          United States Court of Appeals
                      For the First Circuit

No. 12-1243

               IVÁN GONZÁLEZ-CANCEL; JOSÉ BARBOSA,

                     Plaintiffs, Appellants,

                                v.

   PARTIDO NUEVO PROGRESISTA; COMISIÓN ESTATAL DA ELECCIONES,

                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jay A. García-Gregory, U.S. District Judge]



                              Before

                       Lynch, Chief Judge,
              Lipez and Thompson, Circuit Judges.



     Rubén T. Nigaglioni, with whom Nigaglioni Law Offices P.S.C.
was on brief, for appellants.
     David C. Indiano, with whom Seth A. Erbe and Indiano &
Williams, P.S.C. were on brief, for appellee Partido Nuevo
Progresista.
     José L. Nieto-Mingo, with whom Nieto Law Offices was on brief,
for appellee Comisión Estatal de Elecciones.




                         October 2, 2012
                 THOMPSON, Circuit Judge. Appellant Iván González-Cancel

aspired to run for Governor of Puerto Rico as Partido Nuevo

Progresista's ("PNP") candidate in the 2012 general election.                 But

when he applied for the job, PNP said he was not qualified.

Unhappy with PNP's decision, he and José Barbosa, a supporter of

González-Cancel's candidacy, sued PNP and Puerto Rico's Elections

Commission, the Comisión Estatal de Elecciones ("the Elections

Commission") in federal court, alleging that the decision violated

their constitutional rights.            Because we agree with the district

court's dismissal of the complaint, we affirm.

                                  BACKGROUND

                 We begin with a brief recitation of the facts.         Because

the case is before us on a grant of a motion to dismiss, we take as

true       all   well-pleaded   facts    in   the   complaint   and    draw   all

reasonable inferences therefrom in appellants' favor.                 Fothergill

v. United States, 566 F.3d 248, 251 (1st Cir. 2009).

                             The Statutory Scheme

                 The Electoral Code of Puerto Rico for the Twenty-First

Century, Act No. 78, June 1, 2011 ("the Electoral Code"), regulates

Puerto Rico's election system.1           Pursuant to the Electoral Code,

each political party determines whether a person is qualified to

run for elected office as its candidate, unless he or she runs as



       1
      Since the Electoral Code has yet to be codified, we, like the
parties, refer to the relevant articles of the code as "Art. __".

                                        -2-
an independent candidate.              Art. 8.001(a).       A person wishing to

represent a particular political party in elected office must

satisfy not only the requirements set forth by the party itself,

but also those of the Elections Commission.                     Art. 8.001(b).2

Political parties may disqualify a potential candidate if he or she

fails to meet any of these requirements.              Art. 8.008.

               PNP is one of the two main political parties in Puerto

Rico.    Articles 79 and 4(26) of PNP's bylaws require a potential

candidate      to   meet    all   of   the   requirements    set   forth    in   the

Electoral Code.       Article 79 further provides that a person is not

qualified to be a PNP candidate if he or she fails to satisfy all

of the requirements set forth in the "Primaries Regulation of the

Party    and    the   Candidate's       Evaluation    Regulation,"      "has     been

convicted of a felony or misdemeanor implicating moral depravation

or dishonesty," or has "engage[d] in activities" that are immoral

or unlawful.

               PNP vets potential candidates through its Committee for

the Evaluation of Candidates for Public Office ("the Evaluation

Committee").          The    Evaluation        Committee,    composed      of    five

individuals appointed by PNP's president, determines whether a

candidate is qualified for the position he or she seeks under the

criteria set forth in PNP's bylaws and the Electoral Code.


     2
      For example, potential candidates seeking to represent any
political   party   must   submit   certain   documentation  and
certifications to the Elections Commission. Id.

                                         -3-
             González-Cancel Attempts to Run for Governor

           On October 1, 2011, González-Cancel, a physician and

member of PNP, applied to be PNP's candidate in Puerto Rico's 2012

gubernatorial election.           The Evaluation Committee reviewed his

application and supporting materials, interviewed him and those

with whom he worked closely, and allowed him to submit supplemental

information.       At the end of October, the Evaluation Committee

decided that he was not qualified to run for Governor as PNP's

candidate.    Relying on Articles 79 and 4(26) as the basis for its

decision, the Evaluation Committee pointed to (among other things)

discrepancies      in   certain    submitted   financial   information   and

complaints of sexual harassment against him that had aired publicly

in addition to "certain excesses of Dr. González Cancel in his

behavior with nurses and other co-workers, even in the Operating

Room itself."      The Electoral Code requires that a political party

need only hold a primary for an elected position if two or more

qualified candidates are interested in the position.           Art. 8.005.

By disqualifying González-Cancel, the Evaluation Committee had

determined that its President and (then) incumbent Governor of

Puerto Rico, Luis Fortuño, was the only qualified PNP gubernatorial

candidate, thereby obviating the need to hold a primary election.

           In accordance with PNP's bylaws, González-Cancel timely

appealed     the    Evaluation     Committee's    decision   to   the    PNP




                                      -4-
Directorate, PNP's final decision-making body.        His appeal was

denied.

                     González-Cancel Files Suit

          Article 8.007(i) of the Electoral Code provides a person

in González-Cancel's position the right to challenge a political

party's disqualification decision by appealing to the superior

court of Puerto Rico (the Court of First Instance) within five

business days after the party's final decision.    Consistent with

this provision, González-Cancel sought further review of PNP's

decision in superior court on the same day the PNP Directorate

denied his appeal.   But he also took another step.    That very day

he, together with Barbosa, also brought a 42 U.S.C. § 1983 action

in federal court.    The heart of their federal complaint is that

PNP's disqualification decision was arbitrary and erroneous because

he (González-Cancel) met all of the requirements under PNP's bylaws

and Puerto Rico law to be its potential candidate for Governor (or

so they allege).     And, they add, PNP's decision violated their

rights under the First, Fifth and Fourteenth Amendments to the

Constitution -- namely, their right to associate with a political

party, to participate in the nomination of their party's candidates

for elected office, to vote in primaries and general elections, to

appear on primary and general election ballots, and not to be

excluded or disqualified from participating in their chosen party's

electoral processes for discriminatory reasons.


                                -5-
          On November 29, 2011, appellants moved in federal court

for Pullman abstention, asserting that state law imposed a choice

of forum to determine controversies arising under Puerto Rico law

and that, as a result, the federal court lacked jurisdiction over

their claims.3   In their motion, appellants further contended that

if the superior court resolved the state law issues, the federal

constitutional claims alleged in the complaint would become moot.

          Then, appellants changed their position.    They quickly

moved to withdraw their abstention motion on the grounds that

González-Cancel's case was no longer pending in superior court.

González-Cancel had voluntarily dismissed that case after PNP

requested that the Puerto Rico Supreme Court hear it through a

certification petition.   Oddly enough, appellants argued that the

only means of redress was now in federal court since their five-day

window to re-file their appeal in superior court had closed.

          PNP and the Elections Commission subsequently moved to

dismiss the complaint for lack of subject matter jurisdiction and

for failure to state a claim upon which relief may be granted.   See



     3
      Pullman abstention, conceived by the Supreme Court in
Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 499-502
(1941), "is warranted where (1) substantial uncertainty exists over
the meaning of the state law in question, and (2) settling the
question of state law will or may well obviate the need to resolve
a significant federal constitutional question."       Batterman v.
Leahy, 544 F.3d 370, 373 (1st Cir. 2008).        Given our ruling
discussed infra, we need not reach whether Pullman abstention
supported the district court's grant of appellees' motion to
dismiss.

                                -6-
Fed. R. Civ. P. 12(b)(1); Fed. R. Civ. P. 12(b)(6).   The district

court concluded that it lacked jurisdiction over appellants' claims

because they did not fall within one of the few narrow exceptions

required for a federal court's intervention in state or local

electoral disputes.   This appeal followed.

                        STANDARD OF REVIEW

          We review the grant of a motion to dismiss for lack of

jurisdiction de novo. Fothergill, 566 F.3d at 251.      We are not

bound by the lower court's rationale, but may affirm the grant of

dismissal on any ground supported by the record. InterGen N.V. v.

Grina, 344 F.3d 134, 141 (1st Cir. 2003).

                            DISCUSSION

          Appellants' main contention is that the district court

erred in dismissing their complaint for lack of jurisdiction.   It

goes without saying that federal courts are courts of limited

subject matter jurisdiction and must have explicit authority to

decide a case.   Bonas v. Town of North Smithfield, 265 F.3d 69, 73

(1st Cir. 2001). "Thus, we subject the plaintiffs' choice of a

federal forum to careful scrutiny."   Id.

          The jurisdictional statute, 28 U.S.C. § 1343(3), provides

that "district courts shall have original jurisdiction of any civil

action . . . [t]o redress the deprivation, under color of State

law, statute, . . . custom or usage, of any right, privilege or

immunity secured by the Constitution of the United States by any


                                -7-
Act of Congress providing for equal rights of citizens . . . ."

Because    this    statute     mirrors    the     text     of   §   1983,    federal

jurisdiction will attach if a plaintiff has alleged a colorable

claim under § 1983.       Rosselló-González v. Calderon-Serra, 398 F.3d

1, 15 (1st Cir. 2004); Griffin v. Burns, 570 F.2d 1065, 1077 (1st

Cir. 1978).

            However, we do not reach whether the complaint alleges a

colorable § 1983 claim.          That is because the exercise of federal

jurisdiction      over   local   election       disputes    requires    a    further

inquiry, arising from the principle of non-intervention.                       Since

appellants' claim involves a local election dispute, we must

determine whether federal intervention is appropriate.                      State or

local election law matters are "for the most part a preserve that

lie[] within the exclusive competence of the state courts." Bonas,

265 F.3d at 74.       And we have repeatedly held that federal courts

must not intervene unless one of the few narrow and well-defined

exceptions applies to justify intervention. Rosselló-González, 398

F.3d at 16 (applying rule of non-intervention to an election

dispute in Puerto Rico); Bonas, 265 F.3d at 74; Griffin, 570 F.2d

at 1077.

            One    exception     allows        federal   intervention       where   a

discrete group of voters are denied equal protection.                   Bonas, 265

F.3d at 74.       Appellants assert no equal protection claim and the

record does not suggest one.             Another exception applies where a


                                         -8-
denial of substantive due process occurs; that is, where "the

election process reaches the point of patent and fundamental

unfairness." Id. Distinguishing regular electoral disputes (which

do not warrant federal involvement) from those that work patent and

fundamental   unfairness   (which      make   federal    intervention

appropriate) is often difficult.      The cases that easily fit into

the latter category are those involving complete disenfranchisement

of voters.    See, e.g., Griffin, 570 F.2d at 1078-79 (federal

intervention appropriate where absentee and shut-in voters were

denied their right to have their votes counted in a primary

election for a city council seat); Bonas, 265 F.3d at 75-76

(federal intervention warranted where a municipality's decision not

to hold a municipal election effectively disenfranchised all voters

eligible to vote that year).   For other cases, "there is guidance

enough" in the idea "that due process is implicated where the

entire   election   process"   --     which   includes   a   "state's

administrative and judicial corrective process" -- "fails on its

face to afford fundamental fairness."    Griffin, 570 F.2d at 1078.

This means that, as part of our due-process analysis, we must

consider "whether there was a state process in place to handle the

question posed by the plaintiffs, and whether the plaintiffs had

availed themselves of that state process."    Rosselló-González, 398

F.3d at 16; accord Bonas, 265 F.3d at 75.




                                -9-
             Here, González-Cancel initiated a state court process in

place for resolving this very dispute, but decided to abandon it.

The Electoral Code provided González-Cancel the right to appeal

PNP's decision -- and he did so, filing his action in Puerto Rico

superior court.4    But he never gave any state court the opportunity

to evaluate his challenges to PNP's decision since he voluntarily

dismissed the case after PNP requested that the Puerto Rico Supreme

Court hear the parties' dispute through a certification petition.

             Appellants attempt to explain this away, stating that

González-Cancel would not have been able to present evidence or

develop a full record before the Puerto Rico Supreme Court.      But

their explanation is as perplexing as it is meritless.    At the time

González-Cancel dismissed his case in superior court, the Puerto

Rico Supreme Court had not yet decided whether to grant PNP's

petition for certification.     And even if the Puerto Rico Supreme

Court decided to hear the case (which appellants agree it had the

authority to do), appellants concede that it could have remanded

the case to the superior court for fact finding or appointed a

special master for similar purposes, thereby alleviating their

concerns.5    Where, as here, a plaintiff is aware of, yet fails to


     4
      The same day, he filed this case in federal court and, in
moving for Pullman abstention, acknowledged that if the local
courts ruled in González-Cancel's favor, the federal claims would
be moot.
     5
      See P.R. Laws Ann. tit. 32, App. III, Rule 41.2 ("The Supreme
Court may refer a matter to a master in any case or proceeding.");

                                 -10-
fully use, an adequate state administrative or judicial process to

address a local election dispute, a claim that the election process

created fundamental unfairness to warrant federal intervention

cannot survive.   See Rosselló-González, 398 F.3d at 16; Griffin,

570 F.2d at 1077 (noting that "even claims of official misconduct[]

do not usually rise to the level of constitutional violations where

adequate state corrective procedures exist").6

          Appellants   press   yet     another   argument   as   to   why

fundamental unfairness abounds here:       Fortuño had appointed the

Evaluation Committee members who, as his allies, disqualified

González-Cancel to ensure Fortuño faced no primary challenger in

running for Governor as PNP's candidate.         Be that as it may, it

does not change our conclusion.      Appellants had the opportunity to

raise this concern in state court, but they chose not to.

Accordingly, we see no fundamental unfairness.




id., Rule 41.3 ("The order of reference . . . may direct [the
master] . . . to receive and report evidence," and "he may require
the production before him of evidence," plus "rule upon the
admissibility of evidence unless otherwise directed by the order of
reference, and shall have the authority to put witnesses on oath
and may himself examine them and may call the parties to the action
and examine them upon oath.").
     6
      Appellants do not argue that the requirement, as set forth by
the Electoral Code, that they file suit in Puerto Rico superior
court for resolving such disputes is an inadequate or unfair means
of redress.

                                -11-
                           CONCLUSION

          For all these reasons, we affirm the district court's

decision not to intervene in the election dispute.




                              -12-
