Report No. 60 (2017) IACHR. Petition No. 776-06 (Estados Unidos de America)

• Year: 2017
• Petition Number: 776-06
• Report Number: 60
• Respondent State: United States
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Cuatro millones de ciudadanos estadounidenses residentes en Puerto Rico

REPORT No. 60/17

PETITION 776-06

REPORT ON ADMISSIBILITY

FOUR MILLION AMERICAN CITIZENS RESIDENTS IN PUERTO RICO

UNITED STATES

OEA/Ser.L/V/II.162

Doc. 71

25 M. 2017

Original: English

Approved by the Commission at its session No. 2085 held on M. 25, 2017
162^nd Extraordinary Period of Sessions

Cite as: IACHR, Report No. 60/17, Petition 776-06. A.. Four Million American Citizens Residents in Puerto Rico. United S.s. M. 25, 2017.

www.cidh.org

REPORT No. 60/17¹

PETITION P-776-06

REPORT ON ADMISSIBILITY

FOUR MILLION AMERICAN CITIZENS RESIDENTS IN PUERTO RICO

UNITED STATES

MAY 25, 2017

I. INFORMATION ABOUT THE PETITION

Petitioners:	Gregorio Igartua De La Rosa, C.M.M., Rafael Zeruto Soto, F.S.H., Jorge Luis Pérez Díaz, P.M.S., L.S.H.
:	Four Million American Citizens Residents in Puerto Rico
S. denounced:	United S.s
Rights invoked:	Articles XX (right to vote and to participate in government) of the American Declaration on the Rights and Duties of Man2; Article 3 of the Inter-American Democratic Charter; Article 21 of the Universal Declaration of Human Rights; and Articles 2 and 25 of the International Covenant on Civil and Political Rights3

II. PROCEDURE BEFORE THE IACHR⁴

D. on which the petition was received:	J. 27, 2006
D. on which the petition was transmitted to the S.:	A. 27, 2009
D. of the S.’s first response:	J. 28, 2010
Additional observations from the petitioner:	August 11, 2010; M.5., 2011; M. 10, 2011; M. 31, 2015
Additional observations from the S.:	A. 15, 2011

III. COMPETENCE

Competence Ratione personae:	Yes
Competence Ratione loci:	Yes
Competence Ratione temporis:	Yes
Competence Ratione materiae:	Yes, American Declaration (ratification of the OAS Charter on J. 19, 1951 and in conformity with Article 20 of the IACHR’s Statute and Article 51 of its Rules of Procedure)

IV. ANALYSIS OF DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

Duplication of procedures and International res judicata:	No
Rights declared admissible	Articles II (right to equality before the law), XVII (recognition of juridical personality and civil rights), XVIII (right to a fair trial) and XX (right to vote and to participate in government) of the American Declaration
Exhaustion of domestic remedies or applicability of an exception to the rule:	Yes, M. 20, 2006
Timeliness of the petition:	Yes, J. 27, 2006

V. ALLEGED FACTS

1. According to the petitioners, all American citizens residing in Puerto Rico are denied the right to vote in the U.S. presidential elections on the discriminatory basis that they reside in a U.S. territory and not in a state; while other American citizens can change their residence from one state to another, or even to foreign countries, and continue to vote, this is not the case for Puerto Rico. They submit that there are over four million U.S. citizens residing in Puerto Rico, a population which is larger than that of 25 or 26 states and which meets the minimum required to qualify for electors for the electoral college. They claim, however, that their right to vote in U.S. presidential elections is denied even though U.S. citizens residing in Puerto Rico have the same obligations as citizens residing in other states and also serve in the armed forces.

2. The petitioners allege having filed judicial complaints on their behalf and on behalf of all persons similarly situated and to have exhausted domestic remedies on several occasions seeking the recognition of their right to vote in U.S. presidential elections. The initial complaint (hereinafter, “I. I”) was filed before the Federal District Court of Puerto Rico (henceforth, “the District Court”) in 1992. The District Court dismissed that complaint and its decision was upheld by the United S.s Court of Appeals for the First Circuit (hereinafter, “the Appeals Court”) on the basis that American citizens resident in Puerto Rico do not have a right to vote in presidential elections because Puerto Rico is not entitled under Article II of the U.S. Constitution to choose electors for the electoral college, the body responsible for electing the President. According to the petitioners, their writ of certiorari was also dismissed by the Supreme Court. In 2000, the petitioners filed a second complaint before the District Court, which found in favor of the petitioners in light of two decisions issued by the Supreme Court after the dismissal of the first case. However, this decision was appealed and the Appeals Court, on the basis of stare decisis, overturned the District Court’s decision, reaffirming its previous decision from I.I.. They claim that their writ of certiorari was once again dismissed by the Supreme Court. A third complaint was filed in 2003 and dismissed by the District Court on August 19, 2004. This decision was appealed and on August 3, 2005, the Appeals Court, in an en banc decision, dismissed the case on the basis of stare decisis, once again reaffirming its finding that American citizens residing in Puerto Rico do not have a constitutional right to vote in U.S. presidential elections. The petitioners filed a writ of certiorari before the Supreme Court and it was dismissed on M. 20, 2006.

3. The petitioners claim that the inaction of Congress and of the Executive Branch with respect to federal voting rights for U.S. citizens residing in Puerto Rico and the restrictive interpretation of the Federal Courts are confining these persons to government without consent and to a state of servitude by disenfranchisement. They assert that Federal Courts are adhering to the procedural element of the presidential election, the electors requirement, in order to deny their right to vote, thus ignoring the substantive element, the right to vote which flows to the people through U.S. citizenship. They allege that the right to vote in U.S. presidential elections has evolved since the adoption of the U.S. Constitution by amendments, legislation, jurisprudence and treaty law, and claim that their right to vote in presidential elections should be determined by their citizenship and not statehood. They submit, however, that Federal Courts have ignored U.S. treaty obligations, which have been labeled as mere aspirational instruments, and that the S.’s lack of compliance with its international obligations is at issue in the present petition.

4. M. the petitioners assert that contradictory, and/or conflicting opinions by Federal Courts are also affecting their request for relief in their claim for voting rights. In this regard, they submit that for some purposes, the U.S. Constitution is applied by the Federal Courts to American citizens residing in Puerto Rico without considering any need for constitutional amendment, Congressional Legislation or without the requirement that Puerto Rico become a state, and different treatment is given in other cases, including those dealing with fundamental rights.

5. The S. acknowledges that American citizens residing in Puerto Rico cannot vote in U.S. presidential elections since the U.S. Constitution only affords this right to citizens residing in states and in the District of Columbia. It claims, however, that this does not constitute a violation of the American Declaration since the facts alleged by the petitioners do not establish any discrimination against specific individuals or any inappropriate denial of the rights to vote or participate in government.

6. With regard to the alleged discriminatory restriction of voting rights, the S. submits that the right to equal treatment before the law means that the law may not treat similarly situated persons differently and claims that American citizens residing Puerto Rico are not in the same situation as citizens residing in states and the District of Columbia, but rather in the same situation as citizens residing in other U.S. territories such as Guam and the U.S. Virgin Islands. It asserts that citizens residing in Puerto Rico are treated equally to citizens residing in other U.S. territories.

7. The S. asserts that the difference in voting rights of these two groups is not based on race, sex, language, creed or any other invidious distinction barred by Article II of the American Declaration, but rather on the very nature of statehood under the U.S. Constitution. It submits that through the Constitution, the people of the United S.s created a federal union, and provided for the structured distribution of political power among states in the union. W. that structure, states that elected to join the union gave up a portion of their sovereignty, took on certain responsibilities and obligations, and at the same time acquired certain rights, for themselves or their citizens, including the rights to choose the President, V.P.,...