Gregorio Igartua voted in the 1976 presidential election, but not in any federal elections since then. But it’s not for lack of trying.
Igartua, a lawyer in Puerto Rico, has waged a two-decade legal battle to try to win voting rights for himself and the rest of the island’s 4 million U.S. citizens. He voted in Virginia in 1976 while going to law school, but once back in Puerto Rico he lost the right to vote for president or for a voting member of Congress.
Once, in 2000, Igartua got close. A federal judge in Puerto Rico ruled (in a case now called Igartua II) that Puerto Ricans could vote for the U.S. president. Two million ballots were printed for the Bush-Gore race. But five days before the election, the First U.S. Circuit Court of Appeals reversed the ruling. The ballots, Igartua recalls, were destroyed.
Igartua’s latest setback came last week [Aug. 4] when the Boston-based First Circuit refused on a 3-3 vote to reconsider a three-judge panel’s decision in November rejecting his suit to win Puerto Ricans the right to elect voting members of the U.S. House of Representatives. A motion for an en banc rehearing before the full court requires a majority vote.
For some of the judges on the appeals court at least, this is a very simple case. The Constitution provides that the House of Representatives “shall be composed of members chosen . . . by the people of the several states” and the Senate of “two senators from each state.” Puerto Rico is not a state.
“The text of the Constitution does not permit plaintiffs to vote for a member of the U.S. House of Representatives,” Chief Judge Sandra Lynch wrote in the Nov. 24 decision in what has to be called Igartua IV. “It cannot, then, be unconstitutional to conclude the residents of Puerto Rico have no right to vote for Representatives.”
Eight months later, Lynch vented a little impatience as she and colleagues Michael Boudin and Jeffrey Howard voted to reject Igartua’s motion for rehearing. The issues, including a claim brought under the International Covenant on Civil and Political Rights, had been fully considered and rejected six years earlier, Lynch wrote.
“Our en banc decision in Igartua III controls this case,” Lynch wrote in a five-paragraph opinion. She noted that a federal appellate rule “disfavors . . . continual en banc reviews to re-examine already settled issues.”
Despite the putdown, Igartua takes heart from the tie vote. “Every time there is an opinion, more evidence arises saying that I am right,” he says.
The strongest support for Puerto Rican voting rights comes from Judge Juan Torruella, the lone Puerto Rican on the court. “This is a fundamental constitutional question that will not go away notwithstanding this court’s repeated effort to suppress these issues,” Torruella wrote in November.
More significantly, Judge Kermit Lipez, a Clinton appointee, wrote in November and again last week that he has changed his views on the issue since the en banc ruling in 2005. After describing voting rights for Puerto Ricans as “a compelling legal problem,” Lipez said in November that he is now convinced that the Constitution “may permit their enfranchisement” under some other source of law.
Lipez joined the 2-1 decision rejecting Igartua’s suit then, but called for reconsideration by the full court and voted in favor of rehearing last week. A third judge, O. Rogeriee Thompson, joined in voting for rehearing “more briefly but no less vehemently,” he said, than Torruella and Lipez.
Based on population, Puerto Rico would be entitled to five House members instead of the non-voting “resident commissioner” who now represents the commonwealth’s interests in Washington. The 600,000 people who live in Washington, D.C., can empathize. The District of Columbia is represented in Congress by a non-voting “delegate.” But the Twenty-Third Amendment, ratified in 1961, did grant Washingtonians the franchise in presidential elections.
The majority judges note the option of a constitutional amendment as the prescribed route for Puerto Ricans on this issue. But turning to the Constitution ignores Torruella’s main point. The framers could never have contemplated the United States exercising sovereignty over a territory for a full century and treating it for most purposes as a state without granting constitutional rights. In any event, Puerto Ricans are shut out of the amendment process that the court’s majority points to as their remedy.
Still, Igartua and the judges siding with him face significant obstacles. Puerto Ricans have hurt their cause by rejecting full statehood, most recently in 1998, when a bare majority voted for “none of the above” (independence, commonwealth, or statehood). The appeal to the international covenant on political rights collides with the Senate’s formal declaration that the pact is not self-executing and with the Roberts Court’s recent refusal to give binding effect to other treaties.
Igartua’s next stop is the Supreme Court, which he notes now includes a justice of Puerto Rican background: Sonia Sotomayor. But the road is uphill. When the Supreme Court was asked to grant Washington, D.C., voting representation in Congress in 2000, the justices turned the case down in a summary ruling without written opinion or dissenting vote.