Perez-Guzman v. Commonwealth of PR

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-