Equal Protection Will Not Give U.S. Territories A Vote in Federal Elections
November 4, 2024
By: Adam Russell
On August 30, 2024, the Ninth Circuit invalidated a group of territorial residents’ equal protection claims in Borja v. Nago. The court’s decision was partially based on the fact that former residents of a state who move to U.S. Territories are not a suspect class, and are therefore subject to rational basis review. However, the court did not exclude the possibility that residents born in U.S. Territories could be a part of a suspect class protected by a higher level of judicial scrutiny. In fact, it even acknowledged that these residents might meet the definition of a suspect class. The majority wrote, “many residents of U.S. Territories ‘have endured a long history of discrimination’ on account of their place of birth, race, or ethnicity.” In 1973 the Supreme Court, by comparison, defined a suspect class as a group “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” This begs the question: can the equal protection guarantee of the Constitution give certain Territorial resident’s the vote? Honestly, probably not.
For one, Article 2, Section 1 of the Constitution allows voting restrictions for residents of U.S. Territories. Courts, including the Ninth Circuit in 1984, have said there is no inherent voting rights for U.S. Territory residents because voting rights belong to a State, not an individual. Also, the 5th Amendment, which in 1954 was confirmed to guarantee equal protections from the federal government, was written and ratified at the same time as Article 2, Section 1. Therefore, the Amendment was not likely meant to ensure territorial residents had a right to vote in federal elections. Plaintiffs would have to argue that the 14th Amendment’s Equal Protection Clause, an amendment which only applies to States, alters Article 2.
Assuming that equal protection guarantees supersede Article 2, Section 1, plaintiffs will still have trouble arguing that these protections apply to their ability to vote with state residents. First and foremost, strict scrutiny, or at least some form of heightened scrutiny, will need to be applied in order to effectively challenge the voting restrictions in a court. Strict scrutiny is the harshest type of review SCOTUS applies when reviewing the constitutionality of a state action. It requires the government to show that there is a compelling state interest at stake, and that the law in question is only what is necessary to address that interest. Plaintiffs have to be able to prove that they are a suspect class to apply strict scrutiny.
The argument can be made that residents of U.S. Territories meet the definition of a suspect class. The entire history of U.S. territories is of political powerlessness. Take Puerto Rico for example, the Caribbean Island was taken by the United States in 1898 and placed under direct military rule. It wasn’t until two years later, in 1900, that Congress allowed them to vote for their own legislature. It took another 47 years for Puerto Ricans to be allowed to vote for their governor. Still, Puerto Rico is subject to Federal Laws. Laws which dictate the direction of their economy and benefit programs. Yet, residents cannot vote for President nor do they have a voting representative in Congress. All other U.S. territories are in a similar circumstance where they have to follow federal laws which they have had no involvement in creating. These facts show a long history of a group which has been politically powerless, and are consequently protected with some form of heightened scrutiny.
Unfortunately, the Supreme Court has not yet taken this view. Just as recently as 2022, the Court has held that rational basis review is proper, arguing that the Territory Clause of the Constitution allows the Government to “treat Puerto Rico differently from States so long as there is a rational basis for its actions.” SCOTUS was echoing two decisions it had made in 1978 and 1980. These cases involved federal benefits and tax codes, but presumably the Court can apply the same rational basis review standard to voting. Rational basis review is the most forgiving standard of review that the Court can give to a piece of legislation. It only requires that the government have some legitimate interest. Furthermore, the legislation in question only needs to be rationally related to that interest. In other words, even if one believes that a piece of legislation does not meet its goals, a court will not find the law unconstitutional so long as the legislation has some valid reason related to said goals. In this instance, ensuring an informed electorate is a legitimate, if not compelling, state interest which the government can pursue. A legislature could argue that the geographic isolation of the territories could lead to a group of voters uninformed to the current issues in the United States’ mainland. As weak and ridiculous as one might find this rationale, it would likely be enough to pass rational basis review.
In conclusion, the Ninth Circuit was likely right in its assertion that litigation is not the path to achieve federal voting for Territorial residents. It is up to the United States Congress and the President to give U.S. Territories the right to vote.