IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO MYRNA COLON MARRERO Plaintiff v.

HECTOR CONTY PEREZ, et als : CIVIL NO. 12-1749 (CCC) : FIRST AMENDMENT : DUE PROCESS : EQUAL PROTECTION :

Defendants ____________________________________ : MOTION REQUESTING LEAVE TO INTERVENE PURUANT TO F.R.C.P 24(A)(2) TO THE HONORABLE COURT: COMES NOW John E. Mudd, pro se and very respectfully states, alleges and prays: I. INTRODUCTION 1. On Sunday, November 4, 2012, the Court issued an order requiring the Puerto Rico State Election Commission to allow all inactivated voters, I-8, from the 2008 election, to vote in the added-by-hand polling station following the established procedures for these voters. As the order does not specify that these voters are to vote only for the position of Resident Commissioner, it is clear that it would include voting for all Commonwealth electoral positions. Also, the order states at page 6,that the adjudication of said ballots shall be postponed to allow for this Courts resolution of the merits of the I-8 voters constitutional challenges now pending before it. 2. Intervenor, as a registered voter, has an interest that the elections be conducted in this Commonwealth in clean, transparent and prompt fashion. The District Courts order of November 4, 2012 will severely disrupt said elections, is contrary to its own

determination on the injunction, is contrary to the Circuit Courts denial of a preliminary injunction and is contrary to the Federal Courts longstanding policy of not interfering with local elections and should be set aside by the Panel. Hence, he files this motion
requesting leave to intervene, or in its defect, to inform the Court of his concerns. With that in mind, petitioner proceeds to argue why his petition is justified. II. THE STANDARD FOR INTERVENTION PURSUANT TO F.R.C.P. 24(A)(2) 3. F.R.C.P. 24(a)(2) states as follows:

(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who: ... (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.
4. A person seeking intervention must show (1) that the intervention is timely

made; (2) it has an interest in the property or transaction involved in the suit; (3) the disposition of the action threatens to create a practical impediment and (4) no existing party adequately represents its interests. See, B. Fernndez & Hermanos, Inc., v. Kellog U.S.A., Inc., 440 F.3d 541, 544-45 (1st Cir. 2006) and Pub. Serv. Co. of N.H. v. Patch, 136 F.3d. 197, 204 (1st Cir. 1998). 5. A presumption exists, however, in those cases where the intervener would be

a defendant and the Government is also the defendant, against the lack of an existing party to adequately represent the formers interests. This presumption, however, is rebuttable. Presumption means no more in this context than calling for an adequate explanation as to why what is assumed-here, adequate representation-is not so. . . The facts of these cases vary greatly and whatever the proposed interveners explanation of inadequacy suffices must be determined in keeping with a commonsense view of the

overall litigation. Maine v. Director, U.S. Wildlife Fish and Wildlife Service, 262 F.3d 13, 19 (1st Cir. 2001) and Pub. Serv. Co. of N.H. v. Patch, ante.

III. APLICATION OF THE FACTS TO THE LAW 6. As stated before, plaintiff seeks not only her reinstatement as voter but the reinstatement of purportedly 330,902 voters to the eligible election lists. Moreover, the Honorable Courts order reinstates all these voters to the polls two days before the election, without providing any guarantees of the purity of the process found so important by Mr. Conty and Mr. Acevedo, both whom testified before this Court. 7. Also, the Court must remember on November 6 is not only the date for the general elections but a historical opportunity for puertorricans to take a stand on their status preferences and maybe once and for all end the over 500 years of the islands colonial status. It must be remembered that the results of this Plebiscite, if contrary to the current colonial status, will be presented to the President or Congress by the winning formulas. An election or plebiscite results suspected of fraud are not the proper basis of a republican form of government nor can it have any persuasive weight in Congress. Hence, plaintiffs suit threatens petitioners right to a fair election and plebiscite. 8. Petitioner will not only defend his interest but will also provide the Court with a citizens view regarding the issues at hand. None of the parties currently included in this suit can adequately inform the Court as to his constitutional interests. Hence, the interests of the SEC and intervenors rights are not necessarily aligned and he is the only one capable of defending his own rights and presenting the grave implications of plaintiffs request and the untenability of her position. It must be remembered that the pervasive interest of both NVRA and HAVA is to protect a citizens right to vote, which obviously includes both casting his vote and that the election be fair and devoid of fraud. 3

V. CONCLUSION 9. Due to the foregoing, intervenor respectfully requests that his petition for intervention be granted. WHEREFORE, intervenor respectfully requests from the Honorable Court that his petition for intervention be granted. CERTIFY: That on this same date, a true and exact copy of this document will be sent through the ECF system. Respectfully submitted on this 4th of November, 2012. /s John E. Mudd John E. Mudd USDCPR: 201102 Attorney for Plaintiffs LAW OFFICES JOHN E. MUDD P. O. BOX 194134 SAN JUAN, P.R. 00919 (787)413-1673 Fax. (787)753-2202 email jemudd@yahoo.com

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO MYRNA COLON MARRERO Plaintiff v. HECTOR CONTY PEREZ, et als : CIVIL NO. 12-1749 (CCC) : FIRST AMENDMENT : DUE PROCESS : EQUAL PROTECTION :

Defendants ____________________________________ : MOTION FOR RECONSIDERATION OF ORDER TO THE HONORABLE COURT: COMES NOW John E. Mudd, pro se and very respectfully states, alleges and prays: I. INTRODUCTION 1. On Sunday, November 4, 2012, the Court issued an order requiring the Puerto Rico State Election Commission to allow all inactivated voters, I-8, from the 2008 election, to vote in the added-by-hand polling station following the established procedures for these voters. As the order does not specify that these voters are to vote only for the position of Resident Commissioner, it is clear that it would include voting for all Commonwealth electoral positions. Also, the order states at page 6, that the adjudication of said ballots shall be postponed to allow for this Courts resolution of the merits of the I-8 voters constitutional challenges now pending before it. 2. Intervenor, as a registered voter, has an interest that the elections be conducted in this Commonwealth in clean, transparent and prompt fashion. The District Courts order of November 4, 2012 will severely disrupt said elections, is contrary to its own determination on the injunction, is contrary to the Circuit Courts denial of a preliminary

injunction and is contrary to the Federal Courts longstanding policy of not interfering with local elections and should be set aside by the panel, as discussed infra. I. THE LEGAL STANDARD OF RECONSIDERATION 3. There is no specific Federal Rule dealing with reconsideration. In Vega v. Hernndez, 381 F.Supp.2d 31, 35-36 (D.P.R. 2005), the Court stated that the Federal Rules of Civil Procedure do not specifically provide for the filing of motions for reconsideration of interlocutory orders. Notwithstanding this, the district court has "plenary authority" to reconsider its own rulings if it believes it has erred, and to grant a motion it had previously denied. El Fenix de Puerto Rico v. The M/Y Johanny, 36 F.3d 136, 140 n.2 (1st Cir. 1994) and Denovelis v. Shalala, 135 F.3d 58, 70 (1st Cir. 1998). II. THE DISTRICT COURTS ORDER IS CONTRARY TO THE PANELS OPINION 4. This Court denied plaintiffs preliminary injunction saying that (1) it was not convinced it would prevail on the merits and (2) that it did not have the requisite irreparable harm for its damages, i.e., not being able to vote in the general election, was self-inflicted. After the Circuit Court ordered a hearing to determine the other two factors in the preliminary injunction paradigm, this Court made many factual determinations, including one that [a]s stated before, the Acevedo proposal will only be feasible if acted upon by this Friday, October 19, 2012.1 5. After receiving the Certified Findings, the Circuit Court denied the preliminary injunction stating, inter alia, that the National Voter Registration Act of 1993 (NAVRA) did not apply to Puerto Rico, that the Help America Vote Act of 2002 did apply to Puerto Rico, that plaintiff had made the requisite showing of probability of prevailing in her 1 Page 14 of Findings Certified to the Court of Appeals. 2

HAVA claim, BUT, the determination of whether HAVA required that she vote in the general elections was an open and difficult question2. In addition, the Circuit Court was concerned with crafting a recusal procedure could very well be beyond the Courts power and it we would be ill equipped to do so in the short time remaining before the election.3 6. Both District and Circuit Courts denied plaintiffs request for a preliminary injunction. This Court, however, in its November 4 order, just two days before the election, reversed both itself and the Circuit by granting plaintiff more than she actually sought in her original claim, i.e., for all I-8 voters to vote on November 6. In addition, although Mr. Acevedo, upon which this Court based her findings of the added-by-hand polling stations and procedure, made it clear that (1) this had to be done by October 19 and (2) that a recusal procedure had to be enacted because Puerto Ricos law did not allow for recusals for domicile on the day of the election. This Court, however, failed to take the limited time available in consideration and far worse, did not devise a recusal procedure. This is of great importance because if the ultimate finding in this case is that all I-8 voters had a right to vote in the general election, this would mean voting for district senators, district members of the House and mayors, all of which are determined by place of residency. As Mr. Conty stated, and Mr. Acevedo agreed, the possibility of these elections being decided by residents of different districts must be addressed but here it is not. Moreover, if there is no way of recusing votes on election-day, when will

they be recused? What law will apply to this, federal or state law? The conflicts continue 2 See page 9 of this Courts opinion. 3 See page 11 of this Courts opinion. 3

to multiply. 7. Moreover, the Circuit Court wisely decided not to grant the injunction due to the closeness to the election and the un-surmountable problems it would bring. This Court, however, has in effect granted said injunction putting in jeopardy local elections. If this Courts order is not suspended, on November 6, 330,902 additional potential voters will be allowed to vote. If, as Mr. Acevedo opined, only 40% of them vote, this would mean 132,361 votes. If only 10% voted, this would mean 33,090 votes. The Court may take judicial notice that elections in Puerto Rico have been decided by far less votes. Hence, if this Court were to determine that those ballots are to be counted and given that there will be a hearing on December 1, 2012, and an appeal on whatever decision entered, what certainty have Puerto Ricos voters of knowing their elected officials by January 2, 2013, the date of the inauguration of the new governor, etc.? The whole electoral process of the island of Puerto Rico will have been taken over by the Federal Court system, something that is contrary to our federalism. In addition, the Ninth Circuit held in Crowley v. Nevada, 678 F.3d 730, 732 (1st Cir. 2012) that HAVA does not apply to local elections. 8. Hence, given that the District Courts order is contrary to this Courts decision on denying the preliminary injunction and violates the law of the case doctrine, it should be reversed. See, Pepper v. United States, 131 S. Ct. 1229, 1250-51 (2011). III. HAVA DOES NOT PROVIDE A CAUSE OF ACTION AND PURSUANTO TO SECTION 1983 FEDERAL COURTS SHOULD REFRAIN FROM INTERVENING IN LOCAL ELECTION DISPUTES

9. It is pellucid that HAVA does not provide a cause of action, see, Sandusky

County Democratic Party v. Blackwell, 387 F.3d 565, 572 (6th Cir.2004); Taylor v. Onorato, 428 F.Supp.2d 384, 386 (W.D.Pa.2006) and Florida Democratic Party v. Hood, 342 F.Supp.2d 1073, 1077 (N.D.Fla.2004). Those seeking to enforce it have recurred to 42 U.S.C. 1983. Any attempt to do so, however, requires a thorough analysis via Gonzaga University v. Doe, 536 U.S. 273, 287-90 (2002). The Court must analyze whether the provision contains a right creating language, whether the provision has an aggregate rather than an individualized focus and whether there are other sorts of enforcement provisions provided by Congress, see also, Ro Grande Community Health Center, Inc. v. Rullan, 397 F.3d 56, 73 (1st Cir. 2005); Long Term Care Pharmacy Alliance v. Ferguson, 362 F.3d 50, 57 (1st Cir. 2004); Sabre v. Richman, 367 F.3d 180, 187 (3d Cir. 2004) and Sanchez v. Johnson, 416 F.3d 1051, 1057 (9th Cir. 2005). 10. The Court in Taylor v. Oronato, 428 F.Supp.2d 384, 386-87 (W.D. Penn. 2006) analyzed HAVA and determined that it did not provide a federal right redeemable pursuant to 42 U.S.C. 1983. It also made is clear that pursuant to sections 301, 302 and 303 of HAVA, the United States Attorney General was the party with the right to enforce said law. See also the Attorney Generals position concerning said enforcement at http://www.justice.gov/crt/about/vot/hava/hava.php. Hence, this Court in reality has no authority to require what it is requiring from the State Elections Commission. 11. Moreover, as plaintiff has informed the Appellate Court, the Puerto Rico Supreme Court has issued an opinion on the voting rights of these I-8 voters. This Courts order has caused a frontal clash between state and federal authorities, which strains our federalism. In Rosell-Gonzlez v. Caldern-Sierra, 398 F.3d 1, 15-18 (1st Cir. 2005) reiterated the Circuits precedent in Bonas v. Town of North Smithfield, 265 F.3d 69, 74

(1st Cir.2001), that election law as it pertains to state and local elections is the exclusive competence of state courts. See also, Gonzlez-Cancel v. Partido Nuevo Progesista, 2012 WL 4494967 (1st Cir. October 2, 2012). The Courts order federalizes the Puerto Rico electoral system, will postpone the start of the new government in January, potentially have non residents of certain districts elect its officials and violates the sacrosanct tenant of one person, one vote. 12. Our federalism is of paramount importance. As the Supreme Court stated in Younger v. Harris, 401 U.S. 37, 44-45 (1971): This, perhaps for lack of a better and clearer way to describe it, is referred to by many as "Our Federalism," and one familiar with the profound debates that ushered our Federal Constitution into existence is bound to respect those who remain loyal to the ideals and dreams of "Our Federalism." The concept does not mean blind deference to "States' Rights" any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. It should never be forgotten that this slogan, "Our Federalism," born in the early struggling days of our Union of States, occupies a highly important place in our Nation's history and its future. 13. As stated above, the District Courts order cannot be based on section 1983 since HAVA does not confer a cause of action. Hence, this Courts order is contrary to our federalism and must be reconsidered. WHEREFORE, Intervener respectfully requests from the Honorable Court that it reconsider its November 4, 2012 order.

CERTIFY: That on this same date, a true and exact copy of this document will be sent to through the ECF system to all parties Respectfully submitted on this 4th of November, 2012. /s John E. Mudd John E. Mudd USDCPR: 201102 Attorney for Plaintiffs LAW OFFICES JOHN E. MUDD P. O. BOX 194134 SAN JUAN, P.R. 00919 (787)413-1673 Fax. (787)753-2202 email jemudd@yahoo.com