Colon Marrero Response Eder

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CASE NO.: 12-2328

IN UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

MYRNA COLÓN-MARRERO, et al

Plaintiffs-Appellees

VS.

EDWIN MUNDO-RÍOS

Defendants-Appellant

HÉCTOR J. CONTY-PÉREZ, et al

Defendants-Appellees

RESPONSE TO APPELLANT MUNDO-RÍOS’ EMERGENCY MOTION

FOR A STAY PENDING APPEAL AND/OR URGING IMMEDIATE VACATUR, AND IN THE ALTERNATIVE FOR A WRIT OF MANDAMUS

TO HONORABLE COURT:

COMES NOW Eder Ortiz-Ortiz, in his official capacity as Electoral

Commissioner for the Popular Democratic Party (hereinafter referred to as

“PDP”), through the undersigned counsel and very respectfully SETS FORTH

and PRAYS:

I. INTRODUCTION

Earlier today, co-defendant-appellant Edwin Mundo-Ríos filed a motion

bearing all cannons on the District Court’s November 4, 2012 order on the issue of

the casting of a provisional ballot as per the Help America Vote Act of 2002, 42

Case: 12-2328 Document: 00116453030 Page: 1 Date Filed: 11/05/2012 Entry ID: 5688030

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U.S.C. § 15301, et seq. (hereinafter referred to as “HAVA”). Ironically, Mr.

Mundo avers that the vindication of HAVA’s plain-language mandate would bring

about “chaos” on tomorrow’s general election. Not only does the District Court

merely enforces federal law which has been ignored by the Puerto Rico Supreme

Court in its November 3, 2012 per curiam Opinion, but it actually restores order to

the polling stations by reinstating the provisional ballot system that the Puerto Rico

State Elections Commission (hereinafter referred to as “SEC”) has had in place for

decades.1

We hereby address the misleading grounds upon which Mundo seeks the

reversal of an order less than 24 hour after it was issued and less than 24 hours

before an election.

II. DISCUSSION

A) THIS HONORABLE COURT’S NOVEMBER 2, 2012 OPINION

After a rollercoaster ride of appellate litigation, on November 2, 2012, a

divided panel issued its Opinion affirming the District Court’s denial of plaintiffs’

plea for interlocutory injunctive relief, in Case No. 12-2145. See Colón-Marrero v.

Conty-Pérez, __ F.3d __, 2012 U.S. App. LEXIS 22622 (1st Cir. 2012) (per

curiam). This ruling rejected plaintiff’s proposed plan (which was found to be

1 The dispositive portion of Judge Cerezo’s order provides that provisional ballots are to be cast as per pertinent provisions of Puerto Rico law and SEC regulations. See Civil No. 12-1749 Docket Number 78, at 5-6.


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viable by the District Court after the holding of an evidentiary hearing) for her and

similarly-situated voters to be able to cast a ballot on November 6, 2012 and to

have said ballot adjudicated on election day. Id. at * 4-5. Moreover, although the

majority found that the National Voter Registration Act of 1993, as amended, 42

U.S.C. §§ 1973gg-1973gg-10 (hereinafter referred to as “NVRA”) did not apply to

Puerto Rico, the case was remanded to the District Court for consideration of

plaintiff’s remaining claims under HAVA and under the U.S. Constitution. Id. at *

14.

The order entered yesterday by the District Court is a direct response to

Mundo’s attempt to, through an eleventh-hour Puerto Rico Supreme Court ruling,

deny plaintiff, as well as all other voters in Puerto Rico, the absolute right to

cast a provisional ballot under HAVA, if they understand that they should appear

in the active voter rolls. The matter of the right to cast a provisional ballot under

HAVA was never at issue in the previous appeal and is thus well outside the

purview of the November 2, 2012. As explained, the November 2, 2012 Opinion

deals with a plan (found to have been unviable by a majority of the panel) to have

the inactivated voters cast a regular ballot to be counted on Election Day. As

we shall explain later on, the subject matter of the appealed order is the right to

cast a provisional ballot, subject to adjudication or rejection at a later date.

The District Court’s is perfectly consistent with the remand of the


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HAVA/constitutional claims, which the Court has decided to, within its discretion,

set forth on an expedited procedural track. Irrespective to the holdings in this

case, HAVA already allows any voter, in an election involving a federal office

(such as the Office of Resident Commissioner) to cast a provisional ballot, which

may or may not be adjudicated later. If2 an undetermined amount of legitimately

inactivated voters decides to exercise their right to cast a provisional ballot

tomorrow and the District Court finds for the plaintiff in this case before such

provisional ballots are adjudicated, then said voters have a legitimate hope of

exercising their fundamental right. In light of the fact that Mundo’s attempt to

eliminate the right to, under HAVA, cast a provisional ballots affects the

inactivated voters’ access to remedies in this case, the District Court had every

reason to protect her jurisdiction through an order under the All Writs Act. Indeed,

it is hornbook law that "[u]nless appropriately confined by Congress, a federal

court may avail itself of all auxiliary writs as aids in the performance of its

duties, when the use of such historic aids is calculated in its sound judgment to

achieve the ends of justice entrusted to it." Adams v. United States ex rel.

McCann, 317 U. S. 269, 273 (1942) (emphasis added); see also In re Previn, 204

F.2d 417, 418 (1st Cir. 1953) (“The basic purpose of § 1651, and of its statutory

2 There is no evidence to suggest that there will be any type of stampede of inactivated voters charging the polls because the District Court has chosen to vindicate rights under HAVA.


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predecessors, was to assure to the various federal courts the power to issue

appropriate writs and orders of an auxiliary nature in aid of their respective

jurisdictions as conferred by other provisions of law.”).

The Supreme Court has “repeatedly recognized the power of a federal court

to issue such commands under the All Writs Act as may be necessary or

appropriate to effectuate and prevent the frustration of orders it has previously

issued in its exercise of jurisdiction otherwise obtained”. United States v. New

York Tel. Co., 434 U.S. 159, 172 (1977).

In sum, the November 2, 2012 Opinion is not being at all disturbed. Rather,

the order seeks to make it possible for the District Court to effectively undertake

the duties imposed upon it on remand.

B) THE PUERTO RICO SUPREME COURT RULING

In an effort to imbue the instant case with inexistent tensions between the

Commonwealth and the Federal judiciary, Mundo invokes a 6-3 per curiam

Opinion issued last Saturday by the Puerto Rico Supreme Court in the case of

Mundo Ríos v. Comisión Estatal de Elecciones, et al, Case No. CT-2012-20. From

the outset we must point out that Mr. Mundo has chosen to cherry-pick a fragment

of the Puerto Rico Supreme Court’s Opinion, in isolation of the remainder of said

opinion and of the vigorous dissent of three Justices. It is Mundo’s burden to

translated the entire Opinion if he intends to use it in support of his contentions on


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appeal, as per this Honorable Court’s Local Rule 30(e)3.

In any event, the Puerto Rico Supreme Court’s ruling is explicitly restricted

to said Court’s construction of Puerto Rico law. The appearing party is also a

party in the case decided by the Puerto Rico Supreme Court. In our brief before

said tribunal, we explicitly cited pertinent provisions of HAVA and its applicable

jurisprudence. The Court chose to eschew all discussion of federal law. This left

the federal issue to be adjudicated by the entity that was created for that purpose, to

wit: an Article III Court.

It is also worth noting that besides constituting a valid exercise of the

District Court’s authority under 28 U.S.C. § 1651(a), the appealed order has the

collateral benefit of vindicating the rights of voters who voted in the 2008 election,

yet were included in the inactive voters roll due to clerical administrative mistakes 3 This rule provides that:

The court will not receive documents or cited opinions not in the English language unless translations are furnished. Whenever an opinion of the Supreme Court of Puerto Rico (or other Commonwealth of Puerto Rico court) is cited in a brief or oral argument which does not appear in the bound volumes in English, an official, certified or stipulated translation thereof shall be filed. Unless the translation is filed electronically in compliance with the court’s electronic filing system, three conformed copies should also be filed. Partial translations will be accepted if stipulated by the parties or if submitted by one party not less than 30 days before the oral argument. Where partial translations are submitted by one party, opposing parties may, prior to oral argument, submit translations of such additional parts as they may deem necessary for a proper understanding of the holding. (emphasis added)


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by the SEC. Our brief before the Puerto Rico Supreme Court included evidence of

one such case that was identified and corrected prior to the election. Moreover, the

SEC’s brief before the Puerto Rico Supreme Court (opposing Mundo’s position)

conceded that the so-called I-8 lists contain errors that are usually corrected

through the provisional ballot mechanism provided by Puerto Rico law (and

materially altered by the Supreme Court last Saturday) and by HAVA. But for the

appealed order, erroneously inactivated voters will face summary

disenfranchisement just because they happen to appear in a list that everybody now

knows is not infallible.

There is no clash of jurisdictions here, just a federal court enforcing federal

law in order to preserve its jurisdiction over an undecided claim.

C) RIGHTS UNDER HAVA

Section 302(a) of HAVA 42 U.S.C. § 15482 (a), provides that:

If an individual declares that such individual is a registered voter in the jurisdiction in which the individual desires to vote and that the individual is eligible to vote in an election for Federal office, but the name of the individual does not appear on the official list of eligible voters for the polling place or an election official asserts that the individual is not eligible to vote, such individual shall be permitted to cast a provisional ballot as follows: (1) An election official at the polling place shall notify the individual that the individual may cast a provisional ballot in that election. (2) The individual shall be permitted to cast a provisional ballot at that polling place upon the execution of a written affirmation by the individual before an election official at the polling place stating that the individual is--


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(A) a registered voter in the jurisdiction in which the individual desires to vote; and (B) eligible to vote in that election. (3) An election official at the polling place shall transmit the ballot cast by the individual or the voter information contained in the written affirmation executed by the individual under paragraph (2) to an appropriate State or local election official for prompt verification under paragraph (4). (4) If the appropriate State or local election official to whom the ballot or voter information is transmitted under paragraph (3) determines that the individual is eligible under State law to vote, the individual's provisional ballot shall be counted as a vote in that election in accordance with State law. (5) (A) At the time that an individual casts a provisional ballot, the appropriate State or local election official shall give the individual written information that states that any individual who casts a provisional ballot will be able to ascertain under the system established under subparagraph (B) whether the vote was counted, and, if the vote was not counted, the reason that the vote was not counted. (emphasis added)

The purpose of the above protection is not open to debate. See Sandusky

County Democratic Party v. Blackwell, 387 F.3d 565, 576 (6th Cir. 2004)

(“HAVA is quintessentially about being able to cast a provisional ballot. No

one should be ‘turned away’ from the polls, but the ultimate legality of the

vote cast provisionally is generally a matter of state law. Any error by the state

authorities may be sorted out later, when the provisional ballot is examined, in

accordance with subsection (a)(4) of section 15482. But the voter casts a

provisional ballot at the peril of not being eligible to vote under state law; if

the voter is not eligible, the vote will then not be counted. Directive 2 exactly

preserves this distinction, while generally curing the other defects correctly found


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by the district court.”) (emphasis added).

It is flat out absurd to propose that allowing inactivated voters to cast a

provisional ballot under HAVA constitutes some sort of backdoor injunction to

have plaintiffs and similarly-situated voters’ right to vote validated ipso jure. The

plain language of the statute makes it clear that the adjudication of provisional

ballots is separate and independent from the casting of the ballot itself. As recently

explained by the Eleventh Circuit:

HAVA section 302(a) describes general procedures for casting and reviewing provisional ballots; it does not impose any federal standards on voter registration or voter eligibility, both of which remain state decisions. Subsection 6 itself states that a voter who has failed to register due to a mismatch of the identification numbers can cast a provisional ballot, which will be counted if the voter can verify the information provided within two days of the election date. See Fla. Stat. § 97.053(6). HAVA section 302(a) expressly states that a provisional ballot be counted only if the voter is eligible under state law to vote in that particular election. Registration is an eligibility requirement under the Florida constitution and statutes. See Fla. Const. art. VI; Fla. Stat. § 97.053(2). Subsection 6's provisional ballot measures are consistent with HAVA section 302(a), as both statutes would count only those provisional ballots cast by voters who were eligible -- in Florida, registered -- to vote in the election.

Fla. State Conf. of the NAACP v. Browning, 522 F.3d 1153, 1170 (11th Cir. 2008) (emphasis added) People who -for whatever reason- do not appear in the active voter lists who

understand that they should be allowed to vote, and are willing to so state under

oath, have a federal right under HAVA to cast a provisional ballot. This right

constitutes a significant advance in federal election law that experts agree should


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be further expanded, not restricted as Mundo would like. In that sense, Professor

Richard Pildes observes:

Despite the limited practical role of preclearance review, an enormous defense of it has been mounted already and will continue to be marshaled as the renewal process reaches center stage in Congress. But the renewal process presents an opportunity for rethinking what the model for federal voting-rights protection ought to be. Rather than mechanically reaffirming a model from earlier decades that is increasingly irrelevant and not designed for the voting problems of today, the renewal process could be used as a vehicle for moving voting-rights policy forward, not just in the details, but in the essential philosophy and structure of national policy. HAVA and the NVRA already represent major breakthroughs of this sort, though the NVRA is limited to registration issues and HAVA's mandatory requirements are focused on voting technology and provisional ballots. But, HAVA constitutes a major recognition, in the wake of the 2000 election, that we need uniform, nationwide laws to structure at least certain aspects of the democratic electoral process. This is not to say that HAVA itself is perfect in all its details (indeed, it is far from it); but it is to say that statutes like HAVA and the NVRA provide a distinct model or form that national voting-rights legislation has taken in the last fifteen years and might, in principle, best take in coming years.

Richard Pildes, The Future of Voting Rights Policy: From Anti-Discrimination to the Right to Vote, 49 How. L.J. 741, 759 (2006) The order challenged herein appropriately preserves the District Court’s

ability to provide effective relief while at the same time vindicating basic rights

under HAVA.

D) FEASIBILITY CONCERNS

When plaintiffs herein proposed that, three weeks prior to the election,

certain steps should have been indicated to vindicate said parties’ right to vote, co-


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defendant Mundo went out of his way to argue that every single one of those steps

was not feasible. In what eventually became Case No. CT-2012-20 before the

Puerto Rico Supreme Court, Mundo had a sudden change of heart and proposed

that the impression of thousands of previously inexistent I-8 voters lists (each

having 330,902 names on them) and having those lists sent to the polling stations,

three days prior to the election, was totally feasible. Now of course, Mundo does

yet another about face and goes back to his original naysayer approach to argue

that it is not feasible to guarantee rights afforded under HAVA.

As per the documents attached to plaintiffs’ response in the instant case, the

SEC has entered into an agreement with the USDOJ to implement, inter alia,

HAVA’s provisional ballot procedures since 2003. The appealed order does not

ask the SEC to do anything that it was not supposed to do even if the instant case

was never filed. This renders all arguments about confusion by the polling station

officers simply impossible to credit. One must presume that the SEC and the

political parties did their job and trained their officers to comply with the 2003

compliance and implementation agreement. If anyone is responsible for confusing

the People of Puerto Rico it is Mr. Mundo, who has gone to such ends as to

brazenly make a public invitation for SEC President Conty to ignore and refuse to

heed the appealed order. Mundo has also made it clear that he intends to disregard

the District Court’s order and to instruct his polling station officers to also


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disregard the Court’s mandate. A few hours ago, Mundo even filed an

unprecedented judicial review action, before the Puerto Rico Court of First

Instance, seeking to reverse President Conty’s decision to comply with Judge

Cerezo’s order.

The remainder of the arguments on feasibility contained in Mundo’s motion,

are based on the wholly unsubstantiated factual assumption that over 300,000

voters will flood the provisional ballot polling stations come tomorrow. The hard

facts are that the I-8 voters are most group that shows the most apathy towards the

electoral process, as they did not take the time to reactivate their status on or before

the September 17, 2012 deadline. Mundo points to no evidence to substantiate that

the apathetic I-8 voters will reflect a 100% turnout at the polls, where the 2008

featured a 79% turnout of the active voters. Mundo’s arguments are thus based on

sheer speculation. In fact, one has to assume the worse in order to begin to

imagine that anyone is injured by the appealed order.

It is plainly feasible to have puertorrican voters cast provisional ballots as

mandated by HAVA. Not only is this feasible, it is expected. Mundo’s doomsday

predictions are based on inaccuracies and unfounded doomsday theories and must

therefore be rejected.

WHEREFORE it is respectfully requested from this Honorable Court that

Mundo’s motion for emergency relief be hereby DENIED.


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CERTIFICATE OF SERVICE

Appellee hereby certifies that on this same date they have filed the foregoing

with the Court’s Electronic Filing System, which will serve copy of the same, via

e-mail, upon all registered attorneys of record.

In San Juan, Puerto Rico this 5th day of November, 2012.

RESPECTFULLY SUBMITTED,

PEDRO E. ORTIZ ALVAREZ, LLC P.O. Box 9009

Ponce, Puerto Rico 00732 Tel (787) 841-7575; 758-9356 Fax (787) 841-0000; 758-9243

/S/Jorge Martínez-Luciano

JORGE MARTÍNEZ-LUCIANO USCA-1st Cir. No. 78539

e-mail: [email protected]

/S/Pedro E. Ortiz Álvarez PEDRO E. ORTIZ ÁLVAREZ

USCA-1st Cir. No. 5253 e-mail: [email protected]

/S/Emil Rodríguez-Escudero

EMIL RODRÍGUEZ-ESCUDERO USCA-1st Cir. 117999

e-mail: [email protected]


Colon Marrero Response Eder

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