417 F.3d 145 (1st Cir. 2005), 04-2186, Igartua-De La Rosa v. United States

Docket Nº:04-2186.
Citation:417 F.3d 145
Party Name:Gregorio IGART
Case Date:August 03, 2005
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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417 F.3d 145 (1st Cir. 2005)

Gregorio IGARTÚA-DE LA ROSA, et al., Plaintiffs, Appellants,


UNITED STATES of America, Defendant, Appellee.

No. 04-2186.

United States Court of Appeals, First Circuit.

August 3, 2005

Heard May 4, 2005.


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Gregorio Igarta-de la Rosa for appellants.

Francisco J. Domenech with whom Angel J. Vargas-Carcaña, Office of the Legal Counsel & Federal Affairs for the President, Senate of Puerto Rico, was on brief for the Senate of the Commonwealth of Puerto Rico and its President, the Honorable Kenneth D. McClintock, Amicus Curiae.

Richard H. Fallon, Jr. with whom José A. Fuentes-Agostini, Reed Smith LLC, John M. García, García & Fernández PSC, Joaquín A. Márquez, Philip J. Mause and Drinker Biddle & Reath LLP were on brief for the Puerto Rican-American Foundation, joined by the Republican Party of Puerto Rico, Amici Curiae.

Amy B. Abbott, Kirkpatrick & Lockhart Nicholson Graham LLP, Glenn R. Reichardt, Shanda N. Hastings, Kirkpatrick & Lockhart Nicholson Graham LLP on brief for Dick Thornburgh and Citizens' Educational Foundation-US, Amici Curiae.

Gael Mahony, Stephen S. Young, Martha Born, Holland & Knight LLP and Israel Roldán-González on brief for Israel Roldán-González, Amicus Curiae.

Gregory G. Katsas, Deputy Assistant Attorney General, with whom Peter D. Keisler, Assistant Attorney General, H. S. García, United States Attorney, Michael Jay Singer and Matthew M. Collette, Appellate Staff, Civil Division, Department of Justice, were on brief for appellee.

Boudin, Chief Judge,Campbell, Senior Circuit Judge, Torruella, Selya, Lynch, Lipez and Howard, Circuit Judges.


Boudin, Chief Judge.

This case brings before this court the third in a series of law suits by Gregorio Igarta, a U.S. citizen resident in Puerto Rico, claiming the constitutional right to vote quadrennially for President and Vice President of the United States. Panels of this court have rejected such claims on all

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three occasions.1 We now do so again, this time en banc, rejecting as well an adjacent claim: that the failure of the Constitution to grant this vote should be declared a violation of U.S. treaty obligations.

The constitutional claim is readily answered. Voting for President and Vice President of the United States is governed neither by rhetoric nor intuitive values but by a provision of the Constitution. This provision does not confer the franchise on "U.S. citizens" but on "Electors" who are to be "appoint[ed]" by each "State," in "such Manner" as the state legislature may direct, equal to the number of Senators and Representatives to whom the state is entitled. U.S. Const. art. II, § 1, cl. 2; see also id. amend. XII.

At one time state legislatures chose the electors themselves, see McPherson v. Blacker, 146 U.S. 1, 28-35 (1892); in the modern manner, customarily a U.S. state provides that its own citizens--citizens of that state--vote for the electors to represent that state. Modern ballots may omit the names of the electors and list only the candidates, so in form it appears that citizens are voting for President and Vice President directly. But they are not: they are voting for electors and, more pertinent here, the electors are electors of the states.

Puerto Rico--like the District of Columbia, the Virgin Islands, and Guam--is not a "state" within the meaning of the Constitution. Trailer Marine Transport Corp. v. Rivera Vazquez, 977 F.2d 1, 7 (1st Cir. 1992) . Puerto Rico was not one of the original 13 states who ratified the Constitution; nor has it been made a state, like the other 37 states added thereafter, pursuant to the process laid down in the Constitution. U.S. Const. art. IV, § 3, cl. 1. Nor has it been given electors of its own, as was the District of Columbia in the Twenty-Third Amendment.

Puerto Rico became associated with the United States as an unincorporated territory under Article IV of the Constitution following the 1898 war between this country and Spain. U.S. Const, art. IV, § 3, cl. 2; see Insular Cases, 182 U.S. 1 (1901). Its status has altered over the ensuing period, culminating in an agreement in 1952, approved by the citizens of Puerto Rico, that Puerto Rico should have a unique "Commonwealth" status; but the unique status is not statehood within the meaning of the Constitution. See Trailer Marine, 977 F.2d at 7; Igarta II, 229 F.3d at 87-88 & nn.15-16 (Torruella, J., concurring). And, in recent elections, Puerto Ricans themselves have been substantially divided as to whether to seek statehood status. Cf. Rossello-Gonzalez v. Calderon-Serra, 398 F.3d 1, 4-5 (1st Cir. 2004).

As Puerto Rico has no electors, its citizens do not participate in the presidential voting, although they may do so if they take up residence in one of the 50 states and, of course, they elect the Governor of Puerto Rico, its legislature, and a non-voting delegate to Congress. Like each state's entitlement to two Senators regardless of population, the make-up of the electoral college is a direct consequence of how the framers of the Constitution chose to structure our government--a choice itself based on political compromise rather than conceptual perfection. Note, Rethinking the Electoral College Debate: The Framers, Federalism, and One Person, One Vote,

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114 Harv. L. Rev. 2526, 2526-31 (2001) (discussing historical commentary).

That the franchise for choosing electors is confined to "states" cannot be "unconstitutional" because it is what the Constitution itself provides. Hence it does no good to stress how important is "the right to vote" for President. Although we recognize the loyalty, contributions, and sacrifices of those who are in common citizens of Puerto Rico and the United States, much the same could have been said about the citizens of the District of Columbia, who were voteless over a much longer period. The path to changing the Constitution lies not through the courts but through the constitutional amending process, U.S. Const. art. V; and the road to statehood--if that is what Puerto Rico's citizens want--runs through Congress. U.S. Const. art. IV, § 3, cl. 1.

This court has thrice rejected the constitutional claim now advanced by Igarta. The Ninth Circuit reached the same result in a similar suit concerning Guam. Attorney General of the Territory of Guam v. United States, 738 F.2d 1017 (9th Cir. 1984). The Supreme Court denied certiorari in both Igarta I, 514 U.S. 1049 (1995), and in the Ninth Circuit case, 469 U.S. 1209 (1985). Igarta has offered nothing new in this third case to support his constitutional claim. In this en banc decision, we now put the constitutional claim fully at rest: it not only is unsupported by the Constitution but is contrary to its provisions.

Igarta's complaint also relied upon U.S. treaties--technically, two of the three are not treaties--as a premise for the suffrage right claimed.2 This theory had been advanced and rejected by this court in Igarta I, 32 F.3d at 10 n.1, which was binding on the panel and could not be altered by it. Charlesbank Equity Fund II v. Blinds to Go, Inc., 370 F.3d 151, 160 & n.4 (1st Cir. 2004) . After the panel granted rehearing in this case to examine a more elaborate version of the treaty argument, the en banc court determined that the matter should be heard by the full court. Two of the three panel members said that they were content with this course. Only one judge dissented from the proposal to hear the case en banc. See Igarta de la Rosa, 407 F.3d 30.

No treaty claim, even if entertained, would permit a court to order that the electoral college be enlarged or reapportioned. Treaties--sometimes--have the force of domestic law, just like legislation; but the Constitution is the supreme law of the land, and neither a statute nor a treaty can override the Constitution. Reid v. Covert, 354 U.S. 1, 16-18 (1957) (plurality opinion); Matter of Burt, 737 F.2d 1477, 1484 (7th Cir. 1984); Plaster v. United States, 720 F.2d 340, 348 (4th Cir. 1983) (collecting case law) . See also Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 180 (1803) ("a law repugnant to the constitution is void") . So the treaty claim, originally made in support of injunctive relief, is now recast by proponents as a demand for "a declaration" that the United States is in violation of its treaty obligations for

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failing to "take steps" to give a presidential vote to citizens of Puerto Rico.

There are a host of problems with the treaty claim, including personal standing, redressability, the existence of a cause of action, and the merits of the treaty interpretations offered. Treaties are made between states (in the international usage of that term) and citizens do not automatically have a right to sue upon them.3 The present claim is also probably not justiciable in the sense that any effective relief could be provided;4 it is enough to let common sense play upon the conjecture that the Constitution would be amended if only a federal court declared that a treaty's generalities so required. See Simon, 426 U.S. at 44 ("unadorned speculation [as to redress] will not suffice to invoke the federal judicial power").

Nor are the merits of Igarta's reading of the treaties at all straightforward. The language of each of the treaties invoked is general. Nothing in them says anything about just who should be entitled to vote for whom, or that an entity with the negotiated relationship that the United States has with Puerto Rico is nevertheless required to adopt some different arrangement as to governance or suffrage. In 1951, Puerto Ricans themselves acceded to their...

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