De La Rosa v. United States

USCA1 Opinion












UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

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No. 94-1174


GREGORIO IGARTUA DE LA ROSA, ET. AL.,

Plaintiffs, Appellants,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.


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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, U.S. District Judge]
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Before

Torruella, Cyr and Boudin,
Circuit Judges.
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Gregorio Igartua on brief pro se.
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Guillermo Gil, United States Attorney, Frank W. Hunger,
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Assistant United States Attorney, Barbara C. Biddle and Jacob M. Lewis
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Attorneys, Appellate Staff Civil Division, on brief for appellee.


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August 17, 1994
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Per Curiam. Appellant residents of Puerto Rico allege
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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
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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
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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
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electors and thereby indirectly for the President. See
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Attorney General of Guam on behalf of All U.S. Citizens
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Residing in Guam etc. v. United States, 738 F.2d 1017, 1019
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(9th Cir. 1984), cert. denied, 469 U.S. 1209 (1985) ("The
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right to vote in presidential elections under Article II



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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
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Marine Transport Corp. v. Rivera Vazquez, 977 F.2d 1, 7 (1st
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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,
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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.
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United States, 376 F. Supp. 239, 241 (D.P.R. 1974) (finding
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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
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Cong. & Ad. News 1459, 1460. Only a similar constitutional

amendment or a grant of statehood to Puerto Rico, therefore,



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can provide appellants the right to vote in the presidential

election which they seek. See Attorney General of Guam, 738
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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
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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
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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,
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1992), and could not therefore give rise to privately
enforceable rights under United States law. See United
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States v. Green, 671 F.2d 46, 50 (1st Cir.), cert. denied,
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457 U.S. 1135 (1982); United States v. Thompson, 928 F.2d
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1060, 1066 (11th Cir.), cert. denied, 112 S. Ct. 270 (1991).
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Nor could the Covenant override the constitutional limits
discussed above. See Reid v. Covert, 354 U.S. 1, 15-16
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(1957) (plurality opinion).

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U.S.C. 1973ff-6(5) (defining "overseas voter" as a person

"who resides outside the United States").

Appellants claim that the Act illegally discriminates

against citizens who have taken up residence in Puerto Rico

rather than outside the United States, because the former are

not entitled by the Act to vote in their prior state of

residence. In fact, however, the Act does not distinguish

between those who reside overseas and those who take up

residence in Puerto Rico, but between those who reside

overseas and those who move anywhere within the United

States. Given that such a distinction neither affects a

suspect class nor infringes a fundamental right,2 it need

only have a rational basis to pass constitutional muster.

See FCC v. Beach Communications, Inc., 113 S. Ct. 2096, 2101
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(1993) (equal protection); Nebbia v. New York, 291 U.S. 502,
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537 (1934) (due process).

Without the Act, voters who move overseas could lose

their right to vote in all federal elections. However,

voters who move to a new residence within the United States

are eligible to vote in a federal election in their new place




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2. Although it affects the right to vote, the Act does not
infringe that right but rather limits a state's ability to
restrict it. Moreover, nothing in the Act "prevent[s] any
State from adopting any voting practice which is less
restrictive than the practices prescribed in the Act." H.R.
Rep. No. 765, 99th Cong., 2d Sess. 19 (1986), reprinted in
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1986 U.S. Code Cong. & Ad. News 2009, 2023.

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of residence.3 Hence, Congress had a rational basis for

seeking to protect the absentee voting rights only of the

former. While the Act does not guarantee that a citizen

moving to Puerto Rico will be eligible to vote in a

presidential election, this limitation is not a consequence

of the Act but of the constitutional requirements discussed

above.

Appellants' request for oral argument is denied. The
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dismissal of appellants' claims is affirmed. See 1st Cir.
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Loc. R. 27.1.
























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3. For example, a citizen who moves to Puerto Rico would be
eligible to vote in the federal election for the Resident
Commissioner. See Puerto Rican Federal Relations Act, 48
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U.S.C. 891 (Resident Commissioner chosen by "[t]he
qualified electors of Puerto Rico"); 42 U.S.C. 1973ff-6(3)
(defining "[f]ederal office" to include Resident
Commissioner).

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