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ROMEU v. COHEN

September 7, 2000

XAVIER ROMEU, PLAINTIFF, AND PEDRO ROSSELLO, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF PUERTO RICO, PLAINTIFF-INTERVENOR,
V.
WILLIAM S. COHEN, SECRETARY OF DEFENSE OF THE UNITED STATES, WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES, GEORGE PATAKI, GOVERNOR OF THE STATE OF NEW YORK, AND CAROLEE SUNDERLAND, COMMISSIONER OF THE WESTCHESTER COUNTY BOARD OF ELECTIONS, DEFENDANTS.



The opinion of the court was delivered by: Scheindlin, District Judge.

    OPINION AND ORDER

On March 24, 2000, plaintiff Xavier Romeu filed this lawsuit in an effort to obtain from New York an absentee ballot for the 2000 Presidential election. Romeu, a United States citizen, lived in New York State from 1994 through May 1999 and voted in the 1996 Presidential election. Romeu became a resident of Puerto Rico in May 1999 and registered to vote there two months later. Because residents of Puerto Rico are unable to vote for the President and Vice President, Romeu sought an absentee ballot from New York State. When he received the application for an absentee ballot, however, Romeu determined that his status as a resident of Puerto Rico prevented him from meeting the application requirements. More specifically, Romeu could not provide a permitted reason for requesting an absentee ballot and could not affirm that he was not requesting an absentee ballot from a territory of the United States.

Romeu alleges that the Voting Rights Amendments of 1970 ("VRA"), the Uniformed and Overseas Citizens Absentee Voting Act ("UOCAVA"), and N.Y. Election Law § 11-200 ("NYEL") are unconstitutional, both on their face and as applied, because they deny him his right to receive an absentee ballot from New York State. Romeu contends that his inability to obtain an absentee ballot from New York State deprives 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. Romeu asks this Court to order defendants — William Jefferson Clinton, President of the United States, William S. Cohen, the Secretary of Defense, George Pataki, the Governor of New York, and Carolee Sunderland, the Commissioner of the Westchester County Board of Elections (the "Board of Elections") — to send him an absentee ballot so he can vote in the 2000 Presidential election. Pedro Rossello, the Governor of Puerto Rico, intervened in an effort to secure similar relief for all residents of Puerto Rico who are American citizens and who previously had voted for the President and Vice President while they were residents of a state.*fn1

All defendants have moved to dismiss Romeu's complaint. President Clinton and Secretary Cohen (the "federal defendants") contend that they are not proper parties and that both the VRA and the UOCAVA are constitutional. Governor Pataki argues solely that he is not a proper party. Commissioner Sunderland asserts that: (1) Romeu's complaint raises a non-justiciable political question; (2) Romeu lacks standing to maintain this lawsuit; and (3) the VRA, UOCAVA and NYEL are constitutional. Romeu, for his part, has moved for summary judgment, arguing that the VRA, UOCAVA and NYEL are unconstitutional and that all defendants are proper parties to this action. Governor Rossello joins in plaintiff's motion for summary judgment.

For the reasons set forth below, I conclude that the VRA, UOCAVA and NYEL are constitutional and that Romeu's complaint must be dismissed. Although Romeu is suffering a grave injustice, that injustice stems from the fact that all residents of Puerto Rico are unable to vote for the President of the United States, not from the VRA, UOCAVA or NYEL. 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.

I. BACKGROUND

A. Facts

Plaintiff Xavier Romeu is a natural born United States citizen. See Plaintiff Xavier Romeu's Statement of Material Facts Pursuant to Local Civil Rule 56.1 ("Pl. 56.1 Statement") ¶ 3. In 1994, Romeu became a resident of Westchester County, New York. See id. ¶ 2. After complying with all of New York's voting requirements, Romeu voted in the 1996 Presidential election by casting his ballot in Westchester County. See id. ¶¶ 3-4. On May 17, 1999, Romeu moved to — and became a resident and domiciliary of — Puerto Rico. See id. ¶ 5. On July 9, 1999, Romeu registered to vote in Puerto Rico. See id. ¶ 6.

As a resident of Puerto Rico, Romeu is unable to vote in the 2000 Presidential election. Article II of the Constitution states in relevant part:

Each State shall appoint, in such 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.

U.S. Const. art II. In 1994, the First Circuit clearly resolved the voting status of residents of Puerto Rico: "Pursuant to Article II, therefore, only citizens residing in states can vote for electors and thereby indirectly for the President. Since Puerto Rico is concededly not a state, it is not entitled under Article II to choose electors for the President, and residents of Puerto Rico have no constitutional right to participate in that election." Igartua De La Rosa v. United States, 32 F.3d 8, 9-10 (1st Cir. 1994) (citations omitted) ("Igartua I"); see also Attorney General of the Territory of Guam v. United States, 738 F.2d 1017, 1019 (9th Cir. 1984) ("Since Guam concededly is not a state, it can have no electors, and plaintiffs cannot exercise individual votes in a presidential election.").*fn2 Indeed, residents of the District of Columbia only acquired the right to vote for President and Vice President through the Twenty-Third Amendment. See U.S. Const. amend XXIII; see also Territory of Guam, 738 F.2d at 1019 ("A constitutional amendment would be required to permit plaintiffs to vote in a presidential election.").*fn3

Knowing that he could not vote in the 2000 Presidential election as a resident of Puerto Rico, Romeu requested an application for an absentee ballot to vote in the 2000 Presidential election from Westchester County. See id. ¶ 6. On September 27, 1999, Romeu received the application for an absentee ballot (the "Application"). See id. ¶ 7. The Application is a standard form provided by the Board of Elections to every person who requests an application for an absentee ballot for federal voting. See Declaration of Carolee C. Sunderland ("Sunderland Decl.") ¶ 6. The Board of Elections did not create or modify the Application, which is widely available throughout the United States. See id. ¶ 7.

Section 6 of the Application requires the applicant to give a reason for requesting an absentee ballot and provides the following choices: (a) member of the armed forces, uniformed services or merchant marines in active service; (b) spouse or dependent of (a); (c) U.S. citizen temporarily residing outside U.S.; (d) U.S. citizen overseas by virtue of employment or accompanying dependent; (e) other U.S. citizen residing outside U.S.; or (f) special. See Sunderland Decl., Ex. B (application for absentee ballot). Section 8 of the Application requires the applicant to swear or affirm, under penalty of perjury: "I am not requesting a ballot from or voting in any other U.S. state, territory or possession or sub[-]division thereof in the coming election(s)." See id. According to Romeu, he was unable to return the Application because he did not satisfy any of the categories in Section 6 and could not make the required affirmation in Section 8. See Pl. 56.1 Statement ¶¶ 8-10.

B. Procedural History

On March 24, 2000, Romeu filed this lawsuit against President Clinton, Secretary Cohen, Governor Pataki, Commissioner Sunderland, and Daniel DeFranchesco, Executive Director of the Manhattan Board of Elections.*fn4 On June 13, 2000, this Court held a conference to discuss the status of Romeu's case. At that conference, all parties expressed their desire to resolve the case through dispositive motions. See Transcript of June 13, 2000 Conference ("June 13 Tr.") at 2-5. The parties completed their briefing of these motions on August 21, 2000.

C. Relevant Statutes

As a former resident of New York State, Romeu is eligible to apply for an absentee ballot under both the UOCAVA and the NYEL. Romeu admits that he is not eligible to receive an absentee ballot under either statute, arguing instead that his inability to receive an absentee ballot violates his constitutional rights. Before evaluating Romeu's argument, it is important to understand why Romeu is ineligible to receive an absentee ballot under the relevant statutes.

First, Romeu is not eligible to receive an absentee ballot under the UOCAVA, which allows "absent uniformed services voters and overseas voters" to submit absentee ballots to their last state of residence. See 42 U.S.C. § 1973ff-1(1).*fn5 The UOCAVA defines "overseas voter" as:

(A) an absent uniformed services voter who, by reason of active duty or service is absent from the United States on the date of the election involved;
(B) a person who resides outside the United States and is qualified to vote in the last place in which the person was domiciled before leaving the United States; or
(C) a person who resides outside the United States and (but for such residence) would be qualified to vote in the last place in which the person was domiciled before leaving the United States.

42 U.S.C. § 1973ff-6(5). The UOCAVA defines "State" as "a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, and American Samoa." 42 U.S.C. § 1973ff-6(6). Finally, the UOCAVA defines "`United States', where used in the territorial sense" as "the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, and American Samoa." 42 U.S.C. § 1973ff-6(8). Under the plain language of the UOCAVA, Romeu does not reside "outside the United States" and therefore cannot vote by absentee ballot in New York, the last state in which he was qualified to vote. See Igartua I, 32 F.3d at 10-11 ("While 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 requirements discussed above."); Igartua II, 107 F. Supp.2d at 149 ("[A] citizen who moves from New York to Puerto Rico does not retain the right to vote in New York in federal elections because Puerto Rico, like New York, is another jurisdiction within the United States.").

Second, Romeu does not qualify as a "special federal voter" under the NYEL. Section 11-200 of the NYEL states in relevant part:

Every citizen of the United States now residing outside the United States whose last domicile in the United States immediately prior to his departure from the United States was in the state of New York, shall be entitled to vote from such last domicile, as a special federal voter in all primary, special and general elections for the public offices or party positions of president and vice-president of the United States, United States senator, representative in congress and delegates and alternate delegates to a national convention, provided such citizen, at the time of such departure from the United States, could have met all the present qualifications of this chapter . . . and provided further that such citizen does not maintain a place of abode or domicile, is not registered to vote and is not voting in any other election district, state, territory or possession of the United States. . . .

N Y Election Law § 11-200(1). Romeu does not qualify as a "special federal voter" because he maintains a place of abode or domicile and has registered to vote in Puerto Rico, a territory of the United States, and therefore does not reside "outside the United States." See Pl. 56.1 Statement ¶¶ 5-6.*fn6

Both Romeu's complaint and his brief allege that the VRA also unconstitutionally prevents him from receiving an absentee ballot. The VRA "completely abolish[ed] the durational residency requirement as a precondition to voting for President and Vice President" and "establish[ed] nationwide, uniform standards relative to absentee registration and absentee balloting in presidential elections." 42 U.S.C. § 1973aa-1(b). It states in relevant part:

[N]or shall any citizen of the United States be denied the right to vote for electors for President and Vice President, or for President and Vice President, in such election because of the failure of such citizen to be physically present in such State or political subdivision at the time of such election, if such citizen shall have complied with the requirements prescribed by the law of such State or political subdivision providing for the casting of absentee ballots in such election.

42 U.S.C. § 1973aa-1(c). In addition, the VRA makes clear that "[n]othing in this section shall prevent any State or political subdivision from adopting less restrictive voting practices than those that are prescribed herein." 42 U.S.C. § 1973aa-1(g). Finally, the VRA provides that "[t]he term `State' as used in this section includes each of the several States and the District of Columbia." 42 U.S.C. § 1973aa-1(h). After studying Romeu's complaint and brief, I am unable to determine how the VRA even arguably prevents Romeu from obtaining an absentee ballot.*fn7 Accordingly, Romeu's claim that the VRA is unconstitutional is dismissed.*fn8

II. DISCUSSION

A. Proper Parties

1. Governor Pataki

Governor Pataki argues that he is not a proper party to this action because he has no role in enforcing the UOCAVA. As noted above, however, Romeu's brief makes clear that he also alleges that the NYEL is unconstitutional. See supra Part I.C.*fn9 Romeu argues that Governor Pataki is responsible for enforcing the NYEL pursuant to Article 4, section 3 of the New York State Constitution, in which the Governor is charged with the duty to "take care that the laws are faithfully executed." N.Y. Const. art. IV, ยง 3. "It is well-settled that a state official may properly be made a party to a suit seeking to enjoin the enforcement of an allegedly unconstitutional act if that official plays some role in the enforcement of ...


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