Case: 12-2145

Document: 00116446289

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Date Filed: 10/19/2012

Entry ID: 5684098

o. 12-2145 ___________________________________________________________ U ITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ___________________________________________________________ MYR A COLO MARRERO Plaintiff Appellant v. HCTOR CO TY PREZ, et al., Defendants-Apellees ____________________________________________________________ O APPEAL FROM U ITED STATE DISTRICT COURT FOR PUERTO RICO --------------PETITIO FOR REHEARI G PETITIO WITH SUGGESTIO FOR REHEARI G E BA C -------------------

Carlos A. Del Valle Cruz Rafael E. Garca Rodn Carlos Hernndez Lpez Banco Popular Bldg., Suite 701 206 Tetun Street San Juan, PR 00901 Tel. 787 722 7788 Counsel for Appellant

October 19, 2012

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I.

PETITIO FOR REHEARI G WITH SUGGESTIO FOR REHEARI G E BA C Pursuant to Fed. R. App. P. 35(b)(1)(B), rehearing en banc may be

warranted where the proceeding involves one or more questions of exceptional importance. As recently expressed by Judge Torruella: Some cases are of "exceptional importance" because of the potential they have to affect the lives of millions of people. See, e.g., Igarta v. United States, 626 F.3d 592, 596, 2011 WL 3340120, *2 (1st Cir. 2011) (Torruella, J., dissenting). Other cases are of exceptional importance because of the light they cast on our public institutions. The latter, while not always directly affecting as broad a segment of the population, are nevertheless exceptionally important by virtue of what they demonstrate about the trust that we -- for better or worse -place in those institutions. This is one of those cases. Yet barely a month since a divided vote in Igarta denied 4 million United States citizens residing in Puerto Rico review of constitutional issues of exceptional importance, this court continues this noxious pattern and once again prevents consideration by the full court of questions of exceptional importance. By this action it allows the government's outrageous conduct to remain free of any consequence, and as in Igarta, perpetrates a monstrous injustice on another, albeit smaller, but no less worthy, group of hapless citizens. Donahue v. United States, 660 F.3d 523, 524-525 (1st Cir. 2011) (Torruella, J., on denial of en banc review) Appellant submits that the summary disenfranchisement of 330,902 voters as a penalty for exercising their right not to vote in the prior election is a matter of exceptional importance. The fact that the case went from notice of appeal to judgment in less than a month (with intervening special
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remand that was extensively covered by the local news media) attests to the exceptional importance of this case. After all, the Supreme Court has

maintained that "no right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live for which reason, [o]ther rights, even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U.S. 1, 17 (1964). The appearing partys voice in the election will be silenced if an en banc Court does not overturn the majority of the panel.

II.

PROCEDURAL BACKGROU D

The case below is a civil rights action filed on September 12, 2012 in the District Court for Puerto Rico by Plaintiff-Appellant Myrna Coln Marrero, an United States citizen residing in Puerto Rico, alleging inter alia that Article 6.012 of the Puerto Rico Electoral Code, 16 P.R. Laws Ann. 4072 which call for the disenfranchisement of any voter for failure to vote on the past election is contrary to the National Voter Registration Act of 1993 (NVRA), the Help America Vote Act of 2002 (HAVA), and the first amendment, due process and equal protection clauses of the United States Constitution.

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Upon the District Courts summary denial of her request for preliminary injunctive relief, plaintiff promptly appealed before this Court. Oral argument was heard on October 11, 2012. The Court of Appeal granted the request for an expedited hearing and heard oral arguments on October 11, 2012; and on that date, issued the following Order: This case is here on appeal from the denial of plaintiff's motion for a preliminary injunction. Having heard argument and carefully reviewed the record and the parties' filings, we are of the view that plaintiff-appellant has demonstrated a likelihood of success on the merits of her challenge to Art. 6.012 of the Electoral Code of Puerto Rico for the Twenty-First Century Act No. 78, June 1, 2011. We also conclude that plaintiff-appellant has made the requisite showing of the potential for irreparable harm, her inability to vote in the upcoming Puerto Rico general election, if the preliminary relief requested is denied. With respect to the third and fourth factors to be weighed in considering a motion for preliminary injunction, the balance of harms and the effect of the decision on the public interest, we find that the record is insufficiently developed on the factual issues. On appeal, the parties have made widely differing claims with respect to the feasibility of granting the request for preliminary relief, specifically of permitting the voters who have been inactivated for failure to vote in the 2008 elections to vote in the general election on November 6, 2012. As an appellate court, and in the absence of an evidentiary hearing in the district court, we have no basis for assessing the validity of the parties' factual claims. We retain jurisdiction and return the case to the district court for an evidentiary hearing to be held no later than Monday, October 15, 2012. The district court shall certify findings to this court by 5 p.m. on Wednesday, October 17, 2012. The District Court held the fact-finding hearing on October 5 and 16, 2012, and on October 17, 2012 issued a 14-page order making detailed

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record-based findings of fact pointing to the feasibility of implementing the requested injunctive relief. The District Court found that there were enough ballot and polling poll places to implement the remedy being sought by the Appellant. The Court endorsed the Acevedo Plan, which proposed using existing but underused provisional polling already manned with polling poll functionaries to handle the new influx of voters. According to the Certified Findings: In sum, the Acevedo proposal meets all feasibility requirements. The one circumstance that Mr. Acevedo raises and is for the Court of Appeals, of course, to decide, is whether, in a situation where there is a controversy as to the voters residency, the procedure should include a Court-authorized poll watchers right to recuse on grounds of residency on Election Day, something which is now prohibited by Puerto Rico law. This right to recusal for residency would occur only as to the I8 voters on Election Day, November 6, 2012, should the poll watcher have grounds to believe that the voters residence is not the one that appears on the list which the voter claims is still valid. The justification given by Mr. Acevedo is that none of the I-8 voters were subject to recusal on grounds of residency since being deactivated in 2009. All other grounds of recusal under Puerto Rico law are still available without Court Order. If the proposal is determined to be feasible by the Court of Appeals, then the public interest in protecting the right of citizens to vote overrides all others. The viability of the proposal itself neutralizes the claims of costs, burdens and potential threats to the electoral system in Puerto Rico. On October 18, Appellant filed a Supplemental Brief fully endorsing the Certified Findings and the Acevedo Plan endorsed by the Court. To address the concerns with respect to residency challenges, the Appellant
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noted that that once the deactivated voters were activated, the Court should also allow as part of the remedy that polling poll functionary be allowed these NVRA voters for cause as with any other voter, but adding residency to the reasons for cause. Surprisingly, late last night, a majority of the original panel entered an order announcing that, for unspecified feasibility concerns, preliminary injunctive relief was not possible and the appealed order must be affirmed. The Hon. Juan V. Torruella voiced his dissent from the majority. An

opinion was announced but is yet to be issued. Earlier today the Court did enter judgment, thereby allowing the filing of the foregoing petition, which constitutes the last hope of 330,902 disenfranchised Puerto Rico voters to have their voices heard on Election Day. III. ARGUME T:

The Evidence Supports the Implementation of the District Court Proposal The Circuits Opinion affirming the district court dismissal of the injunctive relief is the fount of much confusion. Already SEC President is announcing publicly that he is of the firm conviction that NVRA does not

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apply to PR.1 The Courts treatment of the case raises more issues than it answers; and as importantly, leaves the Appellant bereft of a statement of reason and judicial review, for the Court reverses itself without opinion. Thus, when the Court states the decision of the district court denying the request for a preliminary injunction is affirmed is it saying that NVRA nor HAVA nor the constitution apply to Puerto Rico? Is it saying that the Plaintiff below did not show irreparable harm? Or is it saying that the Certified Findings of the District Court are clearly erroneous? And if so, should not there be an explanation as to why? Appellant is well aware of the express speed at which the underlying and appellate proceedings have been held and of the constraints that limit this Courts exposition. But still, the District Court had made finding in favor of a remedy that protects the statutory and constitutional electoral rights of the Appellant without sacrificing the integrity of the Commonwealth electoral process. As a resident of Puerto Rico, Judge Judge

Cerezo is well-versed in the Commonwealth electoral process.

Torruella, as a long time resident of Puerto Rico, is also very familiar with the Commonwealth electoral system. Both of them endorse a remedial plan

Primera Hora, October 19, 2012: http://www.primerahora.com/contyconfiadotrasdetentejudicialavotodeelectoresinactivos711191.html. 7

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that protects the federal rights of these American citizens living in Puerto Rico with the safeguards that should attach to the Puerto Rico electoral process. The majority, however, alien to the Puerto Rican reality, displaces these judgments and offers no reason o the record, legal or equitable, to dismiss the recommended relief whether legal or equitable. The end result is that 330,902 American citizens residing in Puerto Rico once again end of without the same rights and privileges that attaches to other American citizens in the United States, even though the right involved here is the fundamental right to vote. This case is not controlled by this Courts decision in Igartua de la Rosa v. U.S., 626 F.3d 592 (2010)(no right to vote for Congressional members); Igartua de la Rosa v. U.S., 417 F.3d 145 (1st Cor. 2005)(en

banc)(no right to vote for President and Vice-president); Igartua de la Rosa v. U.S., 229 F.3d 80 (1st Cir. 2000); Igartua de la Rosa v. U.S., 32 F.3d 8 (1st Cir 1994) (presidential elections). Here, Congress expressly included the federal office of the Resident Commissioner under NVRAs coverage and expressly includes Puerto Rico under HAVAs dispositions. The Resident Commissioner is the only voice that the Commonwealth has in Congress. When Congress takes the decision that Puerto Ricans should fight and die, in wars abroad or subject to death penalty at home, he is the umbilical chord

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that lends democratic legitimacy to said decisions. To deprive Puerto Ricans of the right to vote pursuant to NVRA and HAVA is not only to deprive them of a fundamental right, but to further dilute the weak voice they have in Congress. To do so, without any analysis or statement of reason, is beyond the pale of basic notions of due process. The evidence on the record supports the grant of injunctive relief. It is axiomatic that [i]n considering a request for a preliminary injunction, a trial court must weigh several factors: (1) the likelihood of success on the merits; (2) the potential for irreparable harm to the movant in the absence of an injunction; (3) the balance of the movant's hardship if relief is denied versus the nonmovant's hardship if the relief is granted; and (4) the effect, if any, of the decision on the public interest. Maine Educ. Ass'n Benefits Trust v. Cioppa, __ F.3d __, 2012 U.S. App. LEXIS 20021, at * 12-13 (1st Cir. 2012). It has always been understood that, of the above factors,

[l]ikelihood of success is the touchstone of the preliminary injunction inquiry.2 Philip Morris, Inc. v. Harshbarger, 159 F.3d 670, 674 (1st Cir. 1998) (emphasis added). Consequently:
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See SPT v. Fortuo, Slip op. of October 19, 2012, at page 17, argued on the same day as the case at bar, where this Court summarized: Though each factor is important, we keep in mind that "[t]he sine qua non of this four-part inquiry is likelihood of success on the merits: if the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity." ew Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002). 9

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The sine qua non of this four-part inquiry is likelihood of success on the merits: if the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity. (emphasis added) ew Comm Wireless Servs. v. Sprintcom, Inc., 287 F.3d 1, 9 (1st Cir. 2002). Since October 11th, plaintiff has overcome the threshold question of likelihood of success. That is, she persuaded the majority of the panel that it is very likely that her removal from the active voters rolls was in violation of applicable federal law. Ironically, it is on what this Honorable Court has deemed to be matters of idle curiosity in cases where likelihood of success has been established that the majority of the panel left hundreds of thousands of voters without a remedy that evidence credited by a District Judge found to be feasible. While we know that the majority certainly did not fully agree with the District Courts assessment of the evidence presented in this case, we have no way of knowing what the basis for said disagreement was. We do know that the panel was constrained by a stringent standard of review of those findings, as findings of fact in a preliminary injunction setting may only be overturned on grounds of clear error. Peoples Fed. Sav. Bank v. People's United Bank, 672 F.3d 1, 9 (1st Cir. 2012). We respectfully believe that there is no way that any single one of the District Courts findings of fact could be tainted by clear error. Just as importantly, the Order issued by the panel does not conclude that clear error was present in this case.
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Plaintiff further agrees with Judge Torruella in that the so-called law of the case doctrine precludes the unexpected course of action taken by a majority of the panel in this case. The panels October 11, 2012 order read as follows: This case is here on appeal from the denial of plaintiff's motion for a preliminary injunction. Having heard argument and carefully reviewed the record and the parties' filings, we are of the view that plaintiff-appellant has demonstrated a likelihood of success on the merits of her challenge to Art. 6.012 of the Electoral Code of Puerto Rico for the Twenty-First Century, Act No. 78, June 1, 2011. We also conclude that plaintiffappellant has made the requisite showing of the potential for irreparable harm, her inability to vote in the upcoming Puerto Rico general election, if the preliminary relief requested is denied. With respect to the third and fourth factors to be weighed in considering a motion for preliminary injunction, the balance of harms and the effect of the decision on the public interest, we find that the record is insufficiently developed on the factual issues. On appeal, the parties have made widely differing claims with respect to the feasibility of granting the request for preliminary relief, specifically of permitting the voters who have been inactivated for failure to vote in the 2008 elections to vote in the general election on ovember 6, 2012. As an appellate court, and in the absence of an evidentiary hearing in the district court, we have no basis for assessing the validity of the parties' factual claims. (emphasis added) We are of the view that the above ruling is clear as to its scope. At oral argument, the Court heard differing factual theories on the issue of the feasibility of the injunctive relief being sought and wisely order a special remand for the District Court to receive evidence regarding these conflicting

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views and determine which of them (if any) was supported by the record. The District Court received the evidence, exercised its role of assessing weight of the evidence and credibility factors, finding that the position advanced by the plaintiff was plausible and discarding defendants3 claims of absolute impossibility. The evidentiary hearing held by Judge Cerezo was carried out in strict adherence with the October 11, 2012 order, which is now the law of the case. The law of the case doctrine is an important equitable doctrine that establishes that 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." Arizona v. California, 460 U.S. 605, 618 (1983). This doctrine has been referred to as establishing a prudential principle. United States v. Vigneau, 337 F.3d 62, 67 (1st Cir. 2003). Therefore, 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." United States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004) (emphasis added). This doctrine seeks to provide certainty to the litigants that, once a matter is decided, the Court will be consistent in its From the outset, co-defendant Eder Ortiz has actively supported plaintiffs position. Mr. Ortiz has since been joined by the Electoral Commissioner of Movimiento Unin Soberanista (MUS) and Partido del Pueblo Trabajador (PPT).
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ruling. This is why [c]ourts should therefore be loathe to disturb prior decisions in a case. 2009). In the instant case, the panel decided that the final two prongs of the preliminary injunction analysis (i.e., balance of the hardships and impact on the public interest), which was referred to as the feasibility aspect of the case, was to be decided based on factual findings made by the District Court on a special remand. The majority of the panel bypassed its original ruling on how those matters were to be decided and rejected the factual findings that it asked for, going on to decide the issue by means that make no heed of such factual findings and are therefore are inconsistent with the October 11, 2012. In so ruling, the majority ignored the law of the case doctrine without identifying any of the few known exceptions to the applicability of said equitable doctrine. For obvious time constraints, we must adopt by reference all of our previous filings in the instant case, which were sufficient to persuade a panel of judges from this Honorable Court that plaintiff is likely to prevail on her claim that she is being deprive of her fundamental right to vote, in violation of federal law and that she will suffer an irreparable injury if injunctive relief is not issued. egrn-Almeda v. Santiago, 579 F.3d 45, 51 (1st Cir.

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IV.

CO CLUSIO S

Appellant submits that there is still time to remedy this situation. The District Finding provide for a feasible implementation process. The only weakness in that process is that under Commonwealth law, a polling poll functionary cannot challenge for residency on Election Day. To safeguard the federal rights of 330,902 American citizens, all this Court need do is to order the SEC to implement the Acevedo Plan in consonance with HAVA, to add these voters to the register of active voters with the caveat that they may be challenged for residency should there be just cause to believe they reside elsewhere. Cf. Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 576 (6th Cir. 2004). As the District Court found, this is an entirely feasible remedy. WHEREFORE, Appellant pray that the panel or the court en banc to hear and decide this matter with all deliberate speed and affirm the remedy proposed in the Certified Findings of the District Court. RESPECTFULLY SUBMITTED.

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In San Juan, Puerto Rico, this October 19, 2012. S/ Carlos A. Del Valle Cruz Carlos A. Del Valle Cruz USDC-PR 130604 Del Valle Law PO Box 9022473 San Juan, PR 00902-2473 cdvlawpr@gmail.com S/ Carlos M. Hernndez Lpez Carlos M. Hernndez Lpez USDC-PR 207403 PO Box 1731 San, Juan, PR 00681 hernandezcharlie@gmail.com S/ Rafael E. Garca Rodn Rafael E. Garca Rodn USDC-PR 129911 Banco Popular Bldg., Suite 701 206 Tetun Street San Juan, PR 00901 rafael_e_garcia@hotmail.com

CERTIFICATE OF COMPLIA CE 1. This Petition for Rehearing complies with the page limitation of Fed. R. App. P. 35(b)(2) because it contains 15 pages or less, excluding the parts of the brief exempted by Fed. R. App. P. 32 (a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word for Dos, 14 font size Times New Roman. CM/ECF CERTIFICATE OF SERVICE On this same date, the Appellant has electronically filed this Petition with the Clerk of the Court using the CM/ECF system that in turn will notify all attorney of record.
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