United States Court of Appeals

For the First Circuit

____________________________

No. 12-2328

MYRNA COLON-MARRERO; JOSEFINA ROMAGUERA AGRAIT

Plaintiffs - Appellees

v.

EDWIN MUNDO-RIOS, as Electoral Commissioner of the New Progressive Party (NPP)

Defendant - Appellant

EDER E. ORTIZ-ORTIZ, as Electoral Commissioner of the Popular Democratic Party (PDP)

Defendant - Appellee

HECTOR J. CONTY-PEREZ, as President of the Puerto Rico State Elections Commission;

ROBERTO I. APONTE-BERRIOS, as Electoral Commissioner of the Puerto Rico 

Independence Party (PIP); JULIO FONTANET-MALDONADO, as Electoral 

Commissioner of the Movimiento Union Soberanista (MUS); ADRIAN DIAZ-DIAZ, 

as Electoral Commissioner of the Puertorriquenos por Puerto Rico (PPR); 

CARLOS QUIROS-MENDEZ, as Electoral Commissioner of the Partido del 

Pueblo Trabajador (PPT); LILLIAN APONTE-DONES, as Electoral Commissioner 

of the Partido del Pueblo Trabajador (PPT) 

Defendants

____________________________

No. 12-2329

MYRNA COLON-MARRERO; JOSEFINA ROMAGUERA AGRAIT

Plaintiffs - Appellees

v.

HECTOR J. CONTY-PEREZ, as President of the Puerto Rico State Elections Commission

Defendant - Appellant
EDER E. ORTIZ-ORTIZ, as Electoral Commissioner of the Popular Democratic Party (PDP); 

Defendant - Appellee

EDWIN MUNDO-RIOS, as Electoral Commissioner of the New Progressive Party (NPP); 

ROBERTO I. APONTE-BERRIOS, as Electoral Commissioner of the Puerto Rico 

Independence Party (PIP); JULIO FONTANET-MALDONADO, as Electoral 

Commissioner of the Movimiento Union Soberanista (MUS); ADRIAN DIAZ-DIAZ, 

as Electoral Commissioner of the Puertorriquenos por Puerto Rico (PPR); 

CARLOS QUIROS-MENDEZ, as Electoral Commissioner of the Partido 

del Pueblo Trabajador (PPT); LILLIAN APONTE-DONES, as Electoral 

Commissioner of the Partido del Pueblo Trabajador (PPT)

Defendants

__________________

Before

Torruella, Lipez and Howard,

Circuit Judges

__________________

JUDGMENT

Entered: November 5, 2012

Per Curiam. We concluded in our order of October 18, 2012 that it would be

improvident to grant plaintiff's requested relief with only 18 days remaining before the general

election. Federal Court intervention on the eve of the election is even more improvident. We are

wholly unpersuaded by the district court's rationale for doing so. Moreover, the district court entered

its orders of November 3 and 4 after we had unanimously denied a similar request for relief in our

order of November 2. The two orders of the district court entered as Docket Numbers 79 and 80 in

the district court action 12-cv-01749-CCC are hereby vacated forthwith.

So ordered.

"Dissenting opinion follows"
Torruella, Circuit Judge, (Dissenting).

I am once again forced to dissent from the decision taken by a majority of this panel.

I believe that the district court acted correctly in seeking to preserve its jurisdiction under the All

Writs Act, that the order does not conflict with the Per Curiam this Court issued on November 2,

2012 and that vacating said order at this point will indeed bring about the uncertainty and confusion

that the panel has feared all along.

The Per Curiam this Court issued on November 2, 2012 clearly stated that the Court

was "persuaded that plaintiff had established a likelihood of success on her federal election claim

under HAVA," but that it was yet to be determined if the remedy could include the reinstatement

of voters in the list of voters for the general elections, as opposed to their reinstatement in the list

of voters for the election for Resident Commissioner alone. Therefore, what the Court considered

to be undetermined is whetherit could orderthe I-8s to be reinstated as active votersin the general

elections. It also found that there were no findings as to the feasibility of ordering the reinstatement

of the voters in question only as to the election for Resident Commissioner. According to the Per

Curiam, the lack of findings as to the feasibility of reinstating the I-8s for purposes of the election

for the Resident Commissioner, along with doubts regarding its own competency and authority to

craft a same day recusal procedure, were major concerns for the majority.

Not content with having succeeded in preventing the I-8s' reinstatement, DefendantAppellant sought an order from the Commonwealth's court system to have the State Elections

Commission ("CEE," for its initials in Spanish) produce the I-8 lists so that poll workers could bar

the people appearing on said list who show up at the polling stations from casting provisional ballots

through the "added-by-hand" procedure contemplated the Puerto Rico Election Code and the

provisional ballot contemplated in HAVA. 
The Supreme Court of Puerto Rico initially denied Defendant-Appellant Mundo's

attempt to have the case lifted from the Court of First Instance to the Supreme Court by means of

a intrajurisdictional certification. The Supreme Court, in denying the initial request, gave the Court

of First Instance specific instructions on how it expected the latter to decide the issue on the merits.

It also made it clear that I-8 voters who attempted to vote "added-by-hand" could face up to three

years of jail time. Because the Court of First Instance did not act with the speed the Supreme Court

deemed appropriate, the Supreme Court decided to reconsider its prior denial and take up the case

de novo. Thereafter, in a Per Curiam opinion issued on November 3, 2012, it found that I-8 voters

should not be allowed to vote in the "added-by-hand" polling stations and that any such voter who

attempted to do so could face up to three years imprisonment. As Plaintiff-Appellee points out, the

Supreme Court only interpreted the I-8 voters' right to cast provisional ballots under the Electoral

Code. It thus "left the federal issue to be adjudicated . . . by the [District] Court." Response to

Appellant Mundo-Ríos' Emergency Motion for a Stay Pending Appeal and/or Urging Immediate

Vacatur, and in the Alternative a Writ of Mandamus, at 6.

Given the above scenario Plaintiff-Appellees requested that the district court issue

a remedy to safeguard the right 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) with the sole and

exclusive purpose of preserving its jurisdiction over Plaintiff-Appellees' federal and constitutional

law claims. The order states that it "does not contemplate the actual, immediate reactivation on

November 6 of any I-8 voters." It does, however, seek to "preserve its power to ultimately resolve

the controversies before it instead of engaging in an exercise of futility." 

In my view the district court's order does not contradict the Per Curiam issued by this

Court on November 2, 2012. The Per Curiam related to the Court's reasons for denying a preliminary
injunction which sought the reinstatement of the I-8 voters to the active voter list. The effect of

having issued the preliminary injunction would have been that the ballots cast by the I-8s on election

day would have been considered valid live ballots since the moment they were cast. The ballots that

would have been cast pursuant to the district court's order, by contrast, would have been provisional

ballots that would have only been counted once the validity of the constitutional and federal law

claims was established. 

I consider the district court's order to be a valid attempt by the district court to

preserve its jurisdiction to determine if relief for Plaintiff-Appellees' constitutional and federal law

claims is proper. On November 2, 2012, I reluctantly joined the other members of the panel in

denying Plaintiff-Appellants'request for emergencyrelief. I note, however, that I did so onlybecause

I did not consider that this Court could fashion such a remedy moments after the Per Curiam issued.

Evidently, the situation is different now that the district court has taken appropriate steps to preserve

its jurisdiction. In my view, the district court's order deserves deference and should be left untouched

especially given that the President of the CEE, Defendant-Appellant Héctor Conty-Pérez has

manifested both on the radio and via the written media in Puerto Rico that he has already fully

complied with the district court's orders. The undersigned personally heard him state on the radio

that ballots were sent to the "added-by-hand" polling stations to accommodate the I-8s who seek to

cast provisional ballots and that the district court's order had been translated, published and would

be posted tomorrow at every polling station. This Court's vacation of the district court's order will

in fact now bring about the chaos that has been predicted.

I dissent.
cc: 

Carmen Consuelo Cerezo, Judge, US District Court of Puerto Rico

Frances Rios de Moran, Clerk, US District Court of Puerto Rico

Carlos Del Valle Cruz, Rafael Garcia-Rodon, Carlos Hernandez Lopez, Juan Saavedra-Castro, Jose

Nieto-Mingo, Claudio Aliff-Ortiz, Seth Erbe, David Indiano-Vicic, Johanna Emmanuelli Huertas,

Josege Martinez-Luciano, Pedro Ortiz-Alvarez, Emil Rodriguez Escudero, Marcos Valls-Sanchez,

Nelson Cordova-Morales, John Mudd