626 F.3d 592 (1st Cir. 2010), 09-2186, Igartua v. United States

Docket Nº:09-2186.
Citation:626 F.3d 592
Opinion Judge:LYNCH, Chief Judge.
Party Name:Gregorio IGART
Attorney:Gregorio Igart
Judge Panel:Before LYNCH, Chief Judge, TORRUELLA and LIPEZ, Circuit Judges. LIPEZ, Circuit Judge (concurring in the judgment). TORRUELLA, Circuit Judge (Concurring in part; Dissenting in part).
Case Date:November 24, 2010
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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626 F.3d 592 (1st Cir. 2010)

Gregorio IGARTÚA, et al., Plaintiffs, Appellants,

v.

UNITED STATES of America, et al., Defendants, Appellees.

No. 09-2186.

United States Court of Appeals, First Circuit.

November 24, 2010

Heard March 2, 2010.

Page 593

Gregorio Igartúa for the appellants.

Claudio Aliff-Ortiz with whom Guillermo Somoza-Colombani, Attorney General of the Commonwealth of Puerto Rico, Irene Soroeta Kodesh, Solicitor General of the Commonwealth of Puerto Rico, Eliezer Aldarondo-Ortiz, and Eliezer A. Aldarondo-López were on brief for the Commonwealth of Puerto Rico, amicus curiae.

Mark R. Freeman, Appellate Staff, Civil Division, Department of Justice, with whom Tony West, Assistant Attorney General, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Michael Jay Singer, Appellate Staff, Civil Division, Department of Justice, were on brief for appellees.

Before LYNCH, Chief Judge, TORRUELLA and LIPEZ, Circuit Judges.

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LYNCH, Chief Judge.

Plaintiff Gregorio Igartúa and others have brought suit claiming they and other U.S. citizen-residents of Puerto Rico have a right to vote for a Representative to the U.S. House of Representatives from Puerto Rico and a right to have Representatives from Puerto Rico in that body. Long ago, residents of Puerto Rico were granted U.S. citizenship by statute. See Pub.L. No. 368, ch. 145, § 5, 39 Stat. 951 (1917).

Igartúa's putative class action claim is supported in part by the government of the Commonwealth of Puerto Rico, which has filed a brief amicus curiae and presented oral argument. The defendants are the United States, as well as the President of the United States, the Secretary of Commerce, and the Clerk of the United States House of Representatives, all in their official capacities. Among the remedies Igartúa seeks is an order directing these officials to " take all the necessary steps ... to implement[ ] the apportionment of Representatives [in the] electoral process to Puerto Rico."

The district court dismissed the complaint. See Igartua v. United States, No. 08-1174 (D.P.R. June 3, 2009). On de novo review, we affirm the dismissal. The text of the U.S. Constitution grants the ability to choose, and so to vote for, members of the House of Representatives to " the People of the several States." U.S. Const. art. I, § 2. Since Puerto Rico is not a state, and cannot be treated as a state under the Constitution for these purposes, its citizens do not have a constitutional right to vote for members of the House of Representatives. Igartúa's claim that international law requires a contrary result is foreclosed by our decision in the last case Igartúa brought before us. See Igartúa-De La Rosa v. United States ( Igartúa III ), 417 F.3d 145 (1st Cir.2005) (en banc). The case was properly dismissed.

The panel is unanimous in agreeing that the U.S. Constitution does not give Puerto Rico residents the right to vote for members of the House of Representatives because Puerto Rico is not a state.

Chief Judge Lynch and Judge Lipez conclude that this panel is bound by Igartúa III 's holding that the Constitution does not permit granting such a right to the plaintiffs by means other than those specified for achieving statehood or by amendment. Chief Judge Lynch independently concludes that this holding in Igartúa III is correct. Judge Lipez considers the panel bound by this holding in Igartúa III, but he does not express a view of his own on its merit. Chief Judge Lynch and Judge Lipez agree that Igartúa III requires dismissal of plaintiffs' claims based on treaties and international law. Judge Lipez joins the holding that dismissal of the case is affirmed. He joins this introduction, the introduction to Section II, Sections II.A, II.B, and II.C.1, and Section III of Chief Judge Lynch's opinion. He expresses additional views in his concurring opinion.

Judge Torruella dissents and is of the view that the constitutional text neither denies citizens of Puerto Rico the right to vote for members of the House of Representatives nor imposes a limitation on the federal government's authority to extend the franchise to territorial residents under other constitutional powers.

I.

This is plaintiff Igartúa's fourth case before this court raising questions about the ability of the U.S. citizen-residents of Puerto Rico to vote for those high federal officials described in the Constitution. In three earlier decisions, including an en banc decision, this court rejected Igartúa's

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analogous claims that Puerto Rican U.S. citizen-residents have a right to vote in elections for President and Vice President of the United States. See Igartúa III, 417 F.3d 145; Igartúa De La Rosa v. United States ( Igartúa II ), 229 F.3d 80 (1st Cir.2000); Igartúa De La Rosa v. United States, 32 F.3d 8 (1st Cir.1994). These cases inform our analysis of this admittedly different, but related question.

Igartúa's arguments are unavailing. First, the text of the Constitution, in several provisions, plainly limits the right to choose members of the House of Representatives to citizens of a state. Second, the constitutional text is entirely unambiguous as to what constitutes statehood; the Constitution explicitly recites the thirteen original states as being the states and articulates a clear mechanism for the admission of other states, as distinct from territories. Puerto Rico does not meet these criteria. Third, these provisions of the constitutional text are deliberate and go to the heart of the Constitution. This deliberate constitutional framework may not be upset.

This Section addresses these points, which require the dismissal of plaintiffs' complaint. The subsequent Sections turn to the additional arguments raised by Igartúa and the government of the Commonwealth of Puerto Rico.

The analysis of Igartúa's constitutional claims begins with the pertinent text of the U.S. Constitution as to the U.S. House of Representatives. This language is different from that governing the ability to vote for President, which was at issue in Igartúa III.

The text of the Constitution refers directly to the election of members of the House of Representatives in Article I, Article II, and the Fourteenth Amendment. Article I reads, in relevant part:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives ... shall be apportioned among the several States which may be included within this Union, according to their respective Numbers.... The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative....

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

....

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of Chusing Senators.

U.S. Const. art. I, § 2, cl. 1-4 (emphasis added); id. § 4, cl. 1 (emphasis added). Article I itself uses the term " State" or " States" eight times when defining and outlining the House of Representatives.

In addition to Article I, Article II, when referring to the election of the President, reads:

Each State shall appoint ... a Number of Electors, equal to the whole Number of Senators and Representatives to

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which the State may be entitled in the Congress.

Id. art. II, § 1, cl. 2 (emphasis added). This reinforces the link between statehood and the House of Representatives.

Further, the Fourteenth Amendment, when describing the apportionment of Representatives, states:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State ....

Id. amend. XIV, § 2 (emphasis added). The amendment process has been used to reinforce, not to alter, the original text that Representatives come from the states.

The text of Article I is clear that only the people of a state may choose the members of the House of Representatives from that state. Id. art. I, § 2, cl. 1 (" The House of Representatives shall be composed of Members chosen every second Year by the People of the several States." ). We reject Igartúa's argument that this text refers only to " People" and that we may ignore the express limitation on representation to " People of the several States. " Id. (emphasis added).1 Our conclusion is reinforced by Article I, Section 2, Clauses 2 through 4, as well as by Article I, Section 4, Article II, Clause 2, and Section 2 of the Fourteenth Amendment, which again refer to states in describing the number of Representatives, their apportionment, and the setting of elections.

The text of the Constitution defines the term " State" and affords no flexibility as to its meaning. The term is unambiguous and refers to the thirteen original states, which are specifically named in Article I, Section 2, id. art. I, § 2, cl. 3, and those which have since joined the Union through the process set by the Constitution, id. art. IV, § 3, cl. 1; see also Pollard v. Hagan, 44 U.S. (3 How.) 212, 216, 11 L.Ed...

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