The Territorial American Exceptionalism to the Fundamental Right to Vote
November 9, 2015
By Ajinur Setiwaldi
Voting is one of the most fundamental rights of U.S. citizens. Congress explicitly states as much in the National Voter Registration Act. Chief Justice Warren invoked the principle when delivering the Reynolds v. Sims opinion in 1964, stating, “undoubtedly, the right to suffrage is a fundamental matter in a free and democratic society.”
If you’re a U.S. citizen born and living in Puerto Rico, the U.S. Virgin Islands, Northern Marina Islands, or Guam, your right to vote in federal and presidential elections is a lot less fundamental than that of citizens living on the mainland. If you’re willing to move to one of the 50 states, you can join the franchise. Even if you move to D.C., you will still have a larger say on who the next president will be than you would if you live in the territories thanks to the 23rd Amendment.
Congress and the Supreme Court have extended the vote to millions of previously disenfranchised citizens through constitutional amendments, federal legislation, and rulings against discriminatory election laws. Yet today more than four million U.S. citizens serve as the exception to the rule because their place of residence disqualifies them from the franchise.
Almost all – about 98 percent – of citizens of U.S. territories are ethnic minorities. American Samoa has the “highest rate of military service of any jurisdiction in America,” but American Samoans aren’t recognized as U.S. citizens and instead are classified as U.S. nationals. And the U.S. Department of Defense owns a quarter of Guam. It’s obvious that decisions made by Congress and the President – officials they can’t elect – impact the lives of territorial Americans.
“Thousands of Americans from the territories and DC defend democracy abroad through military service while being denied full participation in democracy at home,” according to the We the People Project, an organization that advocates for the treatment of citizens born in U.S. territories as full and equal citizens.
The Supreme Court considered the issue of voting rights for citizens of U.S. territories at the beginning of the 20th Century in a series of opinions known as the Insular Cases. The Court held that the U.S. Constitution does not follow the flag and thus did not protect the citizens of U.S. territories.
In Downes v. Bidwell (1901), Justice Brown stated that differences between Americans and the “alien races” that inhabited the territories made the “administration of government and justice, according to Anglo-Saxon principles” impossible at least “for a time.” As John Oliver points out in his coverage of the issue in “Last Week Tonight,” that Justice Brown is the same Justice Brown who had written the Plessy court opinion five years earlier, upholding the “separate but equal” doctrine.
The Supreme Court decided the Insular Cases more than a century ago, before the ratification of the Nineteenth Amendment, extending the suffrage to women; and before the four territories with U.S. citizenship status attained that status.
In 1974, Ada Flores Sanchez challenged the constitutionality of a congressional enactment that allowed Puerto Rico to create its own constitution and attain commonwealth status because it denied her the right to vote in U.S. presidential elections. The United States District Court of the District of Puerto Rico decided against Sanchez and held “although citizenship may be a prerequisite to voting, the right to vote is not an essential right of citizenship.”
That court did sympathize with citizens in U.S. territories, stating that “it is inexcusable that there still exists a substantial number of U.S. citizens who cannot legally vote for the President and Vice President of United States.” But the solution isn’t in the judicial branch, the court held offering two avenues for enfranchising citizens of U.S. territories – statehood or a constitutional amendment.
The Ninth Circuit Court of Appeals reiterated that decision in 1984, holding the Constitution doesn’t grant U.S. citizens the right to elect the president, but delegates that power to the states. Guam isn’t a state and thus doesn’t have the right to elect the president of the U.S.
Earlier this year, Neil Weare, the founder and president of We the People Project argued for birthright citizenship for American Samoans citing the Fourteenth Amendment’s citizenship clause before the U.S. Court of Appeals for the D.C. Circuit. Relying on the Insular Cases, the panel of judges in Tuaua held that citizenship by birth on U.S. soil was not a fundamental right. Weare filed a Petition for Rehearing En Banc in July, 2015.
“Three of the Tuaua plaintiffs are veterans, including a Vietnam veteran who received two Purple Hearts for his service,” according to We the People Project.
In his 2013 State of the Union Address, President Obama called on Congress to protect “one of the most fundamental rights of a democracy: the right to vote.”
“When any American, no matter where they live or what their party, [are] denied that right because they can’t afford to wait for five or seven hours just to cast a ballot, we are betraying our ideals,” said the president.
Sure, POTUS was referring to the long waits at polls and not U.S. territories, but he was invoking the principle we have all been led to believe – citizen voting is a fundamental right. But is it?