ROSSELLO V. CALDERON- DECISION DE 1ER CIRCUITO DE BOSTON
For the First Circuit
PEDRO J. ROSSELLÓ-GONZÁLEZ; LUIS FORTUÑO; MIRIAM RAMÍREZ;
NANETTE GUEVARA; ARNOLD GIL-CARABALLO; LARRY SEILHAMER;
JOSÉ SÁNCHEZ; JUAN F. RAMÍREZ AND JAVIER RODRÍGUEZ-HORTA,
SILA M. CALDERÓN-SERRA, individually and in her capacity as
GOVERNMENT TRANSITION COMMITTEE; GERARDO A. CRUZ, individually
and in his capacity as a member of the
Puerto Rico Electoral Commission,
PEDRO J. ROSSELLÓ-GONZÁLEZ; LUIS FORTUÑO; MIRIAM RAMÍREZ;
NANETTE GUEVARA; ARNOLD GIL-CARABALLO; LARRY SEILHAMER;
JOSÉ SÁNCHEZ; JUAN F. RAMÍREZ AND JAVIER RODRÍGUEZ-HORTA,
ELECTION COMMISSION; AURELIO GRACIA-MORALES, individually
and in his capacity as PRESIDENT OF THE PUERTO RICO ELECTORAL
COMMISSION; THOMAS RIVERA-SCHATZ, individually and in his
capacity as a member of the Puerto Rico Electoral Commission;
JUAN DALMAU-RAMÍREZ, individually and in his capacity as a
member of the Puerto Rico Electoral Commission,
IN RE GERARDO A. CRUZ,
IN RE STATE ELECTIONS COMMISSION,
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez,
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
María Soledad Piñeiro, argued on behalf of respondents Manuel R. Suárez-Jiménez, Enid Abreu-Zurinaga, José A. Alvarez-Febles and Liany Fernández-Toledo.
Rafael Escalera-Rodríguez, argued on behalf of petitioners Gerardo A. Cruz and the State Elections Commission.
Richard H. Pildes, Professor of Law, New York University School of Law, with whom Pedro A. Delgado-Hernández, Ramón L. Walker-Merino, Eileen Marie García-Wirshing, and O'Neill & Borges, were on brief, for appellants The Puerto Rico Electoral Commission and Aurelio Gracia-Morales.
Charles J. Cooper, with whom Brian S. Koukoutchos, Vincent J. Colatriano, Derek L. Shaffer, Nicole J. Moss, and Cooper & Kirk, PLLC, were on brief, for appellant Aníbal Acevedo-Vilá.
Theodore B. Olson, with whom Miguel A. Estrada, Andrew S. Tulumello, Matthew D. McGill, Gibson Dunn & Crutcher LLP, James F. Hibey, William R. Sherman, Howrey Simon Arnold & White, LLP, Joseph D. Steinfield, Prince, Lobel, Glovsky & Tye, LLP, Luis Berríos-Amadeo, Andrés W. López, The Law Offices of Andrés W. López, Andrés Guillemard-Noble, Nachman & Guillemard, Charles A. Rodríguez, and David C. Indiano, were on brief, for appellees.
Rafael Escalera-Rodríguez, Néstor J. Navas-D'Acosta, Reichard & Escalera, Zuleika Llovet-Zurinaga, Carlos E. López-López, and Llovet Zurinaga & López, PSC, were on brief, for appellant The Honorable Sila M. Calderón.
Pedro E. Ortiz-Álvarez, with whom Johanna Emmanuelli-Huertas, Jorge Martínez-Luciano, Gina Ismalia Gutiérrez-Galang, and the Law Offices of Pedro E. Ortiz-Álvarez, PSC, were on brief, for appellant Gerardo A. Cruz.
Luis Sánchez-Betances, with whom Gerardo De Jesús-Annoni, and Sánchez Betances & Sifre, P.S.C., were on brief, for appellant The Incoming Transition Committee.
December 15, 2004
TORRUELLA, Circuit Judge; STAHL, Senior
Circuit Judge; and HOWARD, Circuit Judge. The
Plaintiffs-Appellees include NPP candidate Rosselló
and a number of voters who voted for him in the
part of this appeal is an action filed on November 16, 2004 in the Court
of First Instance for San Juan, Puerto Rico, the local trial court, by four
voters (collectively, "the Suárez
Plaintiffs") who claim to have cast, and want to establish the validity
of, the ballots at issue in the Rosselló action
("the Suárez action"). (3) After the Court of
First Instance dismissed the Suárez action on
The ballot instructed voters to vote for only one candidate for Governor and one for Resident Commissioner. On election day, voters filled in the ballots in the following ways: (1) by placing a mark under a party insignia, thereby voting for all of the candidates in that party's column ("a straight vote"); (2) by placing a mark next to the name of each desired candidate but not under a party insignia; (3) by placing a mark under a party insignia and next to a desired candidate of a party other than the one that had its insignia previously marked; (5) or (4) by placing a mark under a party insignia and marks next to two desired candidates associated with a party or parties other than the one that had its insignia previously marked ("a three-mark split vote"). (6)
two million votes were cast in the
During the election, thousands of three-mark split vote ballots -- as many as 28,000 -- were cast. Apparently, the vast majority of these ballots contained a mark under the insignia of the PIP and marks next to the two PDP candidates. (11)
number of the three-mark ballots were adjudicated at the polling centers on
election night. (12) And, for the first two or three days of the general
canvass, which began on November 8, 2004, some of the three-mark ballots that
had been contested at the polling centers, and thus, had not been adjudicated,
were determined to be valid. But, on
1. The Federal and State Court Actions
November 10, 2004, the Rosselló Plaintiffs filed a
complaint against the Acevedo Defendants in the District Court that asserted
various federal constitutional claims under 42 U.S.C. § 1983 arising out
of the November 2, 2004 election. On
Court of First Instance dismissed the Suárez action
without prejudice on
the removal, the Supreme Court purported to enter a judgment on the Suárez action on the evening of
II. THE PETITIONS FOR MANDAMUS
begin with the two Emergency Petitions for Writ of Mandamus that request we
exercise our power of mandamus and instruct the District Court to remand the Suárez case to the
We note at the outset that we have given the District Court ample opportunity to decide whether removal of the Suárez action was proper, and despite the time-sensitive nature of this case, and three weeks of hearings on the merits of the Rosselló action which has been consolidated with this case for appeal, we are now faced with the extreme decision of whether we should compel remand through a Writ of Mandamus.
order to stave off the need for mandamus, we invited the District Court to
address these mandamus petitions. In response, the court appended a footnote to
his opinion of
a hearing on
A. Availability of Mandamus
it is an extraordinary remedy, mandamus can be appropriate in those rare cases
in which the issuance (or non-issuance) of an order (1) raises a question about
the limits of judicial power, (2) poses a risk of irreparable harm to the
appellant, and (3) is plainly erroneous. See Christopher v. Stanley-Bostich, Inc., 240 F.3d
95, 99 (1st Cir. 2001). Moreover, "the case for mandamus is
particularly compelling where the order poses an elemental question of judicial
B. Validity of Removal
We find that the exercise of removal jurisdiction is plainly erroneous in this case because no federal question was presented in the Suárez action either procedurally (because the four corners of the complaint do not plead a federal question) or substantively (because we have decided in the Rosselló action that the federal courts will not intervene in a local electoral dispute). Because we find that remand to the Puerto Rico Supreme Court is necessary due to the absence of a federal question, we do not address the petitioners' second argument, that removal was improper because it did not receive the consent of all defendants to the Suárez action.
1. Well-Pleaded Complaint Rule
case may be removed to federal court if it presents a "claim or right
arising under the Constitution, treaties or laws of the
as a whole, we cannot say that this complaint presents a claim under the
federal Constitution. No explicit reference to the United States Constitution
or any other federal law is contained in the complaint; instead, all references
it is well-settled that "the plaintiff [is] the master of the claim; he or
she may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar Inc. v. Williams, 482
2. Artful Pleading Doctrine
Respondents invite this court to consider the possibility that the Suárez plaintiffs engaged in artful pleading, a
"corollary of the well-pleaded complaint rule that a plaintiff may not
defeat removal by omitting to plead necessary federal questions in a
complaint." Franchise Tax Bd., 463
3. Federal Ingredient
also argue that even in the absence of a claim arising under federal law on the
face of plaintiffs' well-pleaded complaint, federal removal jurisdiction is
still proper under the Supreme Court's statement in Franchise Tax Board
that removal would be appropriate "if a well-pleaded complaint established
that [the plaintiff's] right to relief under state law requires resolution of a
substantial question of federal law." 463
Federal ingredient jurisdiction remains "controversial," Almond v. Capital Properties, Inc., 212 F.3d 20, 23 (1st Cir. 2000), because
[t]he Supreme Court has periodically affirmed this basis for jurisdiction in the abstract . . ., occasionally cast doubt upon it, rarely applied it in practice, and left the very scope of the concept unclear. Perhaps the best one can say is that this basis endures in principle but should be applied with caution and various qualifications.
Respondents hang their jurisdictional hat on two doctrines that they allege exist in the caselaw of the Puerto Rico Supreme Court. The first stems from the Puerto Rico Supreme Court's statements in a 1964 case that, in accepting the Commonwealth's Bill of Rights, the United States Congress "was to presume -- and in fact it is so and ought to be -- that the public powers and the courts of the Commonwealth shall render effective and construe the provisions of the [Puerto Rico] Bill of Rights in a manner consistent with the protection afforded . . . by the same or similar provisions of the Constitution of the United States." R.C.A. Communications, Inc. v. Gov't of the Capital, 91 P.R.R. 404, 414-15 (P.R. 1964). The second comes into play when a federal court certifies a question of state law to the Puerto Rican Supreme Court. According to the Supreme Court:
[W]hen the question before us refers to the validity of a state law under a clause of the state constitution that is similar to a clause in the federal Constitution . . . the issue is a mixed question of federal and state rights that must be resolved by the federal court, because the validity of the statute under the federal Constitution necessarily disposes of the question under state law. . . . In these circumstances we must refuse certification, since our decision would be only advisory.
Pan Am. Computer Corp. v. Data Gen. Corp., 112 D.P.R. 780, 793-94 (1982). According to Respondents, these two provisions mean that the Supreme Court's evaluation of the Suárez plaintiffs' claims under the due process and equal protection doctrines of the Commonwealth Constitution will require the resolution of a federal question: whether the parallel provisions of the United States Constitution would be violated by the acts in question. Accordingly, Respondents argue, the federal district court has removal jurisdiction under the federal ingredient doctrine.
arguments fundamentally misconstrue the federal ingredient doctrine. Whether a
state court will adopt as the meaning of the state's constitution the federal
courts' interpretation of parallel language in the United States Constitution
is a matter of state law. See, e.g., Nieves,
7 F.3d at 274. Federal law does not compel such an outcome. Thus, a
determination of whether a violation of the Puerto Rican Constitution's
guarantees of due process and equal protection has occurred does not "require
resolution" of whether the conduct complained of would violate the federal
Constitution. Franchise Tax Bd., 463
4. Effect of the Rosselló Decision
Lastly, and perhaps most significantly, the Suárez complaint cannot be said to state a federal question, because, as we will discuss now, the federal courts will not intervene in a local electoral dispute such as this. Although we find that it was plain error for the District Court not to remand the Suárez case back to the Puerto Rico courts on the basis of the well-pleaded complaint rule, and therefore we could issue a Writ of Mandamus compelling remand, we realize that the District Court now has the benefit of both our above discussion and our decision in the Rosselló action. Therefore, we are confident that the District Court will immediately remand the Suárez case back to the Supreme Court of Puerto Rico without the need for mandamus.
III. APPEAL OF THE NON-ADJUDICATION ORDER
now turn to the appeal of the non-adjudication order that is before us in
connection with the Rosselló action. We have
repeatedly held that federal courts "normally may not . . . undertake the
resolution of 'garden variety election irregularities.'" Bonas v. Town of
A. Nature of Our Review
Acevedo Defendants are presently before us seeking review of the District
Court's issuance of a preliminary injunction to segregate, but not adjudicate,
all three-mark split vote ballots cast during the
B. Temporary Injunctions to Preserve Jurisdiction
Congress has provided "[t]he Supreme Court and all courts established by Act of Congress [with the authority to] issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). Acting pursuant to § 1651(a), a federal court may issue an injunction as a means to preserve its jurisdiction. See, e.g., Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1099 (11th Cir. 2004). But, for a court to invoke § 1651(a) and issue an injunction to protect its jurisdiction over an action, there must be at least the possibility that the complaint states a justiciable federal claim. Thus, implicit in our review of the issuance of the injunction is our review of whether the Rosselló Complaint, taking all claims alleged therein as proven, had the potential to present a justiciable federal claim under existing Circuit precedent. Mercury Motor Express, Inc. v. Brinke, 475 F.2d 1086, 1091 (5th Cir. 1973) ("Once a case is lawfully before a court of appeals, it does not lack power to do what plainly ought to be done. . . . [It has] the power . . . to reach the merits of a case before it on an interlocutory appeal and [to] dismiss the action.") (internal quotation marks, alterations, and citations omitted); see also Aerojet-Gen. Corp. v. Am. Arbitration Ass'n, 478 F.2d 248, 252 (9th Cir. 1973) ("[I]t is well established that in [an equity] case, . . . an interlocutory appeal brings the entire case before the court.").
Our review is for abuse of discretion. Klay, 376 F.3d at 1096.
C. Federal Jurisdiction Over § 1983 Complaints
determined that we must inquire whether the District Court should have
intervened in this local election dispute based on the claims alleged in the
complaint, our first step necessarily begins at the broadest level -- that is,
whether the District Court had federal subject matter jurisdiction over the
action. See Bonas, 265
F.3d at 73. "Federal courts are courts of limited jurisdiction, and
therefore must be certain that they have explicit authority to decide a
case." Bonas, 265 F.3d at 73 (citing
is no doubt that the Rosselló Complaint alleges the
violation of a constitutionally guaranteed right, and thus, presents a
colorable claim under § 1983 for subject-matter-jurisdiction purposes. The
federal Constitution protects the right of all qualified citizens to vote in
local elections. See Bonas, 265 F.3d at 74. This conclusion, however, does not end our
inquiry. Having determined that the District Court could have exercised
jurisdiction in this case, we must now inquire whether it should have
mentioned above, and discussed more extensively below, "[e]lection law, as
it pertains to state and local elections, is for the most part a preserve that
lies within the exclusive competence of the [local] courts." Bonas, 265 F.3d at 74. We
have thus stated that "with only a few narrow and well-defined exceptions,
federal courts are not authorized to meddle in local elections."
D. District Court's Decision to Intervene
As discussed above, we review the decision of the District Court to intervene in this local election dispute for abuse of discretion. Klay, 376 F.3d at 1096. In evaluating whether federal intervention into a local election dispute is appropriate, this Court has inquired into factors such as whether a discrete group of voters has been disenfranchised, whether there was a state process in place to handle the question posed by the plaintiffs, and whether the plaintiffs had availed themselves of that state process. See Griffin, 570 F.2d at 1078-79; Bonas, 265 F.3d at 75-76; see also Barreto Pérez, 639 F.2d at 828. As we stated in Bonas, however, "[w]e do not pretend that it is a simple matter to segregate the run-of-the-mill electoral disputes from those that appropriately can be characterized as harbingers of patent and fundamental fairness." 265 F.3d at 75. Indeed, "each case must be evaluated on its own facts." Bonas, 265 F.3d at 75. But, as this Court implied in Barreto Pérez, there is a heavy presumption in favor of non-intervention if the party requesting intervention cannot show that a discrete group of voters has been disenfranchised by the challenged local action. See 639 F.2d at 828.
the final decision under
In Bonas v. Town of North Smithfield, this Court held that complete disenfranchisement of all voters, by a municipality's decision not to hold a municipal election at all, warranted federal intervention. See 265 F.3d at 75-76. In that case, after the voters of North Smithfield, Rhode Island agreed in a 1998 referendum to transition the Town from an odd-year election cycle to an even-year cycle, with the first even-year election to take place in 2002, town officials, without authorization, held the 1999 election, but held no election in either 2000 or 2001, effectively disenfranchising all persons eligible to vote in the 2001 municipal election. Bonas, 265 F.3d at 71-72.
In Partido Nuevo Progresista v. Barreto Pérez, 639 F.2d 825 (1st Cir. 1980), however, this Court determined that federal intervention was inappropriate in a case challenging the decision of the Supreme Court of Puerto Rico where "[the] case [did] not involve a state court order that dis enfranchise[d] voters; rather it involve[d] a Commonwealth decision that en franchise[d] them." 639 F.2d at 828. That case is remarkably similar to the case at hand. In that case, the disputed ballots contained marks outside the designated spaces and squares, and therefore were allegedly invalid under the literal terms of Article 1.033(b) of the Electoral Law of Puerto Rico, which provided that stray marks such as the ones on the disputed ballots "shall be null and void, and deemed unmarked." See Barreto Pérez, 639 F.2d at 826. The Administrator of the Election Commission ruled the ballots invalid, and his decision was upheld on appeal by the Electoral Review Board. See Barreto Pérez, 639 F.2d at 826. The Supreme Court of Puerto Rico reversed, finding that despite 16 L.P.R.A. § 3033(b)'s literal prohibition of counting such mismarked ballots, the provision could be construed as permitting the tallying of such ballots where the "intent of the voter was clear." See Barreto Pérez, 639 F.2d at 826 (discussing Popular Democratic Party v. State Elections Commission, 507 F. Supp. 1164 (D. P.R. 1980)). The PNP subsequently brought suit in federal court pursuant to § 1983, alleging that the Supreme Court of Puerto Rico's "retroactive" changing of the law after an election violated the plaintiffs' rights not to be deprived of their liberty and First Amendment rights without procedural and substantive due process of law. Barreto Pérez, 639 F.2d 827. The district court agreed, stating that "[i]n our opinion the lesson to be learned from Griffin is that changing the rules of the game after it has been played and the score is known, violates fundamental rules of fair play." Popular Democratic Party, 507 F. Supp. at 1174. It found that the "counting of ballots after an election which, under the rules prevalent at the time of the vote-casting were considered void and invalid, [was] the practical and functional equivalent of alteration of ballots or of stuffing the ballot box." Barreto Pérez, 507 F. Supp. at 1174. On appeal, this Court disagreed. See Barreto Pérez, 639 F.2d at 828.
emphasized that unlike in
case presented by the Rosselló Plaintiffs, even
assuming that all claims alleged in their complaint could be proven, presents
even less cause for federal intervention than the circumstances which we found
lacking in Barrreto Pérez.
Here, there is no clearly articulated Commonwealth policy, much less a statute,
to indicate the three-mark split vote ballots were invalid. At most, the
decision of the Commission merely clarified previously unsettled law.
Furthermore, this case is distinguishable from
For the above reasons:
The Petitions for Writ of Mandamus are DENIED, as the District Court has no choice but to remand the Suárez case to the Supreme Court of Puerto Rico in light our disposition of the Rosselló appeal.
We VACATE the issuance of the preliminary injunction with the direction that the District Court dismiss with prejudice all claims in the Rosselló complaint relating to the adjudication of the three-mark ballots, and all claims relating to the simultaneous general canvass/recount issue. The District Court is also directed to dismiss without prejudice the claims relating to the absentee ballots, and any alleged violations of Puerto Rico Law 197.
Because the supplemental materials proffered by the appellants are unnecessary to our decision, the motions to supplement the record on appeal are DENIED AS MOOT. We likewise DENY the appellees' request for judicial notice.
to file an amicus brief is GRANTED to the Puerto Rico Association
of Mayors, the Puerto Rico Commonwealth Employee Association and the Board of
Directors of Cumbre Social, the Colegio
de Abogados de
petition for rehearing or rehearing en banc must be filed no later than
12 Eastern Standard Time
"Concurrence opinion to follow"
TORRUELLA, Circuit Judge (in additional concurrence).
Although I shared equally with my colleagues in analyzing the law and determining the outcome of these cases, I find it appropriate to set forth some additional observations in light of the circumstances surrounding these appeals.
as expressed in our panel opinion, our circuit precedents in Griffin, Barreto Pérez, and Bonas finally decide the issue that the district
court should not have intervened in this case, I wish to point out that this
conclusion is based on the particular facts of this case, which makes Bush
v. Gore, 531 U.S. 98 (2000), inapplicable. The present circumstances do
not support a justiciable federal vote-dilution claim
by voters who cast ballots that were clearly valid under rules changed after
the election. See Bush, 531 U.S. at 106-107 (criticizing as
inconsistent with equal protection Miami-Dade County's alteration, during
recount, between 1990 rules for ballot validity and new, ad hoc
rules). What happened here was not a change in the
important in my opinion, the preeminent truth to be gleaned from the Bush
opinion is that the United States is, first and foremost, a nation of laws and
that the meaning of these laws is interpreted by the courts, whose rulings
become the Law of the Land. Thus, notwithstanding the unprecedented nature of
the Bush v. Gore decision, issued in the face of a very divided nation, its binding finality was accepted by
the citizenry as a whole, irrespective of individual or collective disagreement
with its outcome. Although undoubtedly there was much dissonance, as there may
well presently be in
[c]ompliance with decisions of [the judiciary], as the constitutional organ [interpreting] the supreme Law of the Land, has often, throughout our history, depended on active support by state and local authorities. It presupposes such support.
Cooper v. Aaron, 358
the basic principle articulated by Justice Frankfurter in Cooper is so
foundational to our political system that it is literally set in stone on the
very walls of this federal courthouse: "[T]he responsibility of those who
exercise power in a democratic government is not to reflect inflamed public
feeling but to help form its understanding . . . ."
[F]rom their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised . . . . The duty to abstain from resistance to "the supreme Law of the Land" . . . as declared by the organ of our Government for ascertaining it, does not require immediate approval of it nor does it deny the right of dissent. Criticism need not be stilled. [However] active obstruction or defiance is barred . . . .
As important as the outcome of this election may presently be, there are more fundamental issues at stake.
"Concurrence to follow."
HOWARD, Circuit Judge (in additional concurrence).
I have joined in the court's disposition of these cases. I am less sure about our resolution of certain, discrete issues raised by the Rosselló appeal, and I identify those concerns here.
The district court did not categorize the order preventing the Commission from
adjudicating the ballots. See Fed. R. Civ. P. 65(d); Ben David v. Travisono,
495 F.2d 562, 563 (1st Cir. 1974). As I see it, the order might
plausibly be characterized as an All Writs Act Injunction, a traditional
injunction under Fed. R. Civ. P. 65,
or a case management order. Under the first two possibilities, we have
appellate jurisdiction under 28 U.S.C. § 1292(a)(1);
under the third we do not. See Matter of City of
In the end, we need not decide this issue. Even if the order is properly characterized as only a case management directive, we are entitled to review it under our mandamus power. See Ramírez v. Rivera-Dueño, 861 F.2d 328, 334 (1st Cir. 1988). In my view, we should do so, given the jurisdictional issue at the heart of this case, the coercive and intrusive nature of the order, the federalism and comity concerns that it raises, and the highly charged circumstances in which it was issued. And because the question of the order's propriety cannot be decided without an analysis of whether the Rosselló action is justiciable, I concur in the decision to proceed directly to the merits and to order the action dismissed.
Notwithstanding our statement that the district court has federal question
jurisdiction over the case, we have concluded that the district court abused
its discretion by asserting jurisdiction over it. I would rather we
characterize the matter somewhat differently. There is no question, of course,
that the district court has subject matter jurisdiction of a federal civil
rights claim pleaded under 42 U.S.C. § 1983. The issue is whether the pleaded
federal claim is justiciable. This question is not a
matter of discretion; it is an issue of law. See Bonas v.
3. Finally, citing Partido Nuevo Progresiva v. Barreto Pérez, 639 F.2d 825, 827-28 (1st Cir. 1980), we have emphasized that the "change of rules" claim fails because, even if there was such a change, it would result in enfranchising some voters rather than disenfranchising them. But after Bush v. Gore, 531 U.S. 98 (2000), I cannot discount the possibility that a viable federal vote-dilution claim might lie in some circumstances where a post-election rule change has the effect of causing previously invalid ballots to be adjudicated. I do, however, think that the vote-dilution claims pleaded in this case were properly rejected because I agree with Judge Torruella that, on the pleadings and the record, only one conclusion is possible: the Commission's ruling involved only the clarification of previously unsettled law. In my view, this is not a "change in the rules" sufficient to implicate federal interests.
2. Acevedo's Incoming Government Transition Committee is likewise a Defendant-Appellant.
3. The following are the defendants in the Suárez action: (1) the Commission, (2) the president of the Commission, (3) the three commissioners, (4) Rosselló, and (5) the NPP.
4. The Resident
5. The Commission has determined that such a ballot reflects a vote for the desired candidate and the remaining candidate under the party insignia.
6. As determined by the Commission, see infra, a three-mark split vote ballot reflects a vote for the two marked candidates, as well as a vote for the party. A vote for a party on a three-mark ballot is credited to the party itself (and not to any of its candidates) for purposes of its reclassification as a "principal party," which entitles it to certain benefits, including the right to receive funding. See 16 P.R. Laws Ann. §§ 3003; 3116. A party is a principal party if, for example, it "obtained a number of votes under . . . its insignia on the ballot of Governor and Resident Commissioner of not less [than] seven (7) percent of the total number of votes cast for all the parties' insignias in the preceding general election." § 3003(42) (second alteration in original).
7. See 16 P.R. Laws Ann. §§ 3007(k), 3013(l).
8. Each ballot was to be adjudicated by a group of three inspectors, consisting of one representative from each of the three principal parties. If the inspectors were unable to agree, there were additional levels of review at each polling location. The adjudicatory bodies at each level were comprised of one representative from each of the three principal parties.
9. Although this is a somewhat simplified account of the general canvass procedures, the omitted details are irrelevant to this appeal.
10. "Any party affected by a resolution, ruling or order of the  Commission may, within the ten (10) days following the notice thereof, appeal to the Court of First Instance . . . ." 16 P.R. Laws Ann. § 3016a.
11. It has been alleged that, on some of the three-mark split vote ballots: (1) the mark under the PIP insignia was made in pencil while the marks next to the PDP candidates were made in pen; and (2) the marks next to the PDP candidates were noticeably dissimilar from the mark made under the PIP insignia.
12. There is, however, a dispute as to whether these ballots were adjudicated in a consistent fashion. It has been alleged that some of the ballots were declared void, some were adjudicated as containing valid straight votes for the PIP candidates, and some were adjudicated as containing valid split votes for the PDP candidates, as well as the PIP.
13. The Rosselló Plaintiffs, by their own concession, "have achieved complete and substantial relief" on this claim, and therefore, we need not give it any further consideration.
14. The Rosselló Plaintiffs have conceded, both in their opening brief and at oral argument, that they "have achieved complete and substantial relief" from the Commission with respect to this claim. To be sure, there is still a question as to whether the Commission will follow through with the relief it has promised. But, any claim concerning this open question is not yet ripe.
15. In addition, the Rosselló Plaintiffs have alleged that the Commission violated their constitutional rights when it made "substantial changes" to the rules governing the election after the votes had been cast.
16. The Rosselló Plaintiffs also sought injunctive and declaratory relief in connection with their claim that Puerto Rico Law No. 197, 1 P.R. Laws Ann. §§ 456 et seq., "is unconstitutional to the extent that it purports to authorize or allow the transition process [for the next governor] to proceed before the next governor . . . has been determined." We need not address this issue. The District Court denied preliminary injunctive relief on this claim, and the Rosselló Plaintiffs did not bother to appeal that ruling. Moreover, whether Law No. 197 allows the transition process to go forward during a recount is a question of local law that will soon be mooted by the recount.
17. We note that the Rosselló Plaintiffs chose to challenge the decisions of the Commission in federal court rather than exercise their statutory right to appeal to the Court of First Instance. See 16 P.R. Laws Ann. § 3016a.
18. The Suárez
Plaintiffs also sought declaratory and injunctive relief requiring the
Commission to (1) complete the general canvass before conducting a recount and
(2) certify the winning gubernatorial candidate by
19. The Suárez Plaintiffs filed this action even though the Commission had already decided that the three-mark ballots are valid.
20. Significantly, the commissioner of the NPP, a defendant in the Suárez action, had requested dismissal on several grounds, one of which was lack of jurisdiction because the Commission had already adjudicated the contested ballots as valid.
21. Because of the disposition of the removal issue on other grounds, we need not address the alleged procedural defects.
22. We agree with the
District Court that the Supreme Court's judgment was void. The governing
statute provides that the filing of "a copy of the notice [of removal]
with the clerk of [the] State court . . . effect[s] the removal and the
State court shall proceed no further unless and until the case is
remanded." 28 U.S.C. § 1446(d) (emphasis added). The Supreme Court
received notice of the removal at on
23. We address the applicability of Bonas below in our discussion of the Rosselló action.
24. Respondents also note that the Suárez complaint attached and made reference to the complaint filed four days earlier in federal court by Rosselló. No federal claim can be inferred from this reference to the federal action; rather, it was included in the Suárez complaint as factual background. See Suárez complaint at para. 8. Further, even assuming it is proper for us to look outside the four corners of the Suárez complaint to the previously-filed federal action, as we discuss below, the Rosselló Complaint does not state a claim warranting federal intervention into this local electoral dispute, and therefore cannot be considered sufficiently substantial to give rise to removal jurisdiction under Franchise Tax Board. See Almond v. Capital Props., Inc., 212 F.3d 20, 23 (1st Cir. 2003).
25. We are aware of only one
other case dealing with federal removal jurisdiction over a claim filed in
state court with ambiguous references to constitutional provisions. In Dardeau v. West Orange-Grove Consolidated I.S.D.,
43 F. Supp. 2d 722 (E. D.Tex. 1999), a federal
district court evaluated a situation very much like the one we face here. In Dardeau, a complaint was filed in state court that
made explicit reference only to state law, but also claimed a violation of
"due process." Ambiguity with regard to the source of this right was
heightened relative to our case because, while those words appear in the United
States Constitution, the Texas Constitution uses the phrase "due course of
26. Although we are skeptical that the only purpose or effect of the injunction was to preserve jurisdiction, especially considering the fact that this "jurisdiction-preserving" injunction is still in place after approximately three weeks worth of "marathon hearings" on the merits, we find that our skepticism is irrelevant in light of the manner in which we resolve the case. Furthermore, although we believe that we properly review the non-adjudication order as an appealable interlocutory injunction pursuant to 28 U.S.C. § 1292(a)(1), we note that even if we were incorrect in this conclusion, we would, in the alternative, exercise our discretion to treat the Acevedo Defendants' notice of appeal as a petition for mandamus under the All Writs Act, 28 U.S.C. § 1651(a), thus preserving our jurisdiction in any event. See, e.g., United States v. Horn, 29 F.3d 754, 769 (1st Cir. 1994) ("We are fortified in our resolve to hear and determine this appeal by the knowledge that, even if no appeal lies as of right, we possess--and can appropriately exercise--the power of discretionary review via mandamus, to address the important question raised in this case.").
27. The standard for determining the existence of original federal jurisdiction under 28 U.S.C. § 1343 is, of course, much more liberal than the standard for determining the existence of removal jurisdiction under 28 U.S.C. § 1441, at least outside of the complete preemption context. See BIW Deceived, 824 F.2d at 832.
28. We do not foreclose the
possibility of a case in which federal intervention would be appropriate
without a showing of disenfranchisement. The most obvious example of this would
be a case involving vote dilution. See Bush v. Gore,
Here, however, the Rosselló Plaintiffs' claim that the Commission's "change in the rules" after the election somehow "diluted" their vote for their political party of choice is without merit because there was no clear rule prior to the election that the three-mark split ballots were invalid.
The Rosselló Plaintiffs' claim that the three-mark split ballots were adjudicated inconsistently on election night (and immediately thereafter), on the other hand, presents a much stronger claim for federal intervention without a showing of disenfranchisement. That claim, however is rendered moot by the fact that all ballots will be adjudicated in the same uniform manner during the recount. See Bush v. Gore, 531 U.S. at 106 (per curiam) (addressing situation where "the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.").
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