); ADRI AN DIAZ -DI AZ , as Elec toral Commissi oner of the Puertorr iquenos por Puerto Rico (PPR); CARL OS QUI ROS-MENDEZ , as Elec toral Commissi oner of the Partido del Pueblo Traba

jador (PPT); L I L L I AN APONTE- DONES, as Ele ctora l Comm issioner of the Partido del Pueblo Tra bajador (PPT) Def endants

____________________________ No. 12-2329 MYRNA COL ON-MARRERO; J OSEFI NA ROMAGUE RA AGRAI T Plaintiffs - Appellee s

v. HECTOR J . CONTY-PEREZ , as President of the Puerto Rico State Elections Commiss ion Def endant - AppellantEDER E. ORTI Z -ORTI Z , as Elec toral Commissi oner of the Popular De mocra

tic Party (PDP); Def endant - Appellee EDWI N MUNDO -RI OS, as Elector al Commiss ioner of the New Progressive Par ty (NPP); ROBERTO I . APONTE-B ERRI OS, as Elector al Commiss ioner of the Puerto Rico I ndepende nce Par

ty (PI P); J UL I O FO NTANET -MAL DONAD O, as Elec toral Commi ssioner of the Movimiento Union Sobera nista (MUS); ADRI AN DIAZ -DI AZ , as Elec toral Commissi oner of the Puertorr iquenos por Puerto Rico (PPR); CARL OS QUI ROS-MENDEZ , as Elec toral Commissi oner of the Partido del Pueblo Traba

jador (PPT); L I L L I AN APONTE- DONES, as Ele ctora l Commi ssioner of the Par

tido del Pueblo Trabaja dor (PPT) Def endants

__________________ Be fore Torrue lla, L ipez and Howar d, Circuit J udg es

__________________ JUDG MENT Entere d: November

5, 2012

P er Curiam . W e co ncluded in our order of October 18, 2012 that it would be improvident to gra n t p l ai ntiff' s reque sted relief with only 18 day s rema ining befor e the g ener al elec tion. Federa l Court intervention on the eve of the elec tion is even more improvident. We are wholly unpersua ded by the district court' s rationale for doing so. Moreove r, the district court enter ed its orde rs of November 3 and 4 afte r we had unanimously denied a simil ar reque st f

or relief in our order of November 2. The two order s of the district court enter ed as Docke t Numbers 79 and 80 in the district court a ction 12-cv- 01749-CCC are he reby vacated forthwith. So ordere d.

"Dissentin g opin ion f ollow s"Torruella, Circ uit Jud ge , (Dissenting). I am once ag ain forc ed to dissent from the decision taken by a majority of this panel. I believe that the d i s t ri ct court acte d corr ectly in seeking to prese rve its jurisdiction under the All W ri t s Act, that the order does not conflict with the P er Curiam this Court issued on Nov em b er 2 , 2012 and that vaca

ting said order at this point will indeed bring about the uncer tainty and confusion that the pane l has fea

red a ll along. The Per Curiam this Court issued on November 2, 2012 clea rly stated that the Court was "per suaded that plaintiff had established a likelihood of success on her fede ra l elec tion claim under H AVA," but that it wa s y et to be deter mined if the reme dy could include the reinstate m ent of voters in the list of voters for the g ener al elec tions, as opposed to the ir reinstate m ent in the list of vot ers for t he election for Resident Commi ssioner alone. There fore , what the Court conside red to be undeter

mined is whether it could order the I -8s to be reinstate d as active voter s in the general elec tions

. I t also found that there wer e no finding s as to the fea sibili ty of order ing the reinstate m ent of the voters in question only as to the elec tion for Resident Commi ssioner. Acc ording to the Per Curiam, the lack of finding s as to the fea sibili ty of reinstating the I -8s for purposes of the elec tion for the Resident Commi ssioner, alongwith doubts reg ardingits own competenc y and authority to

cra ft a same day

rec usal proce dure, w ere major conc erns f or the majority

. Not content with having succe eded in preve nting the I -8s' reinstateme nt, DefendantAppellant soug ht an order from the Commonwealth' s court sy stem to have the St at e Elections Commi ssion (" CEE," for its initials in Spanish) produce the I -8 lists so that poll worke rs could bar the people appea

ring on said list who show up at the polling stations from casting provisional ballots throug h the "a dded-by -hand" proce dure contemplated the Puerto Rico Election Code and the provisional ballot contemplated in HAV A.The Supreme Court of Puerto Rico initially denied Def endant- Appe l l an t Mundo' s attempt to have the case lifted from the Court of First I nstance to the S upre m e Court by means of

a intrajurisdictional cer

tification. The Supreme Court, in denying the initial reque st, g ave the Court of First I nstance specific instructions on how it expected the latter to decide the issue on the merits. I t also made it clea

r t hat I -8 vot ers who attempted to vote "added- by -hand" could f ac e up t o three y ear s of jail time. Be cause the Court of First Instance did not act with the speed the Supreme Court deeme d appropr iate, the Supreme Court dec ided to rec onsider its prior denia l a nd take up the case de novo. There afte r, in a Per Curiam opinion issued on November 3, 2012, it found that I -8 voters should not be allowed to vote in the "a dded-by -hand" polling stations a nd that any

such voter who attempted to do so could fac e up to three y ear s imprisonment. As Plaintiff-Appellee points out, the Supreme Court only interpre ted the I -8 voters' rig ht to cast provisional ballots und er the Elector al Code

. I t thus "le ft the fede ral issu e t o b e ad j u d icated

. . . by the [Dist rict] Court." Response to Ap p el l ant Mundo-Ríos' Emerg ency Motion for a Stay Pending Appea l and/or Urg ing I mmediat e Vac atur, a

nd in the Alternative a Writ of Mandamus, at 6. Given the above scena

rio Plaintiff-Appellee s reque sted that the di strict co u rt issue

a reme dy to safe g uard the rig ht 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) wi t h the sole and exclusive purpose of prese rving its jurisdiction over Plaintiff-Appellee s' fede ral and constitutional law claims. The order states that it " does not contem plate the actual, im m ediate reac tivation on November 6 of any I -8 voters." I t doe s, howeve r, seek to "pr eser ve its power to ultimately resolve the controve rsies bef

ore it instead of

eng ag ing in a

n exercise of

futility ." I n my view the district court' s order does not contra dict the Per Curiam issued by this Court on November 2, 2012. The Per Curiam related to the Court's rea sons for denying a preliminaryinjunction wh i ch s o ug ht the reinstate m ent of the I -8 voters to the active voter list. The eff ect of having issued the preliminary injunction would have been that the ballots cast by the I -8s on elec tion day would have been considere d valid live ballots since the moment they wer e cast. The ballots that would have been cast pursuant to the district court' s order , by contra st, would have been provision al ballots that woul d have only been counted once the validity of the constitutional and fede ral law claims was e stablished.

I consider the district court' s o rd er t o be a valid attempt by the district court to prese rve its jurisdiction to deter mine if relief for Plaintiff-Appellee s' constitutional and fede ral law claims is proper . On November 2, 2012, I reluc tantly joined the other members of the pane l in denying Plaintiff-Appellants' reque st for emer g ency relief

. I note, howeve r, that I did so only beca use I did not consider that this Court could fashion such a reme dy moments afte r the Per Curiam issued. Evidently , the situation is differ ent now that the district court has taken appropr iate steps to prese rve its jurisdiction. In my view, the district court' s order deser ves defe renc e and should be left untouched espec ially g iven that the President of the CEE, Defen d ant-Appe llant Héc tor Conty -Pére z has manifested both on the radio and via the written media in Puerto Rico that he has alre ady fully complied wit h the di strict court' s order s . T h e u n dersig ned personally hear d him state on the radio that ballots wer e sent to the "a dded-by -hand" polling stations to acc ommodate the I -8s who seek to cast provisional ballots a

nd that the district c ourt' s order had been translated, published and would be post ed tomorrow at ever y polling station. This Court's va cation of the district court' s order will in fac t now bring about the cha os that has bee n predic ted.

Idissent.cc:

Carmen Consuelo Cere zo, J udg e, US District Court of Puerto Rico Fr ance s Rios de Moran, Clerk, US District Court of Puerto Rico Carlos Del Valle Cruz, Rafae l Gar cia- Rodon, Carlos Her nandez L opez, J uan Saavedr a-Castro, J ose Nieto-Ming o, Claudio A liff-Or tiz , Seth E rbe, David I ndiano-Vic ic, J ohanna Emmanuelli Huer tas, J oseg e Martinez-L

uciano, Pedro Ortiz-Alvare z, Emil Rodrigue z Escuder o, Marc os Valls-Sanche z, Nelson Cordova- Morales, John Mudd