|How will a group of federal judges, not only U.S. District Court Judge Daniel Domínguez, but 1st Circuit Court of Appeals judges and possibly U.S. Supreme Court justices, decipher the voter intent of the infamous pivazo ballots?
That question will burn throughout much of December, and possibly beyond, as Puerto Rico's unresolved governor's race drags on. If the federal courts do decide to rule on the validity of the ballots, as appears likely, the decision will not only determine the outcome of the governor's race, but could likely chart a future course in U.S.-Puerto Rico relations.
The ballots in question are the infamous mixed votes the New Progressive Party is arguing should be tossed out of the governor's race as "spoiled" because they have three markings on them: one beneath the insignia of the Puerto Rican Independence Party, another beside the names of Popular Democratic Party gubernatorial hopeful Aníbal Acevedo Vilá and a third beside his PDP running mate Roberto Prats.
The pro-statehood party argues that the ballots in effect are a double entendre, meaning a vote for the PDP candidates as well as a vote for the PIP candidates. Such double votes are not allowed under local election law.
But the PDP, PIP and State Elections Commission President Aurelio Gracia argue that such votes are clear in their intent: a vote for the PDP candidates as well as a way to identify the voter as a PIP supporter, and by extension, count the ballot towards one way the PIP can retain its certification as a political party for the next election: obtain 7 percent of all ballots cast under the party insignia. Because another way for a party to retain its certification is by obtaining 3 percent of gubernatorial votes, critics argue such ballots are also a double vote for political parties because such ballots also work toward allowing the PDP to retain its certification.
There is a healthy debate within Puerto Rico about the validity of the ballots. But it's largely statehood supporters arguing that they should be tossed as invalid. Like the preliminary results of the gubernatorial election, it's probably a narrow majority, consisting of commonwealth and independence supporters, who believe the votes valid and that trying to discount them is an attack on democracy.
Even though the vote recount has barely sputtered to a start, there is talk of an attempt to "steal" the elections by having the ballots disqualified. But in the hardball world of Puerto Rican politics, if the shoe were on the other foot, it would be Acevedo Vilá pushing to have the ballots tossed.
But the question remains how the federal judges will view their validity. Will they weigh voter intent as supreme, and if so will they be able to decipher it in the ballots? Or will they put more weight on the civil rights of candidate Pedro Rosselló, as the Supreme Court decision appeared to do on behalf of George W. Bush in its Florida presidential decision in 2000 on which this case is based? And will they successfully be able to digest a history of Puerto Rican political and cultural development that such a decision undoubtedly would benefit from?
Puerto Rico is one of the only, and probably the most populous, U.S. jurisdiction with a three-party system. And its political landscape is also unique because of its unresolved political status with the United States.
The mark below a party insignia dates back to the early days of the commonwealth, as an easy way to allow illiterate country folk to participate knowingly in the democratic process. The mark meant a vote for all that party's candidates.
The voter option was kept on when the election ballots were separated into a state ballot, containing the governor and resident commissioner candidates, a legislative ballot and a third ballot for municipal races, even though its utility appears to have been diminished. The fewer candidates on each ballot made have made them much less confusing.
Witnesses testifying on behalf of the PDP in federal court hearings on the matter, such as former PIP Rep. and gubernatorial candidate David Noriega, argue that marking the party insignia has taken on a new meaning as a vote of confidence for the party, after liberalized election laws passed 20 years ago added a new option for parties to qualify for recertification: 7 percent of all such ballots.
One thing is clear. The federal court has claimed and will retain jurisdiction in the case. But it will only act if it has to, that is if Rosselló is unable to overcome a 3,880-vote disadvantage through the recount.
It may be waiting to see if the civil rights of Rosselló are truly damaged before examining his claims. But the federal court judges are also undoubtedly aware that their decision could have profound social and political consequences beyond the gubernatorial election.
The local and Boston appeals courts have already knocked down some local election laws as unconstitutional because they made it too hard for new parties to register. And individual judges on both federal courts, ruling on the presidential vote lawsuits, have warned the administration and Congress to act on Puerto Rico's political status or the courts would have too.
There is much cringing in San Juan over the fact that it will probably be the federal courts, rather than the local courts, which will decide the governor's race and much more. But clearly too little blame is being placed on the confusing batch of electoral laws and regulations, created by and catering to the three existing political parties, for the mess Puerto Rico is in.
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