Can Federal Courts Decide Territorial Status?

After “We the People Project” (WTTP) lost its case seeking a judicial declaration redefining territorial citizenship rights, WTPP founder and leader Neil Weare was undaunted. He displayed intrepid political spin skills by insisting repudiation of his legal theory by the federal judiciary in the Tuaua territorial citizenship case was a successful challenge to obsolete federal territorial law.

Weare insisted the lawsuit somehow promoted the cause of equal citizenship rights for the island peoples. In reality, WTPP’s loss in the American Samoa case was as predictable as similar cases seeking rights of States that have arisen in the other four U.S. territories over the decades.

Before the Tuaua case, Weare chose to ignore advice from other territorial rights advocates that losing legally weak lawsuits actually impedes reform of federal territorial law to achieve democratization for all U.S. ruled island possessions. That is because every time the federal courts reject ill-conceived lawsuits on territorial rights, it reduces political pressure on Congress to act affirmatively to resolve the status of the territories based on self-determination leading to fully democratic self-government.

Instead of failed litigation that desensitizes Congress and the public to territorial rights issues, it would be a better use of resources to address the established truth that territorial status is constitutionally temporary and undemocratic at the national level. In lieu of litigation, the best strategy to make the nation aware of the problem is to hold periodic status votes – preferably sponsored by Congress – to confirm consent of the governed to the status quo, nationhood or statehood.

Realizing WTPP’s political viability and fundraising success can not be sustained by inaction in the wake of the Tuaua failure, WTPP doubled down on another federal lawsuit. In Segovia v. U.S., the WTPP chosen clients are Americans from three territories, demanding that all U.S. citizens living in a territory must be allowed to vote in federal elections in the same manner as current or former residents of States casting absentee ballots.

Weare’s clever sloganeering includes his Segovia case rally cry that, “The right to vote should not depend on what zip code a citizen lives in.” As a practical matter, however, the geographical application of the U.S. Constitution is not defined by the USPS, and ZIP Codes are assigned to several locations outside States in which residents have federal voting rights.

In Segovia, Weare shrewdly has positioned himself for a possible ruling that could appear more favorable to territories than it really is legally. Instead of arguing as he did in Tuaua that citizens in the territories have the same rights under the U.S. Constitution as citizens in the States, in Segovia the issue is whether citizenship rights Congress grants under territorial law statutes in one territory also must apply equally to citizens in all other territories.

WTPP was able to seize upon this issue only because Congress excluded some but not all U.S. territories from a federal absentee voting statute. That law allows U.S. citizens who are overseas and not living in a State to cast absentee ballots in federal elections in the last State of residence where they previously were registered voters.

So instead of equal federal voting rights under the Constitution, Weare is now seeking a symbolic victory requiring federal statutes on absentee voting to be applied uniformly in all of the U.S. territories (or to exclude all territories from federal absentee voting). Once again, however, In the Segovia case Weare lost again at the trial level in the U.S. District Court for the Northern District of Illinois.

WTPP immediately resumed fundraising for an appeal of the court’s ruling in the Segovia case to the U.S. Court of Appeals for the Seventh Circuit. Of course, if WTPP wins a ruling that federal absentee voting laws must apply uniformly in territories, that would not create equal federal voting rights under the Constitution in the territories.

Even in incorporated territories where the Constitution applies, as with constitutional birthright national citizenship full federal voting rights exist for State citizens only upon admission of the territory as a State. If the court orders that federal overseas absentee voting statutes must be extended to (or in the alternative withdrawn from) all territories, Congress presumably would adopt conforming amendments to federal overseas voting laws.

Since territorial general election ballots include federal ballot choices for non-voting representatives in Congress, presumably there are procedures to prevent residents of territories from “voting twice” by casting both local territorial and State general election ballots. Those are issues that won’t need to be addressed unless Mr. Weare’s appeal from the trial court’s dismissal of his lawsuit is successful.

More immediately, the WTPP legal theory in the Tuaua case claiming citizenship rights for Puerto Rico that currently exist only in States is logically and legally at odds with the Constitution and current federal law, under which statehood is the only path to equal rights of citizenship. Claiming rights of States for the territories is more supportive of the anti-statehood party that espouses “enhanced commonwealth” as a status combining features of both nationhood and statehood.

Accordingly, as the next status plebiscite in Puerto Rico approaches, it is important that WTPP support statehood as the only certain and predictable way for U.S. citizens in Puerto Rico to secure a non-territorial status with the same constitutional rights as citizens of the States. Puerto Rico does not need to seek or pretend to have the citizenship rights of the States if it becomes a State rather than remaining a territory.

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