Igartua De La Rosa v. U.S.

• Citation: 113 F.Supp.2d 228
• Decision Date: 29 August 2000
• Docket Number: No. CIV. 00-1421(JP).,CIV. 00-1421(JP).
• Parties: Gregorio IGARTUA DE LA ROSA, et al., Plaintiffs v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Puerto Rico

113 F.Supp.2d 228

Gregorio IGARTUA DE LA ROSA, et al., Plaintiffs v. UNITED STATES of America, Defendant.

No. CIV. 00-1421(JP).

United States District Court, D. Puerto Rico.

August 29, 2000.

Gregorio Igartúa de la Rosa, Aguadilla, P.R., for Plaintiff.

Isabel Muñoz Acosta, Assistant United States Attorney, Hato Rey, P.R., David S. Mendel, U.S. Department of Justice, Civil Division, Washington, D.C., for Defendants.

FINAL JUDGMENT

PIERAS, Senior District Judge.

Pursuant to the Final Opinion and Order entered on this same date, the Court hereby:

a. FINDS that the United States Citizens residing in Puerto Rico have the right to vote in Presidential elections and that its electoral votes must be counted in Congress;

b. FINDS that the Government of Puerto Rico has the obligation to organize the means by which the United States citizens residing in Puerto Rico will vote in the upcoming and subsequent Presidential elections and to provide for the appointment of Presidential electors and ORDERS the Government of Puerto Rico to act with all possible expediency to create such mechanism;

c. ORDERS the Government of Puerto Rico to inform the Court of all developments related to its implementation of the Presidential vote until the votes are counted pursuant to the Twelfth Amendment to the Constitution;

d. DECLARES, ADJUDGES, AND DECREES that Plaintiffs' claims against the United States based on the International Covenant on Civil and Political Rights, 6 I.L.M. 368 (1967) and Plaintiffs' challenge to the constitutionality of the Uniformed and Overseas Citizens Absentee Voting Act, 42 U.S.C. §§ 1973ff — 1973ff-6 are hereby dismissed.

IT IS SO ORDERED, ADJUDGED, AND DECREED.

FINAL OPINION AND ORDER

-I-

The Complaint in the instant action identifies the Plaintiffs as two groups of United States citizens residing in Puerto Rico who seek to vote in the upcoming and subsequent Presidential elections. The Plaintiffs in one group, composed of individuals who have always resided in Puerto Rico, argue that they have a right to vote in Presidential elections because they are U.S. citizens and, as such, are vested with the inherent power to vote for those who represent them. The second group is made up of former stateside residents who, while there, were eligible to vote in Presidential elections but became ineligible to do so upon taking up residence in Puerto Rico. Plaintiffs in both groups argue that the United States Constitution and the International Covenant on Civil and Political Rights, a treaty to which the United States is a party, guarantee their right to vote in Presidential elections. The second group also calls into question the constitutionality of the Uniformed and Overseas Citizens Absentee Voting Act ("UOCAVA" or "the Act"), 42 U.S.C. §§ 1973ff — 1973ff-6, that allows United States citizens residing outside the United States to vote in federal elections as absentee voters in their last State of residence. Under UOCAVA, Puerto Rico is considered to be within the United States. See 42 U.S.C. § 1973ff-6(6). Therefore, because its residents are inside the United States, they are not allowed to vote as absentee voters in federal elections under the Act.

On July 19, 2000, the Court entered an Opinion and Order (docket No. 17) ruling on the United States' motion to dismiss (docket No. 5). See Igartúa de la Rosa v. United States, 107 F.Supp.2d 140 (D.Puerto Rico 2000). In the opinion, the Court held that the United States citizens residing in Puerto Rico have the right to vote in Presidential elections and that Plaintiffs lacked a cause of action under UOCAVA and the International Covenant on Civil and Political Rights. On July 27, 2000, the Commonwealth of Puerto Rico and the Honorable Pedro Rosselló, in his official capacity as Governor of Puerto Rico, (collectively "the Government of Puerto Rico") filed a Motion to Intervene and Memorandum of Law pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure (docket No. 26), which the Court granted (docket No. 28). On August 1, 2000, the United States filed its answer to the Complaint (docket No. 29) raising the following affirmative defenses, to wit: 1) Plaintiffs lack standing to assert their claims because their injuries are not redressable, 2) Plaintiffs' claims are not justiciable as they present a political question, 3) Plaintiffs are barred from bringing the instant action by the principle of res judicata, and 4) the Complaint fails to state a claim upon which relief can be granted.

During a Status Conference held on August 1, 2000, the Court ordered Defendant United States of America to file proposed stipulations of fact to permit the Court to make a final disposition of the case at bar. Defendant has complied with the Court's order (docket No. 30) and all parties hereto have agreed to these stipulations of fact (docket Nos. 31, 33, & 36). On August 4, 2000, the Government of Puerto Rico filed a motion informing its agreement with the Opinion and Order of July 19, 2000, accepting Defendant's proposed stipulations, informing its actions to implement the Court's July 19 ruling, and requesting injunctive relief (docket No. 33). Because the parties agree that there is no genuine issue of material fact and having submitted the instant case to the undersigned for final adjudication, the Court enters the following findings of fact.

-II-

A. Co-Plaintiffs Gregorio Igartúa de la Rosa, Jorge Iván Rodríguez Feliciano, Victor Rodríguez Villanueva, Rafael Zeruto Soto, José Lausell González, Rafael Gutiérrez Torres, Héctor Ramos Vadi, Noel Pecunia Alvarez, and Jaime Bello Anazagasty assert in sworn affidavits attached to the Complaint that they were born in and are residents of Puerto Rico.

B. Co-Plaintiff Sonia del Carmen Gutiérrez Rodríguez asserts in a personal statement attached to the Complaint that she was born in and is a resident of Puerto Rico.

C. Co-Plaintiff Luis Pérez Thaureaux asserts in a sworn affidavit attached to the Complaint that he is a naturalized United States citizen and is a resident of Puerto Rico.

D. Defendant has no basis for disputing any of the above-described assertions made by the Plaintiffs.

E. Before the filing of the Complaint, Puerto Rico did not have any electors whose ballots were counted for the election of the President and Vice President pursuant to the procedures set forth in the Twelfth Amendment to the United States Constitution.

F. On April 19, 1991, the United States Department of Commerce, under cover of letter by Barbara Everitt Bryant, Director of the Bureau of the Census, sent to the Honorable Rafael Hernández Colón, Governor of Puerto Rico, the official 1990 census population counts indicating that the total population count for Puerto Rico is 3,522,037.¹

G. The census data used to determine apportionment of the representatives among the States for purposes of the 2000 elections were the total population counts of each State from the 1990 decennial census. (The Court hereby takes notice of Defendant's Clarification of Plaintiffs' Notice of Stipulation (docket No. 40).)

In view of the findings of fact set forth above, the Court reaches the following conclusions of law.

-III-

A. Introduction

The instant opinion and order is the final adjudication of the merits of the case at bar. In view of the substantial discussion of the merits in its July 19, 2000, Opinion and Order, which are applicable to the conclusions herein, the Court hereby adopts and incorporates said Opinion and Order to form part hereof and to be read together herewith. In this Final Opinion and Order, the Court also considers the relevant constitutional provisions which relate to the case at bar, in particular whether Article II, section 1, clause 2 of the U.S. Constitution represents a roadblock for United States citizens residing in Puerto Rico from entering the Presidential ballot box. The Court also considers the affirmative defenses raised and briefed by the United States (docket Nos. 35, 37, & 38) and the manner in which relief will be implemented.

B. Voting Versus Territoriality

Before the ratification of its first ten amendments, the U.S. Constitution did not speak of individual rights. See Daniel A. Farber, William N. Eskridge, Jr., & Philip P. Frickey, Constitutional Law: Themes for the Constitution's Third Century 5 (West 1993). For instance, the concepts of freedom of speech and due process do not arise from the seven Articles composing the Constitution of 1787. Rather, these freedoms are canvassed in the ten amendments ratified in 1791 which make up the Bill of Rights. The First Congress submitted these amendments to the States due to the concern some framers had for the need to guarantee individual liberties. See 2 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law § 14.2 (3d ed.1999). Accordingly, a U.S. citizen and stateside resident's right to vote in Presidential elections is not derived from Article II, section 1, clause 2 ("Article II") but rather arises from the principles entrenched in the Bill of Rights.

Rather than bestowing a right, Article II deals with a question of federalism. The "difference between a federal and national government, as it relates to the operation of the government ... [is] that in the former the powers operate on the political bodies composing the Confederacy in their political capacities; in the latter, on the individual citizens composing the nation in their individual capacities. On trying the Constitution by this criterion, it falls under the national not the federal character." The Federalist No. 39 (James Madison). Therefore, the participation in Presidential elections does not hinge on the federal relationship between Puerto Rico and the federal government, but rather on the citizens' national right to vote.

The Supreme Court has stated in no uncertain terms that the right to vote constitutes a national right guaranteed by the principles of freedom of association...