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U.S. District Court Judge Danny Domínguez
By CARLOS ROMERO BARCELO
January 13, 2005
On the night of Nov. 2, 2004, we were witness to surprising and unexpected election results. The majority of the people of Puerto Rico believed Pedro Rosselló would win the gubernatorial election. As the results being reported showed his slight lead at the beginning of the tally was slowly increasing and had reached a margin of over 14,000 votes, when fewer than one-third of the ballots had been counted, many went to bed taking it for granted that Rosselló had been elected.
However, as the night wore on, we started to see Rossellós lead, instead of increasing was slowly decreasing, and all of his supporters started to get worried. When Aníbal Acevedo Vilá started to gain more votes than Rosselló, we couldnt believe what we were seeing. However, those of us who have been part of the electoral process for years had started to fear the worst when Rossellós lead started diminishing, and a trend became evident after an hour. Even though Rosselló was still ahead, the erosion of his lead, although slow, was continuous, and it became obvious the election was to be very close.
And close it was. Acevedo Vilá was declared the preliminary winner by 3,880 votes. The Electoral Commission agreed to start to scrutinize the tally sheet results, and to recount all ballots cast at the same time. However, Acevedo Vilá ordered his party to object to carrying out the scrutiny of the tally sheets, and the recount simultaneously. Upon the objection of Acevedo, the president of the Election Commission buckled under, and reversed his decision to carry out both procedures simultaneously. He ordered the scrutiny to be carried out first. He did this, even though he acknowledged it would be more efficient, faster, and more reliable to do both things at the same time. The reason why Acevedo Vilá objected to the ballot by ballot recount, and demanded the scrutiny of the tally sheets to be done first, was precisely because he knew that the minute the election officials started seeing the ballots with the three Xs in the gubernatorial ballots where only two candidates were up for election, the validity of those votes would be questioned and his preliminary victory would be in danger of being reversed. He knew, before we did, that his victory was a fraud. There is no democratic country in the world that I know of, where three votes (Xs) in a ballot to elect only two candidates is valid.
When our election officials became aware that these null and void ballots had, in some instances, been counted as valid, they demanded all those ballots be declared null and void. Then, the legal battles began.
True to form, the majority of the judges in the Puerto Rico Supreme Court, in a process where they violated federal law and acted without jurisdiction, decided in favor of Acevedo Vilá and ordered the invalid ballots with three Xs to be counted. They not only acted without jurisdiction, but they denied Rosselló and other plaintiffs who represented all New Progressive Party voters their day in court. The four politically partisan-biased judges decided without hearing any arguments from Rosselló and the New Progressive Party. They decided without any properly presented evidence. They obviously wanted to protect Acevedos preliminary victory, no matter what.
Knowing the majority of the Puerto Rico Supreme Court would decide in favor of Acevedo Vilá, whether or not he was right, Rosselló and the New Progressive Party filed an action in the U.S. District Court for Puerto Rico. In the federal court, Judge Danny Domínguez was assigned to hear the case.
He accepted his duty with full knowledge of the great responsibility on his shoulders. His decision, if upheld, would decide the elections in Puerto Rico. He also knew that no matter what he decided, approximately half the people would praise and applaud him and the others would jeer and insult him. Aware of this great responsibility, he acted cautiously, carefully, judiciously, and patiently. He went out of his way to allow both parties to present their cases, present their evidence, and argue their position. No one could find a reason to object to his procedure, so they decided to criticize him for taking too long to decide. His orders protected all parties, allowed for the scrutiny of the tally sheets, and the recount to proceed simultaneously, as was finally agreed to by all.
No one could allege any prejudice as the result of his orders. The decision to wait until all ballots were recounted, and the challenged ballots with the three Xs set aside, to determine after the recount whether the number of challenged ballots would change the recount result or not, was not only a very reasonable decision, but a very wise decision. Why decide whether a challenged vote is valid or not if it wont affect the election results? However, it is a much more difficult decision to make, once you know your decision will, in effect, determine the result of the elections.
It takes a lot of moral courage to take the path Judge Domínguez opted to take. And it is because it was such a courageous and morally unassailable position that he has been insulted and criticized by Acevedo Vilá and other members of the Popular Democratic Party. Not having any sound arguments to criticize Judge Domínguez, they resorted to insults.
If Judge Domínguez made any error during the processing of the three Xs on a two-candidate ballot case, it was to be too impartial and too careful. It is true he could have acted faster, but it is very easy to criticize when you are not in the same shoes. Having to decide by himself, without two or more judges to share the responsibility of deciding who won the election for governor in Puerto Rico, is a very heavy burden. How many of those who so freely criticize Judge Domínguez would have acted faster, while at the same time acting objectively and impartially, giving all parties every opportunity to present evidence and plead their case?
When one analyzes Judge Danny Domínguezs rulings, and the way he proceeded in this case, any impartial attorney must acknowledge we are indeed fortunate to have him as one of our U.S. District Court judges.
The decision overturning Judge Domínguezs actions, and order in this case, is confusing and contradicts itself on some issues. It assumes some data as proven when, as a matter of fact, they were not only not proven, but are false. The conclusion the votes of those who selected Rosselló were not "diluted" is clearly erroneous. When Rosselló and the other plaintiffs asked for a reconsideration en banc from the full Court of Appeals, the majority of the judges who didnt participate in the decision voted to hear the case en banc. However, the hearing was denied four to three because the three judges who decided the case voted against the review. Obviously, almost half of the First Circuit Court of Appeals felt this case had merits for a rehearing.
Not only was the election very close, but the decision of the judges to review or not, couldnt have been closer.
Judge Domínguez should pay no attention to the insults and criticisms. Unfortunately, the majority of the members of our local press are highly prejudiced against statehood, against the New Progressive Party, and against Rosselló. They were against you Judge Domínguez, the minute you assumed jurisdiction. They criticized you for acting objectively, impartially, and judiciously. They praised the majority of the justices of the local Supreme Court for violating Rossellós and the New Progressive Partys right to due process, and for deciding without a hearing and without evidence. They praised the majority of the justices of the local Supreme Court for acting with purely political motives.
Time will bear out that Judge Domínguez acted correctly. He should be proud of what he did, and how he acted.
Carlos Romero Barceló is a two-term former governor of Puerto Rico (1977-84), a two-term former resident commissioner (1993-2000), and a two-term former mayor of San Juan (1969-78). He was president of the New Progressive Party for 11 years.
This Caribbean Business article appears courtesy of Casiano Communications.