32 F.3d 8 (1st Cir. 1994), 94-1174, Igartua De La Rosa v. United States

Docket Nº:94-1174.
Citation:32 F.3d 8
Party Name:Gregorio IGARTUA DE LA ROSA, et al., Plaintiffs, Appellants, v. UNITED STATES of America, Defendant, Appellee.
Case Date:August 17, 1994
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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32 F.3d 8 (1st Cir. 1994)

Gregorio IGARTUA DE LA ROSA, et al., Plaintiffs, Appellants,

v.

UNITED STATES of America, Defendant, Appellee.

No. 94-1174.

United States Court of Appeals, First Circuit

August 17, 1994

Submitted June 7, 1994.

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Gregorio Igartua, on brief pro se.

Guillermo Gil, U.S. Atty., Frank W. Hunger, Asst. U.S. Atty., Barbara C. Biddle and Jacob M. Lewis, Attys., Appellate Staff Civil Div., on brief for appellee.

Before TORRUELLA, CYR and BOUDIN, Circuit Judges.

PER CURIAM.

Appellant residents of Puerto Rico allege tat 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. Sec. 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, Sec. 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, 105 S.Ct. 1174, 84 L.Ed.2d 323 (1985) ("The right to vote in presidential elections under Article II 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

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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, can provide appellants the right to vote in the presidential election which they seek. See Attorney General of Guam, 738 F.2d at...

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