Every four years, during the procedural announcement of delegate vote tallies at both parties’ nominating conventions, Americans are reminded of something I’m sure the vast majority of them forget all about in between conventions: the very existence of the five unincorporated United States territories–Puerto Rico, Guam, the U.S. Virgin Islands, American Samoa, and the Northern Mariana Islands. Territories that are under United States sovereignty, inhabited by about 3.5 million people who are United States citizens and nationals, but, inexplicably, will have no right to vote for the president come November.
Ask any mainlander to find these five territories on a map and they would probably struggle to pinpoint them, the same way I struggle to pinpoint how the U.S. government can continue justifying the denial of the right to vote for U.S. citizens just because they live in the territories. It’s a blatantly racist, century-old form of systemic voter suppression that has been tacitly approved since the U.S. decided to have a go at the dwindling Spanish Empire and won.
I said this was “inexplicable” before–so let me explain.
The U.S. first came into possession of each of its territories through deals and treaties made because of war (of course, no one thought to ask the people who actually lived on those lands what their preferences between “liberation” and “colonization” were). In 1898, Puerto Rico and Guam were ceded with the Philippines from Spain at the end of the Spanish-American War. In 1899, Samoa was partitioned at the end of the Second Samoan Civil War by Imperial German and American forces, creating the territory we now know as American Samoa. The U.S. Virgin Islands were bought from Denmark in 1917, for fear of German invasion at the onset of World War I. The Northern Mariana Islands were the last to become a U.S. territory, in 1986, since being administered by the U.S. after Japan’s defeat in World War II. The U.S. government not only used their territories as wartime buffer states, but as strategic military and trade posts.
Of course there was one problem: the people. All these islands stretching from the Caribbean Sea to the Pacific Ocean were inhabited by Black and brown people. Thus, the subjugation of Samoans, Hawaiians, Filipinos, Puerto Ricans, Chamorros, Black former slaves, and other indigenous groups was justified by labeling them “savage” and “uncivilized” peoples who were incapable of governing themselves. Ever heard of the White Man’s Burden? That concept, that white people were sent to bring non-whites the salvation of civilization, was originally taken from a Rudyard Kipling poem in 1899 written exclusively to encourage the U.S. to colonize the Philippines–you know, back when Jim Crow segregation was still legal, the Chinese Exclusion Act was being made permanent, and the United States thought it was totally fine to overthrow the sovereign Kingdom of Hawaii for a bunch of sugar plantations.
Territorial status was then written and sealed into law. The Insular Cases, decided in the early 1900s, were a set of Supreme Court opinions that created the legal foundation for how we consider U.S. territories today. Notably, the guy who wrote the “separate but equal” doctrine into being in Plessy v. Ferguson also authored two of the Insular Cases opinions. His name was Henry Billings Brown.
In those cases, DeLima v. Bidwell and Downes v. Bidwell, Brown wrote that territories were both considered a domestic part of the U.S. for purposes of the Uniformity Clause and simultaneously foreign from the U.S. through the concept of “territorial incorporation”—a circular logic (the same kind of “separate but equal” logic) that limited constitutional protections to territories, gave Congress absolute power and discretion to extend or withhold such protections, and permanently created a set of second-class citizens without congressional voting powers, that is, when residents of territories were finally even “allowed” to become citizens or nationals because U.S. annexation had left them stateless (rather like, incidentally, the citizens of the nation’s capital city itself).
Specifically in Downes, Brown wrote that territories were “inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought,” making “the administration of government and justice according to Anglo-Saxon principles… for a time be impossible.” That’s laywerspeak for “these brown people are too dumb and uncivilized to understand our very good and very smart law-making system so they aren’t allowed to have it.”
Therefore a distinction was made that citizens in the territories “even if regarded as aliens… are entitled under the principles of the Constitution to be protected in life, liberty, and property” but not “the rights to citizenship, to suffrage… and to the particular methods of procedure pointed out in the Constitution which are peculiar to Anglo-Saxon jurisprudence.” The doctrine of “territorial incorporation,” which differentiated between incorporated territories on a path to statehood and unincorporated territories, thus made it lawful to cherry-pick which parts of the Constitution are applicable to territories and to enact regulations that would not pertain to U.S. citizens anywhere else. Many of the American protections we hold dear are still not afforded to Americans in the territories, including the Fifth and Sixth Amendments, against self-incrimination and for a speedy trial. The jury’s still out on the Seventh Amendment (right to trial by jury), because, guess what? Those rights aren’t guaranteed either. United States Circuit Judge Juan Torruella, who is Puerto Rican, wrote in an article blasting the Insular Cases that the Supreme Court’s decisions are “responsible for the establishment of a regime of de facto political apartheid, which continues in full vigor.”
Territorial status was always supposed to be temporary, which is why it is mind-boggling that these rulings continue to have standing in the 21st century. Advocate and attorney Neil Weare wrote in the Harvard Law Review blog that “it will take a rejection of the Insular Cases to open a political space where fundamental changes to the undemocratic status quo in the territories finally become possible.”
Of course, that doesn’t resolve the issue of the Electoral College system, which initially gave voting rights to states. But the ratification of the 23rd Amendment in 1961 to give electoral votes to Washington DC shows that it is possible to extend voting rights to the territories, and that there is a political impetus not to.
But what’s even more mind-boggling, other than the U.S. upholding a set of racist laws from a hundred years ago, is that the laws are completely and insanely arbitrary. While a citizen from the territories may move to one of the states represented in the Electoral College and become a registered voter there, the reverse is not true. For example, a U.S. citizen from California may vote in the general election with an absentee ballot if they move to a foreign country or the Northern Mariana Islands, but they are not allowed to vote absentee if they move to the U.S. Virgin Islands, Guam, or Puerto Rico. Make it make sense!
That law was challenged in Segovia v. United States by former Illinois residents–including military service members–now residing in Guam, who argued that their disenfranchisement was a violation of the Fourteenth Amendment. In 2018, the Seventh Circuit ruled against them, and against expanding voting rights to the territories. It’s even worse for Americans born in American Samoa who are explicitly not U.S. citizens but U.S. “nationals,” a unique and exclusionary status that prohibits American Samoans from voting in U.S. elections unless they naturalize.
Congresswoman Stacey Plaskett of the U.S. Virgin Islands released a statement in March last year when the For the People Act of 2019 passed through the House, claiming “disenfranchisement in territories was viewed as a temporary condition” and urged legislative action: “Congress, which has the constitutional responsibility for the territories, must create a plan to end the untenable positions under which the American citizens living in the territories reside.”
In a continuation of that call, Puerto Rico Congresswoman Jenniffer González-Colón spoke during a hearing last month on voting rights in the territories, asserting Congress “constitutionally can—and does—treat [territories like Puerto Rico] differently than the States: overall worse.”
At the Democratic National Convention, another Congresswoman of Puerto Rican descent, Rep. Alexandria Ocasio-Cortez, wasted no breath calling out “racial injustice, colonization, misogyny and homophobia”—a phrase for which many people took particular attention to during her one-minute speech, specifically in acknowledging the history of the United States as a colonial power.
Moments later, the DNC choreographed a “virtual roll call” that took viewers from sea to shining sea, through pastures, Native lands, and even thousands of miles away to our many islands, where American citizens proudly cast their delegation’s votes for the party nominee, but will not have the same opportunity to vote for him in November.
The United States should stop entertaining the illusion of democracy in our territorial possessions—a sad, outdated and racist illusion our country has maintained since their colonization, and give those folks the same rights as all Americans at the ballot box. Like we did with Plessy, it’s time to roll back the “separate but equal” citizenship of our fellow Americans in the territories.