On November 23, 2016, the Court of Appeals for the First Circuit issued a judgment in Igartúa v. Obama (Igartúa V), No. 15-1336, 2016 WL 6892467 (1st Cir. Nov. 23, 2016), that reviewed the District of Puerto Rico’s dismissal of the fifth in a series of repeat suits challenging “the denial of the right of Puerto Rico citizens to vote for representatives to the U.S. House of Representatives and their right to have five Puerto Rico representatives apportioned to that body.” Igartúa V, 2016 WL 6892467, at *1.

In Igartúa V and a previous suit, Igartúa v. United States (Igartúa IV), 626 F.3d 592 (1st Cir. 2010), the plaintiffs made a procedural claim under 28 U.S.C. § 2284(a), which provides that “[a] district court of three judges shall be convened . . . when an action is filed challenging the constitutionality of the apportionment of congressional districts.” The plaintiffs asserted that their substantive claims related to the non-apportionment of districts and that Puerto Rico’s district court had therefore erred in refusing to convene a three-judge panel. Id., at *3.

The Igartúa IV panel promptly rejected this procedural claim in a footnote, stating “[t]hat is not the issue in this case” and holding that voting rights for Puerto Rico residents could only be granted by statehood or by constitutional amendment. Id. (quoting Igartúa IV, 626 F.3d at 598 n.6). In Igartúa V, the litigants raised this claim again. The Igartúa V panel ruled that it was bound by the interpretation of § 2284(a) in Igartúa IV and dismissed the case. However, the Igartúa V panel engaged in a far-reaching discussion of why the Igartúa IV panel may have erred and urged the litigants to file a petition for rehearing en banc. Id., at *1.

In its discussion, the Igartúa V panel focused its attention on Adams v. Clinton, 226 F. Supp. 2d 156 (D.D.C. 1998), which addressed a challenge to the federal government’s non-apportionment of representatives for the District of Columbia. There, the D.C. District Court convened a three-judge court, which found that the plaintiffs had standing but dismissed their claims on the merits. Adams v. Clinton, 90 F. Supp. 2d 35, 45, 27 (D.D.C. 2000). On direct appeal, the Supreme Court issued an affirmance without opinion, implying that the three-judge court was properly convened under § 2284(a). Igartúa V, 2016 WL 6892467, at *4 (citing Adams v. Clinton, 531 U.S. 941 (2000)).

The First Circuit panel in Igartúa V cited a Volume 116 Comment by José R. Coleman Tió, Six Puerto Rican Congressmen Go to Washington, to explain why the three-judge court’s judgment on the merits in Adams did not necessarily foreclose the substantive claims in Igartúa V. Id., at *8. Specifically, the panel cited the Comment for distinguishing between the Seat of Government Clause—the constitutional basis for congressional power over the District of Columbia—and the Territorial Clause—the constitutional basis for congressional power over Puerto Rico—and observing that there was “academic recognition” for “[t]he possibility that the Constitution does not prohibit equal voting rights for Puerto Rico residents through congressional action.” Id.

The Igartúa V decision—with support from the Volume 116 Comment—thus invites further litigation and provides a stronger basis for Puerto Rican residents to seek voting rights through federal courts.