The contradictions of America’s unincorporated territory

Greg Nash

On Jan. 18, 2018 the United States Court of Appeal for the 7th Circuit handed down its decision in Luis Segovia v. United States, which affirmed a District Court judgment denying certain former residents of Illinois residing in the territories of Puerto Rico, Guam and the Virgin Islands the right to obtain an absentee ballot for purposes of voting in federal elections in Illinois.

According to the court, the federal Uniformed and Overseas Citizens Absentee Voting Act does not preclude Illinois law of providing the plaintiffs with an absentee ballot, which therefore deprive them of standing to challenge the federal statute.

Tellingly, the court adds that for purposes of the absentee voting act and Illinois law, Puerto Rico, Guam and Virgin Islands are part of the United States. If plaintiff were Illinois residents living in American Samoa — which under the statute is not part of the United States — they would have a right to an absentee ballot.

{mosads}The court argues disingenuously that the absentee voting act requires states to provide absentee ballots to its former residents living outside of the United States, but does not prohibit them from providing such ballots to former residents residing in Puerto Rico, Guam and the Virgin Islands.


From this distinction without a difference the court concludes that Illinois law depriving plaintiffs from obtaining an absentee ballot does not violate the equal protection clause, and therefore cannot prove they suffered the injury required for purposes of standing under current Supreme Court rulings on the matter. Under this isolated reading of theUniformed and Overseas Citizens Absentee Voting Act a state could hypothetically provide an absentee ballot to a former resident living in another part of the United States, be it a territory or another state. Of course, this hypothetical has its own constitutional difficulties.

The fundamental problem with the Court of Appeal’s argument is its selective reading of the territorial clause and its interpretation under the Supreme Courts insular cases, which allows for contradictory — some would say self-serving — judicial rulings and legislation. It is worth noting how the Court of Appeals avoids any direct mention or reference to the insular cases, burying their bones in case citations, obfuscating the underlying controversy.

In Downes v. Bidwell (1901) then Associate Justice Henry Billings Brown characterized the recently acquired island of Puerto Rico as a territory appurtenant and belonging to, but not a part of the United States. Puerto Rico was foreign in a domestic sense, he claimed, whatever that means. Because Puerto Rico was not a part of the United States, he argued, Congress did not need to extend all constitutional guarantees to its inhabitants. Reading the opinion from a historical perspective it is interesting to note its celebration of the Anglo-Saxon character and its natural sense of justice, and its nostalgic commentary on the Dred Scott decision and the property rights of slave owners in the territories prior to the 13th Amendment. This from the same associate justice who authored the majority opinion of Plessy v. Ferguson (1896).

The unincorporated doctrine holds that the acquisition of territories by the United States does not necessarily imply that they will be incorporated as states at a future date, contrary to the historical experience at the time. From 1900 to 1917 Puerto Ricans were naturals of the United States, similar to the current situation of American Samoa.

In 1917 the Jones Act, granted American citizenship to Puerto Ricans, though the Supreme Court held in Balzac v. Porto Rico (1922) that this did not alter the unincorporated nature of the territory. In Boumediene v. Bush (2008) regarding the right of habeas corpus petitions by enemy combatants held in United States Guantánamo Naval Base in Cuba, the Supreme Court seemed to suggest via dicta the continued validity of the insular cases.

In 2016, the Supreme Court decided Commonwealth of Puerto Rico v. Sanchez Valle, which concerned Puerto Rico’s lack of sovereignty for purposes of avoiding the application of the double jeopardy clause to criminal defendants in the territorial courts; and Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust, concerning the inapplicability of the 10th Amendment to Puerto Rico and its inability to legislate a territorial bankruptcy law parallel to the Federal Bankruptcy Code. 

In these two recent opinions the Supreme Court avoided the use of the term “unincorporated” with reference to the territory of Puerto Rico. Also in 2016 Congress legislated the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) for purposes of creating an oversight board and a bankruptcy-like proceeding under its Title III for the fiscally hard pressed Government of Puerto Rico.

As a matter of fact, as of this writing, there is a pending motion to declare the oversight board unconstitutional. This controversy will most likely end up before the Supreme Court.  

The real scandal behind this the legal fiction is that it is predicated on a racial and ethnic charged category that American citizens that live in the territories are not seen as deserving of the full protection of their constitutional rights. This needs to change.

Andrés L. Córdova is a professor at the Inter American University of Puerto Rico, School of Law.

Tags Andrés L. Córdova Puerto Rico statehood

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