The recent opinion in Fitisemanu v. United States, in which a federal appeals court ruled that American Samoans are not U.S. citizens, demonstrated that the Insular Cases, while facing challenges on several fronts, remain very much in place.
With no public word on whether the parties will appeal to the U.S. Supreme Court, the constitutional ambiguity those cases created for places like Guam and Puerto Rico remain intact for now. These cases continue to define the policy and legal landscapes of the Pacific and the Caribbean, regardless of whether the century-old Supreme Court majorities or the dissenting opinions were correct, whether they were fair, or whether the court rooted its opinions in racism.
There are challenges that will likely continue, both in Congress and in the courts.
Should the issue come before America’s high court, the matter will basically revolve around whether the 1922 holding in Balzac v. Porto Rico, or more recently in the 2008 case of Boumediene v. Bush, will prevail.
Balzac v. Porto Rico stated: “It is locality that is determinative of the application of the Constitution ... not the [citizenship] status of the people who live in it.”
Boumediene v. Bush pointed out: "The Constitution grants Congress and the
President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.”
I learned long ago never to second-guess the U.S. Supreme Court.
All of which raises the issue of the ease of voting in elections as a constitutional right.
President Joe Biden recently spoke at the National Constitutional Center in Philadelphia on what the White House termed, “the sacred, constitutional right to vote.”
Referring to “election subversion” in the form of what he considers to be legislative assaults from Republican-controlled state legislatures to make voting more difficult — as even elections to federal office are administered by the states, and thus deterring the act of voting, and increasing the ease of challenging ballots — the president drew parallels to the Jim Crow era. It was the period following the civil war when slavery was abolished but the enslaved and their children became second-class citizens, facing special taxes, literacy tests and the like, simply to cast a vote.
“The 21st century Jim Crow assault is real. It’s unrelenting and we’re going to challenge it vigorously,” Mr. Biden remarked.
What the president did not address was the ability for U.S. citizens to vote in U.S. territories, or the citizens of territories to vote in the U.S. mainland.
Enter the realm of absentee voting.
Voting rights for residents of U.S. territories, as is common knowledge at this point, are limited. Only states get allotments in the electoral college and voting representation in both Houses of the U.S. Congress.
Freely associated states, in my observation, have conducted extensive absentee voting drives among their expatriate communities in the U.S. I suppose this is the byproduct of nation-building when the nation being built has the escape valve of egress.
Challenges also exist for “statesiders” living in U.S. territories. Voting in territorial elections is typically limited to natives and their descendants. For U.S. citizens who retain residency in a home state, their ability to cast a ballot is at the mercy of their home state and provisions made for absentee voting.
I attempted to vote in multiple races while in freely associated states.
Unsuccessfully, I should add.
In one year, after logging in to the web portal and establishing my credentials, the Secretary of State’s website presented me with my precinct ballot. After completing it, I certified it, and then waited for the system to convert the webpage to a PDF document, which I could then print and mail by the statutory date. After waiting for what seemed like an interminable amount of time, the system froze. Besides, a slow internet connection made document conversion impossible, I also lacked a printer and the postal service was of questionable reliability, not to mention being difficult to get to during work hours.
A few years later, I interviewed for a job with the Elections Division of my Secretary of State. I advised testing e-ballot for overseas voters with a 10-year-old computer and a dial-up internet connection. I didn’t get the job.
The next time, a different person occupied the office of Secretary of State, the state legislature had changed the law, and the process was to request the office to mail a ballot. Again, postal reliability was an issue, and it never arrived, much less before the required date for the return postmark.
Perhaps it was moot. In the first race, my preferred slate of candidates won handily. In the other, I simply did not care anymore.
Gabriel McCoard is an attorney, who previously worked in Palau and Chuuk State. He is currently weathering the pandemic stateside. Send feedback to firstname.lastname@example.org.