Schrödinger’s Citizens: The Trouble with Territorial Disenfranchisement
October 19, 2020
By Scott Meyer
According to a 2017 poll, nearly half of Americans were unaware Puerto Ricans were U.S. citizens. This discrepancy seems to bely the fact that U.S. territories, of which Puerto Rico is the largest, constitute over three and a half million U.S. citizens, have some of the highest military enlistments per capita, and even pay some federal taxes. However, despite over a century of combined history as U.S. territories, their citizens still lack one of the foundations of American democracy: the right to vote in presidential elections.
The reasoning for territories’ disparate treatment comes from Supreme Court rulings from the early nineteen-hundreds, which became known as the Insular Cases. As Justice Kennedy succinctly explained in Boumediene v. Bush: “[i]n a series of opinions later known as the Insular Cases, the Court addressed whether the Constitution, by its own force, applies in any territory that is not a State.” The Court then noted the delicate balance between imputing constitutional rights to territories versus respecting their existing laws, a tension which could result in confusion and instability. To this end, the Insular Cases Court came up with “…the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories.”
These Insular Cases, which mostly occurred between 1901 to 1904, established that “fundamental” constitutional rights are available everywhere, but that “non-fundamental” rights apply to territories only when they are extended by law. These cases have been criticized as espousing racist views of foreigners, with many noting an explicit parallel to Plessy v. Ferguson, which the same court decided just three years earlier. Since then, “fundamental” has been defined sporadically, as cases reach the Supreme Court.
This tiered approach to the Constitution has created a twilight zone where inhabitants of Puerto Rico, Guam, the Northern Mariana Islands, and the Virgin Islands are American Citizens but are not afforded full constitutional protections. Separately, those born in American Samoa are American nationals and not citizens, although their status as non-citizens was challenged in Fitisemanu v. United States. After initially ruling American Somoa were citizens, the district court held its order until it could be addressed on appeal. Essentially, American citizens born within states get one constitution, while American citizens born in territories get another. Adding to the confusion is the fact that, while not allowed to vote in territories, these same citizens are able to vote if they move to a state. This legal fiction might cynically be seen as a modern-day retelling of The Emperor’s New Clothes.
One of the most recent cases challenging territories lack of popular election voting rights was Segovia v. United States in 2018, summarized here. In that case, Illinois citizens residing in Puerto Rico, Guam, and the U.S. Virgin Islands challenged a law preventing them from casting absentee ballots in federal elections in Illinois. Essentially, the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) combined with the Illinois law complying with UOCAVA had a statutory gap: Puerto Rico, Guam, and the U.S. Virgin Islands are considered within the United States, so the plaintiffs did not qualify for Illinois absentee ballots. In addition, because residents of the territories are not able to vote, the plaintiffs could not vote in their elections as an alternative solution.
While Segovia was actually about voters from Illinois trying to vote while in U.S. territories, the language of the Seventh Circuit makes it seem clear that any similar challenge, regardless of plaintiff will fail. The Seventh Circuit first held that plaintiffs lacked standing to challenge UOCAVA because their injury was from the Illinois law, not its federal antecedent. In their separate analysis to determine if the Illinois law was unconstitutional, the court found that it did not violate the Equal Protection Clause or the due-process right to interstate travel.
Their language highlights the bizarre ambiguity of Americans living in U.S. territories: “To be sure, the right to vote ‘is a fundamental matter in a free and democratic society.’ . . . But the residents of the territories have no fundamental right to vote in federal elections. The territories send no electors to vote for president or vice president and have no voting members in the United States Congress.”
The idea that voting is a fundamental matter, but that territories do not have that fundamental right seems, at best, divergent. However, it does clearly convey the current state of the law: territories do not have any right to vote in federal elections. The logical implication would be that since the constitution only gives fundamental rights to the territories, the right to vote must not be fundamental. While this seems an unlikely reading of the holding, the Supreme Court declined certiorari in 2018, at least tacitly endorsing the continued opaqueness if not the actual discrepancy.
However, this apparent tension may soon be out of the Court’s hands. Last year, the For the People Act of 2019 was introduced in the U.S. House of Representatives. While it covers a broad swathe of election reforms, Section 2302 would establish a Congressional Task Force to make recommendations on “equitable voting representation in Congress, voting rights in the presidential election, and full and equal treatment under other federal voting and election laws” for the territories. The bill has passed the House, and is currently on the Senate’s legislative calendar. Its passage would, broadly speaking, mark the largest material change in the federal government’s position towards territorial voting rights in over a century.