Why are U.S. territories not allowed to vote in U.S. presidential elections?

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5

Why cannot residents from United States territories such as the CNMI, Guam, and Puerto Rico vote in general elections? (They can, however, participate in presidential primaries.) It seems unconstitutional because residents from these places are also United States citizens and should be granted the right to cast their ballot for the next President of the United States just like everyone else in the fifty states.

BJ Dela Cruz

Posted 2018-10-21T07:32:51.863

Reputation: 843

5

there is more than just CNMI, Guam, Puerto Rico. if you have 6 minutes to spare there is a good video by CGPGrey talking about the various US Territories. There is incorporated/unincorporated, organized/unorganized... but there are also "associated countries" within the US border.

– syn1kk – 2018-10-22T12:50:25.590

Comments deleted.If you would like to answer the question, please post a real answer. Don't use comments to answer the question. For more information on what comments should and should not be used for, please read the help article about the commenting privilege.

– Philipp – 2018-10-24T08:26:33.000

1Its so we don't conquer the whole world as each party tries to expand its voter base. – None – 2018-10-24T12:56:47.487

Answers

107

Article 2, Section 2 of the Constitution begins:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...

Until this section of the constitution is amended to read "Each State, Territory, or Federal District..." or to entirely rewrite the presidential election process to be based on citizenship of the individual voter rather than an electoral college whose members are determined by state laws, it is constitutional that residents of the territories cannot participate in presidential elections.

user4556274

Posted 2018-10-21T07:32:51.863

Reputation: 1 126

57@DavidRicherby, inasmuch as the gist of the question is "Why is this not unconstitutional", showing that the constitution requires this ("them's the rules") is the why. That said, I'd be happy to read a historical answer ("Why did the writers of the constitution not consider or deliberately exclude potential future non-state voting weight?" "Why was the constitution not amended during the 19th century westward expansion?") that covers the why at a different level. – user4556274 – 2018-10-21T10:53:31.033

8The question is "Why can't they? It seems unconstitutional." You've certainly refuted the "seems unconstitutional" part but the actual question is "Why?" – David Richerby – 2018-10-21T10:55:17.740

23@DavidRicherby There’s two different levels to “Why?” To me, the question seems to be asking “Why is this the case?”, to which the answer is “That’s what it says.” Then there’s the deeper question of “Why does it say that?”, which wasn’t part of the question , but would be a interesting followup here or on [History.SE] – Bobson – 2018-10-21T12:56:44.953

5@davidricherby There isn't a better reason than "Them's the rules". – Shadur – 2018-10-21T14:11:57.563

20@Bobson I don't understand why you think that the question of why US citizens who live in territories can't vote in presidential elections isn't a part of... well, the question of why US citizens who live in territories can't vote in presidential elections. "Why are you a vegetarian?" "Because I don't eat meat." "Ummmmmm." – David Richerby – 2018-10-21T14:25:33.213

4@Shadur Why are those the rules? – David Richerby – 2018-10-21T14:27:05.417

7@DavidRicherby You'll have to ask the Founding Fathers, they're the ones who wrote the rules. As to why they were never amended, well, the US historically has rather worshiped their Constitution as Holy Writ and getting it amended is distinctly nontrivial. – Shadur – 2018-10-21T14:30:48.010

8@Shadur The Founding Fathers wrote a lot about their political beliefs. There were also extensive discussions about what the constitution should say, which were widely reported upon. So, no, I don't have to ask these people who've been dead 200 years. And I never said anything about amending the constitution; the difficulty of doing that isn't relevant. (Now you're just saying, "It's in the rules and it's hard to change the rules", which still doesn't answer the question of why the rules were written that way.) – David Richerby – 2018-10-21T14:39:33.570

22Note that the Constitution was amended back in 1961 to give the District of Columbia (which is not a state) votes for President. – dan04 – 2018-10-22T02:40:21.393

11Why the hell is everyone here being so pedantic? Obviously part of the question is "why are the rules like this". OP quite clearly is interested in the justification behind the decision. – ESR – 2018-10-22T05:09:16.387

1Residents of Puerto Rico do not have to pay US personal income tax, with some exceptions. This may be relevant to the question of why the constitution is worded as it is. – Walter Mitty – 2018-10-22T12:41:39.590

7Why would the power to elect the President of the United States of America be limited to the States and not to any other territory under the control of the national government? It's because the Constitution was created by a Convention of delegates from states, who each had representation in the Congress under the then-effective Articles of Confederation and Perpetual Union. – Monty Harder – 2018-10-22T16:18:03.440

5@ESR "Why the hell is everyone here being so pedantic?" You must be new here. – barbecue – 2018-10-22T17:29:10.240

5

For those who want the "But why was the Constitution written that way?" question, that has been asked and answered on the History site.

– T.E.D. – 2018-10-22T19:21:07.343

3@Shadur wrote "There isn't any better answer than them's the rules": actually, there is, and some others have mentioned it even here. One big reason is that it's not as simple as "We're being treated worse," as those territories get benefits that citizens of the states do not get. Also, they could vote for president... all they need to do is to become a state. But some of them don't want to become a state, because many consider the other benefits better. So it is partly a choice by the territories themselves. – Aaron – 2018-10-23T19:04:49.513

42

Even though there is already an accepted answer to the question there is a lot of dissatisfied comments so I looked into it.

The short answer is that the designated representatives assigned to govern each territory did not want to be part of the US government for various reasons as different from each other as the people that make up each territory.

As stated in the comments, outside of the original 13 colonies that rebelled against England, each territory has become part of the US government in a way shown in the Constitution. Those territories however have a different path than any of the territories that I think your question is asking about.

The Louisiana purchase, lands west of the Mississippi up to those forcibly annexed after the Mexican war became Incorporated Territories and then went on to become states. With the exception of the Palmyra Atoll which is the only incorporated territory remaining. The importance of this distinction is that incorporation is the only way that the full power of the Constitution is in effect.

To contrast, the territories you are asking about (Puerto Rico, Guam, American Samoa, US Virgin Islands, Northern Marinas Islands) are all unincorporated, so the US constitution does not apply there. Before I explain that, for completeness I will say that these are the 5 inhabited territories, there are several un-inhabited territories but I think the point is moot since there are no people there. Further, of the five inhabited, except for American Samoa, are organized under laws of their own making.

What this means is that each territory got a government together and made decision on their own future from a point of view of both the territory and the US government. To belabor the point, there were two parties to the relationship versus the single government point of view of incorporated territories. Please do not take this simplistic explanation to minimize the intense issues around each organization agreement. There was bloodshed, trickery, tears and anything else that goes on when something this big occurs. The point is that each encounter was independent of the others with a government representing the people of the territory and congress representing the interest of the US.

Each organization agreement was separately negotiated and an agreement was reached with questions answered including: Are the people of the territory US citizens? How will they be represented in the Federal Government of the US. However, the territory is still a party apart from the Nation. This is why it would make no sense for the people of those territories to participate in the election of what is basically a foreign government with an intimate treaty.

Frank Cedeno

Posted 2018-10-21T07:32:51.863

Reputation: 3 877

3Why participate in Presidential primaries? If territories view the US as a foreign government, is that how the US views the territories? If so, why would the US even consider permitting people of of a foreign government to participate in US Presidential primaries? – BobE – 2018-10-21T15:50:13.307

@BobE because that is what was agreed to when the Organic Conventions occurred. I suspect the cry of "No taxation without representation" was a motivation from Congress' point of view. I know this is a cold explanation and not empathic, The only thing I can say is that it was a time when "White man's burden" was a thing. If the organic convention happened today, it would be different – Frank Cedeno – 2018-10-21T15:56:56.623

Interesting stuff I didn't learn in History class ! – BobE – 2018-10-21T16:18:41.973

18You make it sound like it's entirely the territories' decisions not to become states, but the existing states also have a choice in that matter -- they have to let them into the union. – Barmar – 2018-10-21T17:40:33.127

1@Barmar that is the difference between incorporated and un-incorporated territories. incorporated territories were already part of the nation and cannot become independent of their own volition. unincorporated territories like PR have more independent choices – Frank Cedeno – 2018-10-21T19:38:27.273

Could you clarify the meaning of "the single government point of view of incorporated territories"? Should I understand this to mean that the incorporated territories did not have their own governments before they became states, but were ruled directly from Washington? – Peter Taylor – 2018-10-21T21:46:57.583

16

"so the US constitution does not apply there." It's not quite so simple. Some parts of it do, while others don't. At any rate, this really doesn't answer the question of why territories weren't granted Congressional representation or Presidential electors in the Constitution. The Constitution was written in 1787. The doctrine of some parts of the Constitution not applying to unincorporated territories wasn't established until the Insular Cases in 1901.

– reirab – 2018-10-21T22:25:34.287

8Also, the distinction between incorporated and unincorporated territories is kind of irrelevant to answering the question posed here as neither is granted any electoral votes under the U.S. Constitution. Even if the Constitution fully applied to unincorporated territories, they still wouldn't have electoral votes as the Constitution only grants those to states. Even the District of Columbia - the capital district of the United States in which Washington is located - did not have any presidential electoral votes until the Constitution was amended to explicitly grant it electoral votes in 1961. – reirab – 2018-10-21T22:35:43.817

@PeterTaylor, What I mean is that the incorporated territories did not have their own government. That is from the point of view of the people at the time where indigenous people were not thought of as people. I know that is harsh, but to understand, it has to be accepted that is how the government thought. Only the white settlers who walked in their from one of the states counted. Fast forward to 1901 and indigenous people now exist in the new territories acquired. So yes, Washington ruled the lands east of the colonies until they became states. – Frank Cedeno – 2018-10-22T00:21:58.287

1@reirab I not sure I understand your point. The constitution does not apply to foreign countries which is why no one knew what to do with those territories. It is an open question today in regards to American Samoa. Here we have US citizens govern by what is from all intents and purposes a foreign government. I do agree that representation in the federal government has to come from statehood. All I'm saying is that the path for unincorporated territory to statehood must go through renouncing the organic articles and then incorporation – Frank Cedeno – 2018-10-22T00:30:32.737

2It should be noted with respect to BobE's comment that primaries are not something in the Constitution or even required. It's how certain state political parties chose to select delegates to the party convention. Heck, there's no reason why a party even needs to have states send delegates (see the Democratic Party and the superdelegate debate) – pboss3010 – 2018-10-22T12:03:15.013

@T.E.D., please enlightened, what is incorrect. I'll admit that it is not an in-depth look at the matter, but the essence of incorporated vs unincorporated is true and factual. When the question of the what to do with the new territories came up, yes, the US government did largely ignore the populations of those territories, but lip service was paid and a local government was created. – Frank Cedeno – 2018-10-22T21:05:31.223

@BobE Political parties are private organizations, and can run their affairs as they will. Not all delegates to the national convention are selected by primary, for that matter; in Minnesota, those interested go to precinct caucuses, and those caucuses select delegates to higher-level conventions. – David Thornley – 2018-10-22T22:00:39.800

@David Thornley 2 'private organizations, and can run their affairs as they will" - in concept, perhaps. In practical terms however state governments do regulate (both admistratively and legislatively) how political parties "run their affairs". – BobE – 2018-10-23T01:01:46.217

"This is why it would make no sense for the people of those territories to participate in the election of what is basically a foreign government with an intimate treaty." That doesn't make sense; you don't seem to understand what the "federal" part of "federal government" means. The US is a federation of sovereign states. The Federal Government is the entity that governs that federation. The territories are part of that federation. – Acccumulation – 2018-10-23T16:45:25.050

1@Acccumulation, please do not act on that idea of "federation of sovereign states" The fed has considerable power over state governments and state constitutions. It is very different from what goes on unincorporated territories, one of which requires a passport. These territories are associated with the federal government, not subject to it. I will say that the difference is sometimes academic as a rogue president could swoop in with the army and do anything in those territories. The difference is legality. – Frank Cedeno – 2018-10-23T19:07:32.973

1

I'm surprised no one has posted a link to this YouTube video yet. It explains things quite well.

– Wes Sayeed – 2018-10-23T22:32:17.263

@WesSayeed, thank you, that said it all, not sure why it is so complicated. The endless fascination with politics is that is should be logical but is instead riddled with emotion. Although not mutually exclusive (logical emotion?) the proportions change as much and as often as body temperature. – Frank Cedeno – 2018-10-24T02:25:02.010

22

I think the currently selected answer is the best answer, and quite rightly accepted. However, for those who don't think it goes deep enough, perhaps this will help a bit.

Daddy, why can't our family living in {US territory X} vote in the Presidential Election?

There isn't really a US presidential election. Get that idea out of your head. Instead every state holds its own Presidential election. Within limits, this is done by their own rules, with their own ballots, under their own supervision, using their own resources. By tacit agreement, all 50 of them do it on the same night. Each state effectively gets a number of (electoral) votes equivalent to the number of Congressmen they have (House and Senate). The winner of that secondary vote is elected President.

But why can't people residing in territories vote in that too?

That's the way the Constitution is written. Elector selections are done by states. To get a vote on a state's electors, you'd have to have some specific state to send your vote in to. Even if they wanted to vote absentee, residents of Guam or Puerto Rico have no US state to send their vote to.

But why was it written that way?

The people drafting it didn't want a direct popular vote for President. This was the next best option, and the proportion of representation used had already been negotiated when they were voting on how to make up Congress.

In fact, originally, there wasn't even necessarily a vote. It was left up to states how they picked their electors. Many of them just had the Governor or the state legislature pick people. So the state legislature would typically just send over electors for whoever the party in power wanted. If the people living in that state didn't like that choice, well that was their fault for electing that legislature.

Daddy, you're scaring me!

Don't worry. We don't do it that way any more. Since the Civil War every state has had an actual popular election.

But wait! If we can change it, why not just change it to a popular vote?

Changing the Constitution is not trivial. It is usually decades of work, and it has to run through the exact same State and Congressional gauntlet that currently benefits from the current setup. So a change would be unlikely unless a supermajority of states and Congressmen feel it would be beneficial, and definitely not detrimental to their partisan interests. That ain't today, where one party has held the White House for 3 of the last 5 terms, despite losing "the popular vote" in all but one of those elections.

Is there anything else that could be done?

Well, since how electors are picked is indeed up to individual states, there are some loopholes.

Some states have experimented with not making their states winner-take-all with electors. Typically this means they do the easy thing and use the congressional district boundaries to select electors within their districts. The problem with this is it relies on partisan gerrymanders that can themselves be seriously undemocratic.

Another theoretical solution would be for the states to collectively agree via legislation to select only electors pledged to the winner of the national popular vote, rather than their local state vote. If they did that, they could include votes cast by US citizens resident in territories (and there wouldn't be much reason not to). The National Popular Vote Interstate Compact is the current political manifestation of this idea. Mathematically it only requires sign-ons from enough states to represent a majority of the Electoral vote. They currently have about 64% of the required elector-states signed on, with legislation pending in enough to theoretically bring it up to 89.6%. It wouldn't take a lot to push this over the edge, and then the Electoral College could be nothing more than a weird little historical footnote, with no practical significance.

T.E.D.

Posted 2018-10-21T07:32:51.863

Reputation: 11 584

1Most of this post answers an entirely different question / set of questions. – gerrit – 2018-10-23T10:57:52.283

"Changing the Constitution is not trivial. It is usually decades of work..." I agree with almost everything except that. If there is sufficient will, that should definitely be possible much faster. There is no inherent mechanism to make it that slow, or is there? – Trilarion – 2018-10-26T16:28:14.073

3@Trilarion - The process that is typically taken requires 2/3 approval from both houses of Congress, and the 3/4th of the states. The land-speed record for that last phase appears to be about 3 months, but the worst was 202 years, and the median appears to be in the vicinity of 2 years. But of course before that both houses of congress have to approve it, and before that language has to be come up with which is capable of garnering that much support in both houses of Congress. If you count in the time all those phases take, calling it on the order of a decade seems reasonable. – T.E.D. – 2018-10-26T18:17:14.860

1@Trilarion ... but regardless of if you agree with my rough estimate, the main point of it was its not trivial task. The Compact would be far eaiser to pull off to reach the same goal as it effectively only requires the last step (agreement from the states), and the bar is lower (A majority of EC votes, rather than 3/4 of states), and its already almost done. Certainly if the Compact can't be pulled off, then a Constitutional Amendment couldn't either. – T.E.D. – 2018-10-26T18:27:39.380

1There actually is "a" Presidential election. It's just that it's held in December, and there are only 538 people who can vote. – Kevin – 2019-04-10T17:20:40.807

9

The other questions have answered the legal and political, but I wanted to answer the historical as it sets context:

Established 1787, the US constitution guaranteed the rights of Americans living within states to vote on a president. It was unlikely back then that the American founders, primarily focused on trying to unify divided states and protect against tyranny, wouldn't have anticipated the US acquiring additional territories, especially given the idea of colonialism - something they had freed themselves from - would have seemed so repulsive.

But acquire additional territories the US did. In April 1899, more than 100 years later, the US acquired Puerto Rico as a result of the American-Spanish war, through the Treaty of Paris. It was an island previously controlled by the Spanish. Rather than upset the locals, the US government essentially allowed it to self-rule rather than immediately absorbing it into the US. It didn't even establish a means to elect a governor until 1952. On the flipside, the Puerto Ricans don't pay any federal income tax.

Similarly, the US also got Guam in 1899... in the exact same treaty. The Mariana Islands were also effectively associated with Guam, and with the Spanish loss of Guam to America in the Spanish-American war, also meant America acquired the Mariana Islands in the same time period.

Like with Puerto Rico, the US didn't formally establish anything with Guam until 1950, with the Guam Organic Act. It's delays were primarily due to result of WWI (1914 - 1918) and WWII (1939 - 1945) and their subsequent recovery periods, especially considering Japan captured Guam early on during WWII in 1941, and wasn't freed until 1944, 6 years before the act was passed.

American Samoa followed an eerily similar pattern, with the Tripartite Convention resulting in half going to America in 1899 and the other half Germany (the German half is now an independent Samoa, not to be confused with the American half). Several of the islands that weren't controlled by either signed agreements to fall under US control by 1900, more than 113 years after the constitution was written. Despite introducing an Organic Act in 1949 to integrate Samoa within US politics, the Samoa chiefs living in the American half themselves actually defeated the bill, and by definition is self-governing, and thus opts not to involve itself with US politics.

The US Virgin Islands were acquired by the US at a later stage, during WWI in 1916, sold to them by the Danish. The US passed the appropriately named Revised Organic Act of the Virgin Islands in 1954, which like Puerto Rico and Guam, gave them the ability to vote for a governor.

So essentially, the cause for why they don't have a right to vote for a president is a two-parter: when the constitution was first drafted, those territories weren't under US control at the time, and it was unlikely the drafters of the constitution could have imagined America obtaining additional territories, and made no provisions for it.

Similarly, because of the recent nature of the acquisitions, there were no legal frameworks established to allow for any sort of voting for governors until at least the 50s, with two world wars even delaying it in some cases, and internal disagreements resulting in rejection in others, the system just hasn't gotten around to implementing it yet, as it raises some difficult questions on what constitutes a state.

In contrast, it took roughly 200 years (between when America was first discovered to the first constitution being drafted) before Americans even had a right to vote or even a president to vote for.

SSight3

Posted 2018-10-21T07:32:51.863

Reputation: 292

1"it was unlikely the drafters of the constitution could have imagined America obtaining additional territories, and made no provisions for it." They did make provision for incorporations, which applied, e.g., to the Louisiana purchase. – Evargalo – 2018-10-22T16:47:46.307

7Doesn't this answer pretty much ignore how 37 of the 50 states came to be? i.e. the entire Westward expansion of the U.S ? – Mr.Mindor – 2018-10-22T17:35:32.463

3

I don't find the assertion that the Founding Fathers didn't anticipate obtaining additional territories very credible. After all, the 13 Colonies/States grew to 15 very shortly after the Constitution went into force. (See https://en.wikipedia.org/wiki/Admission_to_the_Union#Equal_footing_doctrine,) I think there has to be a different reason that they didn't provide for adding territories. I don't know enough about US history to know what that reason was but suspect it was political, perhaps fear of reminding existing states their power would be lessened as the country grew.

– Henry – 2018-10-22T21:30:04.400

1If the Founding Fathers had not expected expansion, they would not have put a provision in the Constitution to add new states to the United States. The Louisiana Purchase was an expansion long before the ones you mention, and that land has been divided into states. – David Thornley – 2018-10-22T22:06:26.010

1I found the first paragraph very confusing until I realized there is an extra negation. It should say either “likely [they] wouldn’t” or “unlikely [they] would.” – prl – 2018-10-23T08:22:56.253

I'm referring to territories outside the mainland. The Louisiana Purchase was only a 'mere' 7 years after the constitution (which means the founders would have been around to make necessary changes or provisions). Asking someone 'what lands do you expect your country to own in 100 years time?' however would be attributing an element of precognition I doubt anyone could possess. – SSight3 – 2018-10-23T13:56:27.903

1Of course the Founding Fathers thought the US would expand (look at Vermont and Kentucky). But the fact that the US would acquire territory that wouldn't quickly turn into a state? That's what is new. 3.6 million people on a non-state island for 100+ years was definitely not what they planned for. – Michael W. – 2018-10-23T16:09:16.117

"Established 1787, the US constitution guaranteed the rights of Americans living within states to vote on a president." To what are you referring here? – Acccumulation – 2018-10-23T17:04:49.990

3

It seems unconstitutional because residents from these places are also United States citizens and should be granted the right to cast their ballot for the next President of the United States just like everyone else in the fifty states.

It's not unconstitutional because you have two options

  1. Make your territory a state (with mixed results)
  2. Move to a state. As US citizens they can (and do) do this

Remember, the President is selected by electors but, more importantly, by the House of Representatives should the electors fail. So even if they were given an elector in the college, if something happened (like an electoral college tie) they do not have Representatives in the House and would wind up just as disenfranchised.

Machavity

Posted 2018-10-21T07:32:51.863

Reputation: 33 727

Enfranchisement means that it's possible for your vote to affect the results, not that it does. – Acccumulation – 2018-10-23T17:09:38.223