Diarra A. Raymond

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Millions of U.S. citizens living in unincorporated territories, like the U.S. Virgin Islands, have an inferior political and legal status. Congress passed legislation organizing the territory’s government under the Revised Organic Act of 1954, extending the Bill of Rights except the Ninth Amendment and other key constitutional amendments.[1]

While Congress extends U.S. citizenship to persons in these territories, they have no right to vote in presidential elections because unincorporated territories are not states.[2] They have a delegate to Congress, but this delegate has no voting rights.[3] This is an inequitable application of constitutional rights. Restorative principles insist the Court and Congress must create equity by dismantling the laws and policies that have denied these political rights to Virgin Islanders since its acquisition by the United States.

The constitutional inequity arises from the Insular Cases. These cases collectively established the doctrine of territorial incorporation. The doctrine holds that the Constitution applies in full to incorporated territories destined for statehood, but only in part to unincorporated territories A territory is only incorporated if Congress makes it part of the United States, a status usually reserved for territories destined for statehood Under this doctrine, only fundamental constitutional rights apply automatically to unincorporated territories while Congress must explicitly extend artificial or remedial rights to these territories.^[6]

This Note argues that the Court should set aside stare decisis and overrule the Insular Cases. In so holding, the Court should recognize voting rights in presidential elections and as fundamental constitutional rights. Alternatively, this Note argues that should the Court refuse to act, Congress should extend the right to vote in presidential elections and allow U.S. territories full representation in Congress.

Part I of this Note examines the historical background of the U.S. Virgin Island’s relationship with the United States and the evolution of constitutional rights extended to residents of that territory. Part II sets forth a test case to challenge the denial of participation in presidential elections to Virgin Islanders as a violation of the fundamental right to vote under the Fourteenth Amendment’s Due Process Clause. Part III argues that the court can overcome stare decisis under the facts of the test case and modify the territorial incorporation doctrine to expand fundamental rights to include voting in presidential elections. Part IV argues that restorative principles support modifying the territorial incorporation doctrine to extend the franchise to residents of U.S. territories like the Virgin Islands. Part V argues that in the absence of judicial action, Congress should amend the Revised Organic Act of 1954 to extend the franchise to residents of the U.S. Virgin Islands in the interests of restorative justice.

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[1] V.I. Code Ann. Revised Organic Act of 1954, § 3 (1954).

[2] Charles v. United States FEC, No. 3:11-110, 2012 U.S. LEXIS 118428 *1, *17 (D.V.I. 2012).

[3] 48 U.S.C. § 1711.

[4] 72 Am. Jur. 2d States, Territories, and Dependencies § 142; see also Boumediene v. Bush, 553 U.S. 723, 757 (2008) (“The Constitution applies in full in incorporated territories surely destined for statehood but only in part in unincorporated Territories.”). Some cases such as Ballentine v. United States, No. 1999-130, 2001 U.S. Dist. LEXIS 16856 *1 (D.V.I. 2001), refer to this doctrine as the “unincorporation doctrine,” but most use the terminology “doctrine of territorial incorporation.”

[5] 72 Am. Jur. 2d States, Territories, and Dependencies § 133.

[6] Ballentine, 2001 U.S. Dist. LEXIS 16856, at *20.