Igartua De La Rosa v. United States

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 94-1174

            GREGORIO IGARTUA DE LA ROSA, ET. AL.,

                   Plaintiffs, Appellants,

                              v.

                  UNITED STATES OF AMERICA,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

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

                                         

                            Before

                  Torruella, Cyr and Boudin,
                       Circuit Judges.
                                     

                                         

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

                             -2-

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,

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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.), cert. denied, 112 S. Ct. 270 (1991).
                                     
Nor  could the  Covenant override  the constitutional  limits
discussed  above.   See  Reid v.  Covert,  354 U.S.  1, 15-16
                                        
(1957) (plurality opinion).

                             -4-

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
                                     

(1993) (equal protection); Nebbia v. New York, 291  U.S. 502,
                                             

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

                    

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
                                                             
1986 U.S. Code Cong. & Ad. News 2009, 2023.

                             -5-

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
                                                      

dismissal of  appellants' claims is  affirmed.  See  1st Cir.
                                                   

Loc. R. 27.1. 

                    

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
                   
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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