A Clash Of Courts

by John Marino

November 26, 2004
Copyright © 2004 THE PUERTO RICO HERALD. All Rights Reserved.

. The rash of legal maneuverings that has taken place in the wake of one of the tightest gubernatorial races in island history has so far shed more heat than light.

And Puerto Ricans sitting down to family dinners this long Thanksgiving Day weekend have as little idea of who their next governor will be than they did on that confusing election night at the beginning of the month.

The situation has deteriorated through an apparent battle between the local U.S. District Court in San Juan and the Puerto Rico Supreme Court as to who has the last word on legal issues arising from the election.

In duel rulings issued Tuesday, both made clear that they are jealously guarding what they see as their jurisdiction in the case. Both courts have pled for calm but their separate actions have created a charged atmosphere anything but that.

Lost in the roiling headlines surrounding the election is the fact that one significant hurdle has been cleared. Both courts ordered the State Elections Commission to undertake an immediate recount of all ballots cast, along with the ongoing counting of hand-added and absentee ballots and the lengthy polling station tally sheet review, which has turned up more than a fair share of mathematical errors.

A full recount, which the Popular Democratic Party has been attempting to put off, could be a determining factor in the election, as PDP hopeful Aníbal Acevedo Vilá had a 3,880 vote lead over New Progressive Party hopeful Pedro Rosselló the morning after Election Day, when the SEC stopped work with some 30,000 ballots yet to be tabulated.

A recount was the primary reason the NPP filed suit in federal court. The other was to halt the government transition process that Acevedo Vilá had initiated, based on the fact he was in the lead when the SEC certified preliminary election results.

But the burning question still rising through the legal wrangling is whether an estimated 28,000 mixed-vote ballots should be counted as valid votes or not. The ballots have a marking below the insignia of the Puerto Rican Independence Party, and two others beside PDP candidates Acevedo Vilá and running mate Roberto Prats.

A handful of the ballots had different colored markings, and both the PIP and the NPP argued they should be discounted as fraudulent. But the NPP is alone among Puerto Rico’s political parties in arguing that all mixed-votes in question should be thrown out as null. The NPP argues that voters are only allowed to make two checks on the so-called state ballot because there are only two candidates on it.

The SEC, PDP and PIP say that marking a check beneath the PIP insignia is a way for voters to say they consider themselves members of the party. The action counts towards the party’s retaining its SEC certification, which entitles it to such benefits as public electoral funding and minority participation in the Legislature.

They say there is no prohibition against making three marks on the state ballot, and that such ballots have been counted as valid votes for both the individual candidates and the political party since 1996, when a three-ballot voting system (one for governor and resident commission, one for legislative candidates and one for municipal races) was first established.

All gubernatorial victors since then, including Rosselló, have been beneficiaries of such votes, SEC officials say. Critics charge that none of the SEC voter orientation ads explicitly address the triple-marked ballots, but SEC officials retort that none prohibited it either. PDP candidates and officials openly called for such votes in the final weeks of the campaign. And many independentistas publicly said they would vote that way to stop Rosselló.

It would be difficult indeed to discount the will of some 28,000 Puerto Rican voters. Moreover, the NPP is not contesting the ballots for any old reason. The vast majority of such votes were PIP members defecting to the PDP. The NPP opposition to the triple-marked ballot was late, way after the race was run. It did not start complaining about it until days after the election when an NPP election worker refused to adjudicate a mixed-ballot.

Rules can be, and probably should be, changed for the next game. But it would be difficult indeed to try to change them now for the game just played.

The Supreme Court has already ruled that the votes should be counted as valid when the SEC undertakes a complete recount. U.S. District Judge Daniel Domínguez has ruled such votes should be counted, but set aside and not adjudicated, pending his further review. He has made clear the federal court will retain jurisdiction over the votes and has barred the SEC from naming a winner in the gubernatorial race until he issues a final verdict.

He has indicated he will only render a verdict on the validity of the mixed-vote ballots if they are deemed a "determining factor" in the election. (A no-brainer. If the votes are tossed, there is no way Rosselló loses.)

The federal judge is keeping his options open, which is just feeding the anxiety in San Juan. The fact that he is a known statehood supporter, while PDP appointees control the Supreme Court, is only heightening the tension.

Domínguez appears to be analyzing whether election workers counted the mixed-vote ballots in different ways, or whether they violate the "one-man, one-vote" principle.

I’m no lawyer, but if I were Domínguez I would find a way to count those mixed-vote ballots, and then strike down the local Election Law allowing them as unconstitutional. It just seems like a fair thing to do.

On the face of it, it is absurd to be able to vote for a party without voting for any of its candidates. Not only is it giving unfair advantage to the existing minority party the PIP, it actually allows a single voter to express support for two parties. (A party can retain its certification if it receives 7 percent of votes under its insignia or 5 percent of votes in either the gubernatorial or resident commissioner race. So the mixed ballots in question are being counted to certify both the PDP and the PIP.)

The new organizations trying to register as local political parties would undoubtedly welcome such a change in local electoral law. They have already waged successful federal court fights that have overturned aspects of local election law as unconstitutional because they represented an undue burden for groups trying to become registered political parties.

John Marino, Managing Editor of The San Juan Star, writes the weekly Puerto Rico Report column for the Puerto Rico Herald. He can be reached directly at: Marino@coqui.net

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