State of Elections

William & Mary Law School | Election Law Society

Tag: U.S. Territories

Schrödinger’s Citizens: The Trouble with Territorial Disenfranchisement

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.”

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Continuing One-Hundred Years of Federal Disenfranchisement in Puerto Rico

In 1917 President Woodrow Wilson signed the Jones Act granting Puerto Ricans American citizenship. Last June 11th Puerto Rico held its sixth plebiscite (popular vote) on altering its territorial relationship with the United States. This was Puerto Rico’s fifth plebiscite on this issue in twenty-six years. While 97% voted in favor of Puerto Rican statehood, as a result of political boycotts, only 23% of the eligible voters participated. Voter turnout in previous plebiscites ranged from 60% to 78%. Continue reading

The Territorial American Exceptionalism to the Fundamental Right to Vote

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.

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