Author's note: We interrupt the historical background of 21st Century American Colonies because of this recent court development in America's resort colony, the U.S. Virgin Islands.
Retired U.S. Marshal Krim Ballentine lost his right to vote when stationed in the U.S. Virgin Islands. In 1999, the ex-lawman sued to obtain voting rights for President and Congress enjoyed by Americans living overseas in almost every country in the world.
The first judge, Thomas Moore, asked scholars at Yale Law School's prestigious Schell Center for International Human Rights to help him with the legal background. The Yale legal team then filed an amicus brief urging the court to grant relief and guarantee the rights of self-determination and political participation to all U.S. citizens.
Judge Moore sat on the case for five years and retired without making a decision. The next two federal judges assigned to the Virgin Islands refused to hear the case and Ballentine had to seek an order from the U.S. Third Circuit Court of Appeals to get a judge. Finally, a judge from New Jersey was assigned to decide the fate of voters in the Virgin Islands.
Four million U.S. citizens of voting age are denied the Presidential vote or representation in Congress because they live in U.S. Territories. Congress has provided for citizens living in other countries to cast absentee ballots in U.S. elections but has failed to lift a century old ban on voting for residents of U.S. Territories.
Now a three-judge panel of the appellate court has upheld Judge Anne Thompson's denial of the vote relying on the infamous segregationist-era Insular Cases which were used to keep Puerto Rico in colonial status after the Spanish-American War.
The federal appellate decision merely reprinted Judge Thompson's 2006 ruling that the controversial Insular Cases still control the islands' fate. Judge Moore, who sat on the case for five years before Judge Thompson, had issued a preliminary ruling where he "explored the racist underpinnings of the Insular Cases; decided in a time of colonial expansion by the United States into lands already occupied by non-white populations."
Judge Thompson, now upheld by the appellate court, had stated, "this Court regrets the enduring "vitality" of the Insular Cases which, articulate the Constitution's limits on the government's ability to intrude in the lives of its citizens, depending on the physical location of those citizens."
Yale Law School scholars had argued it would be improper to rely on the Insular Cases which have been disavowed by subsequent U.S. human rights treaty obligations.
"More than fifty years after the adoption of the U.N. Charter, the Territory of the Virgin Islands remains in a state of political stagnation. The present governmental structure of the Virgin islands was established by the U.S. Congress, without the consent or meaningful participation of the residents of the Virgin Islands. At no point have the people of the Virgin Islands been able to independently and effectively exercise their right of self-determination. For this reason, the Virgin Islands is among seventeen territories in the world that are the object of a continuing campaign to eradicate colonialism as a matter of international law."
Congress, which has exclusive control over the U.S. Virgin Islands since our purchase of the islands from Denmark, permits a non-voting delegate to "represent" the islands. Meanwhile, the House has recently approved a measure to permit the District of Columbia a voting representative. The matter awaits action in the Senate.
In 2005, citizens in Puerto Rico had obtained a split 5-2 ruling from the U.S. First Circuit Court of Appeals over voting rights there. The Supreme Court declined to hear the Puerto Rico case and now it is in international court.
Ballentine, a permanent resident of the Virgin Islands, has not yet received his copy of the appellate decision and must decide whether to seek a rehearing before the full appellate panel of judges or appeal to the Supreme Court.