Unincorporated Territory in the United States

Colonial Ruling

From a concurring opinion of Judge Juan R. Torruella of the First Circuit Court of Appeals, in Igartua De La Rosa v. United States. The court ruled unanimously that residents of Puerto Rico, an unincorporated territory, could not vote in a U.S. presidential election because the U.S. Constitution allows only states to participate in the Electoral College.

THE PRESENT CONUNDRUM CANNOT BE JUSTIFIED OR PERPETUATED FURTHER under the subterfuge of labeling it a “political question.” Undoubtedly, this situation is “political” in the sense that it involves the political rights of a substantial number of United States citizens. It is also “political” because it is one that should, in the normal course of things, be resolved by the political process and the political branches of government. But in the final analysis, this problem is no more “political” than that presented to and resolved by the Supreme Court in Brown v. Board of Education, one that required corrective judicial action even in the face of longstanding legal precedent. In Brown, the Court recognized that, as the ultimate interpreter and protector of the Constitution, it must at times fill the vacuum created by the failure or refusal of the political branches to protect the civil rights of a distinct and politically powerless group of United States citizens. . .

The United States citizens residing in Puerto Rico are caught in an untenable Catch-22. The national disenfranchisement of these citizens ensures that they will never be able, through the political processes, to rectify the denial of their civil rights in those very political processes. This uninterrupted condition clearly provides solid basis for judicial intervention at some point, one for which there is resounding precedent. . .

After more than a century of United States possession of Puerto Rico, there continues to be tremendous debate over the status of the island and the nature of its relationship with the United States. Certainly the citizens of Puerto Rico are divided on the issue, a condition which has permitted the federal government to externalize this question. What is established, for the time being at least, is that the federal courts continue to recognize the almost absolute power of Congress to unilaterally dictate the affairs of Puerto Rico and her people. So long as that is the case, the practicality of the matter is that Puerto Rico remains a colony with little prospect of exerting effective political pressure on the elected branches of government to take corrective action. . .

Although this is not the case, nor perhaps the time, for a federal court to take remedial action to correct what is a patently intolerable situation, it is time to serve notice upon the political branches of government that it is incumbent upon them, in the first instance, to take appropriate steps to correct what amounts to an outrageous disregard for the rights of a substantial segment of its citizenry. A failure to do so countenances corrective judicial action.

By Chris Mooney