Thanks to both Michael and Jessica. I was asking out
of (semi-idle)
professional interest because, in the two cases
(1975, 1977) where
the High Court of Australia was asked to decide
whether our Federal
Parliament could give the two mainland Territories
(Northern
Territory, ie Darwin, and the Aust Capital
Territory, ie Canberra) *
voting * representatives in the Senate, the HC
mentioned in obiter
that US precedents/ arguments (texts, IIRC, not
actual US SC
judgements) that "Only States can be represented in
the Senate" were
inapplicable to Aust because our Const allows the
Fed Parliament to
give Territories "representation" [sic] by statute.
It was argued
that Fed Parliament could only give them non-voting
delegates (like
DC's) but the HC held the statute allowing full
voting Senators was
valid and overrode another Const clause declaring
that "The Senate
shall be composed of Senators for the States..."
(ie, the latter was
not exhaustive).
I mention this because our HC seemed to take it as
settled US
consensus that Congress has/ had no power to add
voting reps for DC,
the Territories, etc, to the Senate, the House or
the Electoral
College by ordinary statute. (Of course, there
would be no point
giving any region non-voting, speaking-rights-only
reps in the
Electoral College, since it doesn't deliberate or
even "meet" as a
college proper. But speaking-only reps in House or
Senate are better
than no representation at all.)
Unlike the Aust Const, the US Const has no clause
giving the Fed Leg
(however ambiguously) that power. I am curious
whether the HC
mis-interpreted the US legal position; if the
federal judiciary could
direct Congress to give Puerto Rico Electors by
statute (or could
issue an order to the same effect), whereas of
course not even the
Supremes could order Congress plus 38 States to
amend the US Const!
At 12:26 23/03/2006, Michael Richardson wrote:
Yes and Yes. Yes, a constitutional amendment
surely could give U.S.
citizens residing in Puerto Rico the presidential
vote, much like
the 23rd did for DC. Yes, a statute, creating
electors for
territorial voters could be passed. Article II
only instructs on
electors in the states. As we had just fought a
war against
colonialism none of the founders contemplated a
U.S. colony and thus
no provision was made for so-called "unincorporated
territories" to
have electors. The other territories (Northwest
Territory) were all
on a statehood path, Puerto Rico never has been.
The citizenship of
Puerto Ricans was extended by statute in 1917.
Statutes could also
extend the suffrage to those citizens.
Michael Richardson
Amicus in Igartua v. United States
From: "Jessica Sutliff"
<Jessica.Sutliff@gmail.com>
To: election-law@majordomo.lls.edu
Subject: Re: Electionlawblog 3/21/06--Puerto Rico
Date: Wed, 22 Mar 2006 19:12:11 -0500
District of Columbia residents obtained the right
to vote for
President and Vice President due to the 23rd
Amendment to the U.S.
Constitution.
On 3/22/06, Tom Round
<<mailto:tround@scu.edu.au>tround@scu.edu.au> wrote:
Would legislation be enough to give PR what it
seeks? Wouldn't it take a
const amendment? Excuse my ignorance but I'm an
outsider on this... Tom
At 00:44 23/03/2006, Lloyd Mayer wrote:
I passed this question on to Doug Cassel, the
Director of our Center
for Civil and Human Rights here at Notre Dame and
an expert on
international human rights issues. His view is
that the Puerto
Ricans are likely to get a favorable ruling at the
OAS, probably
through the Inter-American Commission on Human
Rights (on which
another member of our faculty, Paolo Carozza, sits,
but he would
have to recuse himself from this matter as it
relates to the United
States), Our Supreme Court does not enforce such
rulings, however,
nor does our Executive Branch consider such rulings
to be binding on
the United States, which means the Puerto Ricans
will probably
instead have to take the ruling to Congress to try
to have it
enforced through legislation.
----------
<http://g.msn.com/8HMAENUS/2737??PS=47575>Planning
a trip for Spring
Break? See the area before you go
Tom Round
(BA [Hons] UQ, PhD Griffith)
Associate Lecturer,
School of Law and Justice,
Southern Cross University
PO Box 157 [DX 7651]
Lismore, New South Wales 2480
Ph (0612/ 02) 6620-3529
Fax (0612/ 02) 6622-4167
Mobile 0400 285 939
or 0400 613 776
Email tround@scu.edu.au