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1 Nos. 12-2145 & _____ UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ______________________________________________________________________________ MYRNA COLÓN MARRERO, Plaintiff-Appellant/Plaintiff-Appellee/Respondent, v. HÉCTOR CONTY PÉREZ, President of the Puerto Rico State Elections Commission; EDWIN MUNDO RÍOS, as Electoral Commissioner of the New Progressive Party; EDER ORTIZ ORTIZ, as Electoral Commissioner of the Popular Democratic Party; ROBERTO I. APONTE BERRIOS, as Electoral Commissioner of the Puerto Rican Independence Party; JULIO FONTANET MALDONADO, as Electoral Commissioner of the Movimiento Unión Soberanista Party; ADRIAN DÍAZ DÍAZ, as Electoral Commissioner of the Puertorriqueños por Puerto Rico Party; and CARLOS QUIROS MENDEZ, as Electoral Commissioner of the Pueblo Trabajador Party, Defendants-Appellees/Defendants-Appellants/Petitioners ______________________________________________________________________________ EDWIN MUNDO-RÍOS’S EMERGENCY MOTION FOR STAY PENDING APPEAL AND/OR URGING IMMEDIATE VACATUR; IN THE ALTERNATIVE, PETITION FOR WRIT OF MANDAMUS __________________________________________________________________ Case: 12-2145 Document: 00116452609 Page: 1 Date Filed: 11/04/2012 Entry ID: 5687743

EDWIN MUNDO-RÍOS’S EMERGENCY MOTION

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EDWIN MUNDO-RÍOS’S EMERGENCY MOTION FOR STAY PENDING APPEAL AND/OR URGING IMMEDIATE VACATUR; IN THE ALTERNATIVE, PETITION FOR WRIT OF MANDAMUS

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Nos. 12-2145 & _____

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUI T

______________________________________________________________________________

MYRNA COLÓN MARRERO,

Plaintiff-Appellant/Plaintiff-Appellee/Respondent,

v.

HÉCTOR CONTY PÉREZ, President of the Puerto Rico State Elections Commission; EDWIN MUNDO RÍOS, as Electoral Commissioner of the New Progressive Party; EDER ORTIZ ORTIZ, as Electoral Commissioner of the Popular Democratic Party; ROBERTO I. APONTE BERRIOS, as Electoral Commissioner of the Puerto Rican Independence Party; JULIO FONTANET

MALDONADO, as Electoral Commissioner of the Movimiento Unión Soberanista Party; ADRIAN DÍAZ DÍAZ, as Electoral Commissioner of the Puertorriqueños

por Puerto Rico Party; and CARLOS QUIROS MENDEZ, as Electoral Commissioner of the Pueblo Trabajador Party,

Defendants-Appellees/Defendants-Appellants/Petitioners

______________________________________________________________________________

EDWIN MUNDO-RÍOS’S EMERGENCY MOTION FOR STAY PENDIN G APPEAL AND/OR URGING IMMEDIATE VACATUR;

IN THE ALTERNATIVE,

PETITION FOR WRIT OF MANDAMUS

__________________________________________________________________

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Defendant-Appellee/Defendant-Appellant/Petitioner,1 Edwin Mundo-Ríos

respectfully requests immediate review and reversal of two orders entered by the

United States District Court for the District of Puerto Rico on Sunday, November

4, 2012. These orders relate to this the case Colon-Marrero v. Conty-Pérez, 1st Cir.

Case No. 12-2145, in which an Opinion was issued on November 2, 2012. The

request made herein requires the immediate attention of this Court because, if

allowed to stand, will bring upon Puerto Rico’s November 6 general election the

very chaos, uncertainty and confusion that this Court recently avoided throughout

the Opinion.

INTRODUCTION

Earlier today, Sunday, November 4, 2012, the district court (Cerezo, J.)

ordered “that all I-8 voters, who show up on November 6, 2012 to vote shall be

allowed to cast a provisional ballot,” Order, Dkt.2 79 (D. Puerto Rico, Nov. 4,

2012), and that “[w]hen these provisional ballots cast by the I-8 voters on

November 6, 2012 reach the State Electoral Commission (SEC), their adjudication 1 Mr. Mundo is an Appellant in Case No. 12-2145. Although Mr. Mundo understands that this request is being properly submitted in Case No. 12-2145, he nevertheless has filed a notice of appeal in an abundance of caution. For this reason, and because Mr. Mundo is also seeking, in the alternative, mandamus review, he has been identified as “Defendant-Appellee/Defendant-Appellant/Petitioner.” Mr. Mundo will contact the Clerk’s Office first thing tomorrow, and file a motion with the Court.

For this reason, Plaintiff—Appellee in Case No. 12-2145—will be referred to as “Plaintiff” in this brief. 2 References to the documents filed in the district court will be identified as “Dkt.” followed by the number given to the document in the ECF System.

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shall be postponed to allow for this Court's resolution of the merits of the I-8

voters' constitutional challenge now pending before it." Id. That Order, issued

barely one working-day before Puerto Rico’s election, 3 is in irreconcilable

contravention to: (1) this Court’s Judgment, Opinion and Mandate in Colon-

Marrero v. Conty-Perez, see Opinion, No. 12-2145 p. 1 (Slip opinion, 1st Cir., Nov.

2, 2012) (holding that such “extraordinary relief [i.e. allowing I-8 voters to vote in

the upcoming election] could [not] be granted only weeks before the election

without creating uncertainty and confusion in the Puerto Rico electoral process”);

and, (2) the Order issued by the Panel in Colon-Marrero, before the district court’s

order at issue here, denying the very same relief that the district court later

afforded, see Order, No. 12-2145 (1st Cir., Nov. 2, 2012) (denying Plaintiff’s

request for a protective order allowing I-8 voters “to cast a provisional ballot”). In

short, the district court has effectively afforded, in the eve of the election, the very

form of relief that this Court has repeatedly declined to afford because it is not to

be feasible.

Moreover, not only is the extraordinary form of relief now afforded by the

district court contrary to the unambiguous rulings of this Court—see e.g. Order,

No. 12-2145 (1st Cir., Nov. 2, 2012); Opinion, No. 12-2145 p. 12-13 (“it would be 3 Although Judge Cerezo signed the Order on November 3, 2012, it was not until November 4 at noon that she notified it to the parties. In granting such an extraordinary form of relief without properly notifying the parties, the district court deprived them of an additional day to make an intelligent evaluation of the issues and the steps to follow.

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improvident to grant plaintiff’s requested relief [i.e. that all I-8 voters be allowed to

cast a vote] with only eighteen days remaining before the general election”)—but

the “uncertainty and confusion [that the ruling will have] in the Puerto Rico

electoral process” (id., p. 1) is gravely magnified by: (1) the district court’s timing

just one day before the election (an abnormality, as Judge Cerezo herself had

recognized “that it will be feasible to get the ballots to the polling places if the

Court of Appeals acts by this Friday, October 19, 2012, for it will take 10 to 12

days to do so, but if the Court waits to act until Tuesday of next week it would not

be feasible,” Dkt. 60); (2) the district court’s failure to address the concerns

regarding recusal procedures—effectively depriving the political parties of this

right (id., p. 10-11); and, (3) the fact that the district court’s ruling is in stark

conflict with an opinion issued on November 2, 2012 by the Puerto Rico Supreme

Court, see Mundo-Ríos v. SEC, et al., P.R.S.CT. No. CT-2012-020 p. 11

(discussing the Opinion of this Court and explaining that the I-8 voters “cannot

vote in an added by hand college unless they present an official document issued

by the SEC evincing that they have a right to cast a vote” (translation ours)).4

4 An official translation of the relevant excerpts of the Puerto Rico Supreme Court’s opinion is attached to this brief. Because of obvious time-constraints, a complete translation of the document could not be obtained.

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BACKGORUND

This Court is well aware of the factual and procedural background in this

case. See e.g., Order, No. 12-2145 (1st Cir. Oct. 18, 2012) (affirming denial of

preliminary injunctive relief because “serious feasibility issues preclude the entry

of the relief sought by plaintiff-appellant”); Opinion, No. 12-2145 pp. 1-6 (1st Cir.,

Nov. 2, 2012) (explaining reasons for denial and providing a thorough factual and

procedural background of this case). Before the Opinion was issued, Plaintiff filed

simultaneous requests for a protective order both in this Court and in the district

court. In this Court plaintiff argued that “[t]he individuals in the electoral register

of inactive voters—those that did not vote in the last election—[…] have rights

under HAVA to cast provisional ballots, subject to the due process review

procedures contemplated by law.” Emergency Motion To Protect The Court’s

Appellate Jurisdiction And The Rights Of American Citizens Residing In Puerto

Rico To Cast Provisional Ballots Under Hava Without Fear Of Criminal

Prosecution, No. 12-2145 p. 12 (1st Cir., Nov. 2, 2012). Plaintiff specifically

requested, inter alia:

A. THAT the SEC Apellees abide by their HAVA obligations under the Supremacy Clause of the United States Constitution, and comply the provisions of Section 15483 of HAVA and the HAVA Compliance Plan; […]

C. that the Commission publish an Announcement indicating that all American citizens who are inactive

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voters for failure to vote on the last general election may nonetheless be permitted to cast a provisional ballot on election day, which shall therefore be counted pursuant to the provisions of HAVA and the Commonwealth HAVA Compliance Plan;

Id., p. 13. This Court denied this request on even date. See Order, No. 12-2145

(1st Cir., Nov. 2, 2012).

In a similar (if not identical) fashion, plaintiff argued to the district court that

“[u]nder HAVA, an inactive voter … must be allowed to cast a provisional ballot,

and that ballot must be held by the SEC, until it is determined whether individual

votes will be counted pursuant to federal law.” Motion Requesting Order, Dkt. 69,

pp. 5-6. Plaintiff requested that the district court adopt a proposed order which it

included together with the motion. Restating the relief requested to this Court,

plaintiff’s requested, inter alia, (1) a declaration to the effect that “[t]he individuals

in the electoral register of inactive voters—those that did not vote in the last

general election—were unlawfully removed for (sic.) the list of registered voters

and still have rights under HAVA to cast provisional ballots subject to the review

procedures contemplated by law;” Proposed Order, Dkt. 69-1, p. 3, and (2) that the

Commission be ordered to “publish an Announcement indicating that all American

citizens who are inactive voters for failure to vote on the last general election may

nonetheless be permitted to cast a provisional ballot on election day, which should

be counted pursuant to the provisions of HAVA,” Id.

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As noted above, this Court denied Plaintiff’s request on November 2, 2012.

However, although this Court had denied the same form of relief sought in the

district court, the district court inexplicably granted such relief on November

3. The district court ruled:

[…] IT IS HEREBY ORDERED that all I-8 voters, who show up on November 6, 2012 to vote shall be allowed to cast a provisional ballot […]

IT IS FURTHER ORDERED that, pursuant to the regulations promulgated under the Code, I-8 voters be allowed to cast a provisional vote at an “added-by-hand” polling station, following the established procedure used for all other added-by-hand voters in conformity with the Commission’s regulations.

Neither the parties in this case nor any official, employee or agent of the Puerto Rico State Electoral Commission (SEC) or poll watchers or persons rendering services at the different polling stations or at the special “added-by-hand” units may hinder the casting of provisional votes by I-8 voters in the November 6, 2012 election.

When these provisional ballots cast by the I-8 voters on November 6, 2012 reach the State Electoral Commission (SEC), their adjudication shall be postponed to allow for this Court’s resolution of the merits of the I-8 voters’ constitutional challenge now pending before it.

Dkt. 79, p. 5-6 (emphasis omitted).

Because, as this Court has been recognizing since October 18, 2012,

affording such extraordinary form of relief is not feasible, much less doing so only

one working day before the election and without even providing for recusal

procedures, and because this Court had already denied the relief afforded by the

district court; the appearing Appellee has no other choice but to seek that the order

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be vacated. That order cannot even be reconciled with the district court’s own

orders which—even though this Court did not agree with respect to the feasibility

determination—nevertheless made abundantly clear that the feasibility of the

remedy originally envisioned by the district court had to be made on or before

October 23, 2012. See Opinion, Case No. 12-2145, p. 5.

ARGUMENTS

A. THE DISTRICT COURT’S RULING WAS FORECLOSED BY THIS COURT’S MANDATE AND SHOULD ACCORDINGLY BE SET ASIDE

It is well settled that “under the law of the case doctrine, ‘when a court

decides upon a rule of law, that decision should continue to govern the same issues

in subsequent stages in the same case.’” Negron-Almeda v. Santiago, 579 F.3d 45,

50 (1st Cir. 2009) (quoting United States v. Wallace, 573 F.3d 82, 87-88 (1st

Cir.2009). The doctrine has “two branches.” Id. (citing United States v. Moran,

393 F.3d 1, 7 (1st Cir.2004); Ellis v. United States, 313 F.3d 636, 646 (1st

Cir.2002)).

“The first branch, called the ‘mandate rule,’ ‘prevents relitigation in the trial court of matters that were explicitly or implicitly decided by an earlier appellate decision in the same case.’ Moran, 393 F.3d at 7. The second branch ‘contemplates that a legal decision made at one stage of a criminal or civil proceeding should remain the law of that case throughout the litigation, unless and until the decision is modified or overruled by a higher court.’ Id.; accord Ellis, 313 F.3d at 646. For example, this branch binds successor appellate panels in a second appeal in the same case unless certain

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circumstances justify reconsideration. Wallace, 573 F.3d at 87-89.”

Id., pp. 50-51.

The issue herein more properly involves the first branch, although the second

branch also appears to be at issue.

On October 18, 2012, after remanding to the district court to consider the

feasibility of the relief requested, “[a] majority of the panel [ ] concluded that

serious feasibility issues preclude the entry of the relief sought by plaintiff-

appellant.” Order, Case No. 12-2145.5 The Court subsequently entered an Opinion

explaining its decision. The Court explained that “[t]he record and the parties'

arguments failed to demonstrate that such extraordinary relief could be granted

only weeks before the election without creating uncertainty and confusion in the

Puerto Rico electoral process,” Opinion, Case No. 12-2145, p. 1, particularly

where the need for emergency relief “[was] largely of [plaintiff’s] own making,”

Id., p. 12 (citing Respect Maine PAC v. McKee, 622 F.3d 13 (1st Cir. 2010). The

Court further explained that “we concluded in our order of October 18 that it

would be improvident to grant plaintiff’s requested relief with only eighteen days

remaining before the general election.” Id., pp. 12-13.

5 The feasibility determination involved considering the availability of extra ballots and other electoral materials, the number of available polling places, training requirements for extra poll workers, the availability of additional volunteer poll monitors, and the procedures for recusal of voters based on residency, among others.

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The form of relief that both the district court and this Court declined to

afford was to order Defendants “to take all the necessary action under NVRA [and

HAVA] required to resuscitate the right to vote of the American citizens residing

in Puerto Rico”—including all I-8 voters—thereby opening the polls to close to

350,000 voters. Memorandum in Support of Motion for Preliminary Injunction,

Dkt. 7, p. 25. See also, Opinion, Case No. 12-2145 (“On October 18, 2012, we

affirmed the denial of an injunction that would have required the government to

reinstate more than 300,000 voters to the registration roll in time for the upcoming

federal election on November 6.”) Inexplicably, however, just one working day

before the election the district court has now ordered that “all I-8 voters, who show

up on November 6, 2012 to vote shall be allowed to cast a provisional ballot”

effectively eviscerating this Court’s Opinion ruling that that very form of relief

may not be afforded in this case.6 Nevertheless, because the relief recently afforded

by the district court was rejected by the prior decision of the panel the district

court’s determination is foreclosed by this Court’s mandate, which incorporates all

rulings of the Court in this case. See Negron-Almeda, 579 F.3d at 50 (“the

‘mandate rule,’ ‘prevents relitigation in the trial court of matters that were 6 Because of the inherent problems in opening the polls to close to 350,000 potential voters for the plebiscite, all state-wide offices (the Governor, 11 Senators at large, 16 Senators by district, 11 Representatives at large, 40 Representative by district), all municipal offices (78 Mayors and 78 Municipal Legislative Assemblies of between 9 and 33 members each), and for Puerto Rico’s only federal elected office, in terms of organization, resources, and procedures; and (2) because “[e]ven if it were appropriate for a federal court to prescribe alternative recusal procedures, [it] would be ill equipped to do so in the short time tie remaining before the election.” Id. p. 11.

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explicitly or implicitly decided by an earlier appellate decision in the same case.’”

(quoting Moran, 393 F.3d at 7)).

This Court should reverse the district court for exceeding the boundaries of

the mandate.

B. THE DISTRICT COURT’S ORDER IS NOT FEASIBLE AND IMPOSSIBLE TO COMPLY WITH AT THIS STAGE

As if the district court’s disregard of this Court’s orders were not enough,

the district court’s determination is patently unfair, troublesome, and truly erratic.

This is the same district court that recognized that the only way to implement

the relief at issue was to order the same on or before October 23, 2012,

because otherwise Defendants would not have the resources, means,

procedures and mechanisms to open the polls to 350,000 voters. See Opinion,

Case No. 12-2145. Moreover, the district court did so without even permitting for

residency recusals or even addressing this very important obstacle that was

thoroughly considered by this Court because it paves the way for countless

variances of electoral fraud. And, it did so by subjecting Puerto Rico’s electoral

process—including the counting of votes, the certification of candidates, and the

right of the citizens and the electoral parties to know who their public officials will

be—to the whim of a federal court ill equipped to do so—a federal court that has

made abundantly clear that it will not resolve disputes until, at least, December 1,

2012. As if this were not enough, it did not limit its ruling to the election of the

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Resident Commissioner, the ruling extends to the plebiscite, all state-wide

offices (the Governor, 11 Senators at large, 16 Senators by district, 11

Representatives at large, 40 Representative by district), and all municipal

offices (78 Mayors and 78 Municipal Legislative Assemblies of between 9 and

33 members each) as well.

i. The District Court’s Ruling Would Be Impossible To Comply With Only One Working Day Before The Election

In handling this case, this Court undertook a prudent and careful approach.

After a careful examination of the record, it was convinced it that to grant

plaintiffs’ request for preliminary injunction at this stage of the electoral process

would dislocate the elections in Puerto Rico and throw the whole process into

disarray. See Opinion, Case No. 12-2145, p. 3 (“Although we recognized the

importance of plaintiff’s claims, we declined to jeopardize the electoral process as

a whole by acting precipitously on evolving claims that had not yet been

adequately analyzed or developed by plaintiff.”) As noted above, the Court made

abundantly clear that

The record and the parties' arguments failed to demonstrate that such extraordinary relief could be granted only weeks before the election without creating uncertainty and confusion in the Puerto Rico electoral process.

Uncertainty and confusion, however, is what the district court has created

with an order that totally disregards, inter alia, the public interest and the purity of

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the elections, and amounts to an unnecessary and unwarranted intrusion of a

federal court into Puerto Rico’s upcoming general election. At this moment, one

(1) working day before the General Elections, all the electoral material has been

distributed to the seven thousand two hundred fifty five (7,255) polling stations

disperse all over Puerto Rico, including the one thousand five hundred and three

(1,503) added by hand polling stations. Because plaintiffs did not obtain the

preliminary injunction, the distribution of ballots, voting materials and polling

workers was done without considering the inclusion of more than 300,000

potential electors that may show up to vote on Election Day. In fact, the parties did

not train their poll works on the different legal and factual scenarios that affording

the relief requested would create.

Indeed, the district court’s order is filled with a myriad of defects and will

lead to countless problems that it failed to consider. For example, the order does

not say whether the over 330,000 voters will deposit their ballots in the same ballot

box than those who vote added by hand, creating confusion as to whether those

votes will be arrested with the I-8, and sequestered until the district court rules in

the matter. And, if the I-8 ballots were to be deposited in different ballot boxes,

those ballot boxes have not been distributed and are not available at those polling

stations.

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As already explained, the district court itself recognized that this

extraordinary relief could not reasonably be issued on or before certain cut-off date

precisely because of these problems. Relying in the opinion of Mr. Acevedo,

plaintiff’s own expert, the district court warned this Court in its findings of facts

that to make feasible the I-8 inactive voters participation in the November 6

General Elections the preliminary injunction had to be issued at least fourteen (14)

days before the General Election of November 6. 7 This Court so recognized where

it stated that:

On October 17, the district court certified its findings. In these findings, the court (1) concluded that it would be feasible to allow the I-8 voters to vote in the general election so long as this court ordered such relief by Tuesday, October 23, . . . (Our Emphasis)

If the only way the remedy was feasible was if the district court acted on or

before October 23, then how can it possibly be feasible with just one-working

day?8 It is self-evident that what needed no less than fourteen (14) days to be

implemented cannot be done in one (1). Such an admission on part of the district

7 At footnote 4 of its Order, this Court stated that “preparations could be made to accommodate the 330,902 deactivated voters if the orders to do so were given at least ten to twelve days before the election.” (Our Emphasis). Our argument, of course, is not an admission that what Acevedo requested was feasible. It is rather directed to establishing how the district court’s recent action is not feasible even under its prior erroneous understanding. 8 On this score, as the Court is aware, it is uncontested that after October 23 it was not feasible to afford the relief requested.

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court should have been enough for it to stay its hand and comply with this Court’s

mandate.

ii. The District Court’s Order Deprives The Political Parties Of Their Right To Conduct Recusals By Residency

With its ruling the district court has effectively be deprived the political

parties in this action of their right to adequately recuse I-8 voters on residency

grounds. This is a truly important issue that the district court failed to even address

despite the fact that this Court expressed serious concerns about it in the Opinion.

See Colon Marrero, slip opinion, No. 12-2145, p. 10-11. As this Court explained,

We also had concerns about the absence of same-day recusal procedures, an issue noted by the district court. While Professor Acevedo testified that there were sufficient materials and personnel available to successfully reinstate the I-8 voters for the November 6 general election, he pointed out that Puerto Rico law does not include a process by which poll watchers can challenge the validity of a voter's claim to residency on the day of the election. According to the testimony of several witnesses, establishing that the I-8 voters are residents of the precinct in which they seek to vote is necessary because the I-8 voters have not updated their voter information since before the November 2008 general election. It is therefore safe to assume that at least some of them now reside in different precincts than they did in 2008, while others may no longer be residents of Puerto Rico at all. In addition, a recusal mechanism on the day of the election would address the fact that the I-8 voters would be added to the registration roll without the voter review ordinarily conducted under Commonwealth law early in an election year. Even if it were appropriate for a federal court to prescribe alternative recusal

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procedures, we would be ill equipped to do so in the short time remaining before the election.

Opinion, Case No. 12-2145, p. 10-11.

This Court concerns on this important aspect of the feasibility determination

were adequate. If ignored, it paves the way for countless variances of electoral

fraud, as the Court correctly noted. The district court, however, fails to even

mention it in its about-face determination. More importantly, even if it had the

necessary tools to address it and craft appropriate recusal procedures—and it does

not, as this Court found—it is still a major concern that needed to be addressed.

The district court’s failure to do so further buttresses why the remedy afforded is

not feasible.

iii. The District Court’s Order Would Effectively Deprive The Political Parties—And The Citizens Of Puerto Rico—Of Knowing Who Has Won The Election And Should Be Certified Accordingly

As if the foregoing not enough, the district court’s new ruling—issued

without even hearing evidence as to its feasibility—to the effect that “[w]hen these

provisional ballots cast by the I-8 voters on November 6, 2012 reach the State

Electoral Commission (SEC), their adjudication shall be postponed to allow for

this Court's resolution of the merits of the I-8 voters' constitutional challenge"

effectively deprives the political parties and the citizens of Puerto Rico of even

knowing who their elected officials are until the district court resolves the issues

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(whenever this may be).9 In other words, not only the district court’s order opens

the election process to chaos and fraud by not permitting recusals on residency

grounds, and without even considering if the SEC and the political parties have the

necessary means and resources to implement such a remedy, it has informed the

parties that it will now arrest the electoral results until at least December 1, 2012—

assuming that every party accepts the district court final decision on the merits of

the permanent injunction and no appeals are filed. See Scheduling Order, Dkt. 81.

In its November 3, 2012 Order, notified on November 4, the district court

commanded the following:

When these provisional ballots cast by the I-8 voters on November 6, 2012 reach the State Electoral Commission (SEC), their adjudication shall be postponed to allow for this Court’s resolution of the merits of the I-8 voters’ constitutional challenge now pending before it.

Dkt. 79, p. 6 (emphasis omitted).

After issuing this order, the district court then issued a scheduling order that

makes clear that Puerto Rico may not know who its elected candidates are until at

least December 1, 2012. See Dkt. 81 (D. Puerto Rico, Case No. 12-1749). This is

so because the order sequesters or arrests more than 330,000 ballots for multiple

positions until, at least, December 1, 2012. Because those ballots could be

determinative of any position—and even a substantial less amount for positions

9Notably, the district court has made clear that it will not resolve the issue until, at least, December 1, 2012. See Dkt. 81 (D. Puerto Rico, Case No. 12-1749)

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with a smaller electoral base—no candidate one will accept defeat and the State

Elections Commission will not be in the position to certify a winner until after the

Court issues a decision on the merits. This situation will bring upon instability,

insecurity, and chaos to the process, and will have a direct impact on the

Government’s transition process which, by law, must begin on the fourth (4th) days

after the General Elections. See 1 Laws PR Ann §460(a). The citizens of Puerto

Rico do not deserve such uncertainties from the hands of a federal court. The harm

to the general public and its interest would be grave.

iv. The District Court’s Ruling Is Not Only In Stark Contravention With This Court’s Opinion, But Also With An Opinion Of The Puerto Rico Supreme Court Which Would Reasonably Lead To Further Confusion

As if the foregoing were not enough to plague the election and post-election

processes and procedures with unnecessary and unwarranted uncertainty and

confusion, on November 3, 2012, the Puerto Rico Supreme Court issued an

opinion in the case Mundo-Rios, v. State Election Commission, et al, CT-2012-020.

In said opinion, the Puerto Rico Supreme Court, after acknowledging that this

Circuit determined that the I-8 will to be allowed to vote in the 2012 General

Elections, and consistent with this determination, decided inter alia that the voters

included in the I-8 lists, because of their inactive status, cannot vote at the added

by hand polling station. See Exhibit I. Hence both this Court’s Opinion and the one

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issued by the Puerto Rico Supreme Court make abundantly clear that I-8 can be

excluded from voting in the upcoming election.

The orders issued by the district court pull in the opposite direction. Such

inconsistent rulings, with one issued barely one working day before the General

Elections with the necessary effect that local officers would not know what to

follow will add to the confusion and uncertainty among voters and polling workers

on Election Day, make the administering the voting process in those polling

stations unmanageable. Such unnecessary frontal clashes with the Puerto Rico

Supreme Court that should not be allowed—particularly after the ruling of this

Court.

CONCLUSION

For the foregoing reasons, the district court’s orders should be vacated.

Respectfully submitted.

Case: 12-2145 Document: 00116452609 Page: 19 Date Filed: 11/04/2012 Entry ID: 5687743

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CLAUDIO ALIFF-ORTIZ 300 Flores de Montehiedra Box 653 San Juan, Puerto Rico 00926 Tel. 787-608-6264

s/Claudio Aliff-Ortiz, Esq.

CLAUDIO ALIFF-ORTIZ USCA Bar No. 30369 [email protected] INDIANO & WILLIAMS, P.S.C. 207 Del Parque; 3rd Floor San Juan, PR 00912 Tel: (787) 641-4545 Fax: (787) 641-4544 s/ David C. Indiano DAVID C. INDIANO USCA Bar No. 46075 [email protected] s/ Seth A. Erbe SETH A. ERBE USCA Bar No. 94433 [email protected]

November 4, 2012.

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CERTIFICATE OF SERVICE

I hereby certify that on this same date I electronically filed the foregoing

document with the United States Court of Appeals for the First Circuit by using the

CM/ECF system. I certify that the following parties or their counsel of record are

registered as ECF Filers and that they will be served by the CM/ECF system:

Carlos Antonio Del Valle Cruz, Rafael Enrique Garcia-Rodon, and Carlos Miguel

Hernandez Lopez on behalf of Appellant Myrna Colon-Marrero; Jose Nieto Mingo

on behalf of Appellee Hector Conty-Perez; Jorge Martinez Luciano, Emil J.

Rodriguez Escudero on behalf of Eder Ortiz Ortiz; and Nelson Cordova on behalf

of Adrian Diaz Diaz.

s/Claudio Aliff-Ortiz, Esq.

Case: 12-2145 Document: 00116452609 Page: 21 Date Filed: 11/04/2012 Entry ID: 5687743