{"id":11181,"date":"2018-10-03T15:44:28","date_gmt":"2018-10-03T19:44:28","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=11181"},"modified":"2018-10-05T12:49:28","modified_gmt":"2018-10-05T16:49:28","slug":"ongoing-denial-of-voting-rights-in-u-s-territories-incompatible-with-our-founding-values","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/ongoing-denial-of-voting-rights-in-u-s-territories-incompatible-with-our-founding-values\/","title":{"rendered":"Ongoing Denial of Voting Rights in U.S. Territories Incompatible With Our Founding Values"},"content":{"rendered":"

Guest Post by Geoffrey Wyatt and Neil Weare<\/em><\/p>\n

Geoffrey Wyatt is Counsel at Skadden, Arps, Slate, Meagher & Flom LLP. Neil Weare is President of Equally American, a non-profit that advocates to advance equality and civil rights in U.S. territories. They represent the petitioners in <\/em>Segovia v. United States.<\/em><\/p>\n

 <\/p>\n

This week, the Supreme Court will consider a question concerning the voting rights of American citizens residing in U.S. territories \u2013 one that goes straight to our nation\u2019s founding principles.\u00a0 Under federal and Illinois overseas voting laws, state citizens who move to a foreign country or to American Samoa or the Northern Mariana Islands are permitted to vote absentee in federal elections in Illinois \u2013 but not if they move to Guam, Puerto Rico or the U.S. Virgin Islands.\u00a0 In our petition <\/a>to the Supreme Court in Segovia v. United States<\/a><\/em>, we argue that this disparate treatment \u2013 and the arbitrary denial of voting rights based on where you happen to live more generally \u2013 is irreconcilable with our most cherished values.<\/p>\n

Our nation\u2019s history provides important context for these arguments. \u00a0In January 1766, William Pitt, who had recently returned to Parliament after a period of illness, rose to argue for the repeal of the notorious American Stamp Act that had passed in his absence.\u00a0 Among the appeals he made against the measure was to a basic sense of fairness.\u00a0 As he explained<\/a>, the colonies were not England\u2019s first foray into the exercise of dominion over foreign territory; and yet in past cases, as in the palatinate counties of Chester and Durham, \u201cparliaments were ashamed of taxing people without their consent, and allowed them representatives.\u201d\u00a0 The colonies \u2013 while not \u201cbeing incorporated\u201d with England \u2013 were entitled to the same rights.\u00a0 In short, the rights of the English subject should not depend on where he lived.<\/p>\n

The arguments of Pitt and others won the day, and the Stamp Act was repealed.\u00a0 But a decade later America would have to declare its independence and fight a Revolutionary War to vindicate the principles he espoused.<\/p>\n

Almost immediately the new nation had to confront the question of how to deal with a similar question:\u00a0 the representation of citizens residing in new territory that had not yet formalized its union with the country through statehood.<\/p>\n

Just one year after the Louisiana purchase, concerned citizens retained the services of Edward Livingston, who had just completed a stint as Mayor of New York City and who would go on to represent Louisiana in the U.S. Senate and become the eleventh U.S. Secretary of State, to make an appeal<\/a> to Congress for the rights of the residents of the new U.S. territory.\u00a0 He wrote, \u201c[T]he obligation to obey laws without any voice in their formation\u201d was among the \u201cgrievances complained of by the United States, at the commencement of their glorious contest for freedom.\u201d\u00a0 A just war was fought to vindicate the right to participate in the formation of such laws \u2013 \u201cthe fairest inheritance for our posterity.\u201d\u00a0 And yet shortly thereafter, America began the business of acquiring new territory for which no provision for representation had been made, leading Livingston to ask, rhetorically, \u201c[w]ere the patriots who composed your councils mistaken in their political principles?\u00a0 Did the heroes who died in their defence seal a false creed with their blood?\u00a0 No, they were not wrong!\u201d<\/p>\n

Louisiana\u2019s democratic deficit was ultimately resolved through admission to the Union in 1812, and it set a pattern that would continue for new acquired territories over the nineteenth century.<\/p>\n

But at the end of the 1800s, something changed.\u00a0 America began acquiring overseas territories, first Puerto Rico and Guam in 1898 followed shortly thereafter by American Samoa in 1900.\u00a0 Almost immediately, the question of the status of these territories and the rights enjoyed by their residents reached the Supreme Court.\u00a0 In a series of controversial 5-4 decisions known as the Insular Cases<\/em>, the Court concluded that these overseas territories were different from the territories that had come before.<\/p>\n

The same Court that had decided Plessy v. Ferguson<\/em> established what has been criticized <\/a>as a doctrine of \u201cseparate and unequal status\u201d for residents of these new territories, explaining that these overseas territories were \u201cinhabited by alien races,\u201d making governance \u201caccording to Anglo-Saxon principles . . . impossible\u201d in the near term.\u00a0 Unless and until Congress \u201cincorporated\u201d these territories into the nation as a formal matter, they would not be entitled to full slate of constitutional rights nor have any promise of eventual political participation.<\/p>\n

More than a century later, the \u201cseparate and unequal\u201d approach to overseas territories persists in American jurisprudence.\u00a0 Indeed, in our case, the district court cited the Insular Cases<\/em> in support of its conclusion that Congress has no constitutional obligation to extend absentee voting rights to former state citizens residing in the territories \u2013 even though Congress has extended such voting rights to former state citizens who move permanently abroad to foreign countries or other territories.\u00a0 In short, in the wake of the Insular Cases<\/em>, it is contended that the fact that an American in Paris has more of a political voice than millions of U.S citizens in Puerto Rico does not implicate the fundamental right to vote.<\/p>\n

The result is broad, structural disenfranchisement.\u00a0 Nearly 4 million people live in America\u2019s five overseas territories, a population that is greater than that of 21 states (and larger than the smallest five states combined).\u00a0 And while voting rights issues can often become politically polarizing, the issue of territorial voting rights should not be.\u00a0 Republicans and Democrats have both fared well in territory-wide elections, with no one party dominating over time.\u00a0 Thus, expanding political representation and participation to citizens in the territories would be unlikely to dramatically alter the political landscape in either presidential elections or in Congress.<\/p>\n

The equities of the issue are especially galling when military service is brought into view.\u00a0 The rate of military service in most U.S. territories dramatically exceeds that of any state.\u00a0 On Guam, for example, one of eight adults has served in the U.S Armed Forces.\u00a0 Indeed, our lead plaintiff, Luis Segovia, served in both Afghanistan and Iraq.\u00a0 But \u2013 underscoring the practical importance of political representation \u2013 Guam enjoys appallingly low levels of funding for Veterans Affairs services.\u00a0 As reported <\/a>by the Washington Post<\/em>, per capita spending by the Department of Veterans Affairs on medical services for Guam veterans was lower than any of the fifty states despite the high concentration of veterans.<\/p>\n

The question posed by Edward Livingston over two hundred years ago has thus come full circle: \u201cDid the heroes who died in the[] defence [of the right to representation] seal a false creed with their blood?\u201d\u00a0 Indeed, do our heroes from America\u2019s overseas territories continue to do the same?\u00a0 Why, to borrow Pitt\u2019s words, is our Congress not \u201cashamed\u201d to rule over America\u2019s territories and allow the U.S. citizens who live in these areas to serve our country while not \u201callow[ing] them representatives\u201d?<\/p>\n

Our petition offers the Supreme Court an opportunity to answer some of these questions.\u00a0 We hope they will take it.<\/p>\n","protected":false},"excerpt":{"rendered":"

Guest Post by Geoffrey Wyatt and Neil Weare Geoffrey Wyatt is Counsel at Skadden, Arps, Slate, Meagher & Flom LLP. 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