Guest Post by Geoffrey Wyatt and Neil Weare
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 Segovia v. United States.
This week, the Supreme Court will consider a question concerning the voting rights of American citizens residing in U.S. territories – one that goes straight to our nation’s founding principles. 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 – but not if they move to Guam, Puerto Rico or the U.S. Virgin Islands. In our petition to the Supreme Court in Segovia v. United States, we argue that this disparate treatment – and the arbitrary denial of voting rights based on where you happen to live more generally – is irreconcilable with our most cherished values.
Our nation’s history provides important context for these arguments. In 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. Among the appeals he made against the measure was to a basic sense of fairness. As he explained, the colonies were not England’s first foray into the exercise of dominion over foreign territory; and yet in past cases, as in the palatinate counties of Chester and Durham, “parliaments were ashamed of taxing people without their consent, and allowed them representatives.” The colonies – while not “being incorporated” with England – were entitled to the same rights. In short, the rights of the English subject should not depend on where he lived.
The arguments of Pitt and others won the day, and the Stamp Act was repealed. But a decade later America would have to declare its independence and fight a Revolutionary War to vindicate the principles he espoused.
Almost immediately the new nation had to confront the question of how to deal with a similar question: the representation of citizens residing in new territory that had not yet formalized its union with the country through statehood.
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 to Congress for the rights of the residents of the new U.S. territory. He wrote, “[T]he obligation to obey laws without any voice in their formation” was among the “grievances complained of by the United States, at the commencement of their glorious contest for freedom.” A just war was fought to vindicate the right to participate in the formation of such laws – “the fairest inheritance for our posterity.” 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, “[w]ere the patriots who composed your councils mistaken in their political principles? Did the heroes who died in their defence seal a false creed with their blood? No, they were not wrong!”
Louisiana’s 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.
But at the end of the 1800s, something changed. America began acquiring overseas territories, first Puerto Rico and Guam in 1898 followed shortly thereafter by American Samoa in 1900. Almost immediately, the question of the status of these territories and the rights enjoyed by their residents reached the Supreme Court. In a series of controversial 5-4 decisions known as the Insular Cases, the Court concluded that these overseas territories were different from the territories that had come before.
The same Court that had decided Plessy v. Ferguson established what has been criticized as a doctrine of “separate and unequal status” for residents of these new territories, explaining that these overseas territories were “inhabited by alien races,” making governance “according to Anglo-Saxon principles . . . impossible” in the near term. Unless and until Congress “incorporated” 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.
More than a century later, the “separate and unequal” approach to overseas territories persists in American jurisprudence. Indeed, in our case, the district court cited the Insular Cases in support of its conclusion that Congress has no constitutional obligation to extend absentee voting rights to former state citizens residing in the territories – even though Congress has extended such voting rights to former state citizens who move permanently abroad to foreign countries or other territories. In short, in the wake of the Insular Cases, 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.
The result is broad, structural disenfranchisement. Nearly 4 million people live in America’s five overseas territories, a population that is greater than that of 21 states (and larger than the smallest five states combined). And while voting rights issues can often become politically polarizing, the issue of territorial voting rights should not be. Republicans and Democrats have both fared well in territory-wide elections, with no one party dominating over time. 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.
The equities of the issue are especially galling when military service is brought into view. The rate of military service in most U.S. territories dramatically exceeds that of any state. On Guam, for example, one of eight adults has served in the U.S Armed Forces. Indeed, our lead plaintiff, Luis Segovia, served in both Afghanistan and Iraq. But – underscoring the practical importance of political representation – Guam enjoys appallingly low levels of funding for Veterans Affairs services. As reported by the Washington Post, 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.
The question posed by Edward Livingston over two hundred years ago has thus come full circle: “Did the heroes who died in the defence [of the right to representation] seal a false creed with their blood?” Indeed, do our heroes from America’s overseas territories continue to do the same? Why, to borrow Pitt’s words, is our Congress not “ashamed” to rule over America’s territories and allow the U.S. citizens who live in these areas to serve our country while not “allow[ing] them representatives”?
Our petition offers the Supreme Court an opportunity to answer some of these questions. We hope they will take it.