Iguarta de la Rosa v. US, United States Court of Appeals for the First Circuit, October 14, 2004 [rejecting on technical precedential grounds Puerto Ricans' right to vote in the November 2nd US presidential election]. Read the full text of the opinion here [PDF]. Excerpt from the dissent by Judge Juan Torruella:
Those born in Puerto Rico have since 1917 been born citizens of the United States. See Jones Act (Puerto Rico), Act of March 2, 1917, Â§ 5, ch. 145, 39 Stat. 951 (1917); 8 U.S.C. Â§ 1402. The right to vote is a fundamental right inherent in citizenship… It is fundamental because it is preservative of all other rights by adding the validating imprimatur of the ballot box to the business of government. Furthermore, it has been considered a fundamental right since at least 1886, see Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), and repeatedly thereafter in a variety of circumstances, see Bush v. Gore, 531 U.S. 98, 104 (2000);…
The indefinite disenfranchisement of the United States citizens residing in Puerto Rico constitutes a gross violation of their civil rights as guaranteed by the Fifth Amendment and by international treaties to which our Nation is a signatory…. The total default by the United States of its constitutional and international obligations with respect to the citizens of the United States residing in Puerto Rico, release me from any obligation to give stare decisis recognition to our prior decisions in Igartúa I and Igartúa II. "Our Constitution . . . neither knows nor tolerates classes among citizens," Plessy, 163 U.S. at 559 (Harlan, J. dissenting), and yet what we have in this case is without a question the creation and perpetuation of a class of sub-standard, second-class citizens, with less rights than those enjoyed by the main class of U.S. citizens….
Because the normal avenues of government are not open to the United States citizens who reside in Puerto Rico to end the limitless and unconstitutional (see Downes, 182 U.S. at 380 (Harlan, J. dissenting) colonial condition that deprives these citizens of the equality that should be inherent in United States citizenship, it becomes incumbent upon the judicial branch to take such extraordinary measures as are necessary and appropriate to protect the rights of this discreet and insular minority. As an initial remedy, I would reverse the judgment of the district court and remand for the entry of a declaratory judgment consistent with the views expressed by me and stating that the United States has failed to meet its obligations under Article 25 of the ICCPR [International Covenant on Civil and Political Rights]. "This is of the very essence of judicial duty." Marbury, 5 U.S. at 178.
Reported in JURIST's Paper Chase here.