In 2024, many US citizens will cast their votes for president for the first time since the electoral process was marred by election denial and armed insurrection in 2020. These elections come at a time of increased anxiety due in part to concerns about the role of the US in the Israel-Hamas war and the ongoing conflict of Russian aggression against Ukraine. With an election denier newly at the helm of the US House of Representatives and a narrowly averted government shutdown tied in part to disagreements about military funding, many Americans are rightfully concerned about US governmental and democratic institutions. In fact, polls leading up to 2022 midterm elections revealed that two in five US voters feared intimidation at the polls. The prospect of denying any US citizen’s ability to exercise the right to representative government is indefensible.
Yet, for nearly four million Americans residing in US territories, that right to full enfranchisement is unavailable. The residents of Puerto Rico, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, and the US Virgin Islands do not enjoy the same right to vote in federal elections and determine the direction of their national government as their counterparts in the 50 states. They can vote only for limited representation in Congress and they have no right to vote in presidential elections.
This is not a new problem for democracy. The US government has denied the right to full enfranchisement since annexing these colonies, for well over one hundred years for some. In 2023, these Americans have only limited representation at the federal level in a system first established in the 1700s – the non-voting delegate to Congress. And while Congress has permitted this limited representation in the House, there is zero representation of the territories within the Senate.
Many Americans, including certain politicians, might find the above observations difficult to believe. In fact, recognizing that Americans occupy US soil outside of the 50 states and District of Columbia is an unfamiliar concept for a staggeringly large segment of the population. Even arguably the most well-known of these territories, Puerto Rico, is perceived by many as foreign. After a series of high profile reports that Puerto Rican residents were denied services during visits to the US mainland, the Puerto Rican government recently unveiled a new driver’s license that will prominently display “Puerto Rico USA.” Indeed, even US presidents have failed to realize US citizens and nationals reside on our island dependencies; they are not merely our friends or neighbors. These people are much more than that: they are our fellow Americans, holding formal legal statuses of either US citizens or nationals.
The denial of the right of suffrage, i.e. the vote, for these Americans stems from century-old Supreme Court decisions, known as the Insular Cases. This series of cases determined that these members of the American landscape were not equal citizens because they lived in lands, using a classic oxymoron: “foreign in a domestic sense.” Sadly, these decisions justified the denial of rights using openly racist references such as calling the inhabitants of the newly acquired lands “savage tribes” occupying geographies filled with “alien races.” In the leading Insular Case, the same Court that decided the infamously racist Dred Scott decision, found these island people unworthy of the rights associated with “Anglo-Saxon principles.” In 2022, the descendants of Dred Scott joined with the descendants of Isabel Gonzalez, a Puerto Rican woman denied U.S. citizenship in the early 1900s, to file a brief in support of petitioners in Fitisemanu v. United States seeking to overturn the Insular Cases. The Fitisemanu plaintiffs were born on American soil in American Samoa, but due to congressional legislation are not eligible for birthright citizenship. They challenged their status as being inconsistent with the Fourteenth Amendment’s Birthright Citizenship Clause and argued for overruling the Insular Cases. In response, the Supreme Court announced that it would not be hearing the case. In 2022, the Supreme Court also decided that a disabled American living in Puerto Rico owed the federal government tens of thousands of dollars in federal SSI benefits. The problem? Congress had determined that SSI benefits are not available to residents of the Island. Unfortunately, Americans in Puerto Rico have little influence in changing the laws of Congress on SSI benefits. Recognition that there is little political will to regularize the citizenship status and voting rights of the territories within Congress is likely motivating the Court on some level.
Yet these decisions are inconsistent with the reality of the contributions of territorial Americans to the fight for democracy. Residents of the US island dependencies have demonstrated their loyalty to our country since 1899. The patriotic sacrifice of groups such as the Puerto Rican 65th US Army Regiment garnered praise and acclaim throughout the US armed services, though their loyalty meant little when it came to the right to vote. Today, many Americans in the territories are disproportionately represented in the US Armed Forces, with Guam ranking higher than any US state in rates of military enlistment. In Iraq and Afghanistan, military families in Guam experienced casualty rates 450% higher than the national average. If territorial Americans could enjoy electoral representation in Congress and the White House commensurate with their sacrifices on the battlefield, political leadership in Washington might change dramatically. Again, as long as many mainland Americans fail to have even the most basic familiarity with the territories, such a vision seems impossible to achieve.
Importantly, efforts to full enfranchisement for residents of the District of Columbia through statehood have received greater national attention than the pitiable state of democracy in the US territories. But the campaign for democratic rights for the District has also hit snags, in part due to partisan polarization over DC’s deep blue political persuasion. But, unlike the territories, the District does have a role to play in presidential elections. Section 1 of the Twenty-Third Amendment gives the District voting rights in presidential elections “equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State.” As a result, DC holds three electoral votes that represent the constitutionally required minimum of one member of the House of Representatives and two members of the Senate per state.
The example of the District of Columbia is instructive when considering federal political representation in the territories. Were all of the territories to receive electoral college representation consistent to that offered to the District of Columbia through the Twenty-Third Amendment, 15 new votes would be up for grabs in presidential elections. Critics may contend that this enlargement of the Electoral College is unwarranted given the size of some of the smaller territories, the least populous being the Northern Mariana Islands and American Samoa with 47,329 and 49,710 inhabitants respectively per the 2020 US Census. But the population of Puerto Rico at 3,285,874 inhabitants eclipses the District of Columbia’s population of 689,545. And according to historical standards, the territories have certainly met the threshold population for federal representation – when Congress admitted Wyoming and Idaho to the Electoral College through the statehood process, each had a population totaling less than 21,000 and 33,000 respectively.
Moreover, the territories are not a political monolith. Of the five non-voting delegates to Congress that represent the territories, three are affiliated with the Republican Party (Aumua Amata Coleman Radewagen of American Samoa, Jenniffer González-Colón of Puerto Rico, and James C. Moylan of Guam) and two are Democrats (Stacey Plaskett of the US Virgin Islands and Gregorio Kilili Camacho Sablan of the Northern Mariana Islands). Local political leadership in each of the territories over the last decades has also seen shifts back and forth between Republican and Democratic control. While bare partisanship is no reason to deny democracy anywhere in the country, political trends in the territories suggest Americans residing there express a variety of political persuasions.
Since grade school, just about every US child in a civics class learns of the values and virtues of democracy. In doing so, students grow to appreciate the value of equality. Indeed, equality and the ability to participate in government become ingrained as central to our understanding of democracy and becoming an American. However, for millions of Americans living on our island colonies, the prospects of equality have always been illusory. And this, despite their disproportionate sacrifice in service of the country’s military. The time is past due for ending the political and electoral subordination of territorial Americans.
Cori Alonso-Yoder is an Associate Professor in the Fundamentals of Lawyering at the George Washington University Law School. Email: cori.alonsoyoder@law.gwu.edu
Ediberto Roman is a Professor of Law and Director of Citizenship and Immigration Initiatives at Florida International University College of Law. Email: romane@fiu.edu
