November 26, 2004
Copyright © 2004 PUERTO RICO HERALD. All Rights Reserved.
The Recount: Two Courts Weigh In: A Crisis Brewing
As this week began, two recounts of the November 2nd vote in Puerto Rico were underway, ordered by two Puerto Rican courts with separate authority -- and apparently different agendas -- the U.S. Federal Court in San Juan and the Puerto Rico Supreme Court. In response to the court orders, the State Elections Commission (CEE) continued its "general recount," of the 7,373 colegios (voting places) throughout the island while, at the same time, going back to "Colegio # 1" in San Juan to begin a ballot-by-ballot review of every one of the nearly 2 million votes cast.
CEE President, Aurelio Gracia, who had initially rejected the idea of a vote-by-vote recount immediately after the election, was philosophical, concluding that the court orders were timely. "It was looking more and more like a recount would be necessary," he told reporters. He predicted that the count would not be finished until late December.
A major difference between the two court orders related to the estimated 28,000 "mixed votes" thought to be speckled throughout island’s colegios. These are ballots on which the voter placed a mark under a party logo, apparently intending to select the entire slate of that party’s candidates for all offices, but additionally marked candidates from another party for Governor and Resident Commissioner. The Puerto Rico Supreme Court ordered that these votes be counted and credited to the candidates for whom the specific marks were made.
Then, on Tuesday, Judge Daniel Domínguez ruled that the U.S. Federal Courts would assume jurisdiction in the issue of the mixed votes and ordered that the CEE proceed to count the mixed votes but not to adjudicate their validity. Further, they are to be set aside for ultimate consideration by the federal courts. At the same time, he ordered the Puerto Rico Supreme Court to cease acting in the disposition of the "mixed votes." Previously, the local high court had ruled that the mixed votes should be counted and adjudicated by the CEE. Judge Domínguez’ order countermands that process.
How the mixed votes are finally adjudicated will almost surely affect the outcome of the election. If the mixed votes are allowed to stand, Acevedo will likely hold the razor thin plurality he enjoyed on Election Night. If the mixed votes are ruled to be null and void, Rosselló will presumably win with a comfortable plurality. Another possibility is that the federal court could decide that the mixed votes should count for the party selected – in this case the PIP – and Ruben Berríos will have received some 4% of the total vote, enough to qualify the Independent Party to remain as an official Puerto Rican political party.
The federal court’s assumption of jurisdiction over the mixed votes, as well as other aspects of the recount process, is inflaming the political rhetoric on the island.
Already, spokespersons of the political parties are either praising or protesting the court rulings depending upon how they support their positions.
When the federal court ruled last Saturday that the vote-by-vote recount should begin, PDP "provisional winner" Acevedo Vilá, acknowledged that the federal court order needed to be respected, but said he was disappointed by it because it would delay the final outcome. When the same court’s decision to take control of the mixed vote issue came down, the PDP candidate dispatched his lawyers to the federal appellate court in Boston to ask that it be overturned.
Predictably, the NPP’s spokesman, Javier Maymi, expressed satisfaction that two of the petitions that his party had made to the federal court had been granted. The third issue that the NPP brought before Judge Domínguez related to Acevedo Vilá’s transition process, but it is unlikely that the federal courts will intervene in that matter.
The PIP reaction to the court decisions came from its representative on the CEE, Commissioner Juan Dalmau. He was quoted by the Associated Press as saying that if the election is ultimately decided by a federal judge that it would constitute "the crudest success of the colonialism in Puerto Rico."
In a press conference, Judge Domínguez expressed surprise that the Puerto Rico Supreme Court had issued a ruling on the mixed votes, since it had been under his court’s jurisdiction. He called the local court’s action an "insult." A majority of the sitting judges of the Puerto Rico high court were placed there by Governors of the Popular Democratic Party (PDP) that has much to gain if the mixed votes are adjudicated as valid, since apparently most of the disputed ballots were cast by Puerto Rico Independence Party voters who additionally marked for PDP candidate Aníbal Acevedo Vilá.
Judge Domínguez made the decision to adjudicate the mixed votes after reaching the conclusion that the NPP litigation initially complied with the "one man, one vote" precedent set by the U.S. Supreme Court in the Y-2000 national presidential election between George W. Bush and Al Gore. In a split decision, the U.S. high court overruled the Florida Supreme Court and intervened to stop the vote recount then underway in that state, thereby giving Florida’s electoral votes to Bush and the entire election to the Republican candidate.
At the time of the federal court decision on Tuesday, the "general count" of approximately 40% of the colegios had the New Progressive Party (NPP) candidate Pedro Rosselló leading Popular Democratic Party (PDP) candidate Aníbal Acevedo Vilá by a margin of 48.99% to 47.61%.
The CEE stopped the vote recount on Tuesday afternoon to await final instructions by the federal court regarding the mixed votes. The recount process will begin again on Monday to recount all the votes cast on Election Day, to check the accuracy of the reporting done by each colegio to its corresponding precinct and each precinct’s tally sheet to the State Elections Commission and, finally, to count the mixed votes and set them aside without crediting them to any candidate and without revealing how they were marked. That will be for the federal courts to decide.
Courtroom observers are predicting that Judge Domínguez’ decision will rest on three factors: if the mixed votes were counted in the same way in each colegio, what instructions -- if any -- were given to voters as to how and if their mixed votes would be counted and, finally, what has been the clear precedent about the counting of mixed votes in previous elections.
This week, Herald readers can decide if it was proper for the federal courts to assume jurisdiction in the matter of the mixed votes or if that issue should have been left for the local courts to decide.
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