
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1174                        GREGORIO IGARTUA DE LA ROSA, ET. AL.,                               Plaintiffs, Appellants,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Gregorio Igartua on brief pro se.            ________________            Guillermo  Gil,  United   States  Attorney,    Frank  W.   Hunger,            ______________                                 __________________        Assistant United States Attorney, Barbara C. Biddle and Jacob M. Lewis                                          _________________     ______________        Attorneys, Appellate Staff Civil Division, on brief for appellee.                                 ____________________                                   August 17, 1994                                 ____________________                 Per Curiam.   Appellant residents of  Puerto Rico allege                 __________            that   their  inability   to  vote   in  the   United  States            presidential  election  violates their constitutional rights.            Some  appellants,  who   previously  voted  in   presidential            elections while residing elsewhere but who are now ineligible            to   vote   in   those    elections,   also   challenge   the            constitutionality  of the  Uniformed  and  Overseas  Citizens            Absentee Voting Act, 42 U.S.C.   1973ff et seq.  The district                                                    __ ___            court  dismissed  appellants'  request  for  declaratory  and            injunctive relief for  failure to  state a  claim upon  which            relief could be granted.  We summarily affirm.                                          I                 While appellants are citizens  of the United States, the            Constitution  does  not  grant  citizens the  right  to  vote            directly  for  the  President.    Instead,  the  Constitution            provides  that the President is to be chosen by electors who,            in  turn, are chosen by  "each state . . .  in such manner as                                      ____ _____            the  Legislature thereof may direct."  U.S. Const. art. II,              1,  cl.  2  (emphasis  added).     Pursuant  to  Article  II,            therefore,  only citizens  residing  in states  can vote  for                                                    ______            electors  and  thereby indirectly  for  the  President.   See                                                                      ___            Attorney  General  of Guam  on  behalf of  All  U.S. Citizens            _____________________________________________________________            Residing in Guam etc.  v. United States, 738 F.2d  1017, 1019            ____________________      _____________            (9th Cir.  1984), cert. denied,  469 U.S.  1209 (1985)  ("The                              ____  ______            right  to vote  in  presidential elections  under Article  II                                         -2-            inheres  not  in  citizens   but  in  states;  citizens  vote            indirectly for the President by voting for state electors.").            Since  Puerto Rico  is concededly  not a  state, see  Trailer                                                             ___  _______            Marine  Transport Corp. v. Rivera Vazquez, 977 F.2d 1, 7 (1st            ______________________     ______________            Cir. 1992) (status of Puerto Rico  "is still not the same  as            that of a  State in the Federal  Union"), it is not  entitled            under Article II  to choose electors  for the President,  and            residents  of Puerto  Rico  have no  constitutional right  to            participate in  that election.  See Attorney General of Guam,                                            ___ ________________________            738 F.2d at 1019  ("Since Guam concededly is not  a state, it            can  have  no   electors,  and  plaintiffs   cannot  exercise            individual votes  in a  presidential election."); Sanchez  v.                                                              _______            United States,  376 F. Supp. 239, 241  (D.P.R. 1974) (finding            _____________            similar  claim   "plainly  without  merit"  for   purpose  of            convening three-judge court).                 The  only jurisdiction, not  a state, which participates            in  the presidential  election is  the District  of Columbia,            which  obtained that right through the twenty-third amendment            to  the Constitution.   Such  a constitutional  amendment was            necessary   precisely   "because   the   Constitution   ha[d]            restricted th[e] privilege [of  voting in national elections]            to  citizens who reside[d] in  States."  H.R.  Rep. No. 1698,            86th  Cong., 2d Sess. 2  (1960), reprinted in  1960 U.S. Code                                             _________ __            Cong. & Ad. News  1459, 1460.  Only a  similar constitutional            amendment or a  grant of statehood to Puerto Rico, therefore,                                         -3-            can provide appellants the right to  vote in the presidential            election  which they seek.  See Attorney General of Guam, 738                                        ___ ________________________            F.2d at 1019-20.1                                          II                 Some  appellants, who  previously voted  in presidential            elections while  residing elsewhere,  also assert  that their            constitutional  rights to  due process  and equal  protection            have  been violated  by the  Uniformed and  Overseas Citizens            Absentee Voting  Act [Act].   The  Act  provides that  United            States citizens,  including residents of Puerto  Rico, see 42                                                                   ___            U.S.C.    1973ff-6(6) &  (7), who reside  outside the  United            States  retain the right to vote via absentee ballot in their            last  place of  residence in  the United  States, as  long as            these citizens  otherwise qualify to  vote under laws  of the            jurisdiction in which they last resided.  42 U.S.C.   1973ff-            1.  It does not apply, however, to citizens who move from one            jurisdiction  to another within  the United  States.   See 42                                                                   ___                                            ____________________            1.  Appellants' contention  that their  right to vote  in the            presidential  election  is  secured  by  Article  25  of  the            International  Covenant  on  Civil  and Political  Rights,  6            I.L.M.  368 (1967)  (entered  into force  Sept. 8,  1992), is            without merit.   Even if  Article 25  could be read  to imply            such a right, Articles 1 through 27  of the Covenant were not            self-executing, see 138  Cong. Rec. S4784 (daily  ed. Apr. 2,                            ___            1992),  and  could  not  therefore  give  rise  to  privately            enforceable  rights  under United  States  law.   See  United                                                              ___  ______            States  v. Green, 671 F.2d  46, 50 (1st  Cir.), cert. denied,            ______     _____                                ____  ______            457 U.S.  1135 (1982);  United States  v. Thompson,  928 F.2d                                    _____________     ________            1060,  1066 (11th Cir.), cert. denied, 112 S. Ct. 270 (1991).                                     ____  ______            Nor  could the  Covenant override  the constitutional  limits            discussed  above.   See  Reid v.  Covert,  354 U.S.  1, 15-16                                ___  ____     ______            (1957) (plurality opinion).                                         -4-            U.S.C.    1973ff-6(5) (defining "overseas voter"  as a person            "who resides outside the United States").                   Appellants  claim that  the Act  illegally discriminates            against citizens  who have taken up residence  in Puerto Rico            rather than outside the United States, because the former are            not  entitled  by the  Act to  vote in  their prior  state of            residence.  In  fact, however, the  Act does not  distinguish            between those  who  reside overseas  and  those who  take  up            residence  in  Puerto  Rico,  but between  those  who  reside            overseas  and  those  who  move anywhere  within  the  United            States.   Given  that such  a  distinction neither  affects a            suspect  class nor  infringes a  fundamental right,2  it need            only  have a  rational basis  to pass  constitutional muster.            See  FCC v. Beach Communications, Inc., 113 S. Ct. 2096, 2101            ___  ___    _________________________            (1993) (equal protection); Nebbia v. New York, 291  U.S. 502,                                       ______    ________            537 (1934) (due process).                  Without  the Act,  voters who  move overseas  could lose            their  right to  vote  in all  federal  elections.   However,            voters who move to  a new residence within the  United States            are eligible to vote in a federal election in their new place                                            ____________________            2.  Although it affects the  right to vote, the Act  does not            infringe that  right but rather  limits a state's  ability to            restrict it.   Moreover, nothing  in the Act  "prevent[s] any            State  from  adopting  any  voting  practice  which  is  less            restrictive than the practices prescribed in the Act."   H.R.            Rep.  No. 765, 99th Cong.,  2d Sess. 19  (1986), reprinted in                                                             _________ __            1986 U.S. Code Cong. & Ad. News 2009, 2023.                                         -5-            of  residence.3   Hence,  Congress had  a rational  basis for            seeking to  protect the  absentee voting rights  only of  the            former.   While  the Act  does not  guarantee that  a citizen            moving  to  Puerto  Rico  will  be  eligible  to  vote  in  a            presidential election, this limitation  is not a  consequence            of the  Act but of the  constitutional requirements discussed            above.                 Appellants' request  for oral  argument is denied.   The                                                            ______            dismissal of  appellants' claims is  affirmed.  See  1st Cir.                                                 ________   ___            Loc. R. 27.1.                                             ____________________            3.  For  example, a citizen who moves to Puerto Rico would be            eligible  to vote  in the  federal election for  the Resident            Commissioner.   See  Puerto Rican  Federal Relations  Act, 48                            ___            U.S.C.      891  (Resident   Commissioner  chosen  by  "[t]he            qualified electors  of Puerto  Rico"); 42  U.S.C. 1973ff-6(3)            (defining    "[f]ederal    office"   to    include   Resident            Commissioner).                                         -6-
