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Vernellia R. Randall
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The University of Dayton

 

   
   

 

 

 

José D. Román

excerpted from: José D. Román, Trying to Fit an Oval Shaped Island into a Square Constitution: Arguments for Puerto Rican Statehood, 29 Fordham Urban Law Journal 1681-1713, 1697-1713 (April, 2002)(316 Footnotes Omitted)

Since the 1970s, United States citizens living outside of the fifty states have sought the right to vote in presidential elections through the federal courts. In Sanchez v. United States, a Puerto Rican citizen challenged the constitutionality of a statute allowing the island's people to consent to commonwealth status, since it did not explicitly include the right to vote in presidential elections. In dismissing the action, the district court held that all citizens do not have the right to vote in presidential elections because "the Constitution does not, by its terms, grant citizens the right to vote, but leaves the matter entirely to the States." To support its assertion that suffrage is not an essential right of citizenship, the court cited several constitutional amendments dealing with voting rights. It noted that the Constitution had to be amended to grant women, former slaves, residents of the District of Columbia, and eighteen, nineteen, and twenty-year-olds the right to vote.

The court acknowledged Puerto Rico's transition to commonwealth status and hinted that the island was no longer subject to the plenary power of Congress under the Territory Clause. Nevertheless, its opinion fell short of identifying any benefits gained by this development in terms of political rights. The court earnestly agreed, however, with the conclusion reached by an advisory group partly formed by President Nixon, which found that "it is inexcusable that there still exists a substantial number of U.S. citizens who cannot legally vote" in presidential elections.

Following Sanchez, the Ninth Circuit decided Attorney General of the Territory of Guam v. United States, in which four U.S. citizens residing in Guam argued that voting in presidential elections is a privilege of citizenship. In affirming the lower court's dismissal, the Ninth Circuit held that "[T]he Constitution does not grant to American citizens the right to elect the President." The court explained that under Article II, the right to vote in presidential elections is given to the states, and citizens vote indirectly for the president by voting for state electors. The court noted that "apart from the thirteen original states, the only areas which have achieved national voting rights [without an amendment to the Constitution] have done so by becoming States."

In Igartua de la Rosa v. United States I, two groups of Puerto Rican citizens sought declaratory judgments granting them the right to vote in presidential elections, based on the fact that they were U.S. citizens. The first group consisted of citizens that had always resided in Puerto Rico. The second group was comprised of former state citizens that had lost their right to vote in presidential elections by moving to Puerto Rico. The court held that the people of Puerto Rico could not participate in presidential elections until Puerto Rico either 1) became a state or 2) was granted the right through a constitutional amendment. The two groups of plaintiffs argued that Puerto Rico was entitled to national voting rights because its political status closely resembled that of a state. However, the court assumed that it was being asked to determine whether Puerto Rico had evolved into a de facto state and declined to settle the issue, invoking the political question doctrine. FN176] The court held that "a determination of whether or not Puerto Rico's political status has evolved into 'de facto' statehood for the purposes of presidential elections would correspond to Congress . . . [and] . . . no standards exist by which a Court can or should decide what is or is not a 'de facto' state."

The former state citizens group also argued that the Uniformed and Overseas Citizens Absentee Voting Act ("UOCAVA") was unconstitutional because it violated the Due Process Clause and the equal protection component of the Fifth Amendment by allowing citizens living abroad to vote in presidential elections, without extending the same opportunity to citizens who relocate to Puerto Rico. The court dismissed this argument, holding that the UOCAVA did not, by its terms, prohibit former stateside citizens that resided in Puerto Rico from voting in presidential elections, and that it was for the states to determine whether their former residents could vote by absentee ballot.

The court also concluded that the UOCAVA would pass constitutional muster. It reasoned that the UOCAVA distinguished between those who reside overseas and those who live anywhere in the U.S. and thus did not single out those who moved to Puerto Rico. In affirming the dismissal, the court of appeals added that "[W]hile the [UOCAVA] 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" restrictions implicit in Article II.

Igartua de la Rosa v. United State II, decided in 2000, presented identical facts to those in Igartua de la Rosa I. Although the district court's decision failed to spark a national debate, its opinion deserves political and scholarly attention for several reasons. First, the court called attention to Puerto Rico's problematic political status, noting that Puerto Rico's status within the U.S. must be viewed "within the context of the unfulfilled promises of freedom." The court then briefly discussed 1) how the U.S. acquired Puerto Rico; 2) the U.S. Supreme Court's views on Puerto Rico's status within the U.S.; 3) the granting of citizenship to the people of Puerto Rico; and 4) Puerto Rico's transition to commonwealth status. Next, the court offered a broad interpretation of Article II, § 1, cl. of the U.S. Constitution. Article II provides that "Each State shall appoint, in such a 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." The court rejected the conclusions reached in Sanchez, Guam, and Igartua de la Rosa I, and held that Article II does not limit the right to choose the president to the states, but merely provides the logistics by which state residents participate in presidential elections. It further held that if U.S. citizens living in Puerto Rico had the right to participate in presidential elections, such a right could not be derived from Article II. Finally, the court concluded that the right to vote is a function of citizenship and that U.S. citizens residing in Puerto Rico have the right to participate in presidentialelections. FN197] This holding was based on the fact that U.S. history is "largely characterized by the enfranchisement of segments within its citizenry" and on the consistent acknowledgement by the Supreme Court that voting is a fundamental right.

The First Circuit reversed the district court's decision solely on the grounds of stare decisis. The court held that the district court was required to follow the decision in Igartua de la Rosa I because the facts were virtually identical to those in that case. The court added that although the Supreme Court had repeatedly held that the right to vote was fundamental, no case held that the right to vote in a presidential election was derived from any source other than Article II.

In Judge Torruella's concurring opinion, he found the court's decision to be technically correct based on the explicit language in Article II. He noted, however, that Puerto Rico is politically powerless and suggested that in the future, a court may be compelled to "fill the vacuum created by the failure or refusal of the political branches to protect the civil rights" of these loyal citizens. Torruella argued that the continued disenfranchisement of the United States citizens residing in Puerto Rico could provide a solid basis for judicial intervention. Although Judge Torruella's opinion did not discuss when or how the judiciary should intervene, his book The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal reveals his views on the matter. Judge Torruella believes that the Insular Cases stand at par with Plessy v. Ferguson by permitting unequal treatment for U.S. citizens living in Puerto Rico. Furthermore, he argues that cases like Brown v. Board of Education provide a resounding precedent for overturning the obsolete doctrines created by the Insular Cases.

The First and Ninth Circuits have the better argument. Article II explicitly grants the responsibility of electing the president and vice- president to the states. Puerto Rico is not a state. Therefore, Puerto Rico and its residents do not have the right to participate in presidential elections. Still, the district court's argument in Igartua II is worth considering because it attempts to reinterpret the explicit language of Article II (i.e., reducing the states' power to choose the president to a procedural formula) by declaring that suffrage is based on citizenship.

B. Is There a Fundamental Right to Vote?

The district court's decision in Igartua de la Rosa II seems correct in principle. The United States is a constitutional democracy. Accordingly, all citizens should have the right to vote in presidential elections regardless of their residence. In discussing this issue, however, one must put aside the specifics of presidential elections and the distinction between citizens who reside in states and those who reside in the Commonwealth of Puerto Rico. It is essential to focus solely on the district court's basic assertion in Igartua de la Rosa II--that the Constitution guarantees a general right to vote to all citizens.

There are three major views on whether suffrage is a basic right belonging to all citizens. Under a "traditional view," the right to vote is not a basic right and the Constitution does not guarantee any person the right to vote. Under a "relative right view," the question of whether the Constitution recognizes a substantive right to vote is left unanswered. Instead, this view merely acknowledges a limited, but nonetheless fundamental right to vote based on principles of equal protection. Under the "citizenship-based view," the right to vote is a fundamental right guaranteed to all citizens. The basis for each of these views is discussed below.

1. The Traditional View

Under the traditional view, United States citizens residing in Puerto Rico would have no basis for a right to vote in presidential elections. The traditional view is expressed in Minor v. Happersett, an infamous case in which Virginia Minor, a woman's suffragist, argued that she was guaranteed the right to vote under the Fourteenth Amendment. She had attempted to register as a voter in Missouri. The Missouri state constitution, however, confined the right of suffrage to men. Mrs. Minor asserted that she was a citizen under the Fourteenth Amendment Citizenship Clause, and thus was entitled to all the privileges and immunities enjoyed by other citizens. She essentially made two arguments for the right to vote: 1) the right to vote is a privilege of citizenship and 2) equal protection requires equal voting rights between men and women.

The Court began its opinion by noting that the Fourteenth Amendment did not confer citizenship on women, because women have always been citizens of the United States. It then briefly examined the text of the Constitution and found no indication that the right to vote was intended to be extended to all citizens of the United States. The Court emphasized the fact that a constitutional amendment was required to prevent the right of suffrage from being denied on account of race. Finally, the Court held that the adoption of the Fourteenth Amendment added nothing to privileges and immunities of citizenship and so did not guarantee women the right to vote. The Court concluded by stating that it was "unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon anyone." Under this line of reasoning, citizens in Puerto Rico would have no right to participate in presidential elections without an amendment to the Constitution or the attainment of statehood by Puerto Rico.

2. The Relative Right View

Subsequent developments in constitutional law led the Supreme Court to treat the right to vote as a relative right under the Equal Protection Clause. For example, in San Antonio Independent School District v. Rodriguez, the Court noted that:

Since the right to vote, per se, is not a constitutionally protected right, we assume that . . . references to that right are simply shorthand references to the protected right, implicit in our constitutional system, to participate in state elections on an equal basis with other qualified voters whenever the State has adopted an elective process for determining who will represent any segment of the State's population.

This view is narrower with respect to presidential elections. In Bush v. Gore, the Court noted:

The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. History has now favored the voter and in each of the several States the citizens themselves vote for Presidential electors. When the state legislatures vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.

Under this relative right view, constitutional protection for the right to vote must be triggered by a state's choice to grant the right to its citizens. This approach has been criticized as a "misguided commitment to [the traditional view] . . . that is not only rigid but . . . willfully blind . . . to the developments in constitutional thought that have taken place since the framing." Arguably this view is fundamentally flawed because it does not reflect the modern reality of the right to vote, (i.e., all fifty states have delegated much of their power to the people by adopting systems through which their citizens elect national representatives). Furthermore, the few geographical subdivisions of the United States that have failed to implement a mechanism for participating in national elections are those without the power to do so. Nonetheless, as discussed infra, the Supreme Court has been instrumental in expanding the "relative right" of suffrage. The Court's development of this area of the law should not, however, be interpreted as creating a right to vote based on citizenship, as argued in Igartua de la Rosa II.

a. The Fundamental Nature of Voting

Although the Supreme Court's active role in the development of voting rights is a relatively recent development, the Court has recognized the importance of voting rights for some time. In Yick Wo v. Hopkins, the Court invalidated a facially neutral California law regulating laundries because the law was applied exclusively against Chinese laundry owners. The Court noted that "the very idea that one man may be compelled to hold . . . any material right essential to the enjoyment of life, at the mere will of another, seems intolerable in any country where freedom prevails, as being the essence of slavery itself. There are many illustrations that might be given of this truth, . . . the political franchise of voting is one." The Court reasoned that voting is regarded as a fundamental right because it is "preservative of all rights." A modern restatement of this principle can be found in Wesberry v. Sanders, where the Court held that a state could not maintain discriminatory federal congressional districts. After a thorough review of the relevant constitutional history, the Court noted that suffrage is vitally important in a free country because even the most basic rights become illusory when the right to vote is undermined. The Court added: "Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right."

The Court has also expressed the importance of presidential elections. In Anderson v. Celebrezze, the Court struck down an Ohio statute that required early filing deadlines for presidential candidates--a practice that particularly harmed third-party candidates. Stressing the unique importance of presidential elections, the Court noted that "the President and Vice President of the United States are the only elected officials who represent all the voters in the Nation." It added that the public's interest in selecting candidates for national office is greater than any interest of an individual state.

Even the current Supreme Court, with its affinity for the Tenth Amendment, has held that the fundamental importance of voting is paramount to a state's power to regulate elections. In United States Term Limits, Inc. v. Thornton, the Court invalidated term limits for federal senators and congressmen imposed by the Arkansas Constitution. The Court placed great emphasis on the "fundamental principle of our representative democracy . . . that the people should choose whom they please to govern them." The Court indicated that this broad principle incorporates two fundamental ideas: 1) the concept that the opportunity to be elected must be open to all citizens and 2) "the critical postulate that sovereignty is vested in the people, and that sovereignty confers on the people the right to choose freely their representatives to the National Government."

Although these cases support the idea that suffrage is one of the most basic political rights in the United States, they do not proclaim that the right is based on citizenship. Yick Wo is not a voting rights case. Wesberry merely holds that state citizens have the right to elect their federal representatives on an equal basis with their fellow state citizens. Anderson deals with the rights of presidential candidates, and U.S. Term Limits simply holds that states lack the power to impose qualifications for congressional offices in addition to those outlined in the Constitution.

b. One-Person-One-Vote

The landmark voting rights case of the last century was Reynolds v. Sims, which established the rule of one-person-one-vote. In Reynolds, the Court invalidated the apportionment of the Alabama legislature and two of the state's proposed reapportionment schemes. Alabama had not reapportioned its state voting districts since 1900, resulting in gross imbalances in the relative weight of votes among the districts. Tracing a long history of voting rights cases, the Court stated, "the Constitution . . . protects the right of all qualified citizens to vote, in state as well as federal elections." The Court also reaffirmed the Yick Wo principle, noting that the right of suffrage is a fundamental matter in a free society and that restrictions on the right had to be "meticulously scrutinized." With this, the Court remarked that it is unjustifiable to allow the votes of citizens to be weighed differently based on residence. The Court further noted that "representative government is in essence self-government through the medium of elected representatives of the people" and that "To the extent that a citizen's right to vote is debased, he is that much less a citizen."

Despite its landmark status, Reynolds did not rewrite the Constitution by declaring a right to vote based on citizenship. Rather, Reynolds strongly reaffirmed the relative right to vote by acknowledging that the right belongs to all qualified citizens. The holding states that the Equal Protection Clause forbids states from adopting or maintaining discriminatory voting schemes. Thus, even under Reynolds, U.S. citizens who reside in Puerto Rico cannot participate in presidential elections because they are not qualified citizens under Article II.

c. The Evolving Right to Vote in Federal Enclaves

The Supreme Court has in fact held that the Equal Protection Clause could extend the right to vote in state elections to areas under federal control. In Evans v. Cornman, the Court affirmed a decision granting the residents of a federal enclave located within Maryland the right to vote in Maryland elections. The Court's decision conflicted with numerous state court decisions that denied residents of federal enclaves the right to vote because the states had no jurisdiction over them. In acknowledging the rights of these citizens, the Evans Court relied on the principle that "the right to vote, [as] a citizen's link to his laws and government, is protective of all fundamental rights and privileges." While federal enclaves are not states and Congress has exclusive power over them, the Court justified its holding by recognizing that the relationships between federal enclaves and their host States have evolved considerably.

Although the Court acknowledges the importance of the right to vote, it falls far short of recognizing a citizenship-based right. The Court even made clear that it applied a relative right analysis when it stated: "[O]nce the franchise [of voting] is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause." Furthermore, the status of the federal enclave in Evans is distinguishable from Puerto Rico's status with respect to presidential elections. The federal enclave in Evans was located within a state and its residents were subject to a wide array of state laws, whereas Puerto Rico is many miles away from the nearest state and has its own local government.

d. The Fundamental Right to Travel

The right to travel is an essential attribute of citizenship. Although one may not immediately associate the right to travel with national voting rights, both are relevant when discussing Puerto Rico since state residents lose the right to vote in presidential elections by moving to the island. In Shapiro v. Thompson, the Court invalidated laws enacted by Connecticut, Pennsylvania, and the District of Columbia, which imposed one-year residency requirements for recipients of welfare assistance. The Court found that these laws imposed an undue burden on the fundamental right to travel:

This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.

These principles were recently reaffirmed in Saenz v. Roe, a case in which a California statute limiting the maximum welfare benefits available to new residents was held unconstitutional. The Court explained that in Shapiro, it held "that a classification that had the effect of imposing a penalty on the right to travel" violated the principles of equal protection. The Court then outlined three components of the right to travel: 1) the right to freely enter and leave states, 2) the right to be treated as a welcome visitor when you travel outside your home state and 3) the right to permanently move to another state and be treated like other citizens of that state. The Court found the basis for the third component in the Fourteenth Amendment Citizenship Clause and noted that the Clause expressly equates citizenship with residence and does not tolerate subclasses of similarly situated citizens.

The Court has also made similar findings within the context of voting rights. In Dunn v. Blumstein, the Court invalidated a statute imposing a one-year residency requirement for voting eligibility. In addition to burdening the right to vote, the Court held that such a requirement "directly impinges on the exercise of a second fundamental personal right, the right to travel."

While, these cases do not acknowledge a right to vote based on citizenship, they do support the relative right view of voting and they recognize that a state citizen will lose the right to vote in presidential elections simply by moving to Puerto Rico. As the Court held in Saenz, when a citizen moves to a new state or territory, he or she must be treated like the citizens who reside there.

3. The Citizenship-Based View

Modern conceptions of the right to vote are deeply imbedded in our jurisprudence and politics. This has led to the general belief that the right to vote is a substantive fundamental political right belonging to all citizens. Under this view, the origin of the right to vote is unclear. Some argue that the Constitution creates a substantive right to vote. Others assert that the right is recognized by the Constitution, but not created by it. Rather, the people through their inherent right to vote form the basis for the government and the Constitution. Under a third line of reasoning, the right was created by the history of the development of constitutional principles such as equal protection and due process. This third line of thinking seems to be the one followed by the district court in Igartua de la Rosa II. The court cites Yick Wo, Reynolds, U.S. Term Limits, Wesberry, Anderson, Evans, and a number of other cases, asserting that the cumulative force of these decisions forms the basis for a right to vote based on citizenship.

Although this view has had some academic support, it is not the law. The Supreme Court cases that arguably support a citizenship-based view of voting have been discussed earlier. These cases illustrate a relative right to vote based on the Equal Protection Clause. Furthermore, the Court continues to acknowledge that the Constitution does not guarantee anyone the right to vote. The citizenship-based view is a misinterpretation of the relative right view. As the Court artfully explains in Reynolds, the Constitution merely "protects the right of all qualified citizens to vote." Unfortunately, citizens who reside in Puerto Rico are not qualified to vote in national elections under Article II.

C. Revisiting the Argument for Statehood

Puerto Rico is a commonwealth. The significance of that particular designation is ambiguous. What is clear is that Article II of the Constitution grants states the right to elect the president and vice- president. It is also clear that the right to vote is not based on citizenship, and that Puerto Rico will not be able to participate in presidential elections unless it becomes a state or is granted the right through a constitutional amendment. Thus, seeking the right to vote in presidential elections through the federal court system is even more futile than fighting to overturn the Insular Cases.

The language of the Twenty-third Amendment, which grants the District of Columbia the right to participate in presidential elections, shows that an amendment may not be the appropriate solution for Puerto Rico. The Twenty-third Amendment merely grants the District "[a] number of electors . . . equal to the whole number of Senators and Representatives in Congress to which [it] would be entitled if it were a State, but in no event more than the least populous state." Thus, the District cannot have more electors than the least populous state, even if its population would normally warrant additional electors. The latest census figures indicate that the District of Columbia has a mere 572,000 residents, compared to Puerto Rico's 3.8 million. As Puerto Rico would be entitled to approximately eight electoral votes, a similar limitation would grossly dilute the votes of its people. Furthermore, it should also be noted that such an amendment would not cure Puerto Rico's lack of congressional representation. Only statehood will give Puerto Rico full national voting rights.

 
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