Voting rights of United States citizens who live in Puerto Rico, like the voting rights of residents of other United States territories, differ from those of United States citizens in each of the fifty states and the District of Columbia. Residents of Puerto Rico and other U.S. territories do not have voting representation in the United States Congress, and are not entitled to electoral votes for president. The United States Constitution grants congressional voting representation to U.S. states, which Puerto Rico and other U.S. territories are not, specifying that members of Congress shall be elected by direct popular vote and that the president and the vice president shall be elected by electors chosen by the states. [Note 1]
Puerto Rico is a territory under the sovereignty of the federal government, but is not part of any state nor is it a state itself. It has been organized (given a measure of self-rule by the Congress) subject to the Congress' plenary powers under the territorial clause of Article IV, sec. 3, of the U.S. Constitution. [1] In the U.S. House of Representatives, Puerto Rico is entitled to a resident commissioner, a delegate who is not allowed to vote on the floor of the House but can vote on procedural matters and in House committees. In most other U.S. overseas (and historically pre-state) territories, as well as the District of Columbia, a similar representative position is styled Delegate.
The lack of direct voting representation in Congress for residents of the territory has been an issue since the U.S. Congress granted U.S. citizenship to Puerto Rico citizens in 1917. All judicial claims have been met with political or constitutional challenges; therefore, there has been no change in Puerto Rico's representation in the Congress or representation on the electoral college for the U.S. citizens residing in Puerto Rico.
Like other territories, Puerto Rico holds presidential primary elections in the spring of each presidential election year in which the parties choose delegates to the Republican and Democratic national conventions. While these delegates do vote for their pledged candidate at their respective convention, this marks the end of the territory's participation in the presidential election.
Puerto Rico is an insular area—a United States territory that is neither a part of one of the fifty states nor a part of the District of Columbia, the nation's federal district. Insular areas, including Puerto Rico, the U.S. Virgin Islands and Guam, are not allowed to choose electors in U.S. presidential elections or elect voting members of the U.S. Congress. This grows out of Articles One and Two of the United States Constitution, which state that electors are to be chosen by "the People of the several States." In 1961, the 23rd amendment extended the right to choose electors to the District of Columbia; the insular areas, however, were not addressed in that Amendment.
On December 29, 2003, The Inter-American Commission on Human Rights of the Organization of American States concluded that the United States is responsible for violations of the District of Columbia's rights under Articles II and XX of the American Declaration of the Rights and Duties of Man by denying District of Columbia citizens an effective opportunity to participate in their federal legislature. [2] On October 17, 2006, Pedro Rosselló, a former governor of Puerto Rico, and the Unfinished Business of American Democracy Committee on behalf of the approximately four million U.S. citizens residing in the Commonwealth of Puerto Rico, presented a petition to the Inter-American Commission on Human Rights of the Organization of American States seeking the Commission's aid in obtaining enfranchisement. [3]
Any U.S. citizen who resides in Puerto Rico is effectively disenfranchised at the national level, as are all U.S. citizen residents of U.S. unincorporated territories. [4] Although the Republican Party and Democratic Party chapters in Puerto Rico have selected voting delegates to the national nominating conventions participating in U.S. presidential primaries or caucuses, U.S. citizens without a voting residence in one of the 50 states or in the District of Columbia may not vote in federal elections. [5]
Both the Puerto Rican Independence Party and the New Progressive Party reject[ citation needed ] the status quo that permits disenfranchisement (from their distinct respective positions on the ideal enfranchised status for the island-nation of Puerto Rico). The remaining political organization, the Popular Democratic Party, has officially stated that it favors fixing the remaining "deficits of democracy" that the Bill Clinton and George W. Bush administrations have publicly recognized in writing through reports of the President's Task Force on Puerto Rico's Status. [6] [7]
In 2003, attorney Gregorio Igartúa and others in a third round of litigation (Igartúa III) filed suit seeking to enfranchise U.S. citizens residents of Puerto Rico with the right to vote for the U.S. President and Vice President.
The U.S. Court of Appeals decision in 2005, on appeal of the decision in Igartúa III, Igartua-de la Rosa v. United States, 417 F.3d 145 (1st Cir. P.R. 2005), reads in part: [8]
This case brings before this court the third in a series of law suits by Gregorio Igartúa, 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 three occasions. 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.
Judges Campbell and Lipez concurred in the decision. Judge Torruella dissented, opening his dissent as follows: [8]
In its haste to "put [plaintiffs-appellants'] constitutional claim fully at rest," maj. op. at 6, the majority has chosen to overlook the issues actually before this en banc court as framed by the order of the rehearing panel, see Igartúa de la Rosa v. United States, 404 F.3d 1 (1st Cir. 2005) (order granting panel rehearing), which panel the en banc court suppressed, but whose order was adopted as establishing the parameters of the issues to be decided by the en banc court. See Igartúa de la Rosa v. United States, 407 F.3d 30, 31 (1st Cir. 2005) (converting to en banc review panel rehearing in which "the parties [are] to address two issues: first, the plaintiffs' claim that the United States was in default of its treaty obligations and, second, the availability of declaratory judgment concerning the government's compliance with any such obligations."). It is these issues that the parties were asked to brief. Instead the majority has sidetracked this appeal into a dead end that is no longer before us: Puerto Rico's lack of electoral college representation, see U.S. Const. art. II, § 1, cl. 2, and our lack of authority to order any constitutional change to such status by reason of that constitutional impediment.
In doing so, the majority fails to give any weight to the fundamental nature of the right to vote, and the legal consequences of this cardinal principal. Under the combined guise of alleged political question doctrine, its admitted desire to avoid "embarrassment" to the United States, and its pious lecturing on what it deems to be the nature of the judicial function, the majority seeks to avoid what I believe is its paramount duty over and above these stated goals: to do justice to the civil rights of the four million United States citizens who reside in Puerto Rico. The majority labels this duty with despect as "rhetoric" and "intuitive values." Maj. op. at 3. I beg to differ, and so, I suspect, do a considerable number of those four million U.S. citizens who, lacking any political recourse, look to the courts of the United States for succor because they are without any other avenue of relief. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) ("[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities and . . . may call for correspondingly more searching judicial inquiry.").
In 2008, attorney Gregorio Igartúa and others in a fourth round of litigation (Igartúa IV) attempted to bring a class action 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.
The 2010 United States Court of Appeals for the First Circuit decision read in part:
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.
Lipez opened his concurrence opinion as follows: [9]
Despite our court's 2005 en banc decision rejecting the right of Puerto Rico's four million residents to vote in presidential elections, the issue of federal voting rights for these longstanding United States citizens remains a compelling legal problem. The unequal distribution of the fundamental privilege of voting among different categories of citizens is deeply troubling and, not surprisingly, the legal arguments in favor of enfranchising Puerto Rico residents have continued to evolve. Although the en banc decision forecloses this panel's reconsideration of issues the full court resolved, that decision should not be the final word on the subject. Judge Torruella's dissent highlights important issues that deserve consideration in a new en banc proceeding. As I shall explain, if each of those issues were decided in plaintiffs' favor, United States citizens residing in Puerto Rico would have a viable claim to equal voting rights under the International Covenant on Civil and Political Rights ("ICCPR").
Thus, while I agree with Chief Judge Lynch that our panel must adhere to the precedent set five years ago by the en banc court on the constitutional and treaty interpretation issues addressed in the majority opinion, I cannot agree that the plaintiffs' claims should be dismissed without review by the full court. Given the magnitude of the issues and Judge Torruella's forceful analysis, this is one of those rare occasions when reconsideration of an en banc ruling is warranted.
Torruella opened his Opinion Concurring in Part and Dissenting in Part, as follows: [9]
Although in a different format than presented on prior occasions, we once more have before us issues that arise by reason of the political inequality that exists within the body politic of the United States, as regards the four million citizens of this Nation who reside in Puerto Rico.
This is a fundamental constitutional question that will not go away notwithstanding this Court's repeated efforts to suppress these issues.21 We can now add to that dismal list the endeavors of the lead opinion. This is a most unfortunate and denigrating predicament for citizens who for more than one hundred years have been branded with a stigma of inferiority, and all that follows therefrom.
At the root of this problem is the unacceptable role of the courts. Their complicity in the perpetuation of this outcome is unconscionable. As in the case of racial segregation, see Plessy v. Ferguson, 163 U.S. 557 (1896) (overruled by Brown v. Bd. of Educ., 347 U.S. 482 (1954)), it is the courts that are responsible for the creation of this inequality. Furthermore, it is the courts that have clothed this noxious condition in a mantle of legal respectability.
But perhaps even more egregious is the fact that it is this judiciary that has mechanically parroted the outdated and retrograde underpinnings on which this invented inferiority is perpetuated. This result is now reached without so much as a minimum of analysis or consideration for the passage of time and the changed conditions, both legal and societal. These changed conditions have long undermined the foundations of these judge-made rules, which were established in a by-gone era in consonance with the distorted views of that epoch. Although the unequal treatment of persons because of the color of their skin or other irrelevant reasons, was then the modus operandi of governments, and an accepted practice of societies in general, the continued enforcement of these rules by the courts is today an outdated anachronism, to say the least. Such actions, particularly by courts of the United States, only serve to tarnish our judicial system as the standard-bearer of the best values to which our Nation aspires. Allowing these antiquated rules to remain in place, long after the unequal treatment of American citizens has become constitutionally, morally and culturally unacceptable in the rest of our Nation, see Brown v. Bd. of Educ., 347 U.S. 483, is an intolerable state of affairs which cannot be excused by hiding behind any theory of law.
In 1961, just a few years after the United Nations first ratified the ICCPR, the Twenty-third Amendment to the United States Constitution was passed, allowing United States citizens residing in the District of Columbia to vote for the executive offices. As of 2009 [update] a bill was pending in Congress that would treat the District of Columbia as "a congressional district for purposes of representation in the House of Representatives", and permit United States citizens residing in the capital to vote for members of the House of Representatives. [10] However, the United States has not taken similar steps with regard to the four million United States citizens and nationals who reside in the U.S. territories, of which close to three million are residents of Puerto Rico. In an opinion concurring in part and dissenting in part in a judicial decision, Circuit Judge Juan R. Torruella, who is Puerto Rican, wrote that this inaction is in clear violation of the United States' obligations under the ICCPR. [11]
In August 2017, the en banc First Circuit rejected another lawsuit by Igartúa challenging Puerto Rico's exclusion from United States congressional apportionment, over the dissents of Judges Torruella, Kermit Lipez, and Ojetta Rogeriee Thompson. [12] [13]
Federal jurisdiction refers to the legal scope of the government's powers in the United States of America.
The federal government of the United States is the national government of the United States, a federal republic located primarily in North America, composed of 50 states, five major self-governing territories, several island possessions, and the federal district and national capital of Washington, D.C., where most of the federal government is based.
Territories of the United States are sub-national administrative divisions overseen by the federal government of the United States. The various American territories differ from the U.S. states and Indian reservations as they are not sovereign entities. In contrast, each state has a sovereignty separate from that of the federal government and each federally recognized Native American tribe possesses limited tribal sovereignty as a "dependent sovereign nation." Territories are classified by incorporation and whether they have an "organized" government through an organic act passed by the Congress. American territories are under American sovereignty and, consequently, may be treated as part of the United States proper in some ways and not others. Unincorporated territories in particular are not considered to be integral parts of the United States, and the Constitution of the United States applies only partially in those territories.
The Insular Cases are a series of opinions by the Supreme Court of the United States in 1901 about the status of U.S. territories acquired in the Spanish–American War. Some scholars also include cases regarding territorial status decided up until 1914, and others include related cases as late as 1979. The term "insular" signifies that the territories were islands administered by the War Department's Bureau of Insular Affairs. Today, the categorizations and implications put forth by the Insular Cases still govern the United States' territories.
Voting rights, specifically enfranchisement and disenfranchisement of different groups, has been a moral and political issue throughout United States history.
Balzac v. Porto Rico, 258 U.S. 298 (1922), was a case in which the Supreme Court of the United States held that certain provisions of the U.S. Constitution did not apply to territories not incorporated into the union. It originated when Jesús M. Balzac was prosecuted for criminal libel in a district court of Puerto Rico. Balzac declared that his rights had been violated under the Sixth Amendment to the U.S. Constitution as he was denied a trial by jury since the code of criminal procedure of Puerto Rico did not grant a jury trial in misdemeanor cases. In the appeal, the U.S. Supreme Court affirmed the judgments of the lower courts on the island in deciding that the provisions of the Constitution did not apply to a territory that belonged to the United States but was not incorporated into the Union. It has become known as one of the "Insular Cases".
Silveira v. Lockyer, 312 F.3d 1052, is a decision by the United States Court of Appeals for the Ninth Circuit ruling that the Second Amendment to the United States Constitution did not guarantee individuals the right to bear arms. The case involved a challenge to the constitutionality of the Roberti-Roos Assault Weapons Control Act of 1989 (AWCA), California legislation that banned the manufacture, sale, transportation, or importation of specified semi-automatic firearms. The plaintiffs alleged that various provisions of the AWCA infringed upon their individual constitutionally-guaranteed right to keep and bear arms.
The United States territorial courts are tribunals established in territories of the United States by the United States Congress, pursuant to its power under Article Four of the United States Constitution, the Territorial Clause. Most United States territorial courts are defunct because the territories under their jurisdiction have become states or been retroceded.
Juan Rafael Torruella del Valle Sr. was a Puerto Rican jurist. He served as a United States circuit judge of the United States Court of Appeals for the First Circuit from 1984 until his death, and as chief judge of that court from 1994 to 2001. He was the first Hispanic to serve on the First Circuit, which includes Puerto Rico.
José Alberto Cabranes is an American lawyer who serves as a senior United States circuit judge of the United States Court of Appeals for the Second Circuit and a former presiding judge of the United States Foreign Intelligence Surveillance Court of Review ("FISCR"). Formerly a practicing lawyer, government official, and law teacher, he was the first Puerto Rican appointed to a federal judgeship in the continental United States (1979).
Kermit Victor Lipez is an American lawyer who serves as a senior United States circuit judge of the United States Court of Appeals for the First Circuit.
The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), P.L. 99-410, 52 U.S.C. §§ 20301–20311, 39 U.S.C. § 3406, 18 U.S.C. §§ 608–609, is a United States federal law dealing with elections and voting rights for United States citizens residing overseas. The act requires that all U.S. states, the District of Columbia, Puerto Rico, Guam, American Samoa, and the U.S. Virgin Islands allow certain U.S. citizens to register to vote and to vote by absentee ballot in federal elections. The act is Public Law 99-410 and was signed into law by President Ronald Reagan on August 28, 1986.
In the United States, a state is a constituent political entity, of which there are 50. Bound together in a political union, each state holds governmental jurisdiction over a separate and defined geographic territory where it shares its sovereignty with the federal government. Due to this shared sovereignty, Americans are citizens both of the federal republic and of the state in which they reside. State citizenship and residency are flexible, and no government approval is required to move between states, except for persons restricted by certain types of court orders.
Arar v. Ashcroft, 585 F.3d 559, was a lawsuit brought by Maher Arar against the United States and various U.S. officials pursuant to the Torture Victim Protection Act (TVPA), and the Fifth Amendment to the United States Constitution. The United States District Court for the Eastern District of New York dismissed Arar's complaint due to lack of personal jurisdiction and national security and foreign policy considerations. This ruling was ultimately upheld by a divided en banc panel of the United States Court of Appeals for the Second Circuit.
Puerto Rico is an island in the Caribbean region in which inhabitants were Spanish nationals from 1508 until the Spanish–American War in 1898, from which point they derived their nationality from United States law. Nationality is the legal means in which inhabitants acquire formal membership in a nation without regard to its governance type. In addition to being United States nationals, persons are citizens of the United States and citizens of the Commonwealth of Puerto Rico within the context of United States Citizenship. Miriam J. Ramirez de Ferrer v. Juan Mari Brás. Citizenship, the rights and obligations that each owes the other, once one has become a member of a nation. Though the Constitution of the United States recognizes both national and state citizenship as a means of accessing rights, Puerto Rico's history as a territory has created both confusion over the status of its nationals and citizens and controversy because of distinctions between jurisdictions of the United States. These differences have created what political scientist Charles R. Venator-Santiago has called "separate and unequal" statuses.
The political status of Puerto Rico is that of an unincorporated territory of the United States officially known as the Commonwealth of Puerto Rico. As such, the island of Puerto Rico is neither a sovereign nation nor a U.S. state. It is because of that ambiguity, the territory, as a polity, lacks certain rights but enjoys certain benefits that other polities have or lack. For instance, in contrast to U.S. states, Puerto Rico residents cannot vote in U.S. presidential elections nor can they elect their own senators and representatives to the U.S. Congress. On the other hand, in contrast to U.S. states, only some residents of Puerto Rico are subject to federal income taxes. The political status of the island thus stems from how different Puerto Rico is politically from sovereign nations and from U.S. states.
William Joseph Kayatta Jr. is an American lawyer who serves as a United States circuit judge of the United States Court of Appeals for the First Circuit.
The political status of Puerto Rico has ramifications into many spheres of Puerto Rican life, and there are limits to the level of autonomy the Puerto Rican government has. For example, the Island's government is not fully autonomous, and the level of federal presence in the Island is common place, including a branch of the United States Federal District Court. There are also implications relative to the American citizenship carried by people born in Puerto Rico. Specifically, although people born in the Commonwealth of Puerto Rico are natural born U.S. citizens, their citizenship is not protected by the Citizenship Clause of the 14th Amendment to the U.S. Constitution. As such, the American citizenship of Puerto Ricans can be taken away by the U.S. Congress unilaterally. Puerto Ricans are also covered by a group of "fundamental civil rights" but, since Puerto Rico is not a state, Puerto Ricans are not covered by the full American Bill of Rights. As for taxation, Puerto Ricans pay U.S. federal taxes, but most residents of the island are not required to file federal income tax returns. Representation-wise, Puerto Ricans have no voting representative in the U.S. Congress, but do have a Resident Commissioner who has a voice in Congress. Puerto Ricans must also serve in the United States military anytime conscription is ordered, with the same duties as a US citizen residing in the 50 states.
Same-sex marriage has been legal in Puerto Rico since July 13, 2015, as a result of the U.S. Supreme Court's decision in Obergefell v. Hodges. On June 26, 2015, the court ruled that bans on same-sex marriage are unconstitutional under the Due Process and Equal Protection clauses of the United States Constitution. Same-sex couples could begin applying for marriage licenses on July 13, and the first marriages occurred on July 17, 2015.
United States v. Vaello Madero, 596 U.S. ___ (2022), was a United States Supreme Court case related to the constitutionality of the exclusion of United States citizens residing in Puerto Rico from the Supplemental Security Income program. In an 8–1 decision, the Court ruled that as Congress had been granted broad oversight of United States territories by Article Four of the United States Constitution, the exclusion of the territories by Congress from programs like Supplemental Security Income did not violate the Due Process Clause of the Fifth Amendment.
