United States Court of Appeals
For the First Circuit
Nos. 03-1621
03-1622
JOSÉ EMILIO PÉREZ-GUZMÁN,
Plaintiff, Appellee,
v.
AURELIO GRACIA, ETC., ET AL.,
Defendants, Appellants.
COMMONWEALTH OF PUERTO RICO,
Intervenor, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Selya, Circuit Judge,
Stapleton,* Senior Circuit Judge,
and Howard, Circuit Judge.
Gerardo de Jesus Annoni, with whom Sanchez-Betances & Sifre,
P.S.C., and Ramón Walker Merino were on consolidated brief, for
appellants.
Nelson Rosario Rodríguez for appellee.
October 9, 2003
_______________
*Of the Third Circuit, sitting by designation.
SELYA, Circuit Judge. In Puerto Rico, organizations that
seek to be recognized as political parties must gather roughly
100,000 endorsing petitions, each signed by a registered voter and
sworn to before a notary public. Since only a lawyer can become a
notary in Puerto Rico, there are fewer than 8,000 notaries in the
entire commonwealth — and notarial services do not come cheap.
Chafing under these restrictions, a nascent political party — the
Partido Acción Civil (the Party) — challenged various aspects of
the law, including the lawyer-notarization requirement, in the
local courts. The Party lost.
Plaintiff-appellee José Emilio Pérez-Guzmán (Pérez), a
member of the Party who had not participated in the earlier suit,
remained dissatisfied with the lawyer-notarization requirement. He
sued the members of the Puerto Rico State Elections Commission (the
Commission) in the federal district court. The district court
rejected a proffered res judicata defense and found that the
lawyer-notarization requirement violated the plaintiff's First
Amendment rights. Pérez Guzmán v. Gracia, 260 F. Supp. 2d 389
(D.P.R. 2003). The Commission and the Commonwealth (which had
intervened in the proceedings below) appeal from this ruling.
The questions raised by these appeals are novel and
important. The res judicata issue involves the extent to which a
judgment against an association can preclude a later action by a
member of that association. The constitutional issue pits the
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government's interest in regulating elections against an
individual's interests in electoral participation and freedom of
association. Having worked our way through both issues, we
conclude, as did the district court, that the instant action is not
pretermitted by the prior judgment and that the lawyer-notarization
requirement unduly burdens First Amendment rights. Consequently,
we affirm the judgment below.
I. BACKGROUND
The Party is an unincorporated association seeking to be
registered by petition as a political party, and Pérez is among its
members. Under commonwealth law, a "Party by Petition"
— Shall be any group of citizens who, desiring
to appear on the electoral ballot of a general
election, shall register as a political party,
on or before June 1 of the election year, by
filing with the Commission sworn petitions to
such effect, before notary publics duly
admitted to the practice of notary, pursuant
to the provisions of the Notary Act in effect,
who shall collect from the Electoral
Commission a fee of one (1) dollar for each
valid, notarized petition signed by a number
of electors of no less than five (5) percent
of the total votes cast for all candidates for
the office of Governor in the preceding
general election.
P.R. Laws Ann. tit. 16, § 3101(3) (2000). Because more than
2,000,000 votes were cast in the 2000 gubernatorial election, a
group that currently desires to register a political party must
amass in excess of 100,000 notarized petitions. Each petition must
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be signed and sworn to before a notary public and filed with the
Commission within seven days after notarization. Id. § 3102.
There is nothing wrong with a state demanding that a
would-be political party demonstrate a "significant modicum of
support" before gaining access to the ballot,1 Jenness v. Fortson,
403 U.S. 431, 442 (1971), and, thus, petitioning requirements are
commonplace in such situations. But Puerto Rico's obviously
burdensome rule — a rule that requires each signature to be
separately notarized — is quite uncommon. See, e.g., Am. Party of
Tex. v. White, 415 U.S. 767, 775 n.6 (1974) (noting that, under
Texas law, a single notarial certificate "may be so made as to
apply to all [signatories] to whom [the oath] was administered");
Ga. Code Ann. § 21-2-170(d) (Supp. 2002) (providing that each sheet
of a nominating petition must bear the circulator's affidavit
pertaining to the voter signatures reflected thereon). Puerto
Rico's rule that only attorneys can serve as notaries, P.R. Laws
Ann. tit. 4, § 2011 (2000), is also rare. The combination of the
two rules is, insofar as we can tell, unique.
Given this peculiar collocation of circumstances, it is
not surprising that controversy has surrounded Puerto Rico's
notarization requirement. We reviewed the procedural history of
1
Puerto Rico is the functional equivalent of a state for First
Amendment purposes, see Posadas de P.R. Assocs. v. Tourism Co., 478
U.S. 328, 331 n.1 (1986) (noting that Puerto Rico is fully subject
to the First Amendment), and we sometimes refer to Puerto Rico as
if it were a state notwithstanding its unique commonwealth status.
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the Party's challenge to it in an earlier opinion, see Cruz v.
Melecio, 204 F.3d 14, 17-18 (1st Cir. 2000), and we briefly
rehearse that history in order to put the appellants' res judicata
defense into perspective.
On October 6, 1998, the Party filed an action in the
Puerto Rico Court of First Instance against the Commission and
others. Its complaint averred, inter alia, that the lawyer-
notarization requirement transgressed the Constitution. The court
granted summary judgment in favor of the defendants; the Puerto
Rico Circuit Court of Appeals upheld the judgment; the Puerto Rico
Supreme Court also affirmed, see Civil Action Party v.
Commonwealth, 2000 TSPR 29, 2000 WL 223543 (P.R. Feb. 25, 2000)
(CAP I), reconsideration denied per curiam, 2000 TSPR 61, 2000 WL
462276 (P.R. Apr. 25, 2000) (CAP II); and the United States Supreme
Court denied certiorari, 531 U.S. 920 (2000).
Just two days before the intermediate appellate court
ruled, fourteen Party members filed an action for declaratory and
injunctive relief in Puerto Rico's federal district court. The
action raised essentially the same federal constitutional claims,
including the claim that the lawyer-notarization requirement
violated the plaintiffs' rights to free speech and association, to
participate in the political process, to vote, and to enjoy equal
protection of the laws. Cruz, 204 F.3d at 17. The district court
dismissed the action on the merits.
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An appeal ensued. In it, we first addressed the
potential applicability of res judicata. We held that the defense
did not apply because the commonwealth court proceedings were, at
that point, still in progress. Id. at 20-21. We then determined
that the district court had erred in dismissing the action for
failure to state a potentially viable claim. Id. at 22. The
complaint had alleged facts which, if true, "tend[ed] to support
the appellants' claims that the notarization requirement and seven-
day [filing] deadline unduly burden ballot access." Id. Thus:
If . . . the appellants can prove that
notarization is prohibitively expensive or
otherwise difficult to achieve (as the
complaint avers), then the Commission will
have to show that the notarization requirement
is narrowly drawn to advance a compelling
governmental interest. This showing requires
the Commission to come forward with proof.
Whether it ultimately can succeed in this
endeavor is a sufficiently open question that
we cannot conclude, on the pleadings, that no
set of facts exists under which the appellants
might prevail.
Id. (footnote and internal citation omitted). Accordingly, we
vacated the order of dismissal.
Still, we did not allow the case to proceed unabated,
but, rather, instructed the district court to stay further
proceedings pending the Puerto Rico Supreme Court's decision. Id.
at 25. Among the factors we found "highly relevant to the calculus
of abstention" was our belief that "the appellants [had] filed the
present suit in an effort to detour around an unfavorable judgment
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of the commonwealth trial court." Id. at 24. After the Puerto
Rico Supreme Court affirmed the judgment against the Party and the
United States Supreme Court denied certiorari, the district court
dismissed Cruz on res judicata grounds. The Cruz plaintiffs did
not appeal, and that appeared to be the end of the matter.
Appearances can be deceiving. The next year, Pérez filed
this action challenging the lawyer-notarization requirement (but
not the seven-day filing requirement). In relevant part, the
complaint sought a declaration that the lawyer-notarization
requirement, P.R. Laws Ann. tit. 16, § 3101(3), violated Pérez's
rights to freedom of speech and equal protection. It also prayed
for an injunction prohibiting the defendants from enforcing section
3101(3) and the corresponding regulations.
After an evidentiary hearing, the district court entered
an order "declaring the requirement . . . that petitions for new
political parties be notarized by a lawyer to be in violation of
the First Amendment of the Constitution." Pérez Guzmán, 260 F.
Supp. 2d at 394. The court's determination rested in large part on
the idiosyncratic nature of Puerto Rico's lawyer-notarization
requirement. In that regard, the court made three critical
findings. First, it found as a fact that the cost of notarizing
100,000 petitions would be at least $1,500,000. Given this
substantial outlay, the lawyer-notarization requirement imposed a
severe financial burden upon a citizen's "right to associate and to
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form political organizations which advance common goals and
ideals." Id. at 392 (footnote omitted). Second, the court found
that the appellants had failed to show that the lawyer-notarization
requirement was narrowly tailored to advance a compelling
governmental interest. Id. at 393. In making this point, the
court emphasized that in other electoral contexts the Commission
had authorized ordinary voters to verify signatures despite the
fact that they were not notaries, but had refused to sanction any
comparable arrangement for witnessing party-registration petitions.
Id. at 391, 393. There was no evidence that lawyer-notaries
perform this attestation function better than authorized ad hoc
notaries. Id. at 393. Finally, the court found that other
existing safeguards, such as the Commission's practice of
independently verifying each petition submitted to it, adequately
protect Puerto Rico's legitimate interest in the integrity of its
electoral processes. Id. at 390, 393.
In a separate (unpublished) order, the court rejected the
asserted res judicata defense. The court found no privity between
Pérez and the Party because the record did not show that Pérez had
in any way participated in or controlled the Party's case. Indeed,
the court found "no evidence" that Pérez was even a Party member
during the currency of the earlier litigation.
Following the entry of a judgment declaring section
3101(3) unconstitutional, these timely appeals eventuated. In an
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abundance of caution, we stayed the execution of the judgment and
expedited appellate review. We now confront the substance of the
appeals. Because the res judicata defense, if successful, would
end our inquiry, we start there.
II. RES JUDICATA
The applicability of the doctrine of res judicata
presents a question of law over which we exercise plenary review.
See Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 755 (1st Cir.
1994). Inasmuch as we are called upon here to determine the
preclusive effect of a judgment entered by the commonwealth courts,
Puerto Rico law supplies the rule of decision. Kremer v. Chem.
Constr. Corp., 456 U.S. 461, 466 (1982); Cruz, 204 F.3d at 18-19.
In Puerto Rico, the doctrine of res judicata is embedded
in the Civil Code:
In order that the presumption of the res
adjudicata may be valid in another suit, it is
necessary that, between the case decided by
the sentence and that in which the same is
invoked, there be the most perfect identity
between the things, causes, and persons of the
litigants, and their capacity as such.
P.R. Laws Ann. tit. 31, § 3343 (1990). The issue here involves the
identity of the parties in the two actions. We know that the
requirement of "perfect identity" cannot be taken literally; mere
nominal differences will not undermine the preclusive effect of an
earlier judgment. Cruz, 204 F.3d at 19. Hence, parties who are in
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privity with each other are considered identical for res judicata
purposes. Banco Cent., 27 F.3d at 756-57.
In Cruz, we determined that privity existed between the
plaintiffs and the Party (the plaintiff in the original
commonwealth court action), stating:
Although the present appellants are not named
parties in the commonwealth court proceedings,
they are members of the organization that is
the plaintiff there and they control that
litigation. This type of privity suffices for
res judicata purposes.
204 F.3d at 19. This determination depended on a combination of
two factors: the plaintiffs were members of the Party and they
controlled its conduct of the litigation. In turn, the finding of
control derived from the Cruz plaintiffs' admissions. They made no
bones about the fact that they were the prime movers behind the
Party's case, "vigorously assert[ing] that they were denied a full
and fair opportunity to litigate their federal claims in the
commonwealth proceedings." Id. (emphasis supplied). Because the
Cruz plaintiffs claimed ownership of the Party's case, we held them
to the natural consequences of that claim.
Before us, the appellants engage in a largely didactic
exercise, asserting that Cruz stands for the proposition that any
member of a political party has control over litigation brought by
that party (and, therefore, that the party is in privity with every
one of its members). But this assertion rests on a porous
foundation — the notion that Cruz means something other than what
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it says. We reject that notion. Cruz required proof of control as
a building block in the showing of privity, and without such proof
there would have been no privity in the circumstances of that case.
This action is at a considerable remove. Unlike the Cruz
plaintiffs, Pérez steadfastly disclaims any exercise of control
over the original case. In the absence of an admission, the
appellants, as the proponents of the res judicata defense, have the
burden of establishing a factual basis for that defense. Banco
Cent., 27 F.3d at 759. But they have not adduced any evidence
sufficient to carry their burden (indeed, they have made no
discernible effort to do so). They have shown only that Pérez's
attorney also represented the Party — and that is not a sufficient
predicate for an inference of control. See id. (noting that courts
regularly "have refused to find substantial control merely because
a nonparty retained the attorney who represented a party to the
earlier action"). The district court's finding that Pérez did not
control the prior litigation is, therefore, inexpugnable.
The appellants' first fallback argument is that, even
absent control, Pérez's membership in the Party, his commonality of
interests with the Party and its other members, and his desire to
register the Party combine to establish privity as a matter of law.
The Party, so this argument goes, is in privity with every one of
its members because it sued to advance their associational rights.
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To a person, the members stood to gain if the Party had prevailed;
thus, all of them should be bound by the Party's loss.
This argument is misguided. Concepts of privity do not
grow more expansive when a political party or its members raise
First Amendment claims. After all, the fact that First Amendment
rights are at stake ought to weigh against, not for, a finding of
preclusion. Cf. Richards v. Jefferson County, 517 U.S. 793, 797
(1996) (noting that "extreme applications of the doctrine of res
judicata may be inconsistent with a federal right that is
'fundamental in character'") (quoting Postal Teleg. Cable Co. v.
Newport, 247 U.S. 464, 476 (1918)); Williams v. Rhodes, 393 U.S.
23, 30-31 (1968) (acknowledging that First Amendment rights "rank
among our most precious freedoms").
At any rate, the question of whether an individual should
be bound by an association's actions in a prior suit is distinct
from whether, in practice, the right at issue has an associational
component. As we explained in Cruz, "[i]ndividuals have
constitutionally protected interests in free association and
electoral participation, including the formation of new political
parties." 204 F.3d at 22 (emphasis supplied). Joining a political
party is an exercise of associational rights, but forging such a
link does not automatically consign the defense of those rights to
the party. Although political parties may "derive rights from
their members," FEC v. Colo. Repub. Fed. Campaign Comm., 533 U.S.
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431, 448 n.10 (2001), the members' own rights are not automatically
subsumed in a judgment against the party.2
This might have been a closer case if the appellants had
proven that the Party, in the manner, say, of certain labor unions
or trade associations, served generally as the duly constituted
representative of its members in litigation affecting common
interests. See, e.g., Gen. Foods Corp. v. Mass. Dep't of Pub.
Health, 648 F.2d 784, 787-88 (1st Cir. 1981); see generally 18A
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure: Jurisdiction 2d § 4456, at 502 (2002)
(citing cases). But the record here is bereft of anything showing
that either political parties in general or this Party in
particular are invested with authority to represent members. In
the absence of any evidence anent the Party's charter, bylaws, or
membership terms, there is simply no basis for a finding that Pérez
2
In this regard, we note that Pérez's complaint emphasizes his
personal right to circulate and verify party petitions. By
contrast, the Party's complaint focused upon "associational,
speech, and voting rights under the ballot access doctrine." CAP
I, Off. Trans. at 2. The two theories do not perfectly coincide,
and their divergence serves as a reminder that there may be subtle
conflicts of interest between an association and its individual
members. It is for precisely such reasons that the commentators
urge "great care . . . before binding all members to an association
loss." 18A Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure: Jurisdiction 2d § 4456, at
507-10 (2002).
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ever authorized the Party, expressly or by fair implication, to sue
on his behalf.3
This lack of authorization is especially significant
because the Party is a jural entity entitled to sue in its own
right. Unlike the trade association in General Foods, 648 F.2d at
787, its standing to challenge the lawyer-notarization requirement
did not "depend[] on [any] claim to represent its members as the
real parties in interest." And unlike the trade association in
Expert Electric, Inc. v. Levine, 554 F.2d 1227, 1229 (2d Cir.
1977), the Party was not "established to jointly represent its
[members]" in all phases of a particular activity. Without such
indicia, mere membership cannot allow the Party's actions to bind
Pérez. See Restatement (Second) of Judgments § 61(2) (1982)
(noting that if an unincorporated association is a jural entity
distinct from its members, a judgment against the association binds
its members only to the same extent as a judgment against a
3
The record is unclear about when Pérez himself joined the
Party. If the district court is correct that the appellants failed
to prove his membership in the Party during the key phases of the
original litigation, it is hard to see how he could be bound by the
earlier adjudication. Cf. Montalvo-Huertas v. Rivera-Cruz, 885
F.2d 971, 974-75 (1st Cir. 1989) (holding that since "the
[plaintiff] firm had not been formed when the [prior] judgment
eventuated," there was "no predicate for a founded claim that
[plaintiff] was a party in interest or a controlling force in the
[prior] litigation"). We need not test that finding, however, for
even if Pérez's membership dates back to a time when the original
litigation was velivolant, the result here would be unaffected.
Mere membership in a political party, in and of itself, is not
enough to demonstrate control over the party's affairs.
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corporation binds its shareholders); id. § 59 (explaining that,
with exceptions not relevant here, a judgment in an action in which
a corporation is a party does not bind corporate shareholders).
From what we have said, it should be evident that the
commonality of First Amendment interests between a political party
and its members is not itself enough to support a finding of
privity. See Griffin v. Burns, 570 F.2d 1065, 1071 (1st Cir. 1978)
(explaining, in a case involving First Amendment rights, that
"[m]ere similarity of interest and a quantum of representation in
the earlier suit do[] not suffice to bar a non-party"). Without
evidence of either control or authorization, the appellants'
proposition is untenable.
The appellants next argue for a determination of privity
based on the doctrine of virtual representation — a term that is
used as a synonym for "de facto representation" based on an
identity of interests between a party to the earlier suit and a
nonparty, Banco Cent., 27 F.3d at 758 n.5. That possibility need
not occupy us for long. The appellants did not rely on this
doctrine below and, accordingly, they have forfeited the right to
raise it in this venue. See, e.g., Teamsters Union, Local No. 59
v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) ("If any
principle is settled in this circuit, it is that, absent the most
extraordinary circumstances, legal theories not raised squarely in
the lower court cannot be broached for the first time on appeal.");
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Clauson v. Smith, 823 F.2d 660, 666 (1st Cir. 1987) (holding that
new legal theories "cannot be surfaced for the first time on
appeal").
Even absent this procedural default, the argument would
be unavailing. The record here is barren of any evidence that
would support a finding of virtual representation. In particular,
there is no proof that either Pérez or the Party, in the
institution of this action, were engaged in "tactical maneuvering
designed unfairly to exploit technical nonparty status in order to
obtain multiple bites of the litigatory apple." Banco Cent., 27
F.3d at 761. Given this dearth of evidence, we cannot find that
the Party represented Pérez, virtually or otherwise, in maintaining
the earlier action.
The authorities relied upon by the appellants in support
of their various res judicata theories are inapposite here. We
briefly discuss the two principal decisions.4
In Tahoe-Sierra Preservation Council v. Tahoe Regional
Planning Agency, 322 F.3d 1064 (9th Cir. 2003), the plaintiff
association was formed for the avowed purpose of actively
representing the interests of its individual members before various
4
The other cases cited by the appellants are so plainly
distinguishable as not to warrant discussion. See, e.g., In re
Colonial Mortg. Bankers Corp., 324 F.3d 12 (1st Cir. 2003); Doe v.
Urohealth Sys., Inc., 216 F.3d 157 (1st Cir. 2000); Studio Art
Theatre v. City of Evansville, 76 F.3d 128 (7th Cir. 1996). The
discussion in Snyder v. Munro, 721 P.2d 962 (Wash. 1986), is dictum
and, in all events, unhelpful.
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regulatory agencies and had the authority to bring claims on behalf
of its members. Id. at 1083. On that basis, the court concluded,
with liberal use of adverbs, that "the Association represented the
interests of its member property owners sufficiently thoroughly to
bind other members alleging similar wrongs arising from the same
set of facts." Id. (footnote omitted). The factors that the Tahoe
court found significant, such as association for the express
purpose of litigation and authorization of representation, are
totally absent here.
So too Tyus v. Schoemehl, 93 F.3d 449 (8th Cir. 1996), in
which the aldermen-plaintiffs filed a second action while the first
was pending, "simply adding new plaintiffs." Id. at 457. The
court found unmistakable evidence of "tactical maneuvering" such
that not applying preclusion would have "allow[ed] various members
of a coordinated group to bring separate lawsuits in the hope that
one member of the group would eventually be successful, benefiting
the entire group." Id. As we have observed, however, there is no
evidence that Pérez is part of a coordinated strategy to circumvent
a prior judgment. The appellants simply have not proven collusion.
With the facts and the law arrayed against them, the
appellants shift their emphasis to policy grounds. They contend
that a rule of blanket preclusion is necessary to promote finality
and forestall manipulative practices, including claim-splitting,
forum-shopping, and serial litigation. But we are skeptical of the
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value of a mechanical rule, and there is no sign that any
manipulation occurred in this case. The appellants have not shown
that Pérez is a puppet dancing on a string pulled by the Party or
that the Party has orchestrated a strategy of serial attacks on the
lawyer-notarization requirement. In lieu of proof, the appellants
apparently would have us infer guilt by association. We will not
do so.
Relatedly, the appellants predict disaster if blanket
preclusion is rejected. They insinuate that members of a political
party would have no incentive to join a pending action, for they
would benefit if the party won but would be free to litigate the
point if the party lost. Endless litigation would be the norm.
This prediction is much too gloomy. For one thing, it
overlooks the salutary effect of the doctrine of stare decisis on
repetitive litigation. Perhaps more important, it overlooks the
principle that "[t]he law does not impose upon any person
absolutely entitled to a hearing the burden of voluntary
intervention in a suit to which he is a stranger." Chase Nat'l
Bank v. Norwalk, 291 U.S. 431, 441 (1934); accord Martin v. Wilks,
490 U.S. 755, 763 (1989) (reaffirming that "a party seeking a
judgment binding on another cannot obligate that person to
intervene; he must be joined"). Finally, the appellants'
prediction proves too much: many others also stood to benefit from
the Party's litigation (for example, other aspiring political
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parties and their members) — yet no one is sanguine enough to
suggest that they too should be bound by its defeat. So long as we
retain our historic tradition that each person is entitled to his
own day in court, we cannot extend preclusion to nonparties merely
because they have failed to seize an opportunity to intervene in a
prior action.
That ends this aspect of the matter. As we have said,
Puerto Rico law supplies the rule of decision as to the efficacy of
the res judicata defense in this case. The appellants have not
persuaded us that the Puerto Rico courts would find privity in
these circumstances. See, e.g., Montalvo-Huertas v. Rivera-Cruz,
885 F.2d 971, 975 (1st Cir. 1989) (holding, under Puerto Rico law,
that a corporation was not in privity with the plaintiff class in
a prior action challenging the same business regulation merely
because the two sets of plaintiffs enjoyed a "community of
interest"); Pol Sella v. Lugo Christian, 107 P.R. Dec. 540, 549
(1978) (explaining that res judicata applies when the same person
is the real party in interest vis-à-vis both suits); Heirs of Zayas
Berrios v. Berrios, 90 P.R.R. 537, 552 (1964) (finding identity of
parties where defendants in second case "actually controlled" the
first case); cf. A & P Gen. Contractors, Inc. v. Associación Caná,
Inc., 110 P.R. Dec. 753, 10 P.R. Off. Trans. 987, 994-95 (1981)
(reiterating that Puerto Rico has not "abandoned the rule of . . .
identity" with respect to res judicata). In the absence of
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privity, it necessarily follows that the district court did not err
in refusing to honor the res judicata defense.5
III. THE MERITS
This brings us to the heart of the matter: the
interaction between the lawyer-notarization requirement and the
First Amendment. We review de novo the trial court's elucidation
of First Amendment standards and its application of those standards
to the discerned facts. Globe Newsp. Co. v. Beacon Hill Arch'l
Comm'n, 100 F.3d 175, 181 (1st Cir. 1996); Kassel v. Gannett Co.,
875 F.2d 935, 937 (1st Cir. 1989). This protocol is not a
procedural device, but, rather, "a rule of federal constitutional
law" reflecting "a deeply held conviction that judges . . . must
exercise such review in order to preserve the precious liberties
established and ordained by the Constitution." Bose Corp. v.
Consumers Union of U.S., Inc., 466 U.S. 485, 510-11 (1984).
Like any other citizen, Pérez has "constitutionally
protected interests in free association and electoral
participation, including the formation of new political parties."
Cruz, 204 F.3d at 22 (collecting cases). Although these interests
are important, they are not absolute. Fair, honest, and orderly
5
What we have written to this point fully disposes of the
appellants' reliance on the so-called Rooker-Feldman doctrine. See
Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476
(1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923).
After all, "[o]nly a state court adjudication that itself has
preclusive effect can bring the Rooker-Feldman doctrine into play."
Cruz, 204 F.3d at 21 n.5.
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elections do not just happen. Substantial state regulation is a
prophylactic that keeps the democratic process from disintegrating
into chaos. Consequently, there is a strong state interest in
regulating all phases of the electoral process, including ballot
access. Storer v. Brown, 415 U.S. 724, 730 (1974); Libertarian
Party of Me. v. Diamond, 992 F.2d 365, 370 (1st Cir. 1993).
We do not mean to minimize the schizophrenic nature of
election campaigns, which are as much a means of disseminating
ideas as a means of attaining political objectives. See Ill. State
Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 186
(1979). Given this duality, an overly stringent regulatory scheme
may place an intolerably heavy burden on freedom of political
expression. See id. In the last analysis, a fine line separates
permissible regulation of state election processes from
impermissible abridgement of First Amendment rights.
Plotting that line calls for a careful reconciliation of
competing centrifugal and centripetal forces. The rigorousness of
the ensuing judicial inquiry depends upon the extent to which the
challenged regulation burdens First Amendment rights. Burdick v.
Takushi, 504 U.S. 428, 434 (1992); Werme v. Merrill, 84 F.3d 479,
483 (1st Cir. 1996). Following this prescription, we afford
exacting scrutiny to severe restrictions on ballot access. Cruz,
204 F.3d at 22. That entails viewing such restrictions skeptically
and requiring that they be drawn narrowly to advance compelling
-21-
state interests. Norman v. Reed, 502 U.S. 279, 289 (1992). To
this end, we start with an assessment of the severity of the
restriction. We then proceed to identify the interests that the
appellants believe justify its imposition, weigh the efficacy of
the available alternatives, and decide where the lawyer-
notarization requirement falls along the constitutional line.
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).
We approach the question of severity by looking first at
its theoretical underpinnings. Traditionally, the act of
circulating a petition has been viewed as "a one-on-one
communication." Buckley v. Am. Const. Law Found., 525 U.S. 182,
199 (1999).6 One person circulates the petition, obtains the
voter's signature, and verifies the origins of the signature. See,
e.g., Frami v. Ponto, 255 F. Supp. 2d 962, 965 (W.D. Wis. 2003).
In Puerto Rico, however, each of the 100,000 petitions must be
signed singly and sworn in the presence of a lawyer-notary. This
requirement triangulates the normal channels of communication.
Assuming that the circulator is not himself a notary, there must
now be one person to initiate the conversation, a second to
respond, and a third to verify that response.
6
We see no principled basis for distinguishing party-petition
signature gatherers from the initiative-petition circulators in
Buckley. The common denominator is that "both seek ballot access."
525 U.S. at 191.
-22-
This triangulation limits the efficacy of petition
circulators in their own right. No matter how persuasive a
circulator might be in a face-to-face conversation, he cannot seal
the deal then and there. The final exchange in the interactive
communication — the voter's official endorsement of the fledgling
party — cannot occur unless and until a notary is present. The
historic role of the circulator is necessarily diminished.
In this case, Pérez plainly labored under this heavy
yoke. He testified without contradiction that the lawyer-
notarization requirement greatly hampered his efforts to gather
signatures because, in addition to convincing voters that a new
political party was needed, he also had to convince them to repair
to an attorney's office. When he tried to recruit others to help
in the circulation of petitions, those whom he could interest were
"just common people," not notaries. The district court credited
this testimony.
The stringency of the restriction is aggravated because
the indispensable third person in the triangulated relationship —
the notary — may prove hard to find. In most jurisdictions, it is
neither impractical nor burdensome for party members to become
notaries so that they may verify the petitions that they circulate.
See Am. Party of Tex., 415 U.S. at 787. But Puerto Rico's
restriction of notarial status to licensed attorneys erects a high
barrier to entry and virtually ensures that the supply of notaries
-23-
will remain inelastic notwithstanding voters' attempts to mount
new-party registration drives.
Nor is this a purely theoretical difficulty. The
district court found that Puerto Rico has only 8,000 lawyer-
notaries, more or less. See Pérez Guzmán, 260 F. Supp. 2d at 391.
Hence, the ratio of notaries to voters is quite small, and common
sense suggests that there may be areas of the island where lawyers
(and, thus, notaries) are in short supply. Even in areas where
notaries are plentiful, someone must travel; either the voter must
visit the notary's office or the notary must take to the field.
Last — but far from least — someone must pay the
freight.7 The district court determined that the average cost for
notarizing a simple document signed at a lawyer's office is between
$15-$20; the cost if the lawyer travels to the site of the signing
escalates to $50-$60; those who would form a party by petition need
to collect a minimum of 100,000 signatures; and, accordingly, the
lawyer-notarization requirement adds at least $1,500,000 to the
cost of a successful petition drive. Id. at 391-92. The court
further found that this was "an unreasonably high price tag for an
7
To be sure, the Commonwealth pays notaries a dollar for each
notarized petition that the Commission accepts as valid, P.R. Laws
Ann. tit. 16, § 3101(3), and "sworn statements given on electoral
matters," including registration petitions, are exempt from the
usual tax, id. § 3028; Regulation for the Registration of Parties
by Petition, § 3.2 (Jan. 23, 2002). The fact of the matter,
however, is that these mild palliatives do not come close to
offsetting the high cost of notarization.
-24-
individual who is seeking to exercise his constitutional rights."
Id. at 392 (footnote omitted).
These findings are wholly supportable.8 Indeed, the
court's cost estimates may be conservative because, as a practical
matter, a group attempting to form a party by petition will need to
gather a surplus of signatures (as challenges likely will result in
a number of invalidations). The court's findings make manifest
that the task of registering a new political party is one of
daunting proportions. We hold, therefore, that the lawyer-
notarization requirement imposes a severe restriction on Pérez's
ability to register a new political party, and, in turn, on his
right to access the ballot.
The appellants' only direct rejoinder is to remind us
that the Puerto Rican Renewal Party (PRRP) managed to register for
the 1984 election as a party by petition. But no other party has
8
The appellants hypothesize that notaries may be willing to
verify petitions en masse at a flat fee, thus reducing overall
costs. The only evidentiary support for this hypothesis is the
testimony of a single attorney who acknowledged that he might be
willing to notarize up to 500 signatures per month — in his office
— for $1,000 per month. See Pérez Guzmán, 260 F. Supp. 2d at 392
n.23. But the suggestion was ringed with conditions, and the
prospect of a political proselytizer rounding up squads of voters
and persuading them to troop to a law office seems remote. At any
rate, the district court found that the cost of such an arrangement
would still be prohibitive and discounted its feasibility. See id.
The record offers no basis for setting aside these findings.
In much the same vein, it is not a satisfactory answer to say
that Pérez can recruit notaries who will volunteer their services.
His experience has been to the contrary, and the record contains no
evidence that attorneys routinely work for free or that fledgling
parties can consistently attract lawyers to their cause.
-25-
duplicated that feat in the quarter-century since section 3101(3)
was enacted, see CAP I, Off. Trans. at 9, so this is hardly an
indication that the lawyer-notarization requirement is a piece of
cake. Cf. Storer, 415 U.S. at 742 (noting evidentiary
significance of a showing that particular types of aspirants have
"qualified [for the general ballot] with some regularity"). The
PRRP example demonstrates, at most, that the lawyer-notarization
requirement is not insuperable — not that the requirement is less
than severe. It follows that such a showing does not foreclose
Pérez's suit. See, e.g., Anderson v. Celebrezze, 460 U.S. 780, 791
n.12 (1983) (explaining that the ability of a few individuals to
qualify as independent presidential candidates "d[id] not negate
the burden imposed" by the challenged regulation); cf. Am. Party of
Tex., 415 U.S. at 783 (explaining that what is demanded as a
condition to ballot access "may not be so excessive or impractical
as to be in reality a mere device to always, or almost always,
exclude parties with significant support from the ballot")
(emphasis supplied).
Apart from this glancing reference to the PRRP's success,
the appellants do not seriously dispute the severe impact of the
lawyer-notarization requirement. Instead, they attempt to confess
and avoid. Their effort tracks three main avenues.
First, the appellants propose that a reviewing court
should afford Puerto Rico wide latitude vis-à-vis the challenged
-26-
regulation because the Supreme Court, in American Party of Texas
and Jenness, upheld other notarization and petitioning requirements
as reasonable. This proposition overlooks the fact that both cases
were decided before the Supreme Court crystallized its current
standard of inquiry in cases such as Burdick, 504 U.S. at 434.
More important, it overlooks the salient differences that
distinguish those two cases from the case at bar. We explain
briefly.
Although the Court sanctioned a notarization requirement
in American Party of Texas, it gave no indication that Texas
limited notarial status to members of the bar. Moreover, the
relevant numerical threshold was one percent of the active
electorate — not five percent — and bulk notarization seems to have
been available. 415 U.S. at 775 n.6. The Georgia law at issue in
Jenness required signatures from five percent of the active
electorate but imposed no concomitant notarization requirement with
respect to individual voters' signatures. 403 U.S. at 439.
These differences make it clear that the appellants are
comparing plums to pomegranates: whereas American Party of Texas
dealt with a claim that a garden-variety notarization requirement
constituted a severe restriction and Jenness dealt with a claim
that a petitioning requirement constituted a severe restriction,
the case before us turns on the synergy among three discrete
factors: the five percent numerical requirement; the requirement
-27-
that each signature be individually notarized; and the restriction
of notarial practice in Puerto Rico to lawyers. It is this synergy
that places section 3101(3) beyond the pale, for it transforms the
dynamics of participation in the electoral process.
The appellants' second avenue for marginalizing the
severity of the imposed restriction involves drawing a distinction
between the act of seeking support from the voter (which anyone can
do at any time and place) and the act of authenticating the voter's
signature. The appellants argue that the lawyer-notarization
requirement comes into play only after the voter has agreed to
subscribe a petition and, thus, does not have First Amendment
implications. The requirement merely "regulate[s] the mechanics of
the electoral process," not "the communicative aspect of
petitioning." CAP II, Off. Trans. at 7.
This distinction is artificial. Petition circulators —
persons like Pérez — are free only in theory "to convey their
political message through whatever means they may deem convenient."
Id. The notarization requirement's looming presence forces the
circulator to structure his communications and choose his target
audiences with that requirement in mind. Pérez, like most persons,
is not a notary. In principle, he is free to go from door to door
soliciting support for the Party, but in practice his rate of
return will suffer because he cannot gather endorsing signatures on
the spot. The record makes clear not only that some voters who
-28-
would be willing to sign petitions are not willing to venture to a
law office but also that Pérez faces enormous difficulties in
persuading notaries to accompany him in search of prospects. Given
the reality of events, the lawyer-notarization requirement burdens
petitioning by causing the utility of a communication to vary with
its setting and with the qualifications of the circulator.
It would serve no useful purpose to dwell upon this line
of argument. The short of it is that a state cannot separate
petitioning into two steps, close off the second step to all but a
tiny professional class, and then ignore the effects of that
restriction. See Buckley, 525 U.S. at 194-95 (invalidating a
registration requirement that unduly "limi[ts] the number of voices
who will convey [the proponent's] message" (quoting Meyer v. Grant,
486 U.S. 414, 422-23 (1988)); Lerman v. Bd. of Elections in the
City of N.Y., 232 F.3d 135, 146 (2d Cir. 2000) (invalidating a
residency requirement for petition verifiers because it drastically
reduced the number of potential circulators); Krislov v. Rednour,
226 F.3d 851, 860 (7th Cir. 2000) (invalidating a requirement that
a circulator/certifier be registered to vote in particular
political subdivisions because it "preclude[s] the candidate from
utilizing a large class of potential solicitors to convey his
message"). Accordingly, the attempted distinction fails.
The appellants' third avenue relies upon a "causation"
argument which, if credited, would make it unnecessary for us to
-29-
reach the question of severity. Under this rubric, they note that
Pérez collected a total of fewer than 80 signatures (only 19 of
which were actually presented to the Commission). Based on this
"meager" effort, they fault the district court for failing to
address the issue of whether Pérez had made a diligent effort to
obtain the requisite number of petitions. In their view, the
absence of due diligence should bar any claim that the lawyer-
notarization requirement "caused" Pérez's inability to register the
Party.
The appellants derive this due diligence condition from
a misreading of Storer. In that case, the Supreme Court remanded
for further factfinding as to whether, "in the context of
California politics . . . a reasonably diligent independent
candidate [could] be expected to satisfy the signature
requirements" imposed by a state statute regulating the filing of
nomination papers by independent candidates. 415 U.S. at 742.
Contrary to the appellants' importunings, this language did not
portend that only those who demonstrate due diligence can mount a
First Amendment challenge to a ballot access requirement. The
Storer remand went to the burdensomeness of the challenged
regulation (i.e., its severity), not to causation. While a
particular plaintiff's "[p]ast experience" can have evidentiary
significance in an assessment of severity, id., a showing of
personal due diligence is not an element of a ballot access claim,
-30-
see, e.g., Norman, 502 U.S. at 293 (holding that a state may not
"require petitioners to gather twice as many signatures to field
candidates in [a multidistrict subdivision] as they would need
statewide" without inquiring whether petitioners had shown due
diligence in trying to satisfy the challenged requirement);
Anderson, 460 U.S. at 802-04 (discussing challenge without asking
whether the petitioner had shown due diligence in attempting to
meet Ohio's early filing deadline). Indeed, a rule such as that
espoused by the appellants would tend to inoculate even the most
blatantly unconstitutional electoral requirements from legitimate
attack.9
That ends this phase of our analysis. We conclude,
without serious question, that Puerto Rico's lawyer-notarization
requirement imposes a severe burden on Pérez's rights.
We turn next to the task of "identify[ing] and
evaluat[ing] the precise interests put forward by the State as
justifications for the burden imposed by its rule." Anderson, 460
U.S. at 789. In the course of that inquiry, we must determine the
9
We recognize that the Puerto Rico Supreme Court gave the
Party "an opportunity to show the steps it had taken with regard to
its registration process." CAP II, Off. Trans. at 2. In its own
statement of the ballot access doctrine, however, the court
recognized that the test of burdensomeness was "whether it would be
possible for a reasonably diligent candidate to satisfy the State's
requirements," not whether the Party had been reasonably diligent.
CAP I, Off. Trans. at 12. To the extent that the Puerto Rico
Supreme Court would treat due diligence as a prerequisite for
stating a ballot access claim, we respectfully disagree.
-31-
legitimacy and strength of each of those interests as well as the
extent to which they dictate burdening citizens' rights. Id.
We do not gainsay Puerto Rico's robust interest in
protecting the integrity of its election processes. See Timmons,
520 U.S. at 364; Am. Party of Tex., 415 U.S. at 782 n.14. This
includes an "important state interest in requiring some preliminary
showing of a significant modicum of support before printing the
name of a political organization's candidate on the ballot."
Jenness, 403 U.S. at 442. That interest is directly served by the
five percent petitioning requirement. See Lubin v. Panish, 415
U.S. 709, 718 (1974) (terming a signature requirement the "obvious"
means of testing a candidate's level of support). The conundrum
here involves an additional safeguard — the lawyer-notarization
requirement — and the interests it advances.
The appellants have identified only one such interest:
preventing election fraud. They assert that notarization is
necessary to "remed[y] a type of electoral fraud that the Puerto
Rico Legislature found to ha[ve] been pervasive." Appellants'
Reply Br. at 39. The Puerto Rico Supreme Court echoed this
sentiment. It declared that notarization "serves a compelling
state interest in guaranteeing the integrity of the electoral
process, given the history of electoral fraud and corruption
experienced in Puerto Rico." CAP I, Off. Trans. at 15. In this
-32-
regard, the court singled out "[t]he popular practice of
manipulating the voting lists." Id.
Even though we accept the legitimacy of this interest, we
must nonetheless mull the extent to which that interest renders it
necessary to burden Pérez's rights so severely. See Anderson, 460
U.S. at 789. The question of whether the lawyer-notarization
requirement is narrowly fashioned to advance the identified state
interest boils down to whether notarization by a lawyer is more
likely to reduce fraud by any or all of the participants in the
transaction than other available (less restrictive) alternatives.
We examine this question from a variety of perspectives.
As to the voter, the appellants contend that notarization
gives some meaningful assurance that voters' signatures are
authentic. "The [voter] takes oath to that fact and experience has
shown that many people take their oaths seriously." Libertarian
Party of Va. v. Davis, 591 F. Supp. 1561, 1564 (E.D. Va. 1984),
aff'd, 766 F.2d 865 (4th Cir. 1985). But this contention is
disingenuous, for it is the oath that guarantees honesty — not the
pedigree of the oath-giver. The appellants do not suggest that
people take oaths less seriously in jurisdictions where notaries
need not be lawyers or in jurisdictions where affirmations are
taken by non-notary witnesses. The idea that notarization by a
lawyer will significantly reduce voter fraud is utterly unsupported
by the record; there is nothing to show that a voter bent on
-33-
committing petition fraud will be less brazen in front of a lawyer-
notary than in front of some other type of witness.10
We turn next to petition circulators. The appellants
offer no developed argumentation to the effect that notarization by
a lawyer will discourage circulator fraud. We assume that this is
a concession. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990) (holding that points raised on appeal in a perfunctory
fashion, without developed argumentation, are conceded). In any
event, the district court effectively scotched any such notion,
observing that "[a] lawyer will notarize a signature merely by
verifying the signatory's identification," and that "[t]here is no
reason to believe that attorneys who happen to be notaries are
somehow more adept than non-lawyers at reading and verifying"
identification documents. Pérez Guzmán, 260 F. Supp. 2d at 393.
This leaves the notary himself. The Puerto Rico Supreme
Court suggested that the lawyer-notarization requirement "allows
for the imposition of sanctions for any illegal act committed by
the person before whom the petition is sworn to." CAP I, Off.
Trans. at 14 (citations and internal quotation marks omitted). But
this rationale does not itself distinguish the lawyer-notary from
any other person who may be authorized by the Commission to verify
10
The appellants have not argued that the formal incidents of
notarization, such as the application of the notarial seal or the
special status that notaries may enjoy under Puerto Rico law, carry
special weight with voters or otherwise influence voters' decisions
about whether to obey the law.
-34-
petitions. One need be neither a lawyer nor a notary to be fined
or imprisoned for participating in the preparation of fraudulent
documents. See, e.g., P.R. Laws Ann. tit. 33, § 4437 (2001).11
We recognize that "notarial practice is strictly
regulated" in Puerto Rico; that notaries are "the only officers
vested by the [Puerto Rico] Supreme Court with the authority to
guarantee . . . the authenticity of the documents executed before
them"; and that "[t]he intervention of a notary establishes a
presumption of veracity in all the documents authenticated by him
or her." CAP I, Off. Trans. at 15 (citation omitted). But without
some proof that lawyer-notarization is appreciably more effective
at preventing petition fraud than non-lawyer verification — and the
record contains none — all of this is beside the point. The fact
that a state's asserted interest in preventing electoral fraud is
important in the abstract does not create a presumption that its
chosen means of regulation will advance that interest. See Lerman,
232 F.3d at 149.
In a related vein, the appellants contend that the
lawyer-notarization requirement is necessary because a successful
11
We are aware that the Puerto Rico Supreme Court stated that
"penal statutes enacted to prevent electoral fraud have proved
ineffective." CAP I, Off. Trans. at 16 n.11 (citing P.S.P. v.
Romero Barceló, 110 D.P.R. 248 [10 P.R. Off. Trans. 315] (1980)).
However, the very decision the court cites upheld a contested
provision in part because "the mechanisms provided by law to avoid
fraud in the coming election" were sufficient to allay fears that
the election might be vitiated by fraudulent votes. 10 P.R. Off.
Trans. at 329-30.
-35-
petition effort stands to reap a munificent harvest for the Party
— at least $600,000 from the Electoral Fund in an election year,
$300,000 in a non-election year, and "insider" status for the next
four years. See CAP I, Off. Trans. at 9 (noting that "registered
parties . . . share in the Electoral Fund"); CAP II, Off. Trans. at
9 (explaining that registration also allows a party to "become a
part of the government body that governs the electoral process, as
a result of which it acquires quasi-public functions"). These
facts simply reinforce a proposition to which we already have
subscribed, namely, that the state has a compelling interest in
preventing the fraudulent registration of political parties.
Access to special privileges says nothing about the effectiveness
of lawyer-notarization as a means of advancing that interest.
In considering whether a ballot access requirement is
narrowly drawn to advance the state's interest in preventing fraud,
the mechanisms that the state already has in place serve as
benchmarks. Norman, 502 U.S. at 294. We think it noteworthy,
therefore, that the Commission routinely allows the use of ad hoc
notaries for a wide variety of analogous purposes, e.g., "for a
person registering to vote, a voter changing his electoral address,
petitioners seeking to have an independent candidate placed on the
ballot, and petitions nominating candidates for primaries." Pérez
-36-
Guzmán, 260 F. Supp. 2d at 391.12 In addition, ad hoc notaries were
authorized for use in the 1998 commonwealth-wide status plebiscite.
See CAP I, Off. Trans. at 9. The record contains not one hint of
election fraud or administrative error committed by, or under the
auspices of, ad hoc notaries. Absent some evidence that the use of
ad hoc notaries correlates with a higher incidence of corruption or
unreliability, we cannot accept the Commission's ipse dixit that it
needs to insist on the use of lawyer-notaries in the new-party
petition context. See Werme, 84 F.3d at 485 (explaining that "mere
suspicion or paranoia is too flimsy a foundation on which to rest
a claim of incipient fraud or mistake").
Referring back to a political party's access to the
Electoral Fund and its opportunity to participate as an "insider"
in the electoral system for a four-year period, the appellants
posit that registration as a political party entails higher stakes
than other matters (and, hence, that the use of ad hoc notaries in
that context would be especially risky). By this logic, parties by
petition are not situated similarly to independent candidates,
candidates for major party primaries, or even groups participating
in the plebiscite process. We think that this vastly overstates
12
According to the Secretary of the Commission, candidates or
groups that wish to use ad hoc notaries must give the Commission a
list of functionaries who are willing to act in that capacity.
These functionaries need not be lawyers; any bona fide voter may so
serve. The Commission then appoints ad hoc notaries from these
lists.
-37-
the matter; it is not obvious to us that, say, the status
plebiscite was less important to the future of Puerto Rico than the
registration of a new political party. We need not pursue this
point, however, because the appellants have not shown that,
compared with verification by ad hoc notaries, lawyer-notarization
is superior in detecting and deterring petition fraud.
We add, moreover, that the use of ad hoc notaries is not
the only feasible safeguard available to the Commission (indeed,
the record strongly suggests that notarization may not even be the
best means currently employed by the Commission). The Commission
checks every petition to ensure that the signature is valid. Pérez
Guzmán, 260 F. Supp. 2d at 390. It is in the process of
computerizing its voter registration records to include each
registered voter's signature. This project is slated for
completion later this year, and its completion will enhance the
Commission's ability to verify petitions. To accomplish these
tasks, the Commission has at its disposal a cadre of people not
affiliated with any political party. These nonpartisan workers
comprise the so-called Validations Unit, a unit that has the
assignment of checking petitions one by one against the
Commission's records. The Secretary of the Commission, in answer
to a query from the district court, testified that "it would not be
-38-
difficult for the Commission to check [new-party] petitions . . .
against [its] records."13
In this specialized electoral context, the Commission's
in-house verification procedure compares favorably with lawyer-
notarization. As the district court found, a lawyer-notary usually
verifies a signature by checking a driver's license, a passport, or
some other identification document. Pérez Guzmán, 260 F. Supp. 2d
at 391. There is no indication that notaries compare signatures to
those appearing on voting records or take steps to ensure that
affiants are registered voters. The Commission, it appears, is
better positioned than a notary to detect the species of fraud that
purportedly justifies the lawyer-notarization requirement. See CAP
I, Off. Trans. at 15 (offering as a justification the need to
ferret out the "popular practice of manipulating the voting
lists").
Let us be perfectly clear. A state is entitled to take
a "belt-and-suspenders" approach and put in place multiple
mechanisms for ensuring the integrity of its electoral processes.
Here, however, the record fails to show that lawyer-notarization
adds anything over and above other readily available means of
verification. Based in part on the absence of evidence that
13
This may represent a changed circumstance. During the
currency of the Party's case, the commonwealth courts found that
the Commission "d[id] not have enough officers to examine the
legitimacy of the new parties' endorsement collection process."
CAP I, Off. Trans. at 15.
-39-
lawyer-notarization reduces electoral fraud and in part on the
array of less restrictive alternatives available to the state
(including the feasibility of using non-lawyers as ad hoc notaries
and the Commission's apparent ability to verify every petition in-
house), we find the lawyer-notarization requirement broader than
necessary to serve the state's asserted interest. Consequently,
the requirement embodied in section 3101(3) cannot survive a First
Amendment challenge. See Norman, 502 U.S. at 293-94; Krislov, 226
F.3d at 866; Cruz, 204 F.3d at 22.
IV. CONCLUSION
We need go no further. For the foregoing reasons, we
hold (1) that res judicata does not bar the maintenance of the
instant action, and (2) that the lawyer-notarization requirement is
not narrowly drawn to advance a compelling state interest (and,
thus, cannot withstand First Amendment scrutiny). We are mindful
that our constitutional conclusion differs from that of the Puerto
Rico Supreme Court, and we do not lightly part company with so
distinguished a tribunal. But it is our responsibility to
interpret and apply the Constitution of the United States, and it
would be a dereliction of that duty to defer to the views of any
state court.
The judgment of the district court is affirmed and the
stay previously issued is dissolved.
-40-
Perez-Guzman v. Commonwealth of PR
Court: Court of Appeals for the First Circuit
Date filed: 2003-10-09
Citations: 346 F.3d 229
Copy CitationsCombined Opinion