|The Boston federal appeals court this week acted swiftly and firmly in Puerto Ricos election dispute. A three-judge panel unanimously ordered the dismissal of a New Progressive Party lawsuit and returned to local courts another suit filed by a group of voters wanting the mixed-vote ballots they cast respected.
The decision gives a big boost to Popular Democratic Party gubernatorial hopeful Aníbal Acevedo Vilá, as he was the beneficiary of the great majority of the thousands of disputed mixed-vote ballots, which the local Supreme Court has already ruled are valid.
As the decision came down late Wednesday afternoon, Acevedo Vilá surged ahead of NPP hopeful Pedro Rosselló by over 1,000 votes (when the so-called pivazo ballots are factored in) in the ongoing recount of the gubernatorial election, which had just reached the PDP stronghold of Ponce. By the evening, as word of the Boston ruling spread, Acevedo Vilá supporters were out in the streets of San Juan, celebrating victory.
That may be a bit early yet, although certainly Rossellós chances have been markedly reduced in prevailing in a recount now that the disputed ballots will be adjudicated.
The recount of ballots as of Thursday morning was at the 61.9 percent mark, so there is still a lot of counting to do. While PDP officials are talking as if the race is over, some NPP figures reckon that Rosselló can still squeak out a victory of about 1,000 votes.
The recount, the primary reason the NPP first went to court, is more important than ever. And there are other issues left to fight over besides the pivazo votes -- the triple-marked ballots in which voters made a marking below the insignia of the Puerto Rican Independence Party and two others beside the names of Acevedo Vilá and running mate Roberto Prats. Indeed, those votes are not as numerous as once thought. Initial estimates by State Elections Commission President Aurelio Gracia put their number at around 28,000 but so far only about 4,500 have been counted.
For example, the NPP is trying to toss over 3,000 votes cast by prisoners that were returned to the SEC in opened envelopes. The NPP is also complaining that some prisoners testified that they were pressured to vote in certain ways and that these votes should also be discounted. The prisoner vote, observers believe, strongly favored Acevedo Vilá, as Rosselló during the campaign discussed the possibility of taking the right of prisoners to vote away from them.
The legal wrangling has delayed -- unnecessarily -- the recount on several occasions, and now more than ever, Gracia should press ahead with it at full blast. He had estimated that the recount would be wrapped up by Dec. 28, but he should extend working hours if necessary to finish the tally before Christmas.
There are also more legal battles left for the NPP to wage. But no one has any doubt that the local courts will rule against any attempt to reconsider the mixed-vote ballot issue. And the firmness of the Boston appeals court decision makes the chances of the NPP getting a hearing before the U.S. Supreme Court slim at best, and slimmer still at prevailing if they do get a hearing.
"It was an abuse of discretion for the District Court to determine that the Rosselló plaintiffs' complaint could possibly state a claim with grounds for federal intervention, and as a result, it was necessarily an abuse of discretion for the District Court to grant a preliminary injunction preserving jurisdiction in a case in which our Circuit precedent clearly required the District Court not to intervene," reads the Boston decision, which was written by the three judges: Juan Torruella, Norman Stahl and Jeffrey Howard.
The appeals court said the NPP lawsuit presented no grounds that could be based on the Bush vs. Gore U.S. Supreme Court decision in 2000, when the high court intervened in the contested Florida election, which would determine the presidential race. Instead, the court used as a precedent the 1980 New Progressive Party vs. Barreto Pérez case, in which the 1st Circuit also removed a voting case from the federal courts jurisdiction. (Ironically, Torruella, then a U.S. district judge in San Juan, was overturned in that case.)
In essence, the appeals court rejected NPP arguments that by adjudicating the pivazo ballots, the SEC was changing the rules of the game after the election. "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," the ruling reads.
Added Torruella in a concurring opinion: "What happened here was not a change in Puerto Rico's established rules with regard to three-mark split vote ballots, but rather a clarification of the status of the ballots, whose validity or invalidity had not before been clearly established as a matter of Puerto Rico election policy."
While the decision was a blow to the NPP, the biggest loser was probably U.S. District Judge Daniel Domínguez, who got a verbal thrashing during oral arguments before the court on Monday over the length of time he was taking to decide key aspects of the case.
One of the few decisions he did make in the case, to retain jurisdiction, was blasted by the Boston judges. "We find that the exercise of removal jurisdiction is plainly erroneous in this case because no federal question was presented in the action," the judges wrote. "It appears from the language in the order implementing the injunction that the District Court issued the injunction merely to preserve its jurisdiction, and therefore we will treat it as such."
The Boston ruling may cost Rosselló the election, but if he sticks to his word and stays on as NPP president, he could wield far more political power than a Gov. Acevedo Vilá.
Domínguez has no such consolation to take after the swift and harsh judgment handed down by Boston.
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