Banned from the Ballot: A Case for Extending Presidential Voting Rights to U.S. Territories
The United States continues to enfranchise a wide array of voices, yet there remains one silent minority politically excluded from the democratic process of their country. Despite paying nearly $4 billion dollars in federal taxes, providing exceedingly high rates of military recruits, and having a population of nearly 4 million, residents of U.S territories cannot legally vote for the President and Vice President of the United States [1].While territory residents have attempted to gain full electoral participation, they remain unsuccessful as courts have continuously held that such privileges and immunities would only be granted through a constitutional amendment [2]. This undemocratic predicament was the direct result of the Insular Cases – a series of cases decided from 1901 to 1905 which declared the constitutionality of treating U.S territories in a separate and unequal manner. To date, constitutional claims made by U.S citizens residing in territories advocating for the right to vote have been rejected by the U.S. Courts of Appeal for the First, Third, and Ninth Circuits, where all the U.S. territories lie, as well as the Second Circuit [3].Without the ability to vote in the presidential election, territory residents cannot express their views when it comes to the makeup of congress, competing parties, or the policies and decisions that directly affect their communities. While the Supreme Court continues to deny further consideration, by analyzing the implementation of the Twenty-Third Amendment alongside prevailing legislative and judicial developments, it becomes clear that a constitutional amendment is a plausible and tenable way for territorial residents to participate in Presidential elections.
The Twenty-Third Amendment of the Constitution, which was a significant stepping stone in increasing political participation in non-state entities, supports the passage of a constitutional amendment enabling territorial residents to obtain full voting rights. Washington D.C is a federal district, meaning its residents are not considered citizens of a state, and have therefore been historically denied the right to vote in Presidential elections, akin to U.S territories residents. In the wake of political advocacy and after a year of deliberation in Congress, the Twenty-Third Amendment changed the Constitution to allocate electoral votes to the District of Columbia [4]. This Amendment, which rectified a long-standing inequity, provides the necessary precedent for extending the same privilege to residents of territories. The rationale behind the Twenty-Third Amendment rested on the substantial demographic size of the district, home to approximately 800,000 individuals, highlighting a considerable segment of the populace disenfranchised from having a meaningful voice in the selection of their leaders. The striking parallel between D.C.'s historical disenfranchisement and that of territorial residents raises questions about the absence of similar rectifications for the nearly 4 million citizens in territories like Guam, the Northern Mariana Islands, Puerto Rico, the U.S. Virgin Islands, and American Samoa. In an attempt to get this Amendment ratified, the House Committee on the Judiciary clarified that the Constitution would only be changed to the minimum extent necessary to give the District appropriate participation in national elections. Meaning, the District of Colubmia was not given statehood [5].This approach suggests that granting full participation in the democratic process to residents of territories would not necessitate statehood or any other state-associated privileges. Although this Amendment represented a positive step forward, its societal impacts have been limited, as other non-state entities, such as U.S territories, continue to face political exclusion.
Considering Congresses’ inclination towards fostering a more inclusive political landscape, extending voting rights to residents of U.S. territories would be in line with historical legislative movements aimed at widening the electorate and shouldn’t be dismissed as idealistic or implausible. For much of American history, the right to vote has been safeguarded for white males. It wasn’t until the emergence of constitutional amendments where this right expanded to include a wider demographic. Discrimination based on race at the ballot box was addressed through the Fifteenth Amendment which granted the right to vote for African American men [6]. Following this provision, the Nineteenth Amendment declared that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex,” paving the way for women’s suffrage [7].This momentum continued with the Twenty-Sixth amendment which lowered the voting age of U.S citizens from 21 to 18, and ultimately prohibited states from discriminating among voters based on age [8].These amendments collectively underscore Congress's commitment to fostering equal political participation for all U.S. citizens. Expanding voting rights to include residents of U.S. territories would be a profound continuation of this commitment, affirming the democratic principle that every citizen, regardless of geographic location, deserves a voice in their government. However, the argument for extending these rights goes beyond historical precedents or legislative consistency. The extension of voting rights to territory residents is justified on the grounds of fairness, representation, and democratic integrity. Every American, regardless of where they live, contributes to the nation's foundation — through taxes, military service, and civic participation. Denying them the right to vote in presidential elections undermines several foundational American beliefs, including the bedrock principle no taxation without representation.
Similarly to Congress, the courts have continuously supported the efforts to include citizens in the electoral sphere by upholding the legitimacy of the Voting Rights Act. In Reynolds v Sims (1964), it was decided that the electoral districts of state legislative chambers must be roughly equal in population so that all states were equal in representation. The Court further stated that free and fair electoral representation is “for all citizens, of all places as well as of all races” [9]. This highlights the legislative trend of electoral equality despite place of residence. Similarly, the ruling in the Supreme Court case State of South Carolina v. Katzenbach (1966), supports the judiciary's capacity to dismantle barriers to voting, affirming its guardianship over democratic principles [10]. The U.S. The Supreme Court upheld the 15th amendment as a valid constitutional basis for the Voting Rights Act, which aimed to overcome legal barriers at the state and local levels that prevented African Americans from exercising their right to vote. In Allen v. Milligan (2023), the court reaffirmed the validity of Section 2 of the VRA, which provides key protection for minority voters’ freedom to vote in a fair Congressional district [11]. These court decisions reflect the federal government's commitment to ensuring equal political participation, emphasizing the importance of universal suffrage as a democratic principle. It is for this very same reason that extending voting rights to U.S territories would be the next step in continuing this judicial momentum. This extension of rights would not only rectify a glaring oversight but also bring the United States closer to fulfilling its democratic ideals of inclusivity and representation for all its citizens, regardless of their geographic location. Such a constitutional amendment, inspired by the judiciary's principled stand on electoral equality, would affirm the nation's commitment to ensuring every citizen's voice is heard and valued in the electoral arena.
Critics may argue that extending voting rights to U.S. territory residents could complicate the existing electoral framework, potentially leading to adjustments in electoral vote distribution or federal oversight. Additionally, there might be concerns about the implications of such a change on the status of territories, forming debates on statehood or autonomy. However, these arguments overlook the feasibility of implementing such changes. The extension of voting rights, as demonstrated by the Twenty-Third Amendment for D.C. residents, can be accomplished without altering the territories' political status. A constitutional amendment would simply grant territorial residents the right to vote in Presidential elections. To say that it would require or lead to statehood is an unpersuasive argument as the Twenty-Third Amendment did not lead to statehood for the district, nor did it limit the scope of power within Congress. In addition, the U.S. has a lengthy history of adjusting its electoral system to include more states and populations. With that said, the challenges of reallocating electoral votes can be effectively addressed through administrative adjustments.
U.S citizenship in U.S. territories remain deficient as residents lack a vote in congress and are therefore ineligible to participate in the presidential election. Equal democratic representation is a permanent principle of the Constitution’s political legitimacy. Second-class citizenship violates it. The path forward is clear: a constitutional amendment is imperative to rectify this long-standing oversight, ensuring that all U.S. citizens, regardless of where they reside, are afforded the fundamental right to participate in their government. By doing so, the United States can fully adopt its commitment to an inclusive democracy, where every citizen's vote is a testament to the nation's enduring dedication to liberty, justice, and equality for all.
Sources: [1] Hon. Gustavo A. Gelpí, “The Insular Cases: A Comparative Historical Study of Puerto Rico, Hawai‘i, and the Philippines,” Federal Law 58 (March/April 2011): 22-25, https://www.fedbar.org/wp-content/uploads/2011/03/feature3-marapr2011-pdf-1.pdf.
[2] Igartua de la Rosa, 32 F3d at 10; Attorney General of the Territory Of Guam v United States, 738 F2d 1017, 1019 (9th Cir 1984); Sanchez v United States, 376 F Supp 239, 242 (D Puerto Rico 1974).
[3] See Igartua de la Rosa v United States, 32 F3d 8 (1st Cir 1994), cert denied 115 S Ct 1426 (1995); Attorney General of the Territory of Guam v United States, 738 F2d 1017 (9th Cir 1984); Sanchez v United States, 376 F Supp 239 (D Puerto Rico 1974).
[4] Brian P. Smentkowski, “Twenty-third Amendment | Definition, Significance, & Facts,” Encyclopedia Britannica, September 23, 2010, https://www.britannica.com/topic/Twenty-third-Amendment.
[5] H.R. Rep. No. 1698, 86th Cong., 2d Sess. 1, 2 (1960).
[6] US Const., Amend XV
[7] US Const., Amend XIX
[8] US Const., Amend XXVI
[9] Reynolds v. Sims, 377 US at 568-69.
[10] South Carolina v. Katzenbach, 383 U.S. 301 (1966).
[11] Allen v. Milligan, No.21–1086, (2023)