Census silence on U.S. “nationals” not “war on voting rights”

 

American Samoans are not victims of malicious exclusion

There will be a U.S. census in 2020. One controversial question on the planned census form asks whether respondents are U.S. citizens. There are five possible answers, including four versions of “yes” and a simple “no.”

Specifically, citizens born in a state of the union can mark the box on the form for birthright citizenship conferred directly by the U.S. Constitution. Citizens granted citizenship at the discretion of Congress in a state of the union under federal naturalization law also can so indicate.

Citizens born outside the states but in a U.S. territory can confirm birthright citizenship acquired under current federal territorial policy adopted as a discretionary act of Congress. If born outside the U.S. to at least one parent who was a U.S. citizen at the time, there is a box on the form for citizenship acquired under current federal naturalization law and policy adopted as a discretionary act of Congress.

Federal court rulings and Congressional statutes historically treated persons born outside the states in U.S. territories where citizenship had not been conferred to be “nationals but not citizens.” All persons under American rule acquire U.S. nationality, but if born outside a state acquire “citizen” status only at the pleasure of Congress. That’s why it often is noted that “all citizens are nationals but not all nationals are citizens.”

Currently, “citizenship” is granted (and conferral can be ended) as a discretionary act of Congress, in the U.S. territories of Guam, Puerto Rico, U.S. Virgin Islands and the Northern Mariana Islands. American Samoa is the last territory with U.S. nationality but not the classification of “citizenship” under federal territorial statutes.

Accordingly, the option for census respondents born in American Samoa would just be “no.” That may or may not have been the only or best format for the census questionnaire.

But the citizenship question on the census form is not, as now being alleged by Slate.com, part of a conspiracy to deny citizenship under the U.S. Constitution and voting rights to Americans in the U.S. territories.

It is not surprising that Slate.com would spin the lack of a specific 2020 Census form option for “U.S. national born in America Samoa” as part of a “war on voter rights.” Nor is it surprising that like most media coverage by territorial policy Slate badly fumbles its analysis of recent federal court decisions on voting rights in the territories.

Like the virtually identical citizenship question on the census form approved under President Clinton in 1998, the stated purpose of the citizenship question on the 2020 form includes protection of federal voting rights of U.S. citizens eligible to vote in the states. That is because persons eligible to vote under the laws of a state and subject to a citizenship requirement for that purpose are recognized to have a constitutional right to vote in federal elections under Article I and Article II of the U.S. Constitution.

Thus, arguably the federal government does not need to know the legal status of non-citizen “nationals” from American Samoa for that purpose. Since the purpose of the question is to ascertain whether the person is a U.S. citizen, the form gives nationals from American Samoa the choice of checking the “Not a U.S. citizen” option.

American Samoans are not known or presumed to be ashamed of the historic status of U.S. “nationals” based on birth in that territory. There are legal, political and cultural reasons the local government so far has not petitioned Congress to reclassify the residents of that territory as citizens, including greater local autonomy than Congress allows in territories where Congress has conferred statutory birthright citizenship.

Indeed, so-called “citizens” in the other territories do not have equal rights compared to citizens in the 50 states, unless and until they relocate to the states. Many in American Samoa believe being classified as “nationals” while residing in the territory is more accurate than being classified as a “ citizen” in a territory without rights equal to citizens in the states.

Besides, “nationals” from American Samoa who relocate to the states are free to convert to full constitutional U.S. citizenship. American Samoans who move to the states are not subject to immigration laws that apply for aliens with foreign nationalities.

It is not an ethnic insult or expression of disrespect for our fellow Americans in American Samoa if the federal government does not ask people taking the census if they are nationals born in America Samoa.  Of course, it would be perfectly logical and appropriate to give respondents in the territory or in the states a “National born in American Samoa” option simply to count that population separately.

That might not serve any purpose related to the protection of federal voter rights. But it would have prevented the “Not a citizen” option from being misinterpreted or misrepresented as an ethnic insult to our nation’s compatriots from American Samoa.

What’s behind “war on voters” propaganda?

Slate.com would convert the same census question used in the past without undue controversy into a narrative of racism and malicious disenfranchisement. Political commentator Douglas Mack is Slate.com’s lead accomplice, backed up by self-described “non-profit entrepreneur” Neil Weare. Weare’s prodigious fundraising in the territories pays for his legal practice advocating rights of states for the territories, without actual equality of citizenship rights that comes only under statehood.

The Slate.com lead writer for this overblown ideological narrative is Mark Joseph Stern, who insists denial of “citizenship” in American Samoa is an unconstitutional conspiracy by Congress and the federal courts against the people of Samoa and all the other U.S. territories. That conspiracy theory is predicated on the untenable argument so far rejected by Congress and the federal courts that the national birthright citizenship clause in the 14th Amendment of the U.S. Constitution applies directly and of its own force to American Samoa and all other U.S. territories, in precisely the same way it applies to the 50 states of the union.

In making this argument Stern, Mack and Weare ignore the legal fact that the national citizenship clause in the 14th Amendment explicitly links its application to state citizenship, without which U.S. citizens do not have rights to vote in federal elections or representation in Congress or the Electoral College. Instead of an unbiased discourse on actual law and policy issues, Slate.com misleads readers to believe the 14th Amendment applies in the territories because these U.S. possessions are “part” of America.

According to Slate.com, anyone who does not agree or questions whether the U.S. Constitution mandates 14th Amendment citizenship and the same federal voting rights in the territories as in the states is prosecuting a racist war on voter rights against our fellow Americans in the territories. However, the fact that the people of the territories are patriotic fellow Americans does not mean the 14th Amendment or other federal laws apply in the territories the same way as in the 50 states.

To the contrary, the question of whether and in what sense the last remaining island territories are “part” of the U.S. is not the sole or even primary criteria for judicial determination of whether the provisions of the Constitution and federal law apply to non-state territories. Yet, Slate.com makes the unsubstantiated legal argument that not only the 14th Amendment but also the federal Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) applies to voters in non-state federal territories.

The UOCAVA allows absentee voting by U.S. citizens who are in foreign locations outside the U.S. – including those serving in the armed forces – based on prior eligibility to vote in their last state of residence. It is precisely because the U.S. territories are not foreign locations outside the U.S. and are instead domestic jurisdictions that UOCAVA generally does not allow citizens who were eligible to vote in a state to relocate back to a territory, and retain a right to vote absentee in the last state of residence.

Slate.com argues that the U.S. nationals of American Samoa are actually U.S citizens because the 14th Amendment applies not only to states but also territories. According to Stern, Mack and Weare, that means UOCAVA also gives citizens who voted in a state the rights to vote in federal elections in that state after relocating to a territory.

It should be noted that U.S. citizens and nationals are eligible to vote in a territory in all elections with a federal ballot choice for a non-voting delegate to Washington. To also allow the same voter to cast an absentee ballot in a state election that includes a federal election ballot for full and equal representation from that state in Congress and the Electoral College would violate the federal voting rights of U.S. citizens in the state concerned.

Specifically, it would allow U.S. citizens residing on federally owned territorial reservations outside any state of the union to exercise rights of voting and representation restricted to and apportioned among citizens of the states under Article I and Article II of the Constitution. In other words, a census citizenship question does not deny voting rights, but extending UOCAVA to the territories does.

Slate.com touts befuddled lawsuits

The one and only point that the Slate.com article gets right is that UOCAVA appears on its face to treat U.S. citizens in the territory of the northern Mariana Islands (CNMI) differently than U.S. citizens in the other territories. However, the assertion by Weare that the CNMI is expressly included under UOCAVA is a legal fallacy.

To the contrary, UOCAVA was enacted at a time the CNMI did not yet elect a non-voting delegate to the House. That appears to be why Congress failed to exclude the CNMI from overseas absentee voting along with the other four U.S. territories.

Weare hoodwinked Stern and Mack into arguing that treating CNMI differently than the other territories violates the right of citizens in the other territories to “equal protection” under federal law. What the Slate article fails to grasp is that the equal protection clause of the U.S Constitution does not apply directly of its own force in the current U.S. territories judicially classified as “unincorporated” under the anachronistic Insular Cases.

That means Congress and the federal courts decide when and how federal constitutional principles like “equal protection” apply in the territories. Mr. Weare clearly was using Stern and Mack as stalking horses for yet another lawsuit to challenge the Insular Cases, but the new case may be even weaker than the one he already lost.

In the first UOCAVA territorial voting rights court case Mr. Weare concocted (Segovia v. U.S.), he did not challenge failure of Congress to exclude CNMI under UOCAVA. Rather, in that lawsuit Weare grandiosely demanded a ruling that would have also required its extension by the court to other territories (Guam, American Samoa, Puerto Rico and Virgin Islands).

Given the greater latitude Congress has in territories – since the Constitution does not apply of its own force but only as determined by Congress and the courts – in the Segovia case the court quite properly treated failure to exclude CNMI from UOCAVA as a juridical anomaly and political question for Congress to address.

The court’s suggestion that the inconsistent treatment of CNMI could be corrected by amendment of UOCAVA to exclude CNMI is precisely the correct remedy. Extending the UOCAVA voting right to other territories would simply repeat the original mistake of not excluding CNMI originally.

Indeed, if U.S. citizens in any state were to challenge the eligibility of U.S. citizens who have relocated back to the CNMI and reside there to vote absentee back in the state of prior residence under UOCAVA, it can and should be expected that a federal court in that state would declare UOCAVA’s inapplicable to the CNMI. Indeed, it is allowing CNMI residents to vote under UOCAVA that violates equal protection and tramples on the one man one vote rights of citizens in any state requested to allow absentee voting by residents of CNMI.

If a court upheld the application of UOCAVA to residents of a territory, and allowed citizens not otherwise eligible to vote in a state to cast ballots in a state of prior residence like overseas voters in foreign countries, that should and eventually would be challenged as a violation of government by consent for citizens of the states. Like the proposal for a statutory right to elect voting representation in Congress from the District of Columbia, application of UOCAVA to the territories should and eventually would be declared an unconstitutional dilution of the voting rights of citizens in the states.

Fortunately, the federal court in the Segovia case wisely deferred to Congress regarding the ambiguities created by its random inclusion of CNMI under UOCAVA. So the Segovia case failed just like Weare’s earlier fallacy-laden lawsuit seeking application of the 14th Amdenment to American Samoa and the other territories (Tuaua v. U.S.). So far all of the cases brought by Weare were dismissed for lack of legal merit.

Judicial edicts on political questions will apply to all territories

Weare picks American Samoa as lead plaintiff in his cases because they are “nationals” not “citizens” under federal territorial law, and he brands them victims in hopes that will generate sympathy. But the “citizenship” based on birth in the territories is conferred by federal territorial statutes not the 14th Amendment, so it too is a statutory status under federal territorial law more akin to “national” status in American Samoa than constitutional citizenship status under the 14th Amendment. Only when nationals and citizens from the territories leave and go to a state does the territorial “citizen” enjoy rights that national acquires by applying to redeem eligibility for full citizenship.

However, make no mistake that if Weare tricks the courts into applying the 14th Amendment to American Samoa because it is “part” of the United States, that also will incorporate permanently not just the “nationals” of that small island territory, but also the citizens” of all the U.S. territories. What the Slate article and other media coverage fail to comprehend is that if done by judicial edict, incorporation will foreclose democratic self-determination on future political status and nationality options other than permanent union.

That might seem fine to Slate.com’s Stern, as well as Mack and Weare. But historically and constitutionally, permanent incorporation into the union results from Congressional exercise of the power to put territories on the path to full equality and full voting rights that come only with statehood.

What these territorial policy gadflies fail to grasp is that federal territorial law and policy reflects U.S. adherence to United Nations resolutions recognizing the rights of all territorial peoples worldwide and in the U.S. territories to independence or sovereign-to-sovereign relations defined by treaty.

Thus, the court ruling sought by Weare and supported by Mack and Stern would impose permanent supremacy of federal law in territories, but would do so without Congressional commitment to full and equal citizenship rights through statehood or integration into an existing state. In other words, a census question on citizenship does not deny equal rights of democratic government by consent to the territories, but imposing the 14th Amendment and incorporation on territories without a path to full equality through statehood does.

Thus, the only thing for sure is that when the tortured history of U.S. territorial law and policy finally delivers on the promise of democratic self-determination for the peoples of these island possessions, it will be made clear if the solutions advocated by Slate.com and its cohort of “experts” merited the time, energy and resources invested in their ideas by the people of the territories.

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