De La Rosa v. United States

• Court: Court of Appeals for the First Circuit
• Decided: August 17, 1994
• Docket: 94-1174
• Status: Published

Opinion

USCA1 Opinion

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

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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
                                                             ___  _______

            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
                                                                   ___

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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,
                            ___
            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. 

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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
                            ___
            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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