US Supreme Court asked to review Puerto Rico voting ban decision

News from the Caribbean as of Wednesday December 14, 2005

US Supreme Court asked to review Puerto Rico voting ban decision

by Michael RichardsonMonday, December 12, 2005

WASHINGTON, USA: The US Supreme Court has an opportunity to review its doctrine of colonialism established a century ago in the infamous Insular Cases which relegated residents of Puerto Rico to second-class citizenship. Chief plaintiff Gregorio Igartua de al Rosa has led a decade-long legal battle to obtain the right to vote for President, filing three lawsuits over the span of time. In 2000, the dedicated Puerto Rican attorney won a US District Court ruling ordering a presidential vote only to have the First Circuit reverse his victory days before the November election.

Coming back a third time, Igartua de al Rosa v. United States, US Supreme Court, 05-650, led to a split in the First Circuit with Judge Juan Torruella and Judge Jeffrey Howard dissenting.“The situation is so discriminatory…” The petition for writ of certiorari tells the story. “The situation is so discriminatory that an American citizen can move residence to any state, and vote in a Presidential Election. If that same citizen moves residence to any country in the world he can still continue to vote absentee, except that, if he moves his residence to Puerto Rico, he loses the right to vote in Presidential elections.” “The Appeals Court is adhering to the procedural element of the Presidential election, the electors requirement, ignoring the substantive element -- the right to vote which flows to the People through American citizenship. Both are compatible and mutually inclusive.” “Exceptional circumstances…” “Exceptional circumstances warrant the exercise of this Court's discretional powers….There are contradictory, and or conflicting opinions by the Federal District Court in Puerto Rico, by the First Circuit Court of Appeals, and by this honorable Supreme Court.” “The impact of the injury to the American citizens of Puerto because of the denial of their right to vote in Presidential elections is great in terms of social, cultural, and economic values.” Each time, in a trial or appellate court, that Gregorio Igartua has been denied the vote the argument is always that Puerto Rico is not a state and only states can have Electoral College members. Gregorio disagrees. “The Electors System is not the substantive source of the right to vote in Presidential elections. Petitioners propose it is part of the procedure of the Presidential election. It is American citizens who vote for the President. The Elector is like an intermediary who is morally committed to follow voters choice of their Presidential candidate.” “The Court of Appeals en banc did not consider the main issue in the Complaint, that the inability of individual United States citizens residing in Puerto Rico to vote for the President and Vice President, in and of itself, results in an unconstitutional deprivation of a right of American citizenship.”“The situation is so discriminatory…”The petition for writ of certiorari tells the story. “The situation is so discriminatory that an American citizen can move residence to any state, and vote in a Presidential Election. If that same citizen moves residence to any country in the world he can still continue to vote absentee, except that, if he moves his residence to Puerto Rico, he loses the right to vote in Presidential elections.”In denying the appeal, the First Circuit asserted there was a “political question” that was not for the court to decide. Not so, says Igartua. “Voting rights cases, are considered by the Courts as civil rights controversies, and are judicially disposed of daily without the political issue consideration.”

“This Supreme Court has consistently decided matters concerning the individual liberties of the United States citizens as set forth in the Bill of Rights in matters of race, segregation, and religion. These decisions have certainly expanded the application of the concept of the freedom of the individual for the betterment of the Nation. The Supreme Court has considered as justiciable those cases where legislative reapportionment and gerrymandering have been called into question….There is no distinction between the instant case and the cases of gerrymandering, voting rights and segregation insofar as justiciability is concerned. As in those cases, the instant case calls for the recognition of the existence of a fundamental right, the right to vote and its implementation by opening the ballot box in Puerto Rico to four million American citizens.”

Treaty law provides voting rights too “The voting rights of American citizens, in this case of Petitioners, are not only derived from domestic legislation adopted by Congress, but also from obligations assumed by the United States under treaty law….American citizens of Puerto Rico are not excluded from their applicability.”

The International Covenant on Civil and Political Rights provides: “Every citizen shall have the right and opportunity…To vote and be elected at genuine periodic elections which shall be by universal and equal suffrage.”

Igartua notes, “Moreover, the ICCPR has already been used by many courts to interpret existing US law or to determine legal rights when the plaintiff has an individual cause of action.”The United Nations Declaration on Human Rights, to which the United States was a signatory nation, declares: “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.”

Human Rights violation “Human rights, as exposed in the UN Declaration, have evolved to such an extent that today human beings are deemed to have internationally guaranteed rights as individuals and not as nationals of a particular state. A denial of voting rights to citizens in a country is considered internationally as a Human Rights violation.”

The Democratic Charter of the Organization of American States defines democracy has including: “…respect for human rights and fundamental freedoms…the holding of periodic, free and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people.”

Gregorio Igartua points out that then-Secretary of State Colin Powell, told the Organization of American States General Assembly, “The Inter-American Democratic Charter declares that the peoples of the Americas have a right to democracy.”

Expanding on Secretary Powell’s theme Igartua continues. “The right to vote in Presidential Elections is a fundamental right of American citizens, which is vital to our democratic system, and any restrictions upon its exercise just because they reside in Puerto Rico is a severe limitation on civil rights.”

“The Appeals Court en banc erred in determining that it is without jurisdiction to protect the voting rights of its American citizens residing in Puerto Rico.”Cherokee Nation precedent “In Cherokee Nation this Court said: ‘It may be that 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.’” “In practical terms, the United States is a world power which has demanded democracy from all other countries, under the veil of treaties, and even with the use of force, to protect the voting rights of their citizens.”“The Government of the United States has not carried out its burden under the treaties, nor under domestic law, to enfranchise its citizens residing in Puerto Rico. If this Supreme Court does not intervene here and now, all United States citizens residing in Puerto Rico will continue possessing an inferior type of American citizenship, government without consent, and will be the only ones in the Western Hemisphere, together with the citizens of Communist Cuba, who cannot vote for their President.”

Judge Juan Torruella Distinguishing himself on the First Circuit Court of Appeals, Judge Juan Torruella was uniquely situated to hear this case. Born in Puerto Rico, Judge Torruella knows only too well the deprivation of political rights imposed on U. S. citizens living on the island. In 1985 Judge Torruella wrote a book anticipating the day the plight of US citizens residing in Puerto Rico would have a day in court. The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal was dedicated: “To the people of Puerto Rico, who still await their place in the sun.” “The Supreme Court of the United States has decided few cases in which the rights of a whole class of United States citizens have been as fundamentally affected as they were by the Insular Cases. These decisions stand at a par with Plessy v. Ferguson in permitting disparate treatment by the government of a discrete group of citizens. In this case, as distinguished from Plessy in which race was the invidious factor, solely by reasons of their residency in certain territories which “belong to but are not part of the United States.” Yet even after the reversal of Plessy by Brown v. Board of Education the Supreme Court continues to cling to these anachronistic remnants of the stone age of American constitutional law notwithstanding that the doctrines espoused by the Insular Cases seriously curtail the rights of several million citizens and nationals of the United States.” President of Puerto Rico Senate When the case was still before the First Circuit Court of Appeals the President of the Puerto Rico Senate, Kenneth McClintock, filed an amicus brief. “While the United States was founded on the principle of inalienable individual rights, the history of our nation is, in many ways, that of an ongoing struggle to fulfill the promise of the conception of rights, a struggle to overcome old and new injustices in our own democracy which continues even today. Over the course of our history, Americans have experienced egregious human rights violations sanctioned by the Government and its institutions.”“…denigrating and unacceptable…” “It now falls on the shoulders of this Court to address and to rectify the human rights violations that have been perpetrated upon these American citizens; it is time the judicial branch correct the denigrating and unacceptable unequal condition created by the infamous Insular Cases.” Judge Torruella’s dissent goes after the Insular Cases, “They are the product of an era which is a blot on our national and judicial history.” “In the aftermath of the Insular Cases, the United States settled into the business of governing its far-flung colonial empire and emerged from its isolationist cocoon into the world of power politics.” “The proposition that Puerto Rico “belongs to…but [is] not a part of the United States” like the “separate but equal” concept endorsed in Plessy, belongs in the Dark Ages of American constitutional law and should be relegated to a period in our history best forgotten.” Vote in a foreign election but not Puerto Rico The plight of US citizens residing in Puerto Rico, unable to participate in presidential elections, is a bitter irony when one considers that citizens with dual citizenship in another country can not only vote in American presidential elections but also in foreign elections. The Supreme Court officially gave the stamp of approval for US citizens living in other countries to vote in the elections of foreign nations without losing any US citizenship voting rights in Afroyim v. Rusk, 387 U.S. 253. A decision on whether the Supreme Court will accept the case for review will not be made until 2006.