District Court finds that Puerto Rico has the right to vote in Presidential Elections
Ruling conflicts with 1994 First Circuit Court of Appeals ruling
Tuesday, October 10, 2000
Ruling of August 29, 2000 by Judge Pieras
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
GREGORIO IGARTUA DE LA ROSA, et al.
Civil Case No. 00-1421 (JP)
Pursuant to the Final Opinion and Order entered on this same date, the court hereby:
a.) FINDS that the United States citizens residing in Puerto Rico have the right to vote in Presidential elections and that its electoral votes must be counted in Congress;
b.) FINDS that the Government of Puerto Rico has the obligation to organize the means by which the United States citizens residing in Puerto Rico will vote in the upcoming and subsequent Presidential elections and to provide for the appointment of presidential electors and ORDERS the Government of Puerto Rico to act with all possible expediency to create such mechanism;
c.) ORDERS the Government of Puerto Rico to inform the Court of all developments related to its implementation of the Presidential vote until the votes are counted pursuant to the Twelfth Amendment to the Constitution;
d.) DECLARES, ADJUDGES AND DECREES that Plaintiffs' claims against the United States based on the International Covenant on Civil and Political Rights, 6 I.L.M. 368 (1967) and Plaintiffs' challenge to the constitutionality of the Uniform and Overseas Citizens' Absentee Voting Act, 42 USC 1973ff are hereby dismissed.
IT IS SO ORDERED, ADJUDGED AND DECREED
JAIME PIERAS, JR.
Below is an August 17, 1994 ruling resulting from an EARLIER case brought by de la Rosa. The opinion below seems rather definitive, meaning that Judge Pieras not only ignored the Constitution in making his decision at the District Court level, he completely ignored an opinion which should have been controlling in the Federal Circuit of which Puerto Rico is a part! - Ed
UNITED STATES COURT OF APPEALS
Gregorio Igartua on brief pro se. Guillermo Gil, United States Attorney, Frank W. Hunger, Assistant United States Attorney, Barbara C. Biddle and Jacob M. Lewis Attorneys, Appellate Staff Civil Division, on brief for appellee.
August 17, 1994
Per Curiam. Appellant residents of Puerto Rico allege that their inability to vote in the United States presidential election violates their constitutional rights.
Some appellants, who previously voted in presidential elections while residing elsewhere but who are now ineligible to vote in those elections, also challenge the constitutionality of the Uniformed and Overseas Citizens Absentee Voting Act, 42 U.S.C. 1973ff et seq. The district court dismissed appellants' request for declaratory and injunctive relief for failure to state a claim upon which relief could be granted. We summarily affirm.
I. While appellants are citizens of the United States, the Constitution does not grant citizens the right to vote directly for the President. Instead, the Constitution provides that the President is to be chosen by electors who, in turn, are chosen by "each state . . . in such manner as the Legislature thereof may direct." U.S. Const. art. II, 1, cl. 2 (emphasis added). Pursuant to Article II, therefore, only citizens residing in states can vote for electors and thereby indirectly for the President. See Attorney General of Guam on behalf of All U.S. Citizens Residing in Guam etc. v. United States, 738 F.2d 1017, 1019 (9th Cir. 1984), cert. denied, 469 U.S. 1209 (1985) ("The right to vote in presidential elections under Article II inheres not in citizens but in states; citizens vote indirectly for the President by voting for state electors.").
Since Puerto Rico is concededly not a state, see Trailer Marine Transport Corp. v. Rivera Vazquez, 977 F.2d 1, 7 (1st Cir. 1992) (status of Puerto Rico "is still not the same as that of a State in the Federal Union"), it is not entitled under Article II to choose electors for the President, and residents of Puerto Rico have no constitutional right to participate in that election. See Attorney General of Guam, 738 F.2d at 1019 ("Since Guam concededly is not a state, it can have no electors, and plaintiffs cannot exercise individual votes in a presidential election."); Sanchez v. United States, 376 F. Supp. 239, 241 (D.P.R. 1974) (finding similar claim "plainly without merit" for purpose of convening three-judge court).
The only jurisdiction, not a state, which participates in the presidential election is the District of Columbia, which obtained that right through the twenty-third amendment to the Constitution. Such a constitutional amendment was necessary precisely "because the Constitution ha[d] restricted th[e] privilege [of voting in national elections] to citizens who reside[d] in States." H.R. Rep. No. 1698, 86th Cong., 2d Sess. 2 (1960), reprinted in 1960 U.S. Code Cong. & Ad. News 1459, 1460. Only a similar constitutional amendment or a grant of statehood to Puerto Rico, therefore, can provide appellants the right to vote in the presidential election which they seek. See Attorney General of Guam, 738 F.2d at 1019-20.1
II. Some appellants, who previously voted in presidential elections while residing elsewhere, also assert that their constitutional rights to due process and equal protection have been violated by the Uniformed and Overseas Citizens Absentee Voting Act [Act]. The Act provides that United States citizens, including residents of Puerto Rico, see 42 U.S.C. 1973ff-6(6) & (7), who reside outside the United States retain the right to vote via absentee ballot in their last place of residence in the United States, as long as these citizens otherwise qualify to vote under laws of the jurisdiction in which they last resided. 42 U.S.C. 1973ff-1. It does not apply, however, to citizens who move from one jurisdiction to another within the United States. See 42
1. Appellants' contention that their right to vote in the presidential
election is secured by Article 25 of the International Covenant on
Civil and Political Rights, 6 I.L.M. 368 (1967) (entered into force
Sept. 8, 1992), is without merit. Even if Article 25 could be read to
imply such a right, Articles 1 through 27 of the Covenant were not
self-executing, see 138 Cong. Rec. S4784 (daily ed. Apr. 2, 1992),
and could not therefore give rise to privately enforceable rights under
United States law. See United States v. Green, 671 F.2d 46, 50 (1st
Cir.), cert. denied, 457 U.S. 1135 (1982); United States v.
Thompson, 928 F.2d 1060, 1066 (11th Cir.).