PARTIDO NUEVO PROGRESISTA v. BARRETO PEREZ Misc. No. 80-8094.
639 F.2d 825 (1980)
PARTIDO NUEVO PROGRESISTA et al., Plaintiffs, Appellees, v. Gerineldo BARRETO PEREZ, Administrator, Puerto Rico Elections Commission, Defendant, Appellee, Partido Popular Democratico, Intervenor, Appellant.
United States Court of Appeals, First Circuit.
Decided December 31, 1980.
Lino J. Saldana, San Juan, P.R., with whom Rafael Escalera Rodriguez, Rio Piedras, P.R., was on brief for appellant.
Hector M. Laffite, San Juan, P.R., for Partido Nuevo Progresista, appellee.
Miguel A. Pagan, San Juan, P.R., for Gerineldo Barreto Perez, Administrator, etc., appellee.
Before CAMPBELL, BOWNES and BREYER, Circuit Judges.
Hearing has been held upon the motion of intervenor-appellant, Partido Popular Democratico, for a stay of, and expedited appeal from, the district court's order in litigation involving a constitutional challenge to the tallying of ballots cast for local offices in the Puerto Rico general election of November 4, 1980.
In the present case, the disputed ballots contained marks outside the designated spaces and squares. Most such marks were evidently placed directly above the list of candidates of the Partido Popular Democratico, the only major party with space above its ballot heading for such mismarks.
The Administrator of the Election Commission ruled the ballots invalid, a decision upheld on appeal by the Commonwealth's Electoral Review Board. The Supreme Court of Puerto Rico reversed. Popular Democratic Party v. State Elections Commission, No. 0-80-646, 108 D.P.R. (Dec. 2, 1980). That court construed 16 L.P.R.A. § 3033(b), despite its literal prohibition of the tallying of mismarked ballots, to permit such tallying where the intent of the voter was clear.
Such a construction of local law by the highest court of the Commonwealth might seem to have ended the matter. The PNP, however, subsequently brought this action pursuant to 42 U.S.C. § 1983, claiming constitutional violations in several particulars:
The district court, relying on this court's opinion in Griffin v. Burns,
The court thereupon enjoined defendants from counting ballots not marked in accordance with the literal terms of 16 L.P.R.A. § 3033(b).
We hold that the district court erred in its conclusion that Griffin v. Burns permitted federal court intervention in this case. In Griffin we held that the election process had reached "the point of patent and fundamental unfairness," and ordered a new election. Voters there had been told for many years that they could vote in a primary by absentee ballot, and such ballots had been furnished them by election officials in the challenged election. After the election they were told that their absentee ballots were
The order of the district court is reversed. Mandate to issue forthwith.
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