A divided U.S. Court of Appeals for the 1st Circuit declined petitions for rehearing and rehearing en banc of an earlier holding that U.S. citizens in Puerto Rico can’t vote for a representative to the U.S. House of Representatives.

The 3-3 Aug. 4 ruling in Igartúa v. U.S. had the effect of denying the separate petitions for rehearing filed by the appellant and the intervenor, the commonwealth of Puerto Rico.

The case filed by lead plaintiff Gregorio Igartúa, a lawyer, claims that the U.S. government’s denial of representation in the U.S. House of Representatives to citizens residing in Puerto Rico violates the Constitution and several treaties, including the International Covenant on Civil and Political Rights.

Last November, a divided 1st Circuit panel upheld the District of Puerto Rico’s 2009 dismissal of Igartúa’s claims.

Chief Judge Sandra Lynch and judges Michael Boudin and Jeffrey Howard voted to deny the rehearing petitions. The trio held that a 2005 en banc ruling in Igartúa-De La Rosa v. U.S. (Igartúa III), that Puerto Rico citizens did not have the right to vote in presidential elections, controls the current appeal.

Howard filed a separate concurring opinion explaining his reasoning in light of his dissent in the 2005 en banc case. He wrote that the U.S. Supreme Court has provided further guidance in treaty interpretation since the 1st Circuit’s 2005 en banc decision. Howard also wrote that there’s no substantial argument that the Constitution allows Congress to extend the right to vote in Congressional elections to the plaintiff.

Judges Juan Torruella, Kermit Lipez and O. Rogeriee Thompson each filed separate opinions expressing their disagreement with the denial of rehearing — technically not dissents because the court was evenly divided.

Torruella offered the longest and most strongly worded opposing opinion that began by stating that the issues in the appeal are “questions of exceptional importance” that meet the threshold for en banc review “because they implicate fundamental constitutional, civil and political rights of the millions of United States citizens who reside in Puerto Rico.”

“I am sorry to say that the vote against en banc consideration is by all appearances the result of a concerted stratagem to disparage these rights, and to prevent their litigation on a level playing field,” he wrote.

He went on: “The constitutional violations inflicted on Petitioners are the direct result of the dubious theories invented over a century ago by academic alchemists at noted Northeastern universities. Thereafter, they were adopted by the Supreme Court to justify keeping Puerto Rico and other territorial booty acquired by the United States after the Spanish-American War of 1898 in a subjugated colonial status ad infinitum. The rules thus created are analogous to, and contemporaneous with, the discredited Plessy v. Ferguson, 163 U.S. 537 (1896), doctrine.”

“The denial of en banc review to petitions which raise constitutional questions of the magnitude implicated in this case, which fundamentally affect a population of United States citizens larger in number than that of the combined populations of all the jurisdictions in this circuit except Massachusetts, as well as that of twenty-two other States individually, is a gross abuse of discretion,” Torruella wrote.

Torruella also wrote that there’s “no prohibition in Article I, or elsewhere in the Constitution” against granting of voting rights to U.S. citizens living in the territories and the U.S. is in violating its obligations under the international covenant.

Lipez’s opinion stated that “the right of United States citizens to vote for, and be represented by, full-status members of Congress must be counted among the few matters that facially meet the “exceptional importance” prerequisite.”

Thompson added that “I frankly cannot fathom how anyone could conclude that the denial of such a fundamental right to such a significant number of people is anything less than exceptionally important.”

Igartúa, a lawyer who practices in Aguadilla, Puerto Rico, and who is representing himself and other plaintiff, said “it is disgraceful for the nation that Puerto Rican American citizens that have to go and defend the democratic rights of citizens in other countries [in wars] are not even allowed their due process rights of a rehearing en banc.”

He said, “of course” he plans to file a petition for certiorari to the Supreme Court. “I will fight until I die.”

Eliezer Alberto Aldarondo-Lopez, a lawyer at Aldarondo & Lopez Bras in Guaynabo, Puerto Rico, who represented Puerto Rico, the intervenor, said Judge Howard’s position was “quite surprising to us,” given his dissent in the earlier ruling.

Aldarondo-Lopez also said “it surprised us that the 1st Circuit won’t take it en banc because it affects almost 4 million U.S. citizens and renders a treaty entered into by the U.S. as null and non-existent.”

Lawyers at Wilmer Cutler Pickering Hale and Dorr, who also represented the intervenor, declined to comment.

The Justice Department, which represented the government defendants, declined to comment.

Sheri Qualters can be contacted at squalters@alm.com.