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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