Puerto Rico and the election -Reply

[Leslie Goldstein]

Under what constitutionally granted power was Congress authorized to give electoral
college votesto Puerto Rico?
(I do not question such votes for DC since one could argue that the territory
encompassed in DC was originally parts of states and therefore people on it retain
the voting/representation rights they started with.  BTW underthis theory DC could
be given representation in Congress, in my view, but giving representation for the
Senate woudl seem to present a problem, sincde Maryland and Virginia already each
have two Senators. )
LFG

Carlos Gonzalez wrote:

> The issue of whether U.S. citizens residing in PR may vote is fascinating only
> may levels.  On a political level, it is entirely possible that Puerto Rico's 9
> electoral votes could be determinative in the upcoming election.  On a
> legal/doctrinal level, Judge Jaime Pieras' district court opinion offers a novel
> and interesting reading of Art. II, sec. 1, para. 2.  On a personal level, Judge
> Torruella (who will author the First Circuit opinion) is considered
> pro-statehood, and is deeply troubled by the problematic political relationship
> between PR and the U.S.  He may therefore wish to uphold Pieras' decision.  On
> the other hand, Torruella has written dicta in an earlier opinion that is
> contrary to Pieras' novel reading of Art. II, sec. 1, para. 2.  Further,
> Torruella is a judicial conservative who may view the Pieras decision as too
> radical, and prefer that issues related to the PR-U.S. legal-political question
> be dealt with by the elected arms of government.   For these reasons we can
> expect Torruella to overturn the Pieras decision.
>
> Do U.S. citizen residing in PR have a constitutional right to vote in
> presidential elections?
>
> First, R. 11 sanction are out of the question.  Igartua I (authored by Judge
> Torruella) held that U.S. citizens residing in PR do not enjoy a constitutional
> right to vote for the president in presidential elections.  Igartua I is
> unremarkable because no U.S. citizen has a right to vote for the president, but
> rather a right to vote for electors to the electoral college.
>
> Igartua II (Jaime Pieras' recent district court holding) holds that U.S.
> citizens residing in Puerto Rico have a constitutionally guaranteed right to
> vote for electors to the electoral college.  Thus, Igartua I and II present
> different issues, and Igartua I does not control Igartua II.  There is some
> language in Igartua I that creates difficulty for the Igartua II holding.  That
> language, however, is plainly dicta, and was not necessary for the holding in
> Igartua I.  As there is no controlling authority on the question presented by
> Igartua II, R. 11 sanctions would be impossible.
>
> Not only would sanctions be improper, but the First Circuit should uphold
> Igartua II.  The legal norms in question are sufficiently open textured to offer
> Judge Torruella and the First Circuit enough interpretive discretion and
> flexibility to uphold Judge Pieras' lower court decision.
>
> Since when has literalism been the touchstone of Constitutional interpretation?
> The words "state" in Art. II, sec. 1, para 2, and "states" in the 12th Amendment
> need not be given narrow, wooden, literal interpretations.  The Supreme Court
> has construed the term "state" to include Puerto Rico in other contexts.
> Further, the Court has held that Bill of Rights and 14th Amendment protections
> apply in Puerto Rico, despite the 14th Amendment's use of the term "state."
> Given that the Supreme Court has not applied rigid formalism in determining
> whether the word "state" excludes or includes Puerto Rico in other contexts, the
> First Circuit need not adopt a rigidly formalistic interpretation of the word
> "state" in Art. II, sec. 1, para. 2.
>
> Why should the First Circuit exercise its interpretive discretion to read Art.
> II, sec. 1, para. 2 in a functional rather than a narrow formalistic fashion?
>
> First, the Supreme Court has often spoken of the right to vote as a fundamental
> right.  This norm stands in sharp dissonance with an interpretation of Article
> II, sec.1, para. 2, which denies the right to vote in presidential elections to
> 3.7 million U.S. citizens merely because they happen to reside in a U.S.
> territory.  Only by upholding Igartua II will the First Circuit avoid an
> embarrasing denial of a fundamnetal right to over 3.7 million U.S. citizens.
>
> Second, basic international human rights certainly include the right to vote.
> Given that the First Circuit has enough interpretive wiggle room to uphold the
> lower court ruling, why read the Constitution in a way that will be viewed as a
> denial of basic human rights to over 3.7 million U.S. citizens?
>
> Alternatively, the First Circuit can opt to read the terms "state" literally,
> and uphold Judge Pieras interesting reading of Art. II, sec. 1, para. 2.  Judge
> Pieras' ruling is based essentially on the idea the Art. II, sec. 1, para. 2
> regulates the way states appoint electors, but not the way territories elect
> electors.  The way the territories elect electors may be regulated by (1)
> constitutional common law principles developed by the Supreme Court, or (2) by
> statute (much as Congress has chosen to regulate the participation of U.S.
> citizens residing abroad).  Nothing compels reading Art. II, sec. 1, para. 1 as
> the sole and exclusive legal material defining the who may participate in
> electing electors to the electoral college.  All it tells us is how the states
> choose electors.  This interpretation is available and meshes better with the
> voting as a fundamental right norm than would an interpretation resulting in
> denial of 3.7 million U.S. citizens' right to vote for electors in presidential
> elections.
> What about the 23d Amendment?  U.S. citizens residing in D.C. always had a right
> to participate in presidential elections.  The 23d amendment was not necessary
> to create that right, but rather constitutionalized the particular way in which
> that right would operate.  Perhaps a lack of creativity lead a previous
> generation to erroneously conclude that a constitutional amendment was needed to
> provide a mechanism of D.C. residents to vote for electors.  We ought not allow
> a previous generation's lack of creativity to blind us from a better way of
> reading the Constitution, nor to bind us to a way of reading the Constitution
> that denies a fundamental right to over 3.7 U.S. citizens.
>
> Carlos Gonzalez
> Associate Professor of Law
> Rutgers Law School
> 123 Washington Street
> Newark, NJ 07102
> cgonzalez at kinoy.rutgers.edu
>
> >>> Sanford Levinson <SLevinson at MAIL.LAW.UTEXAS.EDU> 10/08/00 02:02pm >>>
> I note with interest a suit currently before the First Circuit, reviewing a
> (quite remarkable) federal district court decision from Puerto Rico saying
> that it is unconstitutional to deprive Puerto Ricans of a vote for the
> presidency.  The issues undergirding the Insular Cases (and that portion of
> Dred Scott dealing with whether the United States can have permanent
> colonies) still live, and I look forward to whether the First Circuit will
> go into the deep theory of our relationship with Puerto Rico or simply
> engage in a peremptory dismissal that is, alas, probably quite justified,
> as a matter of pure doctrine.  In any event, I am interested in two questions:
>
> a)  Would any of you uphold the district judge?  (Indeed, would any of you
> have been tempted to award Rule 11 sanctions against the attorneys who
> brought the suit in the first place?  If not, then would it be perfectly
> permissible to argue that the unamended Constitution requires that Puerto
> Rico (and Guam?) have voting representation in the House of Representatives
> and (at least) one senator in the Senate?)
>
> b)  If one result of the probably decision dismissing the suit is to
> bolster the sentiment for Puerto Rican statehood, do any of you see any
> legitimate reasons to deny such a petition?  More to the point, is this
> merely just another one of my "political" questions, or is of
> constitutional import.  I.e., does Congress have complete discretion, as a
> constitutional matter, or is the decision to deny statehood
> constitutionally constrained (whether or not it is subject to judicial
> monitoring, which is a totally separate question)?
>
> sandy levinson