Voting Rights in American Territories

Voting Rights in American Territories

Michael Ricci, December 2016

Imagine for a moment being a legal citizen of the United States and having the right to vote be restricted or even denied by the federal government. It may sound bizarre to some that a democratic nation such as the United States does this, but for roughly four million Americans it is a troubling reality. People living in territories controlled by the United States such as Puerto Rico, Guam, American Samoa, and the U.S. Virgin Islands are the ones who experience this major inconvenience. The United States is a nation that gives its citizens specific rights such as the freedom of expression, ability to pursue life, liberty, and happiness, as well as the right to vote. Many people both foreign and domestic, believe that America is a blossoming democracy with liberty and freedom prospering across the country largely because of those citizenship rights. One could say that the right to vote is arguably the most important aspect of citizenship because it allows citizens to have their voice heard by all levels of government and gives them a say in governmental policy and procedure. Therefore, it may be difficult for someone to wrap their head around this issue as to why the United States has not changed or amended the laws regarding the right to vote as a U.S. citizen living in American territories.

In 1901, the United States Supreme Court ruled in the case of Downes v. Bidwell that American territories belonged to, but were not a part of America, therefore, meaning the people of the territories could only enjoy certain rights and privileges. The Supreme Court technically has the right to do this because their ruling was in accordance with the Constitution. According to Article one, Section two of the United States Constitution, “The House of Representatives shall be composed of members chosen every second year by the people of the several states.” This sentence regarding the legislative branch of the federal government means that only citizens from the states can elect people to congress. The same is said in Article two, Section one regarding the executive branch of the federal government. This implies that people who reside in American territories cannot vote because they do not reside specifically in one of the fifty states even though they have U.S. citizenship. It is a tough situation for these people, but many argue that legislation can rectify this dilemma as it did in 1961 in Washington D.C. Prior to 1961, the District of Columbia did not have the right to vote in the presidential election until the passage of the twenty-third amendment which gave Washington D.C. three electors to vote in the electoral college. If legislation worked for the District of Columbia, then it is possible that legislation or a constitutional amendment could be enacted to give the citizens of American territories the same voting rights as citizen in the United States.

Throughout the years, there have been multiple initiatives to give the citizens of American territories the same voting rights as citizens in the United States. One of the initiatives taken is debating over statehood for certain territories like Puerto Rico in legislative sessions. In December of 2008, a nonbinding referendum was given to Puerto Rican voters asking if Puerto Rico should become a state or not. At first voters rejected their current U.S. commonwealth status by a fifty-four to forty-six percent decision. In a second question, sixty-one percent chose statehood as an alternative to a semi-autonomous nation which got thirty-three percent. The other six percent voted for independence [1].

Aside from waiting to receive the option of statehood, some natives of the territories have filed a federal lawsuit. In 2005, several U.S. citizens living in Puerto Rico challenged their inability to vote in presidential elections. These people based their argument on the International Covenant on Civil and Political Rights which, in one article, gives citizens the right to take part in public affairs and elections [2]. Although these people made a compelling case, the court determined that international law or treaties do not require the United States to give Puerto Rico the voting rights to its “citizens.” The court also said the international law does not override the constitution of the United States.

In February 2007, legislation was introduced to the House of Representatives known as the Puerto Rico Democracy Act. This bill called for a two-part referendum where the people of Puerto Rico would be asked to vote if they wanted to keep their political status as a commonwealth or find a permanent alternative solution. If the people voted to retain their status as a commonwealth, then the voters would have the opportunity to vote on the same question every eight years. However, if an alternative political status other than commonwealth was voted on, the people of Puerto Rico would be able to vote on becoming a state or an independent country [3]. This bill was not voted on before the congress in session ended. Some hope was restored as this bill was reintroduced into congress in 2010. It was approved in a vote in the House of Representatives, but unfortunately died with a sine die adjournment in the senate which means that no further hearings or discussions were scheduled for the issue. If the Puerto Rico Democracy Act passed then the people of Puerto Rico would have the chance of becoming a state, and if it did become one then the citizens would be able to vote for presidential and congressional elections. Puerto Rico would then have the same equality as the other fifty states.

Many people have argued it is unfair how the only way for people of American territories to vote for president is by having a residency in the United States and voting with an absentee ballot, or traveling back to their state to vote in person. Back in 2000, United States District Judge Jaime Pieras in San Juan, Puerto Rico determined that residency is not a valid basis to have the voting right of a United States citizen be denied [4]. This federal court decision was later appealed by officials at the Justice Department which got Judge Pieras’s decision reversed. Since then, people continue to argue that one’s residency should not dictate whether or not a citizen can vote in a presidential election.

Many notable and well-educated people such as Yale Law School graduate and lawyer Jose R. Coleman Tio, believes that congress can grant Puerto Rico congressional representation in congress without making it a state. Congress has the power to pass legislation granting representation to Puerto Rico. The legislation would rely on congress’s constitutional power to rule over Puerto Rico and follow precedent of treating it as a state in other legislation. This is an idea that congress has considered for advocates on congressional representation in Washington D.C., though there has not been any development [5]. Coleman makes another valid argument when he explains how Puerto Rico deserves representation because the Framers of the Constitution meant for a territorial status to be the step to becoming a state. Many states today were once territories back in the 1800s such as Michigan, Arkansas, Colorado, etc. Even though it does not look like Puerto Rico may become a state anytime soon, Coleman argues that it should not forever be without representation in congress and in the presidential election.

Some notable people have been advocates for voting rights in American territories such as Massachusetts Senator, Elizabeth Warren. Warren believes in taking a stand for the disenfranchised voters of the United States territories claiming, “the four million people who live in the territories are not the subjects of a King. They are Americans. They live in America. But their interests will never be fully represented within our government until they have full voting rights just like every other American.” Senator Warren has also helped with the filing of Segovia v. Board of Election Commissioners in 2016. This lawsuit argues that the right to vote should not depend on where a person happens to live. If the residents of the territories moved to anywhere in Europe for example, they would be able to vote for president, but that right gets taken away if they move back to the territories [6]. Comedian and host of the popular show Last Week Tonight, John Oliver, has also been a big proponent in bringing up this issue. His satirical news show talks about the disenfranchisement of four million people living in the territories of the United States. Though John Oliver is not a politician, his influence and informational segment on voting disenfranchisement in American territories brought this to attention to the millions of viewers who watch his television show. Many politicians cannot gather this many people to hear their political beliefs.

The partial denial of presidential voting rights in Puerto Rico and the other American territories is still a contemporary issue in the United States today. People who have protested this conceived injustice in federal court and through other means of political protest have seen little improvement and accomplishments for extensive voting rights. Aside from voting for president, these territories only have a nonvoting representation in congress and cannot vote in congressional elections as well. Puerto Rico has a population of roughly 3,474,000 people and if Puerto Rico was a state it would rank thirty out of fifty in population [7]. Unfortunately, they still cannot vote in the presidential election even though they have a large population. This issue has had a lot of debate over the last few decades through public/political figures, court cases, proposed legislation, etc., but there have not been many advances in guaranteeing American territories representation and the right to vote in presidential elections. The only real way to guarantee people of the territories of the United States congressional representation and the right to vote in presidential elections is to admit them as states or to amend the Constitution. These two options are notoriously difficult to do and would need a large movement by both congress and the people of the United States, but that does not mean it is impossible.

Notes
[1]. Castillo, Mariano. “Puerto Ricans Favor Statehood for the first Time.” Academic OneFile. November 08, 2012. Accessed November 14, 2016
[2]. “First Circuit Holds That U.S. Constitution’s Failure to Grant Puerto Rico Voting Rights in U.S. Presidential Election Does Not Violate Treaty Obligations.” Academic OneFile. August 2005. Accessed November 14, 2016.
[3]. Falcon, Angelo. “The Diaspora Factor: Stateside Boricuas and the Future of Puerto Rico.” Academic OneFile. November/December2007. Accessed November 14, 2016.
[4]. Maggs, John. “As Puerto Rico Goes.” Academic Search Complete. September 16, 2000. Accessed November 14, 2016.
[5]. Fortier, John C. “The Constitution Is Clear: Only States Can Vote in Congress.” The Yale Law Journal, May 19, 2007.
[6]. Weare, Neil. “Senator Warren Stands Up for Disenfranchised Voters in U.S. Territories After Snub.” Huffington Post. April 06, 2016. Accessed November 14, 2016.
[7]. “Resident Population Data.” 2010 Census. 2010. Accessed November 14, 2016.

Further Reading

Cottle, Amber L. “Silent Citizens: United States Territorial Residents and the Right to Vote in Presidential Elections,”University of Chicago Legal Forum: Vol. 1995: Iss. 1, Article 11.

New Federal Voting Rights Lawsuit for Territorial Residents Filed.” We the People Project. November 10,2015. Accessed November 14, 2016.

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