In the last several weeks, I have taken a look at various federal laws related to electing delegates to the U.S. Congress. As I mentioned at the Guam Legislature in a hearing last month, I think that some thoughtful consideration should be given to the Guam delegate election process. In current practice, I believe that the primaries used for this office will lead to litigation in the future.

The United States of America consists of 50 states and six other nonstate governments or territories. Five of the six jurisdictions are generally considered organized meaning that the U.S. Congress has passed a law creating a relationship. American Samoa is unorganized and exists under a treaty relationship with the United States. Territories may also be considered incorporated, meaning most provisions of the U.S. Constitution apply. Currently, Washington, D.C., would likely be the most incorporated of the nonstates. For example, on Guam we don’t pay direct federal taxes, our federal judges do not serve lifetime appointments as in most other U.S. jurisdictions, we don’t vote for president and our representation in the US Congress is a delegate to the U.S. House of Representatives with limited voting powers. All U.S. nonstate jurisdictions have a delegate to the House of Representatives. In the case of Puerto Rico, the delegate is called the resident commissioner.

Each delegate seat in Congress is provided for in federal law and these laws vary somewhat across jurisdictions. While it is unclear why there are variations, it appears that the differences are a result of when the laws were passed and whether the people of the jurisdiction had a direct role in setting up the position. For example, the resident commissioner position for Puerto Rico dates from 1900 with the Foraker Act. Also, between 1907 and 1937, two resident commissioners at a time served the Philippines during its U.S. territorial stage.

Guam and the U.S. Virgin Islands are virtually political twins and much of the federal legislation is very similar for electing delegates. There is no provision or authority in the federal code to use primary elections to screen out candidates for the delegate to Congress in Guam and the U.S. Virgin Islands. Only general elections are mentioned. In these general elections, candidates are required to have a majority of votes cast for Guam or U.S. Virgin Islands delegates. If there is no majority, a runoff between the top two vote-getters is held. But the CNMI and American Samoa federal election laws do have primary provisions and only a plurality of votes is required at the general election.

I believe that Guam leaders should closely examine these concerns and take appropriate action. I do not believe the primary election process on Guam, in its current form, protects the basic voting rights of the citizens of Guam. Voters should be able to select a candidate at a general election for Guam's delegate to Congress.

This is likely why the U.S. Congress required this election during the general election. Get the gavels ready!

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