Romeu v. Cohen

265 F.3d 118, 2001 WL 1019281
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 6, 2001
DocketDocket Nos. 00-6303, 00-6287
StatusPublished
Cited by28 cases

This text of 265 F.3d 118 (Romeu v. Cohen) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Romeu v. Cohen, 265 F.3d 118, 2001 WL 1019281 (2d Cir. 2001).

Opinions

LEVAL, Circuit Judge:

Plaintiff appeals from the judgment of the United States District Court for the Southern District of New York (Shira A. Scheindlin, J.), dismissing his complaint for failure to state a claim. Plaintiff, a U.S. citizen residing in Puerto Rico who was formerly a resident of New York, asserts the right to vote for New York’s presidential electors in the election held November 7, 2000. One theory of his complaint is that the Uniformed and Overseas Citizens Absentee Voting Act (“UOCA-VA”) and the New York Election Law (“NYEL”) violate the U.S. Constitution by extending the right to vote in a presidential election to U.S. citizens formerly domiciled in New York and now residing outside the United States, but not to U .S. citizens formerly domiciled in New York and now residing in a U.S. territory. See 42 U.S.C. §§ 1973ff-l & 1973ff-6; N.Y. Elec. Law § 11-200(1) (McKinney 1998). Plaintiff contends also that these statutes have infringed his constitutional rights to vote and travel, and his rights under the Privileges and Immunities and Due Process Clauses. Finding no such violations, we affirm the judgment of the district court.

Background

Plaintiff-appellant Xavier Romeu, a natural born United States citizen, lived in Westchester County in New York State from 1994 through May 16, 1999. Romeu registered to vote and did vote in New York in the 1996 presidential elections, casting a ballot in Westchester County. On May 17, 1999, Romeu moved to and became a resident of the Commonwealth of Puerto Rico. On July 9, 1999, Romeu registered to vote in Puerto Rico. U.S. territories, including Puerto Rico, do not participate in presidential elections. Subsequently, Romeu requested an absentee ballot from the State of New York to vote in the 2000 presidential election.

State absentee ballot laws are governed, in part, by the Federal Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”), which extends federal voting rights to U.S. citizens formerly citizens of a State who reside outside the United States. See 42 U.S.C. § 1973ff-l to 1973ff — 6. The Act preserves for a citizen [121]*121formerly resident in a State who moves outside the United States the right to vote in federal elections held in the citizen’s previous State of residence. In relevant part, the UOCAYA provides that each “State” (a term defined under the Act to include U.S. territories) shall permit absentee “overseas” voters “to use absentee registration procedures and to vote by absentee ballot in general, special, primary, and runoff elections for Federal office” and requires States to “accept and process ... any otherwise valid voter registration application from an absent ... overseas voter, if the application is received by the appropriate State election official not less than 30 days before the election.” 42 U .S.C. § 1973ff~l. The Act defines “overseas voter,” in relevant part, as “a person who resides outside the United States and is qualified to vote in the last place in which the person was domiciled before leaving the United States” or “a person who resides outside the United States and (but for such residence) would be qualified to vote in the last place in which the person was domiciled before leaving the United States.” 42 U.S.C. § 1973ff-6(5)(B) & (C). Under the statute’s definition, a person who, like the plaintiff, resides in a U.S. territory does not qualify as an “overseas voter” because such a person does not reside “outside the United States.” The UOCAYA further defines the term “State” to mean “a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, and American Samoa,” so that a U.S. citizen living in a U.S. territory such as Puerto Rico who moves outside the United States retains whatever right to vote in elections for federal office that the citizen could have exercised had he or she continued to reside in that U.S. territory. 42 U.S.C. § 1973ff-6(6).

Carrying out the mandate of the UOCA-VA, the New York Election Law (“NYEL”) provides that a U.S. citizen “now residing outside the United States” whose most recent U.S. domicile was New York is entitled to vote as a “special federal voter,” so long as “such citizen does not maintain a place of abode or domicile, is not registered to vote and is not voting in any other election district, state, territory or possession of the United States.” N.Y. Elec. Law § 11-200(1) (McKinney 1998).1

Romeu received a standard form New York State absentee ballot application on September 27, 1999, from the Westchester County Board of Elections. Pursuant to the NYEL and the UOCAVA, Section 8 of the absentee ballot application form required Romeu to swear or affirm that he was “not ... voting in any other U.S. State, territory or possession or subdivision thereof in the coming election(s).” Section 6 of the absentee ballot application form required that Romeu swear or affirm that he was in one of several categories of U.S. citizens living outside the United States, none of which included a U.S. citizen residing in a U.S. territory. As a U.S. citizen residing in a U.S. territory, Romeu [122]*122was unable to swear or affirm either that he was not a voter in a U.S. territory, or that he was a U.S. citizen residing outside the United States.

Romeu brought this suit on March 24, 2000, seeking an order compelling the Westchester County election board to issue him a ballot and a declaratory judgment that the UOCAVA and the NYEL violate his constitutional rights. In particular, Romeu claimed violations of his constitutional rights to vote and to travel, his rights under the Privileges and Immunities Clause of Article IY, his Fourteenth and Fifth Amendment Due Process rights, and his rights to equal protection of the laws under the Fourteenth and Fifth Amendments. Pedro Rosselló, the then-Governor of Puerto Rico, intervened in support of Romeu’s claims.

On cross-motions for judgment on the pleadings, the district court dismissed Ro-meu’s claim. Although expressing the view that Romeu, as a citizen of the United States residing in Puerto Rico and denied the right to vote for the President of the United States, “is suffering a grave injustice,” Judge Scheindlin found no violation of Romeu’s constitutional rights primarily because the deprivation of which he complains is created by the Constitution.

Romeu filed an expedited appeal in this court. Because of the importance of speedy resolution of Romeu’s appeal before the November 2000 presidential election, we summarily affirmed the order of the district court on October 31, 2000, noting that we would issue an opinion in due course setting out our reasoning. We now issue that opinion.

Discussion

In the Jones Act of 1917, also known .as the Organic Act of 1917, Congress extended U.S. citizenship to persons then living in Puerto Rico, and to persons born in Puerto Rico thereafter. See Jones Act, 39 Stat. 951 (1917).

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265 F.3d 118, 2001 WL 1019281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/romeu-v-cohen-ca2-2001.