Romeu v. Cohen, 00 Civ. 2277(SAS).
| Decision Date | 07 September 2000 |
| Docket Number | No. 00 Civ. 2277(SAS).,00 Civ. 2277(SAS). |
| Citation | 121 F.Supp.2d 264 |
| Parties | Xavier ROMEU, Plaintiff, and Pedro Rossello, in his official capacity as Governor of the Commonwealth of Puerto Rico, Plaintiff-Intervenor, v. William S. COHEN, Secretary of Defense of the United States, William Jefferson Clinton, President of the United States, George Pataki, Governor of the State of New York, and Carolee Sunderland, Commissioner of the Westchester County Board of Elections, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Xavier Romeu, Condominio el Girasol, Isla Verde Avenue, Carolina, PR, Plaintiff, pro se.
Angel E. Rotger-Stat, Attorney General of the Commonwealth of Puerto Rico, Gustavo A. Gelpi, Solicitor General of the Commonwealth of Puerto Rico, Department of Justice, San Juan, PR, for Pedro Rossello.
Heidi A. Wendel, Daniel S. Alter, United States Attorney's Office—Southern District of New York, New York, NY, for William Jefferson Clinton and William Cohen.
Joel Graber, Office of the Attorney General of the State of New York, New York, NY, for George Pataki.
Joan C. Waters, Deborah A. Porder, Office of the Westchester County Attorney, White Plains, NY, for Carolee Sunderland.
On March 24, 2000, plaintiff Xavier Romeu filed this lawsuit in an effort to obtain from New York an absentee ballot for the 2000 Presidential election. Romeu, a United States citizen, lived in New York State from 1994 through May 1999 and voted in the 1996 Presidential election. Romeu became a resident of Puerto Rico in May 1999 and registered to vote there two months later. Because residents of Puerto Rico are unable to vote for the President and Vice President, Romeu sought an absentee ballot from New York State. When he received the application for an absentee ballot, however, Romeu determined that his status as a resident of Puerto Rico prevented him from meeting the application requirements. More specifically, Romeu could not provide a permitted reason for requesting an absentee ballot and could not affirm that he was not requesting an absentee ballot from a territory of the United States.
Romeu alleges that the Voting Rights Amendments of 1970 ("VRA"), the Uniformed and Overseas Citizens Absentee Voting Act ("UOCAVA"), and N.Y. Election Law § 11-200 ("NYEL") are unconstitutional, both on their face and as applied, because they deny him his right to receive an absentee ballot from New York State. Romeu contends that his inability to obtain an absentee ballot from New York State deprives him of: (1) his right to vote; (2) his right to travel; (3) the protections of the Privileges and Immunities Clause; and (4) the protections of the Equal Protection Clause. Romeu asks this Court to order defendants — William Jefferson Clinton, President of the United States, William S. Cohen, the Secretary of Defense, George Pataki, the Governor of New York, and Carolee Sunderland, the Commissioner of the Westchester County Board of Elections (the "Board of Elections") — to send him an absentee ballot so he can vote in the 2000 Presidential election. Pedro Rossello, the Governor of Puerto Rico, intervened in an effort to secure similar relief for all residents of Puerto Rico who are American citizens and who previously had voted for the President and Vice President while they were residents of a state.1
All defendants have moved to dismiss Romeu's complaint. President Clinton and Secretary Cohen (the "federal defendants") contend that they are not proper parties and that both the VRA and the UOCAVA are constitutional. Governor Pataki argues solely that he is not a proper party. Commissioner Sunderland asserts that: (1) Romeu's complaint raises a non-justiciable political question; (2) Romeu lacks standing to maintain this lawsuit; and (3) the VRA, UOCAVA and NYEL are constitutional. Romeu, for his part, has moved for summary judgment, arguing that the VRA, UOCAVA and NYEL are unconstitutional and that all defendants are proper parties to this action. Governor Rossello joins in plaintiff's motion for summary judgment.
For the reasons set forth below, I conclude that the VRA, UOCAVA and NYEL are constitutional and that Romeu's complaint must be dismissed. Although Romeu is suffering a grave injustice, that injustice stems from the fact that all residents of Puerto Rico are unable to vote for the President of the United States, not from the VRA, UOCAVA or NYEL. While I sympathize with Romeu's plight and applaud his desire to vote in the 2000 Presidential election, I lack the power to provide him any relief. Only a constitutional amendment or Puerto Rican statehood can provide the cure. All I can do is add my voice to those who have urged the appropriate branches of our government to take all necessary steps to ensure that American citizens residing in all United States territories be permitted to vote for President and Vice President as soon as possible.
Plaintiff Xavier Romeu is a natural born United States citizen. See Plaintiff Xavier Romeu's Statement of Material Facts Pursuant to Local Civil Rule 56.1 ("Pl. 56.1 Statement") ¶ 3. In 1994, Romeu became a resident of Westchester County, New York. See id. ¶ 2. After complying with all of New York's voting requirements, Romeu voted in the 1996 Presidential election by casting his ballot in Westchester County. See id. ¶¶ 3-4. On May 17, 1999, Romeu moved to — and became a resident and domiciliary of — Puerto Rico. See id. ¶ 5. On July 9, 1999, Romeu registered to vote in Puerto Rico. See id. ¶ 6.
As a resident of Puerto Rico, Romeu is unable to vote in the 2000 Presidential election. Article II of the Constitution states in relevant part:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.
U.S. Const. art II. In 1994, the First Circuit clearly resolved the voting status of residents of Puerto Rico: Igartua De La Rosa v. United States, 32 F.3d 8, 9-10 (1st Cir.1994) (citations omitted) ("Igartua I"); see also Attorney General of the Territory of Guam v. United States, 738 F.2d 1017, 1019 (9th Cir.1984) ().2 Indeed, residents of the District of Columbia only acquired the right to vote for President and Vice President through the Twenty-Third Amendment. See U.S. Const. amend XXIII; see also Territory of Guam, 738 F.2d at 1019 ().3
Knowing that he could not vote in the 2000 Presidential election as a resident of Puerto Rico, Romeu requested an application for an absentee ballot to vote in the 2000 Presidential election from Westchester County. See id. ¶ 6. On September 27, 1999, Romeu received the application for an absentee ballot (the "Application"). See id. ¶ 7. The Application is a standard form provided by the Board of Elections to every person who requests an application for an absentee ballot for federal voting. See Declaration of Carolee C. Sunderland ("Sunderland Decl.") ¶ 6. The Board of Elections did not create or modify the Application, which is widely available throughout the United States. See id. ¶ 7.
Section 6 of the Application requires the applicant to give a reason for requesting an absentee ballot and provides the following choices: (a) member of the armed forces, uniformed services or merchant marines in active service; (b) spouse or dependent of (a); (c) U.S. citizen temporarily residing outside U.S.; (d) U.S. citizen overseas by virtue of employment or accompanying dependent; (e) other U.S. citizen residing outside U.S.; or (f) special. See Sunderland Decl., Ex. B (application for absentee ballot). Section 8 of the Application requires the applicant to swear or affirm, under penalty of perjury: "I am not requesting a ballot from or voting in any other U.S. state, territory or possession or sub[-]division thereof in the coming election(s)." See id. According to Romeu, he was unable to return the Application because he did not satisfy any of the categories in Section 6 and could not make the required affirmation in Section 8. See Pl. 56.1 Statement ¶¶ 8-10.
On March 24, 2000, Romeu filed this lawsuit against President Clinton, Secretary Cohen, Governor Pataki, Commissioner Sunderland, and Daniel DeFranchesco, Executive Director of the Manhattan Board of Elections.4 On June 13, 2000, this Court held a conference to discuss the status of Romeu's case. At that conference, all parties expressed their desire to resolve the case through dispositive motions. See Transcript of June 13, 2000 Conference ("June 13 Tr.") at 2-5. The parties completed their briefing of these motions on August 21, 2000.
As a former resident of New York State, Romeu is eligible to apply for an absentee ballot under both the UOCAVA and the NYEL. Romeu admits that he is not eligible to receive an absentee ballot under either statute, arguing instead that his inability to receive an absentee ballot violates his constitutional rights. Before evaluating Romeu's argument, it is important to understand why Romeu is ineligible to receive an absentee ballot under the relevant statutes.
First, Romeu is not eligible to receive an absentee ballot under the UOCAVA, which allows "absent uniformed services voters...
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