A New Tool in a Century-Old Fight for Voting Rights

Residents of the U.S. territories can’t vote in federal elections, so they’re tapping into crowdfunding to try to change that.

Jessica Rinaldi / Reuters

Rodney Cruz was born an American citizen. He did a tour in Iraq during 10 years in the Army, and was wounded on the battlefield three times, eventually suffering a traumatic brain injury. His enlistment followed in the footsteps of many of his relatives, an unbroken line of military service. Five successive generations of his family have put their lives on the line for the country, but like four million other Americans in the U.S. territories, Cruz, as a resident of Guam, is constitutionally barred from voting in federal elections.

But with some help from a brand-new legal platform, Cruz intends to change that.

As the founder of the Iraq-Afghanistan Persian Gulf Veterans of the Pacific, Cruz is one of the lead plaintiffs in the Segovia v. Chicago Board of Elections Commissioners’ case, a lawsuit seeking to challenge the prohibition on residents of U.S. territories voting in federal elections. The suit is one of several recent legal challenges around the issue of voting rights, sovereignty, and citizenship in the U.S. territories. After the U.S. District Court for the Northern District of Illinois ruled against the plaintiffs and denied a motion for summary judgment last year, the plaintiffs and a nonprofit voting-rights organization called We the People Project turned to crowdfunding to finance an appeal to the U.S. Seventh Circuit court.

The arguments in the Segovia case rely on a complex, confusing, and sometimes contradictory history of legal precedent regarding voting rights in the U.S. territories. The first and clearest pieces of precedent are that voting is that there is no explicit right to vote in the U.S. Constitution and that only citizens who are residents of U.S.states have both voting representation in Congress and via electors in the Electoral College. The matter of whether Congress can extend voting rights to the territories—or whether not doing so violates the Constitution—has often been disputed in court. Currently, the only legal way for citizens born in Guam, the U.S. Virgin Islands, the Northern Mariana Islands, and Puerto Rico to vote in federal elections is to move and change their residency to a state.

The strongest existing precedent on the legal status of the territories and voting therein comes from the “Insular Cases,” a series of Supreme Court decisions in the beginning of the 20th century pertaining to the country’s then-new territorial possessions. Those decisions were steeped in the colonialist and often racist legal logic of the era, with decisions referring to the “white man’s burden” and stating that the races were not created equal. They essentially held that the rights of citizenship, including voting, are not granted automatically to residents of the territories, and that territories are entities entirely dependent on Congress, which can grant or remove voting rights at will. (Though Congress, then as now, cannot revoke many basic constitutional rights guaranteed to all citizens and non-citizens under the due-process clause.)

Those cases created a system where even the rights from territory to territory are not equal. Birthright citizenship, for example, is not granted to residents of American Samoa, who are considered U.S. nationals and cannot vote in any election even if they change their residency to a state. Recent cases, such as the Puerto Rico v. Sanchez Valle decision in the Supreme Court, have reaffirmed that the territories have no existing sovereignty or privileges beyond those granted by Congress.

The Segovia case pushes back against legislation crafted under that constitutional interpretation, the Uniformed and Overseas Citizens Absentee Voting Act. That law establishes absentee-voting rights for service members, expatriates, and employees of the federal government who are allowed to vote in their home states but live outside of the United States. Curiously, its definition of “outside the United States” includes the Northern Mariana Islands, but not the other territories, which for the purposes of the law are considered “states.” In those territories, absentee protections are not afforded for people stationed or otherwise living there. And because none of those territories have electors or representatives, the act essentially strips away voting rights just for moving there. No explanation is offered in the legislation as to why the Northern Mariana Islands are exempt.

The common interpretation under the Insular Cases allows for this discrepancy, as well as further contradictions under state absentee laws, which list certain territories as legal for absentee voting but not others. For example, Illinois’s law adds American Samoa to its list of absentee areas, along with the Northern Mariana Islands and the states.

The plaintiffs in Segovia are former Illinois residents who live in the territories—like lead plaintiff Luis Segovia—and Cruz’s organization that represents both territory-born service members and transplants stationed in the territories. They argue that laws that disenfranchise residents—and citizens—of the territories violate the equal-protection clause of the Fourteenth Amendment and the due-process clause. While the gist of this case is to challenge a specific deficiency of absentee voting for people who move to the territories, Cruz sees it as an opportunity to challenge the basic disenfranchisement of territorial citizens.

“I was in Iraq with other service members who resided in various territories,” Cruz said. “During the election, everyone had to stop what they’re doing and go back to the forward-operating base for the election. People were being directed to go to a processing center where you’d cast your out-of-state ballot. We were stopped at the door and told,‘You have to go back to your unit.’ We were segregated from the rest of our service members, and our brothers and sisters in uniform.”

We the People founder and president Neil Weare was also born in Guam, and his organization works to file strategic lawsuits to expand voting rights and civil rights for residents of the territories. "I wanted to come up with a new approach, which was for each of the territories and D.C. to work together rather than each working on their own,” Weare said. “So I founded We the People Project to advocate for equal rights and representation for all the nearly 5 million U.S. citizens living in the territories and the District.”

That strategy focuses on “impact litigation,” which is designed not only to test key arguments in court, but to raise awareness of the issues at stake in the court of public opinion, a strategy used to great effect in civil-rights struggles by groups like the NAACP Legal Defense and Educational Fund and the American Civil Liberties Union. “Following in the footsteps of other civil-rights movements in recognizing that when you're marginalized politically, the court system can offer a more level playing field, as can public awareness,” Weare told me.

After the plaintiffs lost in the Illinois District Court, We the People Project considered more ways to both raise public awareness and continue to probe the legal system with an appeal. They found a way to merge both of those goals in CrowdJustice, a London-based website founded by former United Nations lawyer Julia Salasky in 2015, which allows people to crowdfund litigation. CrowdJustice has been successful in the United Kingdom, especially after it was used by several British residents and expats late last year to raise over £170,000 for a “People’s Challenge” to Brexit in the British high courts.

With the Segovia appeal as CrowdJustice’s second case in the United States, Salasky sees the lawsuit as an entry point for the platform. “In general,” Salasky says, “the raison d'être behind the platform is to increase access to the legal system with crowdfunding at its core, which tends to bring together people who need funding for cases with people who are passionate about the issue at stake.”

Though CrowdJustice is a politically neutral platform and organization, Salasky notes that thorny constitutional and civil-rights issues, raised in the era of Brexit in the United Kingdom and in the era of Donald Trump in the United States, make the idea of harnessing crowdfunding for litigation more appealing. “I think the courts are more important than ever in the sense that the challenges we're seeing here at the moment are having different outcomes in the courts than in the other political branches,” Salasky told me. That opportunity dovetails with Weare’s assessment that crowdfunded impact litigation is "a way to make sure that the Constitution's mandates are carried out.”

There are challenges ahead for all of the entities involved in the case. CrowdJustice may have a major opportunity in the United States after organizations like the ACLU raised record amounts of funds during a legal avalanche against the executive branch over Trump’s immigration ban. But the platform could feasibly be used to to mobilize citizens to silence political opponents and media as well, especially in an environment where nuisance lawsuits and third-party funding of defamation suits against journalists have emerged as lethal weapons, as evidenced in the demise of Gawker. Salasky assured me that there are safeguards against “frivolous” lawsuits pursued by the platform, but the definition of such frivolity isn’t clear, and those safeguards may not exist for any CrowdJustice competitors that arise.

For the We the People Project in Segovia, their main barrier to success is still the court system itself. Courts have reliably sided in favor of a narrow view of territorial rights, as decided in the Insular Cases. While a flurry of lawsuits by the territories over the past two years has garnered much attention—especially in this magazine—it has done little to sway legal precedent. Though an odd union of Supreme Court justices, Ruth Bader Ginsburg and Clarence Thomas, left the door open for further consideration of territorial-sovereignty issues in a concurrence in the Sanchez Valle case, arguments brought to courts in favor of territorial voting rights have necessarily shifted from whether Congress can dictate the terms of territorial citizenship and sovereignty—it can—to whether such an arrangement, with its arbitrary assignation of full citizenship, violates the deeper natural rights and equal protection also guaranteed by the Constitution.

For Cruz, the battle is moral, and even a loss in court can help put the pressure on political leaders to make change. “As we’re preparing for 2020,” Cruz said, “we’re going to fight very hard to see a positive change and maybe we can convince Donald Trump to urge and put the pressure on Congress. … I’m serving my country, but it’s taking away dignity and equal citizenship. People call me a hero, but what good am I if I can’t vote for the commander in chief?”