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A couple of weeks ago I got a fascinating email from a reader: She had moved from Hawaii to Guam, and had discovered she and her husband will not be able to cast ballots for president this November.
Because they’d established residency in Guam, they were also not able to cast absentee ballots in Hawaii (or in Washington, where they are originally from and still own property). Her husband had moved from active-duty military to a civilian job working for the military, so she was no longer protected by federal laws that help service members and their families vote or that lend specific help to those living abroad.
Since Guam is a U.S. territory, they aren’t living “abroad” at all. They now fall into the squishy category that the millions of Americans in these territories fall into: They are U.S. citizens whose voting rights are significantly different (read: less) than any voter living in the 50 states. While the territories each elect a nonvoting member of the House of Representatives, they have no representation in the Senate. And while they hold presidential primaries, based on party rules, they have no representation in the Electoral College. Their votes for the federal offices are, more or less, seen as symbolic.
It’s notable that at a time when the voting discourse is currently dominated by the nonexistent problem of noncitizens voting, there’s much less interest in the problem of citizens who are denied the right to vote.
Karen Ziemer, the new Guam resident we heard from, said she realizes her problem is not unique. She’s offended on behalf of the people of her new home. One out of every eight Guam residents has served in the military — the highest rate anywhere in the United States, territory or otherwise. (The military owns about a third of the territory.) And yet veterans on Guam, who make up a significant portion of the island’s 175,000 people, can’t cast ballots in federal elections.
“You would think that if anyone had the desire, even the right, to vote for commander in chief, it would be people who live on Guam,” Ziemer said. “And they can’t.”
The situation strikes Ziemer as surreal. While her husband is no longer on active duty, he still works for the military, and many of their friends there are military-affiliated and cast absentee ballots elsewhere with the help of the federal government. A few days ago, she said, she went to a wine tasting with a group of active-duty spouses, “and I was sitting there thinking ‘They can all vote, and I can’t.’”
In 2020, several former Hawaii residents who had relocated to Guam, the U.S. Virgin Islands, Puerto Rico and American Samoa filed a lawsuit, arguing they had been “disenfranchised and relegated to a status as second-class citizens in ways they would not have been had they moved to anywhere else on Earth.” They took issue with both the federal law governing overseas voting, and a specific law in Hawaii that dictates how such ballots are handled there.
“Indeed, even if they resided in Antarctica — or left Earth entirely to work at the International Space Station — they would still be permitted to vote for President and voting members of Congress in federal elections,” their complaint read.
The 9th U.S. Circuit Court, which heard oral arguments this year, didn’t buy it, upholding a lower court’s ruling.
Federal laws that govern how U.S. citizens abroad can vote do discriminate based on where those former residents move, the court ruled, but there are aspects of the relationship between the United States and the relevant territories that “conceivably justify” the differing treatment. Hawaii could reasonably conclude, they write, that allowing people who do not live there or plan to return to vote absentee would unfairly dilute the votes of its own residents.
In the same way Ziemer was surprised by the sudden loss of her federal voting rights, it is probably surprising to many of you that there are millions of U.S. citizens living in these territories whose voting rights in presidential races are reduced to what are essentially straw polls. But it highlights something that we’ve talked about before in this newsletter and in our coverage: The Constitution does not explicitly guarantee a right to vote.
As Neil Weare — a civil rights attorney with special focus on the U.S. territories — wrote in a recent law review article, the unequal treatment of Americans in these areas “is admittedly part of the constitutional structure established at our nation’s founding.”
This has been controversial since, essentially, the time the Constitution was written. Every few years the issue flares up again: John Oliver did a segment on it in 2015, and in 2016 Sen. Elizabeth Warren held some hearings about it. Presidential candidates are often asked about it, and former presidents Obama and Trump expressed some support for changing it.
“It seems as though a legislative fix should be in order,” Ziemer says.
But, she adds, “it affects so few people I doubt very much it is on anyone’s list of priorities. And, bonus, because I am here, I do not even have a legislative representative who could help!”
Jessica Huseman is Votebeat’s editorial director and is based in Dallas. Contact Jessica at jhuseman@votebeat.org.
