On November 24, 2010, the First Circuit had ruled 2-1 that the U.S. Constitution does not permit residents of Puerto Rico to be granted the ability to vote for members of Congress, and that a treaty the U.S. had signed, the ICCPR (International Covenant on Civil & Political Rights), in which the U.S. promised universal suffrage to all areas under U.S. control is not self-executing. The case is Igartua v U.S., 09-2186. Igartua, a resident of Puerto Rico, had been joined in his lawsuit by the government of Puerto Rico. Igartua and the government of Puerto Rico had then asked for an en banc hearing.

On April 4, the First Circuit rejected the request for an en banc hearing by a vote of 3-3. In federal courts, when there is a tie, the status quo stands, so the case is over, except that Igartua and Puerto Rico will probably appeal to the U.S. Supreme Court. The First Circuit only has six fulltime judges. In this case, five of them wrote to express their views. See the April 4 order here.

Two of the three judges who supported the denial of rehearing wrote very brief remarks. Judge Sandra Lynch, a Clinton appointee, only wrote one page, and Judge Jeffrey Howard, a Bush Jr. appointee, only wrote two pages. Judge Michael Boudin, a Bush Sr. appointee, did not write anything.

The three judges who wanted the case heard en banc had a great deal to say. Judge Juan Torruella, a Reagan appointee, wrote 24 pages. Judge Kermit Lipiz, a Clinton appointee, wrote seven pages. Judge O. Rogeriee Thompson, an Obama appointee, wrote two pages. The judges who wanted en banc hearing were unusually outspoken. Judge Torruella said he protests the result in “the strongest of terms.” He pointed out that Puerto Rico has a greater population than any state in the First Circuit except Massachusetts. He said failure to grant en banc hearing is “a gross abuse of discretion.” He compared past unfavorable precedents on this issue to Plessy v Ferguson (the famous 1896 U.S. Supreme Court decision that upheld government racial segregation). He quoted a Yale Law Journal article that says, “The recycling of judicial error by the parroting of prior decisions without independent and thorough analysis has been properly dubbed a ‘judical game of telephone'”, a quote that also applies to Jenness v Fortson.

Judge Lipiz was also very outspoken, saying he is “dismayed and saddened that three of my colleagues have shut the door on review by the full court” and, speaking of his colleagues, “Their premature certitude is the problem.” Thanks to Rick Hasen for the link.