Two Courts in Combat Over Island's X Factor

By Manuel Roig-Franzia
Washington Post Staff Writer

SAN JUAN, Puerto Rico -- Dominoes clacking hard against tabletops punctuate the dragging hours of downtime in the little tent city growing at the entrance to Puerto Rico's drab, concrete elections warehouse.

The party faithful and the political junkies can be excused for taking breaks from sign-waving and sloganeering -- the recount they have come to monitor has turned into an endless ordeal of stops and starts, all-night court hearings, and finger-pointing bluster. Nearly 1 1/2 months since the Nov. 2 election, Puerto Rico still does not know the identity of its next governor, and this island, where some feel like second-class citizens dominated by a colonial power, is seething with long-standing tensions over federal control.

The recount has drawn all-too-obvious comparisons to the Bush v. Gore saga, though lawyers here say the sheer volume of courtroom time for the Puerto Rico election contretemps now far exceeds the judicial time expended to decide the U.S. presidential race four years ago. Puerto Rico has added considerable flourishes to recount lore: Handwriting experts are on call to study the pencil-marked X's that signify votes on its antiquated ballots. Vote counters have staged walkouts and threatened to strike. Allegations of a ruthless gang rigging the votes of prisoners -- who are allowed to vote -- have been floated.

Political activists have begun to fret that the mess will not be cleaned up in time to inaugurate the new governor and new legislature next month, leaving the island without a functioning government. Regardless, Anibal Acevedo Vila, the pro-commonwealth candidate who led on election night, has done his best to appear the confident winner, even taking his children to the governor's mansion -- an ornate 16th-century fort in Old San Juan known as "La Fortaleza" -- to choose their bedrooms.

The emotions of the case are stoked almost daily by the heated rhetoric of a monumental tug of war between Puerto Rico's Supreme Court and the island's U.S. District Court, which could begin to be untangled in a federal appeals court hearing scheduled to begin Monday in Boston. U.S. District Judge Daniel Dominguez, who said here that "I am not a happy camper" when he seized control of the recount from the Puerto Rico Supreme Court, called the case "the biggest federal confrontation with a state in the history of this country."

Judicial hyperbole aside, the recount has huge ramifications. Pedro Rossello, the pro-statehood candidate, has promised that he will deliver Puerto Rican statehood within four years. His strategy, he said, will be to sue the U.S. government by making a civil rights claim using the same legal principles as the school-desegregation cases of the 1950s. He would argue that Puerto Rico is a victim of "geographic segregation" because it has no voting member of Congress and no electoral votes in presidential elections.

Rossello, a retired pediatric surgeon who served two terms as governor from 1993 to 2000, is plagued by ethics questions because several dozen members of his administration and campaign staff have been indicted on corruption charges.

"What we have is the person who was the head of the most corrupt government in the history of Puerto Rico trying to steal the election," Acevedo Vila said in an interview at his campaign headquarters here.

Rossello, in an interview at his campaign headquarters a few miles away, countered that his opponent "hasn't stolen the election yet, because it isn't over yet." He added: "But the intent to steal the election is certainly there."

Complaints about judicial favoritism are everywhere. Each candidate, voters half-joke, has his personal judge. When Rossello was governor he supported Dominguez's nomination to the federal bench by President Bill Clinton. Photographs of Rossello and Dominguez hugging at a judicial conference have aired repeatedly on television news programs, though the former governor dismissed allegations of favoritism with a wave of his hand. "We're very physical here in Puerto Rico -- no big deal." At the same time, Rossello's political backers like to point out that Acevedo Vila was a law clerk for the chief justice of the Puerto Rico Supreme Court, whose rulings have favored the pro-commonwealth candidate.

While the candidates trade insults and radio commentators rant about the recount, hundreds of election workers are laboriously poring over 1.9 million paper ballots splayed over dozens of folding tables on the floor of the election warehouse here. Like any self-respecting recount, Puerto Rico's has added at least one new word to the island vocabulary: pivaso. The pivaso has turned into Puerto Rico's butterfly ballot.

A pivaso is a ballot split between the pro-commonwealth party -- whose emblem is Puerto Rico's traditional flouncy peasant hat, the pava -- and the tiny PIP party, which advocates complete independence for the island. Traditionally, votes cast for the pro-commonwealth ticket, the Popular Democratic Party, were known as pavasos. Hence, a vote split between the PIP and the party of the pavasos became a pivaso.

The question at the center of the recount is whether the estimated 28,000 pivaso ballots are legal under Puerto Rico's curious election law. Rossello's legal team says they are not and should be thrown out; Acevedo Vila's lawyers say they are and should be counted.

The dispute is born of Puerto Rico's archaic paper ballots; there are no voting machines here. Puerto Ricans vote, as they have for decades, by writing a large X in pencil on their ballots. Each party's symbol is also on the ballot, a leftover tradition from a time when many Puerto Ricans were illiterate and could only identify their candidates by spotting the party emblems. Voters are only given pencils, but mysteriously some ballots have ended up with marks written in pencil and pen, raising suspicions of tampering.

Rossello's attorneys -- led by Theodore B. Olson, who represented George W. Bush in the Bush v. Gore case and became U.S. solicitor general -- say pivaso ballots should be thrown out because they are marked by three X's, one each for the PIP party, for Acevedo Vila and for the pro-commonwealth candidate for resident commissioner. Rossello argues that Puerto Rico's voting rules allow only two X's on a ballot. Acevedo Vila's legal team -- led by another lawyer who represented Bush in 2000, Charles J. Cooper, and by Charles Fried, a solicitor general under President Ronald Reagan -- says three X's are legal.

The pivaso votes are the result of a daring and unprecedented political maneuver by Acevedo Vila, who now serves as Puerto Rico resident commissioner or nonvoting member of Congress. Acevedo Vila urged members of the Independent Party -- who represent about 5 percent of the electorate -- to vote for him and for their party. His plea held some appeal to Independentistas because Puerto Rican political parties need a minimum number of votes to remain on the ballot and qualify to receive money from the island's electoral fund.

Whichever side wins the pivaso argument will probably win the election. Rossello's campaign also is clinging to the slim possibility that the recount will produce enough of a change for him to not only overcome Acevedo Vila's 3,800-vote margin on election night but also establish a large enough margin of victory of his own to make the pivaso ballots irrelevant.

U.S. District Judge Dominguez opened a path for this outcome when he overruled the Puerto Rico Supreme Court and ordered that undisputed ballots should be counted first, leaving disputed ballots to be counted later.

"Continental" courts, as some here are fond of calling the federal judiciary, are sure to have a big say in what happens, and almost everyone here expects the route to the governor's mansion in San Juan to run through the appeals court in Boston.

Earlier this year, during the Major League Baseball playoffs, Rossello got a call from his son in Las Vegas that now seems symbolically prophetic to him. Rossello remembers telling his son that 2004 was Boston's year and that the Red Sox would win the World Series. Rossello gave his son a bit of prescient advice that he hopes could be applied with equal success to his aspirations for a political comeback: Bet on Boston.

© 2004