Why would a U.S. Citizen residing in Puerto Rico not want to vote for President of the United States?

By David C. Indiano

American citizens, as a whole, take their right to vote as a sacred, cherished right; even when they do not exercise it. Indeed, despite a better-than-expected turnout on November 7, 2000, only about 52 % of U.S. voters cast votes for the President of the United States. In Puerto Rico, a worse-than-expected turnout on November 7, 2000 led to 81.7% of voters casting votes in the gubernatorial race.

If you told an average U.S. citizen, residing anywhere in the world, that there are U.S. citizens who would not accept the right to vote for the President of the United States even if you gave it to them; a puzzled silence would most likely be their first response. Later responses would vary. Democracy implies the right of citizens to vote for their leaders. Regardless of one’s political persuasion in Puerto Rico, the President of the United States is the President of all U.S. citizens, whether you vote for him (or her) or not. That a U.S. citizen would not even want the right to vote, regardless of whether he or she might exercise it, is foreign to the American psyche; and, to most, illogical.

Yet, several U.S. citizens in Puerto Rico have actually sued to avoid receiving this right. Before we look at the court decisions, let’s take a practical look at the 2000 Presidential race and observe the influence that Puerto Rico may have had if the U.S. citizens living here had voted for President.

Focusing on the two major parties: Democrats and Republicans, the popular vote for President went 50,158,094 to 49,820,518 in favor of Al Gore over George W. Bush; a 337,576 victory for Al Gore in the popular race. Of course, the Electoral College, not the popular vote, selects the next president. Thus, to understand the impact of Puerto Rico, you must determine how may electors it would have at the Electoral College. Based on population and the numbers actually submitted to the State Election Commission, Puerto Rico would have eight (8) electors.

Presently, it takes 270 electoral votes to win the Presidency. If Puerto Rico’s 8 are added to the overall total of members of the Electoral College, a candidate would need 274 votes to win. Without Florida, Al Gore had 267 votes. George W. Bush had 246 without his brother’s state (271 with Florida). Had Al Gore carried Puerto Rico, he would have had 275 electoral votes and won the Presidency, even without Florida. Thus, it is not difficult to see that Puerto Rico could have elected the President in 2000. (As goes Puerto Rico, so goes the Nation?)

But let’s not dismiss the popular vote so quickly. With the Electoral College under attack, the popular vote seems to be more popular than ever. Though admittedly uphill, it is not inconceivable that the Constitution could be amended to allow for the direct election of the President. In that case, an examination of the popular vote in terms of turnout is required. In the 2000 gubernatorial race in Puerto Rico, 1,998,778 people voted. Of the 50 states, Puerto Rico is right in the middle in terms of population with its nearly 4,000,000 residents; 25 have greater population while 25 have less. But people in Puerto Rico have, historically, voted in greater percentages than those in the states. Comparing the actual turnout in the 50 states to that in Puerto Rico on the same day, November 7, 2000, Puerto Rico ranks 20th in terms of actual number of voters who cast ballots that day. No fewer than 31 states fall behind Puerto Rico in sheer numbers of voters. This includes such states as Alabama, Arkansas, Arizona, Colorado, Connecticut, Iowa, Kansas, Kentucky, Louisiana, Maryland, Oklahoma, Oregon and South Carolina.

It takes little imagination to appreciate what this electoral power would mean for Puerto Rico. Suffice it to say that Presidential candidates would have to pay attention to the potential 2,000,000 voters in Puerto Rico. If U.S. citizens in Puerto Rico were granted the right to vote for President, without Puerto Rico necessarily becoming a state, what are compelling arguments against accepting such a right to vote?

Let’s just look at the some of the legal arguments posed in recent litigation seeking the right to a presidential vote. The political arguments against such a vote are better left to the talking heads. There were two leading cases filed in 2000 attempting to secure the right to vote for President by U.S. citizens in Puerto Rico: one by a voter living in Puerto Rico and the other by a voter who had moved to Puerto Rico seeking an absentee ballot from his former state of residence. The former is Igartua de la Rosa v. United States of America, 107 F.Supp.2d 140, 2000 WL 1300356 (D.P.R., 2000)(J.Pieras, Jr.) and 113 F.Supp.2d 228 (D.P.R., 2000)(J.Pieras, Jr.); rev’d __ F.3d __ (1st Cir. October 13, 2000)(Per Curiam, J. Torruella concurring) and the latter is Romeu v Cohen, et.al. 2000 WL 1264243 (S.D.N.Y. 2000). All these case were reviewed in Issue 28 of From the Bar.

Judge Pieras really wrote two decisions in the Igartua de la Rosa litigation (one establishing the right to vote and the other implementing the decision) and, collectively, they have now become a part of legal lore. Judge Pieras’ analysis is both historical and legal. Whether one agrees with his conclusion is almost secondary to the value of these opinions as compilations of data, cases and constitutional arguments regarding the right to vote. Central to the Judge’s conclusions, though, is his point that:

JLike United States citizens residing in the District of Columbia and the fifty states, those residing in Puerto Rico have fulfilled the highest calling of citizenship, fighting and dying in the battlefields in two world wars, the Korean, Vietnam and Gulf wars. Still, despite paying for their citizenship with blood, U.S. citizens residing in Puerto Rico have not entered the Presidential ballot box. It is inconceivable to our constitutional order to expect that the government can place our nation’s sons and daughters in harm’s way and not recognize the power of those individuals to have a say in electing those who will make that decision. It is no less preposterous that the United States can fight for the freedom of others abroad and ignore the lack of liberty of citizens at home.

When the First Circuit reversed Judge Pieras, it did so reluctantly. While that well-known jurist “Per Curiam” wrote for the majority, Chief Judge Torruella wrote an eloquent and compelling concurring opinion which sets forth the history of Puerto Rico, both factual and legal, relevant to this issue of disenfranchisement of U.S. citizens residing in Puerto Rico. Though Chief Judge Torruella stated that he felt constrained to join the majority at this point in time in reversing the trial court, he further stated:

Although this is not the case, nor perhaps the time, for a federal court to take remedial action to correct what is a patently intolerable situation, it is time to serve notice upon the political branches of government that it is incumbent upon them, in the first instance, to take appropriate steps to correct what amounts to an outrageous disregard for the rights of a substantial segment of its citizenry. A failure to do so countenances corrective judicial action. See Brown v. Board of Education, supra. It may be that the federal courts will be required to take extraordinary measures as necessary to protect discrete groups “completely under the sovereignty and dominion of the United States.” [citations omitted.]

A petition for rehearing has been filed in the Igartua de la Rosa case decided by the First Circuit. The brief filed by Puerto Rico, as intervenor, best summarizes the case in favor or granting the right to vote to those U.S. citizens residing in Puerto Rico. First, Puerto Rico argues that the Igartua de la Rosa was improperly reversed, under the doctrine of stare decisis, based on a case filed six years ago by the same plaintiff allegedly seeking the same relief. Puerto Rico argues that, while courts are often bound by the statutory interpretation of a previous court as precedence, the doctrine of stare decisis stands at its weakest when the court is interpreting the Constitution, rather than statute. Apart from extensive case law in support of this position, Puerto Rico points out that this concept is no clearer than in the case of Brown v. Board of Education which overruled the “separate but equal” doctrine of Plessy v. Ferguson.

Second, Puerto Rico argues that the right to vote is not merely granted by the Article II of the Constitution, but is inherent in U.S. citizenship. The right to vote, Puerto Rico argues, is granted to the people, not to the states. Perhaps more based in history than legal precedence, Puerto Rico makes an appealing argument to one’s sense of equality by stressing that denying the right to vote to U.S. citizens in Puerto Rico essentially establishes an inferior level of U.S. citizenship; something specifically rejected in Brown v. Board of Education. Recognizing the legal obstacles inherent in Article II of the Constitution with regard to Puerto Rico casting electoral votes as a governmental entity, the brief leaves the door open to the court to fashion a remedy whereby the votes of U. S. citizens residing in Puerto Rico would be counted in “some other equally significant manner.”

Unless the First Circuit reverses itself, the status of voting for President will continue to be the following bizarre scenario. Under the Uniformed and Overseas Citizens Absentee Voting Act, 42 U.S.C. sec. 1973ff et.seq. (“UOCAVA”), U.S. citizens residing on foreign soil are permitted to vote in federal elections as absentee voters of their last state of residence, even if they have no intent of ever stepping foot again on United States soil. U.S. citizens residing in U.S. territories, however, cannot so vote. Besides Puerto Rico, these territories include the Northern Mariana Islands, the U.S. Virgin Islands, Guam and American Samoa. But make no mistake, in terms of population, Puerto Rico dwarfs the other U.S. territories.

The Romeu v Cohen cases set forth a slightly different factual scenario. Romeu was a resident of the state of New York. He voted in federal elections in New York before moving to Puerto Rico. When he attempted to vote in New York via absentee ballot, he was unable to complete the application because it required him to swear that he was “not requesting a ballot from or voting in any other U.S. state, territory or possession…. in the coming elections.” Since he was requesting the ballot from and would vote in Puerto Rico, a territory, he could not so swear. Had Romeu moved to Iraq, Vietnam or Bolivia, he would have been able to acquire the ballot; but not so from Puerto Rico.

The New York court refused to find either the Voting Rights Amendmens of 1970, the UOCAVA or the N.Y. Election law unconstitutional. It further rejected Romeu’s claim that his inability to obtain an absentee ballot deprived 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. In his denial, U.S. Judge Scheindlin stated:

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.

The Southern District of New York dismissed the complaint on September 7, 2000 and Romeu appealed. On appeal, he was joined by intervenor Puerto Rico on behalf of all other U.S. citizens who had resided in one of the 50 states, had voted in a federal election there, and had subsequently taken up residence in Puerto Rico.

The Second Circuit affirmed Romeu v. Cohen before the November, 2000 election but did not issue its opinion until September 6, 2001. 2001 WL 1019281(2nd Cir.(N.Y.)) The opinion plods through all the legal and Constitutional reasons why it must affirm the trial court in the first six pages of text; paramount being Congress’ broad powers to regulate the territories under Article IV of the U.S. Constitution. But Judge Leval, writing for the majority, enters the fray of the Puerto Rico disenfranchisement dilemma after concluding the right to vote was not currently available with this introduction: “The writer, speaking for himself alone and not for the court, adds a few observations on the problem of extending presidential votes to U.S. citizens residing in the territories.”

From there, Judge Leval goes on to draft a road map for Congress on how to remedy this problem of disenfranchise of U.S. citizens residing in the territories. He states, “I can see no reason why Congress might not also with respect to the presidential election require the State to accept the presidential votes of certain U.S. citizens who are nonresidents of the State residing in the U.S. territories.” He further stated that, with this vote, Congress could require every state “to include in that State’s popular vote the State’s pro rata share of the votes cast by U.S. citizens in the territories.”

Thus federal appellate judges in both the First and Second Circuit have recognized that there is a voting issue problem that must be solved; one going as far as to tell Congress how to do it. Circuit courts are not prone to such specific recommendations to Congress and this departure from judicial restraint shows the depth of this problem and its recognition by the federal judiciary.

As mentioned above, some in Puerto Rico, for whatever reason, do not want the right to vote for President. Witness the case of Eudaldo Báez Galib y otros v. Comisión Estatal de Elecciones y otros, Núm. MD-2000-8 and MD-2000-9, mandamus petitions filed in the Supreme Court of Puerto Rico. Petitioner Báez Galib, a Senator from a party opposing statehood and, ironically, co-chair of the Democratic Party of Puerto Rico (the Puerto Rico affiliate of the National Democratic Party), filed an action to prevent the implementation of the right to vote for President in Puerto Rico pursuant to the Igartua de la Rosa decision of Judge Pieras, before it was reversed by the First Circuit. Mr. Báez Galib alleged that the law passed to implement this vote: (1) altered the constitutional relationship between Puerto Rico and the United States; (2) was passed without authority because the Puerto Rico legislature had no power to pass such a law because this was a power “reserved to the people of Puerto Rico” and (3) misused public funds.

This case effectively ended with reversal of the Igartua de la Rosa case. Yet that a leader of one of the two largest political parties in Puerto Rico would file an action seeking to prevent U.S. citizens in Puerto Rico from being able to vote for the President says something about the confusing state of affairs in Puerto Rico politics. Moreover, even after the First Circuit effectively rendered this case moot by reversing, the Puerto Rico Supreme Court issued an order finding the new Presidential vote enabling law unconstitutional. If a resident of one of the 50 states was trying to figure out why there are those in Puerto Rico who would go to such lengths to avoid being given the right to vote, he would end up with a migraine.

But how can we assess the pulse of the citizenry at large regarding their desire to be able to vote for the President? Though polls have often been wrong, particularly in Election 2000, they do provide some basis for discussion. A Gallup Poll of November 4, 1998, published by El Mundo, reported that 70% of the people in Puerto Rico wanted to vote for President. Anytime more than half the people in Puerto Rico agree on anything is news.

Finally, the efforts to amend, replace or abolish the Electoral College altogether may yet provide U.S. citizens in Puerto Rico with the right to vote for the President. If the amendment ultimately, and simply, reads “all United States citizens” shall have the right to vote for the President of the United States, residency will be irrelevant and the President will be elected by direct popular vote. Such language is already under consideration by several United States Senators.

Some will argue that the right to vote comes with strings to which many in Puerto Rico are unwilling to attach themselves. They would argue that federal taxation (would that be a “poll tax”?) or even statehood could not be far behind, if the right to vote for President were granted. Depending upon how this right is acquired, however, that linkage is not at all clear. What is clear, though, is the empowerment which U.S. citizens in Puerto Rico would enjoy if they had this vote. Though it is cliché to state that most Americans residing in the 50 states are ignorant of the fact that their fellow U.S. citizens residing in Puerto Rico cannot vote for the person who can send their sons and daughters off to war, it is equally honest to admit that those of us in Puerto Rico have not begun to contemplate the kind of political clout a vote for President could bring. Given the heightened awareness that all Americans have as to the importance of every vote for the Presidency after this past election, expect this issue to continually resurface until the right is secured.f the good ones.