Rossello-Gonzalez v. Calderon

• Court: Court of Appeals for the First Circuit
• Decided: December 15, 2004
• Docket: 04-2610
• Status: Published

Opinion

United States Court of Appeals For the First Circuit No. 04-2610

PEDRO J. ROSSELLÓ-GONZÁLEZ; LUIS FORTUÑO; MIRIAM RAMÍREZ; NANETTE GUEVARA; ARNOLD GIL-CARABALLO; LARRY SEILHAMER; JOSÉ SÁNCHEZ; JUAN F. RAMÍREZ AND JAVIER RODRÍGUEZ-HORTA, Plaintiffs, Appellees,

v.

SILA M. CALDERÓN-SERRA, individually and in her capacity as GOVERNOR OF PUERTO RICO; ANÍBAL ACEVEDO-VILÁ; THE INCOMING GOVERNMENT TRANSITION COMMITTEE; GERARDO A. CRUZ, individually and in his capacity as a member of the Puerto Rico Electoral Commission, Defendants, Appellants.

No. 04-2611

PEDRO J. ROSSELLÓ-GONZÁLEZ; LUIS FORTUÑO; MIRIAM RAMÍREZ; NANETTE GUEVARA; ARNOLD GIL-CARABALLO; LARRY SEILHAMER; JOSÉ SÁNCHEZ; JUAN F. RAMÍREZ AND JAVIER RODRÍGUEZ-HORTA, Plaintiffs, Appellees,

THE PUERTO RICO ELECTORAL COMMISSION, A/K/A THE COMMONWEALTH ELECTION COMMISSION; AURELIO GRACIA-MORALES, individually and in his capacity as PRESIDENT OF THE PUERTO RICO ELECTORAL COMMISSION; THOMAS RIVERA-SCHATZ, individually and in his capacity as a member of the Puerto Rico Electoral Commission; JUAN DALMAU-RAMÍREZ, individually and in his capacity as a member of the Puerto Rico Electoral Commission, Defendants, Appellants.

No. 04-2612 IN RE GERARDO A. CRUZ, Petitioner.

No. 04-2613 IN RE STATE ELECTIONS COMMISSION, AURELIO GRACIA-MORALES, President of the State Elections Commission, Petitioners. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District Judge]

Before Torruella, Circuit Judge, Stahl, Senior Circuit Judge, and Howard, Circuit Judge.

María Soledad Piñeiro, argued on behalf of respondents Manuel R. Suárez-Jiménez, Enid Abreu-Zurinaga, José A. Alvarez- Febles and Liany Fernández-Toledo. Rafael Escalera-Rodríguez, argued on behalf of petitioners Gerardo A. Cruz and the State Elections Commission. Richard H. Pildes, Professor of Law, New York University School of Law, with whom Pedro A. Delgado-Hernández, Ramón L. Walker-Merino, Eileen Marie García-Wirshing, and O'Neill & Borges, were on brief, for appellants The Puerto Rico Electoral Commission and Aurelio Gracia-Morales. Charles J. Cooper, with whom Charles Fried, Brian S. Koukoutchos, Vincent J. Colatriano, Derek L. Shaffer, Nicole J. Moss, and Cooper & Kirk, PLLC, were on brief, for appellant Aníbal Acevedo-Vilá. Theodore B. Olson, with whom Miguel A. Estrada, Andrew S. Tulumello, Matthew D. McGill, Gibson Dunn & Crutcher LLP, James F. Hibey, William R. Sherman, Howrey Simon Arnold & White, LLP, Joseph D. Steinfield, Prince, Lobel, Glovsky & Tye, LLP, Luis Berríos-Amadeo, Andrés W. López, The Law Offices of Andrés W. López, Andrés Guillemard-Noble, Nachman & Guillemard, Charles A. Rodríguez, and David C. Indiano, were on brief, for appellees. Rafael Escalera-Rodríguez, Néstor J. Navas-D'Acosta, Reichard & Escalera, Zuleika Llovet-Zurinaga, Carlos E. López-López, and Llovet Zurinaga & López, PSC, were on brief, for appellant The Honorable Sila M. Calderón. Pedro E. Ortiz-Álvarez, with whom Johanna Emmanuelli-Huertas, Jorge Martínez-Luciano, Gina Ismalia Gutiérrez-Galang, and the Law Offices of Pedro E. Ortiz-Álvarez, PSC, were on brief, for appellant Gerardo A. Cruz. Luis Sánchez-Betances, with whom Gerardo De Jesús-Annoni, and Sánchez Betances & Sifre, P.S.C., were on brief, for appellant The Incoming Transition Committee.

CORRECTED OPINION

January 28, 2005 TORRUELLA, Circuit Judge; STAHL, Senior Circuit Judge;

and HOWARD, Circuit Judge. The Commonwealth of Puerto Rico held

general elections on November 2, 2004 for a variety of offices,

including Governor and Resident Commissioner. Although over two

million votes were cast, preliminary results indicate that the

candidates from the Popular Democratic Party ("PDP") and the New

Progressive Party ("NPP"), Aníbal Acevedo Vilá ("Acevedo") and

Pedro Rosselló González ("Rosselló"), respectively, are separated

by a very narrow margin -- a few thousand votes. This extremely

close election has raised emotions in Puerto Rico and spawned the

actions that are before us.

Plaintiffs-Appellees include NPP candidate Rosselló and

a number of voters who voted for him in the November 2, 2004

election (collectively, "the Rosselló Plaintiffs").1 Defendants-

Appellants include PDP candidate Acevedo, the Puerto Rico Electoral

Commission ("the Commission"), the president of the Commission,

Aurelio Gracia Morales ("Gracia"), and its three Commissioners

(collectively, "the Acevedo Defendants").2 On November 10, 2004,

the Rosselló Plaintiffs filed suit ("the Rosselló action") in the

United States District Court for the District of Puerto Rico ("the

1 Luis Fortuño, the NPP candidate for Resident Commissioner, is also a Plaintiff-Appellee. 2 Sila M. Calderón-Serra, the incumbent Governor, and Acevedo's Incoming Government Transition Committee are likewise Defendants- Appellants.

-3- District Court") in which they challenged, among other things, the

validity of certain ballots that were cast in connection with the

November 2, 2004 election. On November 24, 2004, the District

Court issued an order that the Commission identify and set aside,

but not consider, the contested ballots. The Acevedo Defendants

seek review of that order.

Also part of this appeal is an action filed on

November 16, 2004 in the Court of First Instance for San Juan,

Puerto Rico, the local trial court, by four voters (collectively,

"the Suárez Plaintiffs") who claim to have cast, and want to

establish the validity of, the ballots at issue in the Rosselló

action ("the Suárez action").3 After the Court of First Instance

dismissed the Suárez action on November 18, 2004 as moot, the

Supreme Court of Puerto Rico ("Supreme Court") assumed jurisdiction

over the case. Yet, before the Supreme Court took any meaningful

action, the case was removed to the District Court. Motions were

promptly filed to remand the action to the Supreme Court, and we

have since been asked to exercise our power of mandamus and

instruct the District Court to remand the action.

3 The following are the defendants in the Suárez action: (1) the Commission, (2) the President of the Commission, (3) the three Commissioners, (4) Rosselló, and (5) the NPP.

-4- I. BACKGROUND

A. The November 2, 2004 Election

On November 2, 2004, general elections were held for the

offices of Governor and Resident Commissioner.4 The ballot that

was to be cast in connection with those two offices ("the ballot")

listed only the candidates for those two offices under the insignia

of their respective political parties.5 Puerto Rico's three major

parties had candidates on the ballot for Governor: (1) Rosselló,

from the NPP; (2) Acevedo, from the PDP; and (3) Rubén Berríos

Martínez, from the Independence Party ("PIP"). The parties also

had candidates on the ballot for Resident Commissioner.

The ballot instructed voters to vote for only one

candidate for Governor and one for Resident Commissioner. On

election day, voters filled in the ballots in the following ways:

(1) by placing a mark under a party insignia, thereby voting for

all of the candidates in that party's column ("a straight vote");

(2) by placing a mark next to the name of each desired candidate

but not under a party insignia; (3) by placing a mark under a party

insignia and next to a desired candidate of a party other than the

one that had its insignia previously marked;6 or (4) by placing a

4 The Resident Commissioner is Puerto Rico's non-voting representative in Congress. 5 The ballot is reproduced in Appendix A of this Opinion. 6 The Commission has determined that such a ballot reflects a vote for the desired candidate and the remaining candidate under the

-5- mark under a party insignia and marks next to two desired

candidates associated with a party or parties other than the one

that had its insignia previously marked ("a three-mark split

vote").7

Prior to the November 2, 2004 election, the Commission,

acting pursuant to its statutory authority, enacted regulations

which outlined the procedures that were to be followed in

adjudicating ballots, that is, in determining the validity of

ballots and in awarding votes to the deserving candidates.8

According to the procedures in place during the election in issue,

each ballot was to be initially adjudicated, and each vote was to

be tallied, at the polling location at which it was cast.9 If

party insignia. 7 As determined by the Commission, see infra, a three-mark split vote ballot reflects a vote for the two marked candidates, as well as a vote for the party. A vote for a party on a three-mark ballot is credited to the party itself (and not to any of its candidates) for purposes of its reclassification as a "principal party," which entitles it to certain benefits, including the right to receive funding. See 16 P.R. Laws Ann. §§ 3003, 3116. A party is a principal party if, for example, it "obtained a number of votes under . . . its insignia on the ballot of Governor and Resident Commissioner[] of not less [than] seven (7) percent of the total number of votes cast for all the parties' insignias in the preceding general election." § 3003(42) (second alteration in original). 8 See 16 P.R. Laws Ann. §§ 3007(k), 3013(l). 9 Each ballot was to be adjudicated by a group of three inspectors, consisting of one representative from each of the three principal parties. If the inspectors were unable to agree, there were additional levels of review at each polling location. The adjudicatory bodies at each level were comprised of one

-6- those reviewing a ballot at a polling location were unable to

unanimously agree on the adjudication of the ballot, it was to

remain unadjudicated and be sent to the Commission, along with the

results of the adjudicated ballots, for review. The Commission was

then to engage in a "general canvass," during which the results of

the adjudicated ballots were to be checked and the contested

ballots were to be counted or rejected according to the judgment of

the three Commissioners -- each of whom represented one of the

three principal parties.10 If they could not reach a unanimous

consensus, the ballot was to be forwarded to the president of the

Commission for a final determination.11

Over two million votes were cast in the November 2, 2004

gubernatorial election. Within seventy-two hours of the closing of

the polls, the Commission issued a preliminary report that Acevedo

was leading Rosselló by 3,880 votes. As a result of the closeness

of the election, and in accordance with its regulations, the

Commission, on November 4, 2004, ordered that a recount occur

simultaneously with the general canvass. But, the next day, the

representative from each of the three principal parties. 10 Although this is a somewhat simplified account of the general canvass procedures, the omitted details are irrelevant to this appeal. 11 "Any party affected by a resolution, ruling or order of the [] Commission may, within the ten (10) days following the notice thereof, appeal to the Court of First Instance . . . ." 16 P.R. Laws Ann. § 3016a.

-7- president of the Commission, Gracia, announced that the recount

would not begin until the completion of the general canvass.

During the election, thousands of three-mark split vote

ballots -– as many as 28,000 -– were cast. Apparently, the vast

majority of these ballots contained a mark under the insignia of

the PIP and marks next to the two PDP candidates.12

A number of the three-mark ballots were adjudicated at

the polling centers on election night.13 And, for the first two or

three days of the general canvass, which began on November 8, 2004,

some of the three-mark ballots that had been contested at the

polling centers, and thus, had not been adjudicated, were

determined to be valid. But, on November 11, 2004, a dispute arose

when the NPP Commissioner took the position that the ballots in

question were void. Because the PDP and PIP Commissioners

disagreed, the issue was referred to Gracia. On November 12, 2004,

Gracia decided that the ballots contained valid votes for both the

marked candidates and the marked party, and later that day,

12 It has been alleged that, on some of the three-mark split vote ballots: (1) the mark under the PIP insignia was made in pencil while the marks next to the PDP candidates were made in pen; and (2) the marks next to the PDP candidates were noticeably dissimilar from the mark made under the PIP insignia. 13 There is, however, a dispute as to whether these ballots were adjudicated in a consistent fashion. It has been alleged that some of the ballots were declared void, some were adjudicated as containing valid straight votes for the PIP candidates, and some were adjudicated as containing valid split votes for the PDP candidates, as well as the PIP.

-8- Gracia's decision was memorialized in a written resolution of the

Commission.

1. The Federal and State Court Actions

On November 10, 2004, the Rosselló Plaintiffs filed a

complaint against the Acevedo Defendants in the District Court that

asserted various federal constitutional claims under 42 U.S.C.

§ 1983 arising out of the November 2, 2004 election. On

November 12, 2004, an amended complaint was filed alleging that the

Commission's decision to (1) regard the three-mark ballots as valid

and count the votes contained therein, (2) suspend the recount

pending completion of the general canvass,14 and (3) disregard

certain late-filed absentee ballots15 violated a variety of their

federal constitutional rights.16 The Rosselló Plaintiffs sought

declaratory and injunctive relief in connection with the above

14 The Rosselló Plaintiffs, by their own concession, "have achieved complete and substantial relief" on this claim, and therefore, we need not give it any further consideration. 15 The Rosselló Plaintiffs have conceded, both in their opening brief and at oral argument, that they "have achieved complete and substantial relief" from the Commission with respect to this claim. To be sure, there is still a question as to whether the Commission will follow through with the relief it has promised. But, any claim concerning this open question is not yet ripe. 16 In addition, the Rosselló Plaintiffs have alleged that the Commission violated their constitutional rights when it made "substantial changes" to the rules governing the election after the votes had been cast.

-9- challenges.17 The District Court scheduled a hearing for

November 18, 2004.18

Meanwhile, on November 16, 2004, the Suárez Plaintiffs,

who claim to have cast three-mark ballots, filed suit in the Court

of First Instance seeking, among other things, a declaratory

judgment as to the validity of the three-mark ballots and an

injunction requiring the Commission to adjudicate the ballots.19

The Suárez Plaintiffs insisted that an invalidation of the ballots

would deprive them of their right to vote and, thus, their "right

to due process of law and to equal protection under the law."20

17 The Rosselló Plaintiffs also sought injunctive and declaratory relief in connection with their claim that Puerto Rico Law No. 197, 1 P.R. Laws Ann. §§ 456 et seq., "is unconstitutional to the extent that it purports to authorize or allow the transition process [for the next governor] to proceed before the next governor . . . has been determined." We need not address this issue. The District Court denied preliminary injunctive relief on this claim, and the Rosselló Plaintiffs did not bother to appeal that ruling. Moreover, whether Law No. 197 allows the transition process to go forward during a recount is a question of local law that will soon be mooted by the recount. 18 We note that the Rosselló Plaintiffs chose to challenge the decisions of the Commission in federal court rather than exercise their statutory right to appeal to the Court of First Instance. See 16 P.R. Laws Ann. § 3016a. 19 The Suárez Plaintiffs also sought declaratory and injunctive relief requiring the Commission to (1) complete the general canvass before conducting a recount and (2) certify the winning gubernatorial candidate by December 22, 2004. 20 The Suárez Plaintiffs filed this action even though the Commission had already decided that the three-mark ballots are valid.

-10- The Court of First Instance dismissed the Suárez action

without prejudice on November 18, 2004 on the ground that no actual

controversy existed because the Commission had already upheld the

validity of the ballots.21 That same day, the Suárez Plaintiffs,

concerned that the validity of the ballots had not been adequately

established, requested that the Supreme Court of Puerto Rico review

the Court of First Instance's dismissal. The Supreme Court agreed

to do so. On the morning of November 20, 2004, the Commissioner of

the NPP and the NPP itself, defendants in the Suárez action,

removed the action to the District Court. Notice of removal was

filed with the Supreme Court at 11:48 a.m. In response, the Suárez

Plaintiffs and a defendant in the Suárez action, alleging various

procedural defects in removal,22 as well as lack of federal

jurisdiction, moved the District Court to remand. Soon thereafter,

two mandamus petitions were filed in this court, each one seeking

an order requiring that the District Court remand the action.

Despite the removal, the Supreme Court purported to enter

a judgment on the Suárez action on the evening of November 20,

2004. By a vote of four to three, it ordered that the three-mark

ballots were to be adjudicated as containing valid votes for the

21 Significantly, the Commissioner of the NPP, a defendant in the Suárez action, had requested dismissal on several grounds, one of which was lack of jurisdiction because the Commission had already adjudicated the contested ballots as valid. 22 Because of the disposition of the removal issue on other grounds, we need not address the alleged procedural defects.

-11- marked candidates for Governor and Resident Commissioner, as well

as the identified party for purposes of maintaining its principal

party status. See supra note 7.

On November 20, 2004, the District Court issued an order

in the Rosselló action that the Commission "set aside and

segregate" the three-mark ballots and refrain from announcing the

winner of the gubernatorial election. Then, on November 24, 2004,

the District Court issued an order that: (1) stated that the

Supreme Court's judgment was void because the removal rendered the

Supreme Court without jurisdiction to enter the judgment;23 and (2)

ordered that a recount be conducted by "counting the number of

[three-mark] split ballots, identifying and segregating the same,

but not adjudicating the ballots." (Emphasis in original.) The

Acevedo Defendants appealed from the order that the three-vote

ballots not be adjudicated.

II. THE PETITIONS FOR MANDAMUS

We begin with the two Emergency Petitions for Writ of

Mandamus that request we exercise our power of mandamus and

instruct the District Court to remand the Suárez action to the

23 We agree with the District Court that the Supreme Court's judgment was void. The governing statute provides that the filing of "a copy of the notice [of removal] with the clerk of [the] State court . . . effect[s] the removal and the State court shall proceed no further unless and until the case is remanded." 28 U.S.C. § 1446(d) (emphasis added). The Supreme Court received notice of the removal at 11:48 a.m. on November 20, 2004 but did not issue judgment until that evening. The judgment is thus, as the District Court found, a nullity.

-12- Puerto Rico courts. These mandamus petitions contest the validity

of removal on two principal grounds: (1) the absence of federal

question jurisdiction over the Suárez action, and (2) the failure

of the removing parties to obtain the consent of all Suárez action

defendants (including Petitioners) to removal. Since both

petitions are substantially the same, they will be discussed as

one.

We note at the outset that we have given the District

Court ample opportunity to decide whether removal of the Suárez

action was proper, and despite the time-sensitive nature of this

case, and three weeks of hearings on the merits of the Rosselló

action which has been consolidated with this case for appeal, we

are now faced with the extreme decision of whether we should compel

remand through a Writ of Mandamus.

In order to stave off the need for mandamus, we invited

the District Court to address these mandamus petitions. In

response, the court appended a footnote to the opinion of

November 30, 2004 in which the District Court asserted jurisdiction

over the parallel federal case. Pedro Rosselló, et al. v. Sila M.

Calderón, et al., No. 04-2251, slip op. at 3, n.2 (D.P.R. Nov. 30,

2004). The footnote indicated that a hearing was needed to

properly evaluate the jurisdictional issues raised in the pending

motions to remand. Specifically, the District Court indicated:

(1) that the Suárez Plaintiffs' complaint had alleged violations of

-13- due process and equal protection without specifying whether the

source of these protections was the Commonwealth or Federal

Constitution; (2) that federal jurisdiction might be required under

Franchise Tax Board v. Construction Laborers Vacation Trust, 463

U.S. 1, 22 (1983); and finally, (3) that the legal interests of

some Suárez Defendants might require their realignment with the

plaintiffs in that action.

Following a hearing on December 8, 2004, the District

Court issued an opinion resolving various challenges to the removal

jurisdiction. Manuel R. Suárez, et al. v. Comisión Estatal de

Elecciones, et al., No. 04-2288, slip op. (D.P.R. Dec. 10,

2004)(hereinafter "Remand Opinion"). In that opinion, the District

Court held that "examining the evidence in the light most favorable

to the defendants . . . an overvote issue may exist[] in violation

of Due Process and Equal Protection principles under the case of

Bonas v. Town of North Smithfield, 265 F.3d 69 (1st Cir. 2001)."

Remand Opinion at 12-13; see also Bonas, 265 F.3d at 73-74.24

Although it evaluated and rejected the majority of the arguments

against removal before it, the District Court still has not made a

final decision on the ultimate question of whether to remand the

case to the Puerto Rico courts. Nevertheless, the District Court

determined in its December 10 opinion that a federal question had

24 We address the applicability of Bonas below in our discussion of the Rosselló action.

-14- been presented in the Suárez complaint. That determination was

plainly erroneous, and our resolution of the Rosselló action today

is decisive of the motion to remand. Because the District Court

plainly erred, and because every additional day spent adjudicating

this issue before the District Court or on appeal before this court

increases the risk of irreparable harm, our intervention by Writ of

Mandamus would be appropriate.

A. Availability of Mandamus

Although it is an extraordinary remedy, mandamus can be

appropriate in those rare cases in which the issuance (or non-

issuance) of an order (1) raises a question about the limits of

judicial power, (2) poses a risk of irreparable harm to the

appellant, and (3) is plainly erroneous. See Christopher v.

Stanley-Bostich, Inc., 240 F.3d 95, 99 (1st Cir. 2001). Moreover,

"the case for mandamus is particularly compelling where the order

poses an elemental question of judicial authority." Id. at 99-100.

The instant petitions clearly meet the first requirement, as they

concern the boundaries of the District Court's power to remove

cases from Commonwealth courts. See, e.g., Hernández-Agosto v.

Romero-Barceló, 748 F.2d 1, 4-5 (1st Cir. 1984) (issuing mandamus

to remand improperly removed action to Puerto Rico court). Second,

the risk of irreparable harm from the continued pendency of removal

jurisdiction is acute: there are now fewer than three weeks

remaining before inauguration day on January 2, 2005. Third, as

-15- elucidated below, we find that the District Court's failure to

remand is plainly erroneous because the Suárez Plaintiffs presented

no claim of right arising under federal law. See 28 U.S.C. § 1441.

B. Validity of Removal

We find that the exercise of removal jurisdiction is

plainly erroneous in this case because no federal question was

presented in the Suárez action either procedurally (because the

four corners of the complaint do not plead a federal question) or

substantively (because we have decided in the Rosselló action that

the federal courts will not intervene in a local electoral

dispute). Because we find that remand to the Puerto Rico Supreme

Court is necessary due to the absence of a federal question, we do

not address the petitioners' second argument, that removal was

improper because it did not receive the consent of all defendants

to the Suárez action.

1. Well-Pleaded Complaint Rule

A case may be removed to federal court if it presents a

"claim or right arising under the Constitution, treaties or laws of

the United States." 28 U.S.C. § 1441(b). "The Supreme Court of

the United States has made clear that, in deciding (for removal

purposes) whether a case presents a federal 'claim or right,' a

court is to ask whether the plaintiff's claim to relief rests upon

a federal right, and the court is to look only to plaintiff's

complaint to find the answer." Hernández-Agosto v. Romero-Barceló,

-16- 748 F.2d 1, 2 (1st Cir. 1984) (emphasis in original). The

existence of a federal defense is not sufficient for removal

jurisdiction. Franchise Tax Bd., 463 U.S. at 10-11. Thus, we must

turn to the Suárez complaint to ascertain whether, within its four

corners, a federal "claim or right" has been presented. Our

evaluation centers on the complaint's allegations of violations of

"due process" and "equal protection."25 These claims do not

explicitly state whether the source of these constitutional

protections is the Commonwealth or the Federal Constitution.26

25 Respondents also note that the Suárez complaint attached and made reference to the complaint filed four days earlier in federal court by Rosselló. No federal claim can be inferred from this reference to the federal action; rather, it was included in the Suárez complaint as factual background. See Suárez complaint at para. 8. Further, even assuming it is proper for us to look outside the four corners of the Suárez complaint to the previously- filed federal action, as we discuss below, the Rosselló complaint does not state a claim warranting federal intervention into this local electoral dispute, and therefore cannot be considered sufficiently substantial to give rise to removal jurisdiction under Franchise Tax Board. See Almond v. Capital Props., Inc., 212 F.3d 20, 23 (1st Cir. 2003). 26 We are aware of only one other case dealing with federal removal jurisdiction over a claim filed in state court with ambiguous references to constitutional provisions. In Dardeau v. West Orange-Grove Consolidated I.S.D., 43 F. Supp. 2d 722 (E.D. Tex. 1999), a federal district court evaluated a situation very much like the one we face here. In Dardeau, a complaint was filed in state court that made explicit reference only to state law, but also claimed a violation of "due process." Ambiguity with regard to the source of this right was heightened relative to our case because, while those words appear in the United States Constitution, the Texas Constitution uses the phrase "due course of law." Id. at 732. For reasons substantially similar to those we set out below, the district court nevertheless interpreted the complaint narrowly to find no federal cause of action to sustain removal jurisdiction. Id. at 730-34.

-17- Read as a whole, we cannot say that this complaint

presents a claim under the Federal Constitution. No explicit

reference to the United States Constitution or any other federal

law is contained in the complaint; instead, all references are to

Puerto Rico state laws, regulations, and the Commonwealth

Constitution. Specifically, paragraph 11 of the complaint bases

the Suárez Plaintiffs' claims in the right to vote guaranteed in

Article II, Section 2, of the Commonwealth Constitution. The

complaint's subsequent references to the plaintiffs' rights to vote

and to have their votes counted in accordance with equal protection

and due process, while not expressly premised on the Puerto Rico

Constitution, logically refer back to the antecedent citation to

Article II, Section 2 of the Commonwealth Constitution.

Moreover, it is well-settled that "the plaintiff [is] the

master of the claim; he or she may avoid federal jurisdiction by

exclusive reliance on state law." Caterpillar Inc. v. Williams,

482 U.S. 386, 392 (1987). Thus, the burden to prove that a federal

question has been pled lies with the party seeking removal. BIW

Deceived v. Local S6, Indus. Union of Marine & Shipbuilding

Workers, 132 F.3d 824, 831 (1st Cir. 1997). In light of this

burden, and of the important federalism concerns at play in

considering removal jurisdiction, see, e.g., Franchise Tax Bd., 463

U.S. at 8, we find that any ambiguity as to the source of law

relied upon by the Suárez plaintiffs ought to be resolved against

-18- removal. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,

108-09 (1941) (removal statute should be strictly construed against

removal).

2. Artful Pleading Doctrine

The Respondents invite this court to consider the

possibility that the Suárez Plaintiffs engaged in artful pleading,

a "corollary of the well-pleaded complaint rule that a plaintiff

may not defeat removal by omitting to plead necessary federal

questions in a complaint." Franchise Tax Bd., 463 U.S. at 22. As

discussed below with regard to federal ingredient jurisdiction, no

federal question is necessary to the resolution of the state claims

raised in the Suárez complaint. Furthermore, we are skeptical of

the applicability of the artful pleading doctrine outside of

complete federal preemption of a state cause of action. See, e.g.,

id. at 23 (stating that the "necessary ground" for the creation of

the artful pleading doctrine "was that the preemptive force of [a

federal statute was] so powerful as to displace entirely any state

cause of action"); Rivet v. Regions Bank, 522 U.S. 470, 475-76

(1998) ("The artful pleading doctrine allows removal where federal

law completely preempts a plaintiff's state-law claim."). And

surely, the United States Constitution cannot be said to wholly

preempt the Commonwealth's grant of similar rights under its own

Constitution. See PruneYard Shopping Ctr. v. Robins, 447 U.S. 74,

81 (1980) (state constitution may afford more, but not less,

-19- protection than Federal Constitution); see also Nieves v. Univ. of

Puerto Rico, 7 F.3d 270, 275 (1st Cir. 1993) (noting that

"'poverty' is considered a suspect classification under the

Commonwealth constitution, triggering 'strict scrutiny' analysis

unobtainable under the Equal Protection Clause of the United States

Constitution"). Thus, the artful pleading doctrine has no

application to this dispute.

3. Federal Ingredient

Respondents also argue that even in the absence of a

claim arising under federal law on the face of plaintiffs' well-

pleaded complaint, federal removal jurisdiction is still proper

under the Supreme Court's statement in Franchise Tax Board that

removal would be appropriate "if a well-pleaded complaint

established that [the plaintiff's] right to relief under state law

requires resolution of a substantial question of federal law." 463

U.S. at 13. Under this "federal ingredient" doctrine, a case

arises under federal law for purposes of removal when "the

plaintiff's right to relief necessarily depends on resolution of a

substantial question of federal law." Id. at 27-28.

Federal ingredient jurisdiction remains "controversial,"

Almond, 212 F.3d at 23, because

[t]he Supreme Court has periodically affirmed this basis for jurisdiction in the abstract . . ., occasionally cast doubt upon it, rarely applied it in practice, and left the very scope of the concept unclear. Perhaps the best one can say is that this basis endures in

-20- principle but should be applied with caution and various qualifications.

Id. (internal citations and footnote omitted); see also Metheny v.

Becker, 352 F.3d 458, 460 (1st Cir. 2003) (noting that federal

ingredient doctrine "remains vibrant in this circuit but 'should be

applied with caution'" (quoting Almond, 212 F.3d at 23)). With

this caution in mind, we turn to the respondents' argument.

Respondents hang their jurisdictional hat on two

doctrines that they allege exist in the caselaw of the Puerto Rico

Supreme Court. The first stems from the Puerto Rico Supreme

Court's statements in a 1964 case that, in accepting the

Commonwealth's Bill of Rights, the United States Congress "was to

presume -- and in fact it is so and ought to be -- that the public

powers and the courts of the Commonwealth shall render effective

and construe the provisions of the [Puerto Rico] Bill of Rights in

a manner consistent with the protection afforded . . . by the same

or similar provisions of the Constitution of the United States."

R.C.A. Communications, Inc. v. Gov't of the Capital, 91 P.R.R. 404,

414-15 (P.R. 1964). The second comes into play when a federal

court certifies a question of state law to the Puerto Rico Supreme

Court. According to the Supreme Court:

[W]hen the question before us refers to the validity of a state law under a clause of the state constitution that is similar to a clause in the federal Constitution . . . the issue is a mixed question of federal and state rights that must be resolved by the federal court, because the validity of the statute under the

-21- federal Constitution necessarily disposes of the question under state law. . . . In these circumstances we must refuse certification, since our decision would be only advisory.

Pan Am. Computer Corp. v. Data Gen. Corp., 112 D.P.R. 780, 793-94

(1982) (translation supplied by this court). According to

Respondents, these two provisions mean that the Supreme Court's

evaluation of the Suárez Plaintiffs' claims under the due process

and equal protection doctrines of the Commonwealth Constitution

will require the resolution of a federal question: whether the

parallel provisions of the United States Constitution would be

violated by the acts in question. Accordingly, Respondents argue,

the District Court has removal jurisdiction under the federal

ingredient doctrine.

These arguments fundamentally misconstrue the federal

ingredient doctrine. Whether a state court will adopt as the

meaning of the state's constitution the federal courts'

interpretation of parallel language in the United States

Constitution is a matter of state law. See, e.g., Nieves, 7 F.3d

at 274. Federal law does not compel such an outcome. Thus, a

determination of whether a violation of the Puerto Rican

Constitution's guarantees of due process and equal protection has

occurred does not "require resolution" of whether the conduct

complained of would violate the Federal Constitution. Franchise

Tax Bd., 463 U.S. at 13 (emphasis added); see also Gully v. First

Nat'l Bank, 299 U.S. 109, 112-13 (1936) ("To bring a case within

-22- the [removal] statute, a right or immunity created by the

Constitution . . . must be an element, and an essential one, of the

plaintiff's cause of action.") (emphasis added). To decide

otherwise would mean that any case brought under a provision of the

Puerto Rico Constitution that mirrors the language of the United

States Constitution could be removed into federal court.

Accordingly, we find that removal jurisdiction over the Suárez

action is lacking, and it must be remanded to the Commonwealth

court from which it was removed. 28 U.S.C. § 1447.

4. Effect of the Rosselló Decision

Lastly, and perhaps most significantly, the Suárez

complaint cannot be said to state a federal question, because, as

we will discuss now, the federal courts will not intervene in a

local electoral dispute such as this. Although we find that it was

plain error for the District Court not to remand the Suárez action

back to the Puerto Rico courts on the basis of the well-pleaded

complaint rule, and therefore we could issue a Writ of Mandamus

compelling remand, we realize that the District Court now has the

benefit of both our above discussion and our decision in the

Rosselló action. Therefore, we are confident that the District

Court will immediately remand the Suárez action back to the Supreme

Court of Puerto Rico without the need for mandamus.

-23- III. APPEAL OF THE NON-ADJUDICATION ORDER

We now turn to the appeal of the non-adjudication order

that is before us in connection with the Rosselló action. We have

repeatedly held that federal courts "normally may not . . .

undertake the resolution of 'garden variety election

irregularities.'" Bonas, 265 F.3d at 74 (quoting Griffin v. Burns,

570 F.2d 1065, 1076 (1st Cir. 1978)). We have departed from this

general rule of non-intervention on only two occasions. See Bonas,

265 F.3d at 75-76; Griffin, 570 F.2d at 1079. As we elucidate

below, those two cases are easily distinguished from the case at

hand. Here, Circuit precedent demands application of the general

principle of non-intervention, and therefore, we vacate the

issuance of the preliminary injunction and direct the District

Court to dismiss the case.

A. Nature of Our Review

The Acevedo Defendants are presently before us seeking

review of the District Court's issuance of a preliminary injunction

to segregate, but not adjudicate, all three-mark split vote ballots

cast during the November 2, 2004 election. 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.27

27 Although we are skeptical that the only purpose or effect of the injunction was to preserve jurisdiction, especially considering the fact that this "jurisdiction-preserving" injunction is still in

-24- B. Temporary Injunctions to Preserve Jurisdiction

Congress has provided "[t]he Supreme Court and all courts

established by Act of Congress [with the authority to] issue all

writs necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of law."

28 U.S.C. § 1651(a). Acting pursuant to § 1651(a), a federal court

may issue an injunction as a means to preserve its jurisdiction.

See, e.g., Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1099

(11th Cir. 2004). But, for a court to invoke § 1651(a) and issue

an injunction to protect its jurisdiction over an action, there

must be at least the possibility that the complaint states a

justiciable federal claim. Thus, implicit in our review of the

issuance of the injunction is our review of whether the Rosselló

complaint, taking all claims alleged therein as proven, had the

potential to present a justiciable federal claim under existing

Circuit precedent. Mercury Motor Express, Inc. v. Brinke, 475 F.2d

place after approximately three weeks worth of "marathon hearings" on the merits, we find that our skepticism is irrelevant in light of the manner in which we resolve the case. Furthermore, although we believe that we properly review the non-adjudication order as an appealable interlocutory injunction pursuant to 28 U.S.C. § 1292(a)(1), we note that even if we were incorrect in this conclusion, we would, in the alternative, exercise our discretion to treat the Acevedo Defendants' notice of appeal as a petition for mandamus under the All Writs Act, 28 U.S.C. § 1651(a), thus preserving our jurisdiction in any event. See, e.g., United States v. Horn, 29 F.3d 754, 769 (1st Cir. 1994) ("We are fortified in our resolve to hear and determine this appeal by the knowledge that, even if no appeal lies as of right, we possess--and can appropriately exercise--the power of discretionary review via mandamus, to address the important question raised in this case.").

-25- 1086, 1091 (5th Cir. 1973) ("Once a case is lawfully before a court

of appeals, it does not lack power to do what plainly ought to be

done. . . . [It has] the power . . . to reach the merits of a case

before it on an interlocutory appeal and [to] dismiss the action.")

(internal quotation marks, alterations, and citations omitted); see

also Aerojet-Gen. Corp. v. Am. Arbitration Ass'n, 478 F.2d 248, 252

(9th Cir. 1973) ("[I]t is well established that in [an equity]

case, . . . an interlocutory appeal brings the entire case before

the court.").

Our review is for abuse of discretion. Klay, 376 F.3d at

1096.

C. Federal Jurisdiction Over § 1983 Complaints

Having determined that we must inquire whether the

District Court should have intervened in this local election

dispute based on the claims alleged in the complaint, our first

step necessarily begins at the broadest level –- that is, whether

the District Court had federal subject matter jurisdiction over the

action. See Bonas, 265 F.3d at 73. "Federal courts are courts of

limited jurisdiction, and therefore must be certain that they have

explicit authority to decide a case." Id. (citing Irving v. United

States, 162 F.3d 154, 160 (1st Cir. 1998) (en banc)). "Thus, we

subject the plaintiffs' choice of a federal forum to careful

scrutiny." Id.

-26- In Griffin, we set forth the analytical framework to

evaluate whether a federal court could exercise jurisdiction over

a local electoral dispute. See 570 F.2d at 1070; see also Bonas,

265 F.3d at 73. As this case is brought pursuant to 42 U.S.C.

§ 1983, we turn to the language of the jurisdictional counterpart

of that statute, 28 U.S.C. § 1343(3), which mirrors § 1983, and

provides that "district courts shall have original jurisdiction of

any civil action . . . [t]o redress the deprivation, under color of

State law, statute, . . . custom or usage, of any right, privilege

or immunity secured by the Constitution of the United States or by

any Act of Congress providing for equal rights of citizens . . . ."

28 U.S.C. § 1343(3). Thus, federal jurisdiction hinges on whether

plaintiffs have a colorable claim under § 1983.28 See Griffin, 570

F.2d at 1070; see also Bonas, 265 F.3d at 73-74 ("In other words,

federal courts have jurisdiction over claims arising out of a state

or local electoral dispute if, and to the extent that, the

complaint limns a set of facts that bespeaks the violation of a

constitutionally guaranteed right.").

There is no doubt that the Rosselló complaint alleges the

violation of a constitutionally guaranteed right, and thus,

presents a colorable claim under § 1983 for subject-matter-

28 The standard for determining the existence of original federal jurisdiction under 28 U.S.C. § 1343 is, of course, much more liberal than the standard for determining the existence of removal jurisdiction under 28 U.S.C. § 1441, at least outside of the complete preemption context. See BIW Deceived, 824 F.2d at 832.

-27- jurisdiction purposes. The Federal Constitution protects the right

of all qualified citizens to vote in local elections. See Bonas,

265 F.3d at 74. This conclusion, however, does not end our

inquiry. Having determined that the District Court could have

exercised jurisdiction in this case, we must now inquire whether it

should have intervened. See Griffin, 570 F.2d at 170.

As mentioned above, and discussed more extensively below,

"[e]lection law, as it pertains to state and local elections, is

for the most part a preserve that lies within the exclusive

competence of the [local] courts." Bonas, 265 F.3d at 74. We have

thus stated that "with only a few narrow and well-defined

exceptions, federal courts are not authorized to meddle in local

elections." Id. This general rule of non-intervention dictates

that the District Court should not have intervened in this case.

D. District Court's Decision to Intervene

As discussed above, we review the decision of the

District Court to intervene in this local election dispute for

abuse of discretion. Klay, 376 F.3d at 1096. In evaluating

whether federal intervention into a local election dispute is

appropriate, this Court has inquired into factors such as whether

a discrete group of voters has been disenfranchised, whether there

was a state process in place to handle the question posed by the

plaintiffs, and whether the plaintiffs had availed themselves of

that state process. See Griffin, 570 F.2d at 1078-79; Bonas, 265

-28- F.3d at 75-76; see also Partido Nuevo Progresista v. Barreto Pérez,

639 F.2d 825, 828 (1st Cir. 1980). As we stated in Bonas, however,

"[w]e do not pretend that it is a simple matter to segregate the

run-of-the-mill electoral disputes from those that appropriately

can be characterized as harbingers of patent and fundamental

fairness." 265 F.3d at 75. Indeed, "each case must be evaluated

on its own facts." Id. But, as this Court implied in Barreto

Pérez, there is a heavy presumption in favor of non-intervention if

the party requesting intervention cannot show that a discrete group

of voters has been disenfranchised by the challenged local action.

See 639 F.2d at 828.

Here, the final decision under Puerto Rico law to

adjudicate all three-mark ballots under one consistent standard

does not disenfranchise any Puerto Rico voters -– indeed, it is the

position espoused by the Rosselló Plaintiffs that stands to

disenfranchise an estimated 28,000 voters. Thus, because the

Rosselló Plaintiffs cannot claim that federal intervention is

necessary because a discrete group of voters has been

disenfranchised, and because they cannot allege any other harm

sufficient to overcome the general rule of non-intervention,29 we

29 We do not foreclose the possibility of a case in which federal intervention would be appropriate without a showing of disenfranchisement. The most obvious example of this would be a case involving vote dilution. See Bush v. Gore, 531 U.S. 98, 105 (2000) (per curiam) ("It must be remembered that 'the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the

-29- conclude that it was an abuse of discretion for the District Court

to intervene in this local election dispute.

In Griffin v. Burns, this Court determined that federal

intervention into a state election was appropriate where a

significant percentage of the qualified and voting electorate was,

in effect, denied its vote. See 570 F.2d at 1078-79. In that

case, although it was undisputed that Rhode Island had issued and

counted absentee and shut-in ballots in prior primaries, and that

voters utilizing such ballots had relied on that prior practice and

on instructions from state officials in so doing, the Rhode Island

Supreme Court said the Rhode Island Secretary of State was without

the authority to issue and count absentee and shut-in ballots in a

primary election, effectively disenfranchising all absentee and

shut-in voters that had already voted. Id. at 1075-76.

free exercise of the franchise.'") (quoting Reynolds v. Sims, 377 U.S. 533, 555 (1964)). Here, however, the Rosselló Plaintiffs' claim that the Commission's "change in the rules" after the election somehow "diluted" their vote for their political party of choice is without merit because there was no clear rule prior to the election that the three-mark split ballots were invalid. The Rosselló Plaintiffs' claim that the three-mark split ballots were adjudicated inconsistently on election night (and immediately thereafter), on the other hand, presents a much stronger claim for federal intervention without a showing of disenfranchisement. That claim, however is rendered moot by the fact that all ballots will be adjudicated in the same uniform manner during the recount. See Bush v. Gore, 531 U.S. at 106 (per curiam) (addressing situation where "the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.").

-30- In Bonas, this Court held that complete

disenfranchisement of all voters, by a municipality's decision not

to hold a municipal election at all, warranted federal

intervention. See 265 F.3d at 75-76. In that case, after the

voters of North Smithfield, Rhode Island agreed in a 1998

referendum to transition the Town from an odd-year election cycle

to an even-year cycle, with the first even-year election to take

place in 2002, town officials, without authorization, held the 1999

election, but held no election in either 2000 or 2001, effectively

disenfranchising all persons eligible to vote in the 2001 municipal

election. Id. at 71-72.

In Barreto Pérez, however, this Court determined that

federal intervention was inappropriate in a case challenging the

decision of the Supreme Court of Puerto Rico where "[the] case

[did] not involve a state court order that dis enfranchise[d]

voters; rather it involve[d] a Commonwealth decision that en

franchise[d] them." 639 F.2d at 828. That case is remarkably

similar to the case at hand. In that case, the disputed ballots

contained marks outside the designated spaces and squares, and

therefore were allegedly invalid under the literal terms of Article

1.033(b) of the Electoral Law of Puerto Rico, which provided that

stray marks such as the ones on the disputed ballots "shall be null

and void, and deemed unmarked." See id. at 826. The Administrator

of the Election Commission ruled the ballots invalid, and his

-31- decision was upheld on appeal by the Electoral Review Board. See

id. The Supreme Court of Puerto Rico reversed, finding that

despite 16 L.P.R.A. § 3033(b)'s literal prohibition of counting

such mismarked ballots, the provision could be construed as

permitting the tallying of such ballots where the "intent of the

voter was clear." See id. (discussing Puerto Rico Supreme Court

decision). The PNP subsequently brought suit in federal court

pursuant to § 1983, alleging that the Supreme Court of Puerto

Rico's "retroactive" changing of the law after an election violated

the plaintiffs' rights not to be deprived of their liberty and

First Amendment rights without procedural and substantive due

process of law. Id. at 827. The district court agreed, stating

that "[i]n our opinion the lesson to be learned from Griffin is[]

that changing the rules of the game after it has been played and

the score is known, violates fundamental rules of fair play."

Partido Nuevo Progresista v. Gerineldo Barreto-Pérez, 507 F. Supp.

1164, 1174 (D. P.R. 1980). It found that the "counting of ballots

after an election which, under the rules prevalent at the time of

the vote-casting were considered void and invalid, [was] the

practical and functional equivalent of alteration of ballots or of

stuffing the ballot box." Id. On appeal, this court disagreed.

See Barreto Pérez, 639 F.2d at 828.

We emphasized that unlike in Griffin, where the disputed

local action involved the disenfranchisement of a discrete group of

-32- voters, the local action at issue in Barreto Pérez actually

enfranchised voters. See id. Instead of disenfranchisement, the

plaintiffs in Barreto Pérez claimed that "votes were 'diluted' by

the votes of others, not that they themselves were prevented from

voting." Id. Moreover, the case was also unlike Griffin in that

"had those casting absentee ballots known of their possible

invalidity, many might have gone to the polls and voted in person."

Id. In Barreto Pérez, however, "there was no such reliance upon an

official interpretation of the local election law; no party or

person is likely to have acted to their detriment by relying upon

the invalidity of ballots with marks outside the ballots' drawn

rectangles." Id. The court concluded that the case did not fall

"within the purview of Griffin but within the area delineated by

the Second Circuit, in Powell v. Power, 436 F.2d 84 (1970), as

inappropriate for federal court review in a civil rights action,

lest the federal court 'be thrust into the details of virtually

every election.' Id. at 86." Id.

The case presented by the Rosselló Plaintiffs, even

assuming that all claims alleged in their complaint could be

proven, presents even less cause for federal intervention than the

circumstances which we found lacking in Barrreto Pérez. 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

-33- previously unsettled law. Furthermore, this case is

distinguishable from Griffin and Bonas, because "this case does not

involve a state court order that dis enfranchise[d] voters; rather

it involves a Commonwealth decision that en franchises them."

Barreto Pérez, 639 F.2d at 828. Therefore, 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.

IV. CONCLUSION

For the above reasons:

The Petitions for Writ of Mandamus are DENIED, as the

District Court has no choice but to remand the Suárez action to the

Supreme Court of Puerto Rico in light our disposition of the

Rosselló appeal.

We VACATE the issuance of the preliminary injunction

with the direction that the District Court dismiss with prejudice

all claims in the Rosselló complaint relating to the adjudication

of the three-mark ballots, and all claims relating to the

simultaneous general canvass/recount issue. The District Court is

also directed to dismiss without prejudice the claims relating to

-34- the absentee ballots, and any alleged violations of Puerto Rico Law

197.

Because the supplemental materials proffered by the

appellants are unnecessary to our decision, the motions to

supplement the record on appeal are DENIED AS MOOT. We likewise

DENY the appellees' request for judicial notice.

Leave to file an amicus brief is GRANTED to the Puerto

Rico Association of Mayors, the Puerto Rico Commonwealth Employee

Association and the Board of Directors of Cumbre Social, the

Colegio de Abogados de Puerto Rico (oversized brief), Efraím

Cintrón García, and Gerardo Ramírez. We acknowledge the assistance

of amici.

Any petition for rehearing or rehearing en banc must be

filed no later than 12 noon Eastern Standard Time on Tuesday,

December 21, 2004. See Fed. R. App. P. 40(a)(1).

"Concurrence to follow"

-35- TORRUELLA, Circuit Judge (in additional concurrence).

Although I shared equally with my colleagues in analyzing

the law and determining the outcome of these cases, I find it

appropriate to set forth some additional observations in light of

the circumstances surrounding these appeals.

Although, as expressed in our panel opinion, our circuit

precedents in Griffin, Barreto Pérez, and Bonas finally decide the

issue that the district court should not have intervened in this

case, I wish to point out that this conclusion is based on the

particular facts of this case, which makes Bush v. Gore, 531 U.S.

98 (2000), inapplicable. The present circumstances do not support

a justiciable federal vote-dilution claim by voters who cast

ballots that were clearly valid under rules changed after the

election. See Bush, 531 U.S. at 106-107 (criticizing as

inconsistent with equal protection Miami-Dade County's alteration,

during recount, between 1990 rules for ballot validity and new, ad

hoc rules). 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.

More important in my opinion, the preeminent truth to be

gleaned from the Bush opinion is that the United States is, first

and foremost, a nation of laws and that the meaning of these laws

-36- is interpreted by the courts, whose rulings become the Law of the

Land. Thus, notwithstanding the unprecedented nature of the Bush

v. Gore decision, issued in the face of a very divided nation, its

binding finality was accepted by the citizenry as a whole,

irrespective of individual or collective disagreement with its

outcome. Although undoubtedly there was much dissonance, as there

may well presently be in Puerto Rico, the nation turned a

figurative page and acquiesced. This response reflected our

nation's longstanding recognition that:

[c]ompliance with decisions of [the judiciary], as the constitutional organ [interpreting] the supreme Law of the Land, has often, throughout our history, depended on active support by state and local authorities. It presupposes such support.

Cooper v. Aaron, 358 U.S. 1, 26 (1958) (Frankfurter, J.,

concurring).

Indeed, the basic principle articulated by Justice

Frankfurter in Cooper is so foundational to our political system

that it is literally set in stone on the very walls of this federal

courthouse: "[T]he responsibility of those who exercise power in a

democratic government is not to reflect inflamed public feeling but

to help form its understanding . . . ." Id. I urge the People of

Puerto Rico, and the parties in these appeals, to remember these

words as they stand at this important crossroads in our shared

history as a society joined by our respect for democratic values,

-37- underpinned by the rule of law. For, as Justice Frankfurter so

ably stated:

[F]rom their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised . . . . The duty to abstain from resistance to "the supreme Law of the Land" . . . as declared by the organ of our Government for ascertaining it, does not require immediate approval of it nor does it deny the right of dissent. Criticism need not be stilled. [However] active obstruction or defiance is barred . . . .

Id. at 23-25.

As important as the outcome of this election may

presently be, there are more fundamental issues at stake.

"Concurrence to follow."

-38- HOWARD, Circuit Judge (in additional concurrence).

I have joined in the court's disposition of these cases.

I am less sure about our resolution of certain, discrete issues

raised by the Rosselló appeal, and I identify those concerns here.

1. The district court did not categorize the order

preventing the Commission from adjudicating the ballots. See Fed.

R. Civ. P. 65(d); Ben David v. Travisono, 495 F.2d 562, 563 (1st

Cir. 1974). As I see it, the order might plausibly be

characterized as an All Writs Act Injunction, a traditional

injunction under Fed. R. Civ. P. 65, or a case management order.

Under the first two possibilities, we have appellate jurisdiction

under 28 U.S.C. § 1292(a)(1); under the third we do not. See

Matter of City of Springfield, 818 F.2d 565, 567-68 (7th Cir.

1987).

In the end, we need not decide this issue. Even if the

order is properly characterized as only a case management

directive, we are entitled to review it under our mandamus power.

See Ramírez v. Rivera-Dueño, 861 F.2d 328, 334 (1st Cir. 1988). In

my view, we should do so, given the jurisdictional issue at the

heart of this case, the coercive and intrusive nature of the order,

the federalism and comity concerns that it raises, and the highly

charged circumstances in which it was issued. And because the

question of the order's propriety cannot be decided without an

analysis of whether the Rosselló action is justiciable, I concur in

-39- the decision to proceed directly to the merits and to order the

action dismissed.

2. Notwithstanding our statement that the district court

has federal question jurisdiction over the case, we have concluded

that the district court abused its discretion by asserting

jurisdiction over it. I would rather we characterize the matter

somewhat differently. There is no question, of course, that the

district court has subject matter jurisdiction of a federal civil

rights claim pleaded under 42 U.S.C. § 1983. The issue is whether

the pleaded federal claim is justiciable. This question is not a

matter of discretion; it is an issue of law. See Bonas v. Town of

N. Smithfield, 265 F.3d 69, 73-75 (1st Cir. 2001). And it is an

issue of law that implicates the court's "jurisdiction" only in the

sense that justiciability is regarded as a jurisdictional doctrine.

See id.

3. Finally, citing Partido Nuevo Progresista v. Barreto

Pérez, 639 F.2d 825, 827-28 (1st Cir. 1980), we have emphasized

that the "change of rules" claim fails because, even if there was

such a change, it would result in enfranchising some voters rather

than disenfranchising them. But after Bush v. Gore, 531 U.S. 98

(2000), I cannot discount the possibility that a viable federal

vote-dilution claim might lie in some circumstances where a post-

election rule change has the effect of causing previously invalid

ballots to be adjudicated. I do, however, think that the vote-

-40- dilution claims pleaded in this case were properly rejected because

I agree with Judge Torruella that, on the pleadings and the record,

only one conclusion is possible: the Commission's ruling involved

only the clarification of previously unsettled law. In my view,

this is not a "change in the rules" sufficient to implicate federal

interests.

-41- -42-