A reader asked us an interesting question:

It seems to me that congress and the judges of the early 1900’s were in such a hurry to limit the rights of Puerto Ricans, they forgot that there would be Americans who moved to PR. I was born in West Virginia where our state motto is Montani Semper Liberi (Mountaineers are always free). In Puerto Rico I am not free. The basis of the Insular cases was that Puerto Ricans were foreign to Anglo Saxon principles. Clearly, being of Scotch-Irish decent, I am aware of Anglo Saxon principles and I am not an alien to anything that is American.

There is no good reason why I should be deprived of my rights in such a way that I find myself a THIRD class citizen under my own flag. I would like to fight for my rights legally. My hope is that if I were to win and get my right to vote in federal elections, then Puerto Ricans who were born in the states and moved back to PR would be able to win their case using mine as precedent.

Paying income tax, the Insular cases, and other archaic laws should not be the basis for denying basic rights to Americans. The constitution should follow the flag! My question is, would I have a chance with the right lawyer, with the right judge, in the right court, to make a difference? Again, my goal would be to get the voting rights restored for ‘expats’ living in Puerto Rico, who have become Puerto Rican residents, via absentee ballots for either the state they were born in or the state of their last residence.

Please let me know what you think.

Howard Hills, former lead counsel representing the White House during Congressional ratification of territorial political status policies and agreements, former General Counsel of a U.S. State Department development agency, responded to the reader’s question as follows:

The reader’s spirited advocacy of federal voting rights for U.S. citizens in Puerto Rico is welcome and expresses an admirable patriotic impulse. Winning court recognition for the right of citizens born in the states to vote in the territory under the federal overseas voting law, or even for citizens from the territory who acquire federal voting rights in the states and then return home, would be a step forward in democratization of Puerto Rico under U.S. rule.

In addition to denying voting rights to a U.S. citizen who – like this reader – was born in a state but lives in the territory, under current law a U.S. citizen from a territory can vote overseas based on residency established in a state while overseas fighting for America’s freedom, only to then be denied a vote back home on the island in a Veteran’s hospital being treated for combat injuries. This is a mind-bendingly irrational state of affairs.

Yet, that is the current law. The federal overseas voting law includes Puerto Rico in the U.S. and does not treat territories as outside the U.S. because territories are under U.S. sovereignty. What the reader would be doing in the court case he envisions is ask a federal court to tell Congress it should have treated the territory as a place that is outside a state, just like an overseas location under the current law, and allow citizens who had voted based on citizenship and residency in a state to vote in the territory. After all, voting rights of U.S citizens in federal elections are based on state citizenship derived by residence in a state.  So far, however, the federal courts have never second guessed Congress on its exercise of federal power in a territory. This is because of the Supreme Court’s 1922 ruling in the case of Balzac v. Puerto Rico, holding that the U.S. could continue govern Puerto Rico as an “unincorporated” territory even after U.S. citizenship was granted by Congress.

That meant that U.S. citizens in the territory do not have rights under the Constitution itself, but have only those rights made applicable on a case-by-case basis by Congress or the courts. While some constitutional rights have been relied on to nullify acts of the local governments in unincorporated territories, no federal action or policy under statutes adopted by Congress applicable to unincorporated territories has ever been declared unconstitutional or reversed by a federal court. That, in turn, is because the Balzac ruling makes vague assurances of “fundamental rights” of citizens in the territory, but then recognizes that citizens in Puerto Rico who want a status with the same rights as citizens in the states must move to a state to enjoy equality! Ironically, the “fundamental rights” phrase in Balzac has been relied on by the Supreme Court to require Congress to change federal law and accord expanded rights to enemy combatants detained at GITMO, but never once to require Congress to expand rights of citizens under any federal territorial law or policy applicable in the territory, including the overseas voting law.

The reader who wrote this question may already know about the two voting rights cases that have been brought by citizens from Puerto Rico. In the Romeu case the lawsuit was brought based on previous residency and voting in a state. It is not clear that being born in a state with U.S. citizenship under the 14th Amendment and then moving to the territory would give rise to  status the court would recognize as constitutionally different than the citizenship Mr. Romeu acquired at birth under federal naturalization law applicable in Puerto Rico. But it is an interesting idea that should not be taken lightly, especially since the reader might end up before a judge with some Scottish, Irish or West Virginian ancestry!

However, the larger problem faced is the Balzac case, which creates an unsolvable riddle by giving Congress the power to rule U.S. citizens outside the framework of the Constitution as it applies in the states, or even in incorporated territories like Hawaii and Alaska before statehood. This underscores that in the end the problem is territorial status. Unless the Constitution is amended to give territories the rights of states (in which case why not statehood?), the court reverses Balzac, Puerto Rico becomes a state, or the territory becomes a nation with its own citizenship, fully equal rights at the national level will not be possible.

The denial of voting rights is a legal question arising from the current political status. Political status is a political question. Using the courts to resolve political status is difficult, because the courts shouldn’t be making law or policy. But when the political process breaks down and problems aren’t getting addressed, sometimes the courts have to step in. When we like the outcome that is judicial responsibility, when we don’t that is courts making law in usurpation of Congressional powers.

In any event, here are the citations to the two case mentioned above.  We all should continue a dialogue about the important issues your readers are raising, and stay informed on developments in the courts.

ROMEU V. COHEN, 265 F.3d 118 (2d Cir. 2001) | Igartua De La Rosa v. United States, 331 F. Supp. 2d 76 (D.P.R).

We’re interested in your thoughts on this, too.  Add your ideas in the comments!



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