Case: 12-2328

Document: 00116452648

Page: 1

Date Filed: 11/05/2012

Entry ID: 5687773

Nos. 12-2145 & _____

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

______________________________________________________________________________

MYRNA COLN MARRERO, Plaintiff-Appellant/Plaintiff-Appellee/Respondent, v. HCTOR CONTY PREZ, President of the Puerto Rico State Elections Commission; EDWIN MUNDO ROS, as Electoral Commissioner of the New Progressive Party; EDER ORTIZ ORTIZ, as Electoral Commissioner of the Popular Democratic Party; ROBERTO I. APONTE BERRIOS, as Electoral Commissioner of the Puerto Rican Independence Party; JULIO FONTANET MALDONADO, as Electoral Commissioner of the Movimiento Unin Soberanista Party; ADRIAN DAZ DAZ, as Electoral Commissioner of the Puertorriqueos por Puerto Rico Party; and CARLOS QUIROS MENDEZ, as Electoral Commissioner of the Pueblo Trabajador Party, Defendants-Appellees/Defendants-Appellants/Petitioners
______________________________________________________________________________

EDWIN MUNDO-ROSS EMERGENCY MOTION FOR STAY PENDING APPEAL AND/OR URGING IMMEDIATE VACATUR; IN THE ALTERNATIVE, PETITION FOR WRIT OF MANDAMUS __________________________________________________________________

Case: 12-2328

Document: 00116452648

Page: 2

Date Filed: 11/05/2012

Entry ID: 5687773

Defendant-Appellee/Defendant-Appellant/Petitioner,1 Edwin Mundo-Ros respectfully requests immediate review and reversal of two orders entered by the United States District Court for the District of Puerto Rico on Sunday, November 4, 2012. These orders relate to this the case Colon-Marrero v. Conty-Prez, 1st Cir. Case No. 12-2145, in which an Opinion was issued on November 2, 2012. The request made herein requires the immediate attention of this Court because, if allowed to stand, will bring upon Puerto Ricos November 6 general election the very chaos, uncertainty and confusion that this Court recently avoided throughout the Opinion. INTRODUCTION Earlier today, Sunday, November 4, 2012, the district court (Cerezo, J.) ordered that all I-8 voters, who show up on November 6, 2012 to vote shall be allowed to cast a provisional ballot, Order, Dkt.2 79 (D. Puerto Rico, Nov. 4, 2012), and that [w]hen these provisional ballots cast by the I-8 voters on November 6, 2012 reach the State Electoral Commission (SEC), their adjudication
Mr. Mundo is an Appellant in Case No. 12-2145. Although Mr. Mundo understands that this request is being properly submitted in Case No. 12-2145, he nevertheless has filed a notice of appeal in an abundance of caution. For this reason, and because Mr. Mundo is also seeking, in the alternative, mandamus review, he has been identified as Defendant-Appellee/DefendantAppellant/Petitioner. Mr. Mundo will contact the Clerks Office first thing tomorrow, and file a motion with the Court. For this reason, PlaintiffAppellee in Case No. 12-2145will be referred to as Plaintiff in this brief. References to the documents filed in the district court will be identified as Dkt. followed by the number given to the document in the ECF System. 2
2 1

Case: 12-2328

Document: 00116452648

Page: 3

Date Filed: 11/05/2012

Entry ID: 5687773

shall be postponed to allow for this Court's resolution of the merits of the I-8 voters' constitutional challenge now pending before it." Id. That Order, issued barely one working-day before Puerto Ricos election,
3

is in irreconcilable

contravention to: (1) this Courts Judgment, Opinion and Mandate in ColonMarrero v. Conty-Perez, see Opinion, No. 12-2145 p. 1 (Slip opinion, 1st Cir., Nov. 2, 2012) (holding that such extraordinary relief [i.e. allowing I-8 voters to vote in the upcoming election] could [not] be granted only weeks before the election without creating uncertainty and confusion in the Puerto Rico electoral process); and, (2) the Order issued by the Panel in Colon-Marrero, before the district courts order at issue here, denying the very same relief that the district court later afforded, see Order, No. 12-2145 (1st Cir., Nov. 2, 2012) (denying Plaintiffs request for a protective order allowing I-8 voters to cast a provisional ballot). In short, the district court has effectively afforded, in the eve of the election, the very form of relief that this Court has repeatedly declined to afford because it is not to be feasible. Moreover, not only is the extraordinary form of relief now afforded by the district court contrary to the unambiguous rulings of this Courtsee e.g. Order, No. 12-2145 (1st Cir., Nov. 2, 2012); Opinion, No. 12-2145 p. 12-13 (it would be
Although Judge Cerezo signed the Order on November 3, 2012, it was not until November 4 at noon that she notified it to the parties. In granting such an extraordinary form of relief without properly notifying the parties, the district court deprived them of an additional day to make an intelligent evaluation of the issues and the steps to follow. 3
3

Case: 12-2328

Document: 00116452648

Page: 4

Date Filed: 11/05/2012

Entry ID: 5687773

improvident to grant plaintiffs requested relief [i.e. that all I-8 voters be allowed to cast a vote] with only eighteen days remaining before the general election)but the uncertainty and confusion [that the ruling will have] in the Puerto Rico electoral process (id., p. 1) is gravely magnified by: (1) the district courts timing just one day before the election (an abnormality, as Judge Cerezo herself had recognized that it will be feasible to get the ballots to the polling places if the Court of Appeals acts by this Friday, October 19, 2012, for it will take 10 to 12 days to do so, but if the Court waits to act until Tuesday of next week it would not be feasible, Dkt. 60); (2) the district courts failure to address the concerns regarding recusal procedureseffectively depriving the political parties of this right (id., p. 10-11); and, (3) the fact that the district courts ruling is in stark conflict with an opinion issued on November 2, 2012 by the Puerto Rico Supreme Court, see Mundo-Ros v. SEC, et al., P.R.S.CT. No. CT-2012-020 p. 11 (discussing the Opinion of this Court and explaining that the I-8 voters cannot vote in an added by hand college unless they present an official document issued by the SEC evincing that they have a right to cast a vote (translation ours)).4

An official translation of the relevant excerpts of the Puerto Rico Supreme Courts opinion is attached to this brief. Because of obvious time-constraints, a complete translation of the document could not be obtained. 4

Case: 12-2328

Document: 00116452648

Page: 5

Date Filed: 11/05/2012

Entry ID: 5687773

BACKGORUND This Court is well aware of the factual and procedural background in this case. See e.g., Order, No. 12-2145 (1st Cir. Oct. 18, 2012) (affirming denial of preliminary injunctive relief because serious feasibility issues preclude the entry of the relief sought by plaintiff-appellant); Opinion, No. 12-2145 pp. 1-6 (1st Cir., Nov. 2, 2012) (explaining reasons for denial and providing a thorough factual and procedural background of this case). Before the Opinion was issued, Plaintiff filed simultaneous requests for a protective order both in this Court and in the district court. In this Court plaintiff argued that [t]he individuals in the electoral register of inactive votersthose that did not vote in the last election[] have rights under HAVA to cast provisional ballots, subject to the due process review procedures contemplated by law. Emergency Motion To Protect The Courts Appellate Jurisdiction And The Rights Of American Citizens Residing In Puerto Rico To Cast Provisional Ballots Under Hava Without Fear Of Criminal Prosecution, No. 12-2145 p. 12 (1st Cir., Nov. 2, 2012). Plaintiff specifically requested, inter alia: A. THAT the SEC Apellees abide by their HAVA obligations under the Supremacy Clause of the United States Constitution, and comply the provisions of Section 15483 of HAVA and the HAVA Compliance Plan; [] C. that the Commission publish an Announcement indicating that all American citizens who are inactive
5

Case: 12-2328

Document: 00116452648

Page: 6

Date Filed: 11/05/2012

Entry ID: 5687773

voters for failure to vote on the last general election may nonetheless be permitted to cast a provisional ballot on election day, which shall therefore be counted pursuant to the provisions of HAVA and the Commonwealth HAVA Compliance Plan; Id., p. 13. This Court denied this request on even date. See Order, No. 12-2145 (1st Cir., Nov. 2, 2012). In a similar (if not identical) fashion, plaintiff argued to the district court that [u]nder HAVA, an inactive voter must be allowed to cast a provisional ballot, and that ballot must be held by the SEC, until it is determined whether individual votes will be counted pursuant to federal law. Motion Requesting Order, Dkt. 69, pp. 5-6. Plaintiff requested that the district court adopt a proposed order which it included together with the motion. Restating the relief requested to this Court, plaintiffs requested, inter alia, (1) a declaration to the effect that [t]he individuals in the electoral register of inactive votersthose that did not vote in the last general electionwere unlawfully removed for (sic.) the list of registered voters and still have rights under HAVA to cast provisional ballots subject to the review procedures contemplated by law; Proposed Order, Dkt. 69-1, p. 3, and (2) that the Commission be ordered to publish an Announcement indicating that all American citizens who are inactive voters for failure to vote on the last general election may nonetheless be permitted to cast a provisional ballot on election day, which should be counted pursuant to the provisions of HAVA, Id.
6

Case: 12-2328

Document: 00116452648

Page: 7

Date Filed: 11/05/2012

Entry ID: 5687773

As noted above, this Court denied Plaintiffs request on November 2, 2012. However, although this Court had denied the same form of relief sought in the district court, the district court inexplicably granted such relief on November 3. The district court ruled: [] IT IS HEREBY ORDERED that all I-8 voters, who show up on November 6, 2012 to vote shall be allowed to cast a provisional ballot [] IT IS FURTHER ORDERED that, pursuant to the regulations promulgated under the Code, I-8 voters be allowed to cast a provisional vote at an added-by-hand polling station, following the established procedure used for all other added-by-hand voters in conformity with the Commissions regulations. Neither the parties in this case nor any official, employee or agent of the Puerto Rico State Electoral Commission (SEC) or poll watchers or persons rendering services at the different polling stations or at the special added-byhand units may hinder the casting of provisional votes by I-8 voters in the November 6, 2012 election. When these provisional ballots cast by the I-8 voters on November 6, 2012 reach the State Electoral Commission (SEC), their adjudication shall be postponed to allow for this Courts resolution of the merits of the I-8 voters constitutional challenge now pending before it. Dkt. 79, p. 5-6 (emphasis omitted). Because, as this Court has been recognizing since October 18, 2012, affording such extraordinary form of relief is not feasible, much less doing so only one working day before the election and without even providing for recusal procedures, and because this Court had already denied the relief afforded by the district court; the appearing Appellee has no other choice but to seek that the order
7

Case: 12-2328

Document: 00116452648

Page: 8

Date Filed: 11/05/2012

Entry ID: 5687773

be vacated. That order cannot even be reconciled with the district courts own orders whicheven though this Court did not agree with respect to the feasibility determinationnevertheless made abundantly clear that the feasibility of the remedy originally envisioned by the district court had to be made on or before October 23, 2012. See Opinion, Case No. 12-2145, p. 5. ARGUMENTS A. THE DISTRICT COURTS RULING WAS FORECLOSED BY THIS COURTS MANDATE AND SHOULD ACCORDINGLY BE SET ASIDE It is well settled that under the law of the case doctrine, when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. Negron-Almeda v. Santiago, 579 F.3d 45, 50 (1st Cir. 2009) (quoting United States v. Wallace, 573 F.3d 82, 87-88 (1st Cir.2009). The doctrine has two branches. Id. (citing United States v. Moran, 393 F.3d 1, 7 (1st Cir.2004); Ellis v. United States, 313 F.3d 636, 646 (1st Cir.2002)). The first branch, called the mandate rule, prevents relitigation in the trial court of matters that were explicitly or implicitly decided by an earlier appellate decision in the same case. Moran, 393 F.3d at 7. The second branch contemplates that a legal decision made at one stage of a criminal or civil proceeding should remain the law of that case throughout the litigation, unless and until the decision is modified or overruled by a higher court. Id.; accord Ellis, 313 F.3d at 646. For example, this branch binds successor appellate panels in a second appeal in the same case unless certain
8

Case: 12-2328

Document: 00116452648

Page: 9

Date Filed: 11/05/2012

Entry ID: 5687773

circumstances justify reconsideration. Wallace, 573 F.3d at 87-89. Id., pp. 50-51. The issue herein more properly involves the first branch, although the second branch also appears to be at issue. On October 18, 2012, after remanding to the district court to consider the feasibility of the relief requested, [a] majority of the panel [ ] concluded that serious feasibility issues preclude the entry of the relief sought by plaintiffappellant. Order, Case No. 12-2145.5 The Court subsequently entered an Opinion explaining its decision. The Court explained that [t]he record and the parties' arguments failed to demonstrate that such extraordinary relief could be granted only weeks before the election without creating uncertainty and confusion in the Puerto Rico electoral process, Opinion, Case No. 12-2145, p. 1, particularly where the need for emergency relief [was] largely of [plaintiffs] own making, Id., p. 12 (citing Respect Maine PAC v. McKee, 622 F.3d 13 (1st Cir. 2010). The Court further explained that we concluded in our order of October 18 that it would be improvident to grant plaintiffs requested relief with only eighteen days remaining before the general election. Id., pp. 12-13.

The feasibility determination involved considering the availability of extra ballots and other electoral materials, the number of available polling places, training requirements for extra poll workers, the availability of additional volunteer poll monitors, and the procedures for recusal of voters based on residency, among others. 9

Case: 12-2328

Document: 00116452648

Page: 10

Date Filed: 11/05/2012

Entry ID: 5687773

The form of relief that both the district court and this Court declined to afford was to order Defendants to take all the necessary action under NVRA [and HAVA] required to resuscitate the right to vote of the American citizens residing in Puerto Ricoincluding all I-8 votersthereby opening the polls to close to 350,000 voters. Memorandum in Support of Motion for Preliminary Injunction, Dkt. 7, p. 25. See also, Opinion, Case No. 12-2145 (On October 18, 2012, we affirmed the denial of an injunction that would have required the government to reinstate more than 300,000 voters to the registration roll in time for the upcoming federal election on November 6.) Inexplicably, however, just one working day before the election the district court has now ordered that all I-8 voters, who show up on November 6, 2012 to vote shall be allowed to cast a provisional ballot effectively eviscerating this Courts Opinion ruling that that very form of relief may not be afforded in this case.6 Nevertheless, because the relief recently afforded by the district court was rejected by the prior decision of the panel the district courts determination is foreclosed by this Courts mandate, which incorporates all rulings of the Court in this case. See Negron-Almeda, 579 F.3d at 50 (the mandate rule, prevents relitigation in the trial court of matters that were
6

Because of the inherent problems in opening the polls to close to 350,000 potential voters for the plebiscite, all state-wide offices (the Governor, 11 Senators at large, 16 Senators by district, 11 Representatives at large, 40 Representative by district), all municipal offices (78 Mayors and 78 Municipal Legislative Assemblies of between 9 and 33 members each), and for Puerto Ricos only federal elected office, in terms of organization, resources, and procedures; and (2) because [e]ven if it were appropriate for a federal court to prescribe alternative recusal procedures, [it] would be ill equipped to do so in the short time tie remaining before the election. Id. p. 11. 10

Case: 12-2328

Document: 00116452648

Page: 11

Date Filed: 11/05/2012

Entry ID: 5687773

explicitly or implicitly decided by an earlier appellate decision in the same case. (quoting Moran, 393 F.3d at 7)). This Court should reverse the district court for exceeding the boundaries of the mandate. B. THE DISTRICT COURTS ORDER IS NOT FEASIBLE AND IMPOSSIBLE TO COMPLY WITH AT THIS STAGE As if the district courts disregard of this Courts orders were not enough, the district courts determination is patently unfair, troublesome, and truly erratic. This is the same district court that recognized that the only way to implement the relief at issue was to order the same on or before October 23, 2012, because otherwise Defendants would not have the resources, means, procedures and mechanisms to open the polls to 350,000 voters. See Opinion, Case No. 12-2145. Moreover, the district court did so without even permitting for residency recusals or even addressing this very important obstacle that was thoroughly considered by this Court because it paves the way for countless variances of electoral fraud. And, it did so by subjecting Puerto Ricos electoral processincluding the counting of votes, the certification of candidates, and the right of the citizens and the electoral parties to know who their public officials will beto the whim of a federal court ill equipped to do soa federal court that has made abundantly clear that it will not resolve disputes until, at least, December 1, 2012. As if this were not enough, it did not limit its ruling to the election of the
11

Case: 12-2328

Document: 00116452648

Page: 12

Date Filed: 11/05/2012

Entry ID: 5687773

Resident Commissioner, the ruling extends to the plebiscite, all state-wide offices (the Governor, 11 Senators at large, 16 Senators by district, 11 Representatives at large, 40 Representative by district), and all municipal offices (78 Mayors and 78 Municipal Legislative Assemblies of between 9 and 33 members each) as well. i. The District Courts Ruling Would Be Impossible To Comply With Only One Working Day Before The Election In handling this case, this Court undertook a prudent and careful approach. After a careful examination of the record, it was convinced it that to grant plaintiffs request for preliminary injunction at this stage of the electoral process would dislocate the elections in Puerto Rico and throw the whole process into disarray. See Opinion, Case No. 12-2145, p. 3 (Although we recognized the importance of plaintiffs claims, we declined to jeopardize the electoral process as a whole by acting precipitously on evolving claims that had not yet been adequately analyzed or developed by plaintiff.) As noted above, the Court made abundantly clear that The record and the parties' arguments failed to demonstrate that such extraordinary relief could be granted only weeks before the election without creating uncertainty and confusion in the Puerto Rico electoral process. Uncertainty and confusion, however, is what the district court has created with an order that totally disregards, inter alia, the public interest and the purity of
12

Case: 12-2328

Document: 00116452648

Page: 13

Date Filed: 11/05/2012

Entry ID: 5687773

the elections, and amounts to an unnecessary and unwarranted intrusion of a federal court into Puerto Ricos upcoming general election. At this moment, one (1) working day before the General Elections, all the electoral material has been distributed to the seven thousand two hundred fifty five (7,255) polling stations disperse all over Puerto Rico, including the one thousand five hundred and three (1,503) added by hand polling stations. Because plaintiffs did not obtain the preliminary injunction, the distribution of ballots, voting materials and polling workers was done without considering the inclusion of more than 300,000 potential electors that may show up to vote on Election Day. In fact, the parties did not train their poll works on the different legal and factual scenarios that affording the relief requested would create. Indeed, the district courts order is filled with a myriad of defects and will lead to countless problems that it failed to consider. For example, the order does not say whether the over 330,000 voters will deposit their ballots in the same ballot box than those who vote added by hand, creating confusion as to whether those votes will be arrested with the I-8, and sequestered until the district court rules in the matter. And, if the I-8 ballots were to be deposited in different ballot boxes, those ballot boxes have not been distributed and are not available at those polling stations.

13

Case: 12-2328

Document: 00116452648

Page: 14

Date Filed: 11/05/2012

Entry ID: 5687773

As already explained, the district court itself recognized that this extraordinary relief could not reasonably be issued on or before certain cut-off date precisely because of these problems. Relying in the opinion of Mr. Acevedo, plaintiffs own expert, the district court warned this Court in its findings of facts that to make feasible the I-8 inactive voters participation in the November 6 General Elections the preliminary injunction had to be issued at least fourteen (14) days before the General Election of November 6. 7 This Court so recognized where it stated that: On October 17, the district court certified its findings. In these findings, the court (1) concluded that it would be feasible to allow the I-8 voters to vote in the general election so long as this court ordered such relief by Tuesday, October 23, . . . (Our Emphasis) If the only way the remedy was feasible was if the district court acted on or before October 23, then how can it possibly be feasible with just one-working day?8 It is self-evident that what needed no less than fourteen (14) days to be implemented cannot be done in one (1). Such an admission on part of the district

At footnote 4 of its Order, this Court stated that preparations could be made to accommodate the 330,902 deactivated voters if the orders to do so were given at least ten to twelve days before the election. (Our Emphasis). Our argument, of course, is not an admission that what Acevedo requested was feasible. It is rather directed to establishing how the district courts recent action is not feasible even under its prior erroneous understanding. On this score, as the Court is aware, it is uncontested that after October 23 it was not feasible to afford the relief requested. 14
8

Case: 12-2328

Document: 00116452648

Page: 15

Date Filed: 11/05/2012

Entry ID: 5687773

court should have been enough for it to stay its hand and comply with this Courts mandate. ii. The District Courts Order Deprives The Political Parties Of Their Right To Conduct Recusals By Residency With its ruling the district court has effectively be deprived the political parties in this action of their right to adequately recuse I-8 voters on residency grounds. This is a truly important issue that the district court failed to even address despite the fact that this Court expressed serious concerns about it in the Opinion. See Colon Marrero, slip opinion, No. 12-2145, p. 10-11. As this Court explained, We also had concerns about the absence of same-day recusal procedures, an issue noted by the district court. While Professor Acevedo testified that there were sufficient materials and personnel available to successfully reinstate the I-8 voters for the November 6 general election, he pointed out that Puerto Rico law does not include a process by which poll watchers can challenge the validity of a voter's claim to residency on the day of the election. According to the testimony of several witnesses, establishing that the I-8 voters are residents of the precinct in which they seek to vote is necessary because the I-8 voters have not updated their voter information since before the November 2008 general election. It is therefore safe to assume that at least some of them now reside in different precincts than they did in 2008, while others may no longer be residents of Puerto Rico at all. In addition, a recusal mechanism on the day of the election would address the fact that the I-8 voters would be added to the registration roll without the voter review ordinarily conducted under Commonwealth law early in an election year. Even if it were appropriate for a federal court to prescribe alternative recusal
15

Case: 12-2328

Document: 00116452648

Page: 16

Date Filed: 11/05/2012

Entry ID: 5687773

procedures, we would be ill equipped to do so in the short time remaining before the election. Opinion, Case No. 12-2145, p. 10-11. This Court concerns on this important aspect of the feasibility determination were adequate. If ignored, it paves the way for countless variances of electoral fraud, as the Court correctly noted. The district court, however, fails to even mention it in its about-face determination. More importantly, even if it had the necessary tools to address it and craft appropriate recusal proceduresand it does not, as this Court foundit is still a major concern that needed to be addressed. The district courts failure to do so further buttresses why the remedy afforded is not feasible. iii. The District Courts Order Would Effectively Deprive The Political PartiesAnd The Citizens Of Puerto RicoOf Knowing Who Has Won The Election And Should Be Certified Accordingly As if the foregoing not enough, the district courts new rulingissued without even hearing evidence as to its feasibilityto the effect that [w]hen these provisional ballots cast by the I-8 voters on November 6, 2012 reach the State Electoral Commission (SEC), their adjudication shall be postponed to allow for this Court's resolution of the merits of the I-8 voters' constitutional challenge" effectively deprives the political parties and the citizens of Puerto Rico of even knowing who their elected officials are until the district court resolves the issues

16

Case: 12-2328

Document: 00116452648

Page: 17

Date Filed: 11/05/2012

Entry ID: 5687773

(whenever this may be).9 In other words, not only the district courts order opens the election process to chaos and fraud by not permitting recusals on residency grounds, and without even considering if the SEC and the political parties have the necessary means and resources to implement such a remedy, it has informed the parties that it will now arrest the electoral results until at least December 1, 2012 assuming that every party accepts the district court final decision on the merits of the permanent injunction and no appeals are filed. See Scheduling Order, Dkt. 81. In its November 3, 2012 Order, notified on November 4, the district court commanded the following: When these provisional ballots cast by the I-8 voters on November 6, 2012 reach the State Electoral Commission (SEC), their adjudication shall be postponed to allow for this Courts resolution of the merits of the I-8 voters constitutional challenge now pending before it. Dkt. 79, p. 6 (emphasis omitted). After issuing this order, the district court then issued a scheduling order that makes clear that Puerto Rico may not know who its elected candidates are until at least December 1, 2012. See Dkt. 81 (D. Puerto Rico, Case No. 12-1749). This is so because the order sequesters or arrests more than 330,000 ballots for multiple positions until, at least, December 1, 2012. Because those ballots could be determinative of any positionand even a substantial less amount for positions
Notably, the district court has made clear that it will not resolve the issue until, at least, December 1, 2012. See Dkt. 81 (D. Puerto Rico, Case No. 12-1749) 17
9

Case: 12-2328

Document: 00116452648

Page: 18

Date Filed: 11/05/2012

Entry ID: 5687773

with a smaller electoral baseno candidate one will accept defeat and the State Elections Commission will not be in the position to certify a winner until after the Court issues a decision on the merits. This situation will bring upon instability, insecurity, and chaos to the process, and will have a direct impact on the Governments transition process which, by law, must begin on the fourth (4th) days after the General Elections. See 1 Laws PR Ann 460(a). The citizens of Puerto Rico do not deserve such uncertainties from the hands of a federal court. The harm to the general public and its interest would be grave. iv. The District Courts Ruling Is Not Only In Stark Contravention With This Courts Opinion, But Also With An Opinion Of The Puerto Rico Supreme Court Which Would Reasonably Lead To Further Confusion As if the foregoing were not enough to plague the election and post-election processes and procedures with unnecessary and unwarranted uncertainty and confusion, on November 3, 2012, the Puerto Rico Supreme Court issued an opinion in the case Mundo-Rios, v. State Election Commission, et al, CT-2012-020. In said opinion, the Puerto Rico Supreme Court, after acknowledging that this Circuit determined that the I-8 will to be allowed to vote in the 2012 General Elections, and consistent with this determination, decided inter alia that the voters included in the I-8 lists, because of their inactive status, cannot vote at the added by hand polling station. See Exhibit I. Hence both this Courts Opinion and the one

18

Case: 12-2328

Document: 00116452648

Page: 19

Date Filed: 11/05/2012

Entry ID: 5687773

issued by the Puerto Rico Supreme Court make abundantly clear that I-8 can be excluded from voting in the upcoming election. The orders issued by the district court pull in the opposite direction. Such inconsistent rulings, with one issued barely one working day before the General Elections with the necessary effect that local officers would not know what to follow will add to the confusion and uncertainty among voters and polling workers on Election Day, make the administering the voting process in those polling stations unmanageable. Such unnecessary frontal clashes with the Puerto Rico Supreme Court that should not be allowedparticularly after the ruling of this Court. CONCLUSION For the foregoing reasons, the district courts orders should be vacated. Respectfully submitted.

19

Case: 12-2328

Document: 00116452648

Page: 20

Date Filed: 11/05/2012

Entry ID: 5687773

CLAUDIO ALIFF-ORTIZ 300 Flores de Montehiedra Box 653 San Juan, Puerto Rico 00926 Tel. 787-608-6264 s/Claudio Aliff-Ortiz, Esq. CLAUDIO ALIFF-ORTIZ USCA Bar No. 30369 claudioaliff@hotmail.com

INDIANO & WILLIAMS, P.S.C. 207 Del Parque; 3rd Floor San Juan, PR 00912 Tel: (787) 641-4545 Fax: (787) 641-4544 s/ David C. Indiano DAVID C. INDIANO USCA Bar No. 46075 david.indiano@indianowilliams.com s/ Seth A. Erbe SETH A. ERBE USCA Bar No. 94433 seth.erbe@indianowilliams.com

November 4, 2012.

20

Case: 12-2328

Document: 00116452648

Page: 21

Date Filed: 11/05/2012

Entry ID: 5687773

CERTIFICATE OF SERVICE I hereby certify that on this same date I electronically filed the foregoing document with the United States Court of Appeals for the First Circuit by using the CM/ECF system. I certify that the following parties or their counsel of record are registered as ECF Filers and that they will be served by the CM/ECF system: Carlos Antonio Del Valle Cruz, Rafael Enrique Garcia-Rodon, and Carlos Miguel Hernandez Lopez on behalf of Appellant Myrna Colon-Marrero; Jose Nieto Mingo on behalf of Appellee Hector Conty-Perez; Jorge Martinez Luciano, Emil J. Rodriguez Escudero on behalf of Eder Ortiz Ortiz; and Nelson Cordova on behalf of Adrian Diaz Diaz.

s/Claudio Aliff-Ortiz, Esq.

21

Case: 12-2328

Document: 00116452649

Page: 1

Date Filed: 11/05/2012

Entry ID: 5687773

IN THE PUERTO RICO SUPREME COURT Edwin Mundo Ros, in his capacity as the Electoral Commissioner of the New Progressive Party Certification Petitioner v. State Elections Commission; Hctor Jaime Conty Prez, in his capacity as the President of the State Elections Commission; Eder Ortiz Ortiz, in his capacity as the Electoral Commissioner of the Popular Democratic Party; Roberto Ivn Aponte Berros, in has capacity as the Electoral Commissioner of the Puerto Rico Independence Party; Julio Fontanet Maldonado, in his capacity as the Electoral Commissioner of the Movimiento Unin Soberanista; Lillian Aponte Dones, in her capacity as the Electoral Commissioner of the Partido del Pueblo Trabajador, and Adrin Daz Daz, as the Electoral Commissioner of Puertorriqueos por Puerto Rico Respondents CT-2012-020

PER CURIAM In San Juan, Puerto Rico, on November 3, 2012. [...] [Pages 8-9 of 15] Art. 6.012 of the Electoral Code, supra, 16 L.P.R.A. sec. 4072, provides that the State Elections Commission may exclude a voter from the Registry based on the reasons set forth in the law. One of said reasons is that the voter has been inactivated from the General Voter
[I hereby certify that I am fluent in both Spanish and English and that this is a true and accurate translation to the best of my abilities. Margot A. Acevedo Chabert FCICE Certificate No. 06-001]

Case: 12-2328

Document: 00116452649

Page: 2

Date Filed: 11/05/2012

Entry ID: 5687773

Registry because he/she did not vote in the previous general elections. Id. According to the referenced legal precept, said inactivation of the voter constitutes an exclusion that shall not imply the elimination of the voters information from the General Voter Registry. The reason for that is that the voter may be reactivated before the due date established to do so. Specifically, Art. 6.015 of the Electoral Code, supra, 16 L.P.R.A. sec. 4075, states that no voter may be registered fifty days prior to the election. On the other hand, Rule 18 of the Regulations for the 2012 General Elections and General Scrutiny, approved on May 10, 2012, orders the Information Systems and Electronic Processing Office of the State Elections Commission (OSIPE Spanish acronym) to produce the list of excluded voters to be used in the unit sub-boards and polling stations. Likewise, Rule 35 of said Regulations, id., sets forth that in each voting center there shall be a station for voters who claim their right to vote but who are not in the lists of active voters or in the lists of excluded voters to cast their votes. Only voters who are not in the voting lists due to

administrative mistakes made by the Commission... shall vote there. Id. See, also, Art. 9.015 of the Electoral Code, supra, 16 L.P.R.A. sec. 4155. [...] [Page 11 of 15] As it arises from Sec. 14.6(d) of the Election Procedure Manual, no voter who is included in the list of excluded voters may vote in a polling place where voters are added by hand without submitting an official document issued by the State Elections Commission showing that he/she has the right to vote. It is not enough for an excluded or inactive voter to show up to vote without official evidence of his/her right to do so. [Text provided for translation ends here.]
[I hereby certify that I am fluent in both Spanish and English and that this is a true and accurate translation to the best of my abilities. Margot A. Acevedo Chabert FCICE Certificate No. 06-001]