Popular Democratic Party v. Insular Board of Elections

Opinion up MR. Justice De Jesús. At the registrations lield in this island on January 15 and 1G last, a total of 277,471 applications for registration were filed with the various registration hoards. Ont of that total there are 85,019 applications which, although not protested, do not meet the requirements, of law. A number of them are not even signed by the supposed applicants, and in those cases where the applicant did not know how to sign, there does not appear in the application the fingerprints as required by lav/. In others the signature of the identifica [287] tion witness is lacking. In others there is no signature of any member of the registration board attesting the oath of the,voter. In others the name of the voter appearing in subdivision one of the application differs from the name which appears in the subdivision corresponding to the name of the voter. Lastly, a number of the applications are not signed by the members of the registration board where the said applications were filed. These .85,019 applications were sent to the General Supervisor of Elections together with the other unprotested applications which did not show the defects stated, and the Insular Board of Elections, after classifying them as aforesaid, resolved by a majority vote not to include the said 85,019 applications in the register of voters. Consequently, the General Supervisor of Elections refused to enter the names of those 85,019 voters in the list of newly registered voters for each electoral precinct pursuant to the provisions of §27 of the Election Law. Feeling aggrieved by the aforesaid resolution of the Insular Board of Elections and by the decision of the General Supervisor of Elections, the Popular Democratic Party, Luis Muñoz Marín, Samuel B. Quiñones, and David Benjamin Cruz, filed in this court the application for a writ of mandamus in this case: the Popular Democratic Party, on the ground that over 55,000 out of the 85,019 persons who filed applications for registration and who would be deprived of the vote should the attitude of the board and the General Supervisor of Elections prevail, were affiliated with the said party; Luis Muñoz Marín, because, as he alleges, he is going to be nominated and proposed as a candidate by said party for one of the insular elective offices at the- general elections to be held next November 7; Samuel B. Qui-ñones, because he is a duly registered and qualified voter of the second precinct of San Juan, and member at the same [288] time of the Insular Board of Elections in representation of the Popular Democratic Party; and lastly, David Benjamin Cruz, alleging that he is a citizen of the United States of America; that on November 7, 1944 he will have over one year of residence in Santurce; that he appeared to register and did register as a voter in accordance with the provisions of the Registration Act before one of the registration boards of the precinct of Santurce, and presented his application to said hoard on the printed form prescribed by §16 of the Registration Act, in which application some' of the blanks pertaining to subdivisions 22 to 271 do not appear to be filled out. The said petitioner also alleges that the registration board handed to him one of the duplicates of his application for registration which, together with a certified copy of the original of the said application, he attached to the complaint in this case, making them a part thereof, and marking them Exhibits 2 and 3, respectively; that his application for registration was not protested, notwithstanding which the applicant, his application being'included among the 85,019 aforesaid, will be deprived of his vote by virtue of certain rules adopted by the Insular Board of Elections on January 24, 1944, whereby it is prescribed that the defects shown'in the said 85,019 applications for registration warrant their cancellation and exclusion from the registrar of voters. The petitioner David Benjamín Cruz further alleges that he appears in his own behalf and in behalf of the class of voters registered on the 15th and 16th of January last affected by the aforesaid rules, and that he appears in behalf of the said class because it is too numerous to have its members included as petitioners in this action. [289] The petitioners allege that the said rales are void because, they have not been approved by the Governor, but that even assuming that they had been so approved, they would still be void because the Insular Board of Elections lacks power to pass upon the validity of the said 85,019 applications for registration which were not protested, the power to investigate the contents of said application being vested exclusively in the respective registration boards which, after completing their mission on January 15 and 16, 1944,. ceased to have any legal existence. In support of that conclusion are alleged a' series of grounds marked with the letters “a” to “p” inclusive,, which we do not state here in order to avoid making this-opinion unnecessarily lengthy, although that does not mean that we will fail to consider those grounds which deserve to be discussed. Protesting that they have no speedy, adequate, and effective remedy other than that of mandamus, the complaint closes with the prayer that two writs of mandamus be issued, one directed to the Insular Board of Elections of Puerto Rico, and its members Charles H. Terry, Leopoldo-Figueroa, Luis N. Dubón, Lino Padrón Rivera, and Adolfo García Rodriguez, to proceed pursuant to §25 of the Election Law of Puerto Rico to include in the register of voters all the citizens who registered at the general registration held January 15 and 16, 1944, including, of course, the 85,019 citizens whose applications for registration are defective, without annulling or cancelling said applications; and another writ, directed to Charles H. Terry, in his capacity as General Supervisor of Elections of Puerto Rico, commanding him to forthwith cause to be prepared for each election precinct, by barrios, and in alphabetical order, a list of all the said voters, setting forth therein the name, age, color, sex, and address of each of the registered voters as provided in §27 of the Election Law of Puerto Rico. [290] The petitioners pray, further, that respondents be directed to refrain, until the further order of this court, from cancelling or annulling any of the aforesaid 85,019 applications. After the alternative writs of mandamus prayed for were 'issued, the hearing of the case commenced on the 13th instant, on which date there appeared the Insular Board of Elections and respondent members thereof, including Mr. Terry, all of them filing a single answer in opposition to the claims of the petitioner. On the same date there was filed a motion of consent to the petition for mandamus, signed by the Attorney General of Puerto Rico in behalf of the General Supervisor of Elections, in which the General Supervisor of Elections, among other things, states that after duly examining the petition for mandamus as well as the alternative writ issued he consents to the demands of the .petitioners. The Union Republican Party requested leave to appear in the case as a respondent, which request was .grafted without opposition of the parties. The Insular Board of Elections declared at the hearing that its power to reject the said 85,019 applications for registration was not predicated on the rules adopted January 24, 1944, which it is discarded for all the purposes of this case, and alleged that its power arises from the provisions of the Registration Act and the Election Law. The first question to be determined is whether the Insular Board of Elections has the power to refuse to include in the register of voters the applications for registra-tration which were not protested before the respective registration boards, notwithstanding that said applications do not comply with the requirements of §§16, 17, 18, and 19 of the Registration.1a [291] In our judgment, it clearly appears on the face of the' complaint that the 85,019 applications for registration do not comply with one or more of the said Sections. We grant that no legal provision exists which expressly authorizes the Insular Board of Elections to examine applications for registration that are not protested, and to refuse to include in the Register of Voters the names of those persons whose applications for registration do not meet the requirements demanded by the Registration Act. But we have no doubt that the. said power arises implicitly from several Sections of said Act. We thus see that §4 of the' Registration Act provides that the Insular Board of Elections shall have charge of the supervision >and direction of registrations in Puerto Rico, and authorizes it, further, to prepare blank forms for applications for registration, and blank forms for protests and counter-protests; and $25 vests it with power to prescribe rules and regulations for the purpose of holding peaceful and legal registration. Finally, §31 [292] in its pertinent part reads as follows: “But it is expressly declared that all such provisions of said election law as are not in conflict with the provisions hereof, may he enforced by the Insular Board of Elections whenever it shall he necessary in order to hold peaceful a>nd legal registrations.” (Italics ours.) To maintain that a governmental organization on whom the Legislature imposed the delicate duty of supervising and directing the registrations in Puerto Rico; to whom it entrusted the power to prepare application blanks for registration; in whom it vested power to prescribe rules and regulations for the purpose of holding peaceful and legal registrations; and whom it expressly authorized to apply all such provisions of the Election Law as are not in conflict with the provisions of the Registration Act, whenever it may be necessary for the holding of peaceful and legal registrations; to maintain, we repeat, that such an organization lacks power to reject, and has to admit as valid, applications for registration which suffer from the defects herein-above set forth, is equivalent to a determination to remain blind to what, from an excess of light, hurts the eyes. Can that interpretation be reconciled with the powers that the lawmaker, as we have seen, vested in the Insular Board of Elections? Is it logical to maintain, as claimed, that the registration boards whose mission, as alleged by the petitioners themselves, ends at the close of the last day fixed to receive applications for registration, have more power than the Insular Board of Elections which appoints them,1b” and that notwithstanding the grave duty imposed on it by law [293] the latter is compelled to accept blindly the actions of the registration boards however illegal they may be? In the ease of Sibley v. Staiger, (Ill., 1932), 179 N. E. 877, 878, it was held that “While it is a rule that mistakes or omissions of the officers in charge of an election will'not defeat the plainly expressed will of the voters, yet the rule does not apply where,” as in the present case, “the officers have failed to perform mandatory duties of a precautionary character which safeguard the votes of the electors.” But the fact is that, apart from what has been set forth, the petitioners themselves in paragraph 19 of their petition for mandamus, and by accompanying and making an integral part of the said petition Exhibit Y, which contains the rules adopted by the Insular Board of Elections on February 1, 1940, seem to admit the power of the Insular Board of Elections to pass on the validity or insufficiency of unprotested applications for registration transmitted to it by the registration boards. It seems advisable to transcribe here paragraph nineteen of the petition: “After the general registrations of 1940, the Insular Board of Elections adopted unanimously — without- there having taken any part in the voting the representative of the Popular Democratic Party who did not then have a vote on said board — some rules to amend certain defects in the applications for registration, similar to the defects included in the rules above transcribed, and in 1940, on the basis of such rules approved in the said year, the Insular Board of Elections facilitated the correction of applications for registration defectively filled out, without a single complaint being filed with the Insular Board of Elections because of the procedure employed in 1940 for the said correction of defective applications. The rules adopted by the Insular Board of Elections, as hereinabove alleged, are attached in a duly certified copy marked Exhibit V and are made an integral part of this petition. And the petitioners allege that if in the year 1940 the Insular Board of Elections adopted rules to correct, as in fact it did correct, defects in applications for registration, and to protect, as in fact it did protect, the right of suffrage of the voters who registered through such defective applications for [294] registration, the said board is barred from adopting in 1944 any rules which prevent the amending of defective applications for registration and which deprive of their right of suffrage all such voters as registered through such defective applications.” (Italics ours.) Let us examine now the rules adopted and applied by the Insular Board of Elections in February 1940, to which the petitioners refer in paragraph nineteen above transcribed : “The Insular Board of Elections, at a meeting held today, adopted the following rules which shall govern in the revision of unprotested applications for registration, (Italics ours.) “1. In case applications for registration appear without the signature of the voter or without his fingerprints, but which are signed by at least two of the members of the registration board, fhe same shall be transmitted to the president of the Local Board of Elections of the corresponding district so as to obtain the signature of the voters who filled such petitions. The General Supervisor of Elections shall give notice to all the members of the Insular Board of Elections and to the local committees in the municipalities where such applications for registration exist, in order to facilitate the locating of the voters affected, who shall appear before the Local Board of Elections composed of all its members as well as the observer, in whose presence the voters shall sign such applications or •stamp their thumbprints thereon. “2. In case applications for registrátion appear without the signature of the voter or without his fingerprints if he should not know how to sign, and without the.signature of at least two of the members of the registration board, such' applications shall-be sub-, mitted to the Insular Board of Elections for cancellation. . “3. In case there should appear applications for registration signed by the respective voters or marked with their fingerprints, but lacking all the signatures of the members of a registration board, such applications shall be submitted to the Insular Board of Elections for cancellation. “4. In case there should appear applications for registration in which there is a full and absolute discrepancy between the name of the voter, as shown in subdivision 1, and his signature, such applications shall be submitted to the Insular Board of Elections for cancellation. [295] “5. In case there should appear applications for registration without the signature of the member who administered the oath, but which appear signed at the bottom by at least two of the members of a registration board, such applications shall be accepted as good; if such applications, however, are signed by only one of the members of a registration board, said applications shall be transmitted to the president of the Local Board of Elections of the corresponding precinct in order to amend the omission in so far as concerns the-signature of any other of the members of the registration board of the same registration place where the voter registered. In such cases a procedure similar to that set forth in paragraph No. 1 shall be followed. “6. In case there should appear applications for registration without the signature of the identification witness in the case of voters who have signed their petitions or stamped their fingerprints, such petitions shall be accepted as good. “San Juan, Puerto Rico, February 1, 1940. “I certify that the foregoing is a full and exact transcription of the original thereof, said original being the rules unanimously-adopted by the Insular Board of Elections of Puerto Rico at its meeting of January 31, 1940, in connection with the amending of defective applications for registration. I certify likewise that it all so appears from the minutes of the said meeting under my custody as General Supervisor of Elections of Puerto Rico. “And at the official request of Attorney Samuel R. Quiñones, of San Juan, a member of the Insular Board of Elections, I issue these presents in this city, this first day of March, 1944. “(Signed) C. H. Terry, General Supervisor of Elections.” If in February 19'40, under the provisions of the same law in force today, the Insular Board of Elections had power to revise unprotested applications for registration; if in the exercise of that power the board even went so far as to permit that, contrary to law,2 the defects of the said applications be corrected; if, as the petitioners seem to admit, in connection with defects equal to some of .those appearing in the 85,019 applications, the board could go, in the exercise of its power of revision, so far as to- cancel certain applications without giving any kind, of notice, what legal point can the petitioners invoke now to maintain, as they do [296] maintain, that the Insular Board of Elections, in so far as concerns the validity of the applications for registration, has to act as a mere automaton, compelled to accept as good the applications transmitted by the registration boards whatever the defects contained in such petitions'?. Is it, then, that legal elections, can be held based on applications for registration which do not meet the authenticity requirements demanded by law? The fact that the number of defective applications reaches the high figure of 85,019 can not affect the power of the board. On the contrary, the greater the number of applications which do not comply with the law, the greater the possibility that the elections are not legal, and the more zealous should the board be in the discharge of the difficult mission entrusted to it. It is argued that the power to determine if the applications for registration meet or do not meet the require* ments specifically demanded by the Registration Act is a judicial matter which can only be determined by the courts. We do not agree, with this. The power that the Insular Board of Elections exercised in 1940 and seeks to exercise now is simply ministerial. In the case of Scott v. Vaughan (Mich., 1918), 168 N.W. 709, cited approvingly in People v. Kelly (Mich. 1940), 293 N.W. 865, 871 and in Larkin v. Gronna (N. D., 1939), 285 N.W. 59, 66, the Supreme Court of Michigan discusses the scope of ministerial duty. Section 12 of Article 16 of the Constitution of Michigan, in force since April 30, 1918, prohibits the manufacture, sale, keeping for sale, etc., of intoxicating liquors except for medicinal, mechanical, scientific, or sacramental purposes. Article 17, ■§2, of the aforesaid Constitution provides that amendments to the Constitution may be proposed by petition of the qualified voters of the State; that each petition shall include the text of the amendment so proposed, and the petitions shall be signed by not less than ten per cent of the qual [297] ified voters of the State; that such petitions shall he filed with the Secretary of State at least four months in advance of the date of the election at which the proposed amendment is to he voted upon; that upon receipt of the said petitions the Secretary of State shall canvass the same to ascertain if they, have been signed by the number of voters required by the Constitution, and if the petitions have been signed by the required number of voters, the proposed amendment shall be submitted to a vote at the next regular election at which any state officer is to be elected. It is prescribed, further, that the petition shall consist of sheets of paper having printed or written at the top thereof such heading as the Secretary of State may designate; that such petitions shall be signed by qualified voters in person only, with the residence address of such persons and the date of signing the same; that to each one of said petitions, which may consist of one or more sheets, shall be attached the affidavit of the voter circulating the same, stating that each signature thereto is the genuine signature of the person signing the same, and that to the best of his knowledge and belief each person signing the petition was, at the time of signing, a qualified elector. The. constitutional precept provides, further, that such petitions so signed shall constitute prima facie evidence that the signature thereon are genuine, and that the persons signing are qualified electors. The relators requested the Secretary of State to abstain from taking action on the petitions presented to him to amend §12 of Article 16 of the Constitution, for the reason that the said petitions did not comply with the requirement of copying literally the text o.f the proposed amendment. The Secretary of State consulted the Attorney General, who advised him to take the case to the Courts so that the latter might determine if the Secretary of State was authorized to determine if the petitions for amendment complied [298] with the law, or if, on the contrary, that was a judicial question to be decided exclusively by the court. Proceedings for writ of mandamus were brought against the Secretary asking that he be directed to refrain from taking action on the said petitions because the same did not include the full text of the proposed amendment. An order to show cause having been issued, the Secretary of State answered admitting the facts set up in the petition, and alleging at the same time that his duty in connection with the matter was purely ministerial and that the determination as to whether the petitions complied or not with the Constitution was a judicial question to be decided by the courts and .not by him. In, granting the mandamus by the unanimous vote of the eight justices who took part in the decision, the court declared that generally, the’ right of qualified voters of the state to propose amendments to the Constitution by petition can not be interfered with neither by the legislature, the courts, nor the officers charged with any duty in the premises. Notwithstanding this, the right should he exercised in a certain way cmd according to the conditions specified in the Constition. It was held, further, that the ascertainment of whether the petition included the full text of the proposed amendment and of whether the petitions were signed by not less than ten per cent of the qualified voters of the State, involved the exercise of no discretion — the performance of none but a ministerial duty. And that the performance of a'ministerial duty may involve something more than doing a prescribed thing in a prescribed way. One must appreciate the meaning and effect of what appears upon the face of a petition before he can determine whether, upon its face, what is present is or is not a petition. In the same way that an officer can be compelled by inandamus to take action on a proper petition he may, by mandamus, also be compelled to refuse to take action on an improper petition since it is [299] Ms duty to reject the petitions — or at least to refuse to take further action thereon when said, petitions do not conform to the constitutional mandate. Similarly, the Insular Board of Elections in order to exercise the ministerial power vested in it by law to direct that persons who have filed applications for registration wMch are prima facie valid, be included in the register of voters, has power to examine such petitions to determine if the same comply with the requirements of law. It seems advisable to cite here the case of Morrissey v. State Ballot Law Commission (Mass., 1942), 43 N. E. (2) 365, 395, where it is held that the position of a person signing a petition of amendment to the Constitution is analogous to that of a voter who signs a nomination ballot for an election or who votes at an election. The right that the Constitution guarantees to him is to exercise his privilege as a voter in accordance with reasonable rules concerning the manner of .voting. The petitioners argue that to fail to include the names of the 85,019 persons in the register of voters without notice of their nonin elusion is equivalent to depriving them of the right to vote without due process of law. We must not lose sight of the fact, in the first place, that for the right to vote to exist it is necessary, as we said before, that the voter exercise his right in the manner and under the conditions required by law, among which is found that of filing with the registration board an application for registration meeting the requirements demanded by law. Scott v. Vaughn, supra: In re Opinion of the Justices (Mass., 1924), 143 N. E. 142. But the fact is that the voter has such notice through the lists that not later than March 31 of the year in which an election is to be held are sent by the General Supervisor of Elections to the chairmen of the local boards of elections. Pursuant to §27 of the Election Law the chairmen of the local boards of elections shall post a copy of such list to [300] the public in a conspicuous, accessible, and protected place at the entrance to the offices of their respective boards. In addition to these lists sent to the chairmen of the local boards, the same <j>27 provides that other copies of them shall be sent on the same date to the chairmen of the sections and local committees of the principal political parties. Any voter who is interested in making use of his right to vote has an easy opportunity from and after March 31 of an election year to learn from the lists posted to the public or from the lists of the local committee of his party in the precinct where he lives, whether his name has been included or not in the list of registered voters. Should it not appear in said lists he can institute the proper proceeding to obtain that it be included, if he has a right to be included. And what less can be required of a citizen whose application for registration does not meet the requirements of law? In order that due notice exist it is not indispensable that such notice be personal in every case, much less when the number oí persons to be notified is as large as it is in the present ease. To hold that a notice in the manner indicated, that is, through the posting of lists in places accessible to the public, imposes on the citizen a duty he is not obliged to discharge, is a frivolous contention. Notices are given and served frequently through the newspapers, and such notice does not cease to be valid merely because to learn of it- the person aggrieved has to buy or otherwise acquire the newspaper which publishes it. Coming now to the contention that this is a class suit, and after it has been shown that thfe board.has the power to pass on the sufficiency of the form of the applications for registration, it is ea,sy'to conclude that the present action is not class litigation, since no common right exists in it between David Benjamín Cruz and the 85,018 remaining persons whose applications for registration the Insular Board of Elections refuses to enter in the register of [301] voters. We have already seen that the defect in the application for registration, that is, tl]at the signature of the member of the board who shonld have administered the oath of David Benjamín Cruz does not appear thereon, is not a defect common to the other petitions. Furthermore, a document alleged to have been sworn to, where the jurat does not include the signature of the officer who should have administered the oath, carries with it the presumption that no such oath existed, it being incumbent upon the person alleging its existence to overcome the presumption by proving that the oath was in fact taken. David Benjamín Cruz did not in the present case overcome such presumption inasmuch as in his testimony before this court he stated that he did not remember having taken such oath. It is argued that when we recognize the right that the Insular Board has in our judgment to refuse to include in the register of voters the names of the persons whose applications for registration do not meet the requirements of law, it is equivalent to granting it a power so vast that at any time the Insular Board might capriciously eliminate old voters from the lists thereby changing the result of an election. That argument ignores the fact that subdivision 15 of §102 of the Law of Evidence prescribes that the presumption exists that official duty has been regularly performed. The argument which, iii order to challenge the interpretation of a statute, has to be based on a possibility so extreme and improbable as that of an officer committing a fraud in the performance of an official duty he has sworn to perform in accordance with law, has very little persuasion. If such a case arose a mandamus would lie to compel the board to reestablish those voters in the lists, aside from the severe penalties which would be incurred by the members of the board. See McCrary on Elections, 4th edition, §135, p. 102. [302] It is a well-established rule that the remedy of mandamus does not lie unless he who invokes it has a clear and unequivocal right to such remedy. In the present ease we do not see that the 85,019 persons whose applications for registration do not meet the requirements demanded by law, have a clear and unequivocal right to have their names included in the register of voters. Finally, the fact that the General Supervisor of Elections consents to include in the provisional list the names of the 85,019 persons in question, does not affect the decision of this case, inasmuch as the General Supervisor of Elections is a member of the Insular Board whose ministerial duty to prepare the provisional lists is dependent upon the Insular Board having directed that the names of the persons who should appear in the provisional lists be previously included in the register of voters. In view of the foregoing, it is proper, in our judgment, to deny the issuance of the writ of mandamus. Footnotes [1] It seems advisable to note that among the subdivisions appearing unfilled in the application for registration is included even that corresponding to the signature of the member of the Registration Board who should have administered the oath of David Benjamin Cruz. [1a] The said Section provides: “Section 16. — Any voter desiring to register shall appear before the proper registrations board and shall present a printed application in triplicate, filling [291] in the blanks with ink or with a typewriter, in accordance with the form given below. “Each petition shall be signed by the interested person and a witness, a resident of the same munipality,' well known, and knowing how to read and write. Said witness shall declare that -he knows all statements contained in the said application to be true, and shall take oath, together with the applicant: (The model for the application for registration follows here). “Section 17. — When the applicant does not know how or is unable to sign his name, he shall make thumbprints of both thumbs, if possible, at the side of the signature of the witness signing for said voter. “Section 18. — No application shall be received except on printed forms In accordance with the aforesaid model, and it shall be the duty of the registration board, whenever it receives any petition that does not agree with the official model, to state the reason of the fault, and shall sign, act and proceed as if it were a case of a challenged registration. “Section 19. — Applications for registration shall be sworn to before any member or substitute member of the registration board of the registration place to which they belong, in the registration place of said board and during the hours duly fixed and proclaimed for registrations in the said place; and all members and substitute members of registration boards are hereby authorized to administer oaths on the said applications in the places and during the time specified. The correlative presentation number shall be placed on the petitions for registration. ’ ’ [1b] The only power that $6 of the ^Registration Act grants to the General Supervisor of Elections concerns the ministerial duty of making appointments at the request of the central or local directing committees of the party which each one of the members of the registration board represents, the same section providing that vacancies occurring in these registration boards shall be filled in the manner provided by the Insular Board of Elections, always "taking into account that the substitute must belong to the same political party as the member causing 'the vacancy. [2] Sec §19 of the Registration Aet, transcribed in note 1, page 288.