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16099892007 District Court 11:27:25 09-05-2012 NOT FOR PUBLICATION UNITED STA S DISTRICT COURT DISTRICT OF THE VIRGIN ISLANDS ST. C OIX DIVISION Bevron GOODWIN, individually, and on behalf of all other persons born in and resi ing in the U.S. Virgin Islands, Plaintiff, v. U.S. FEDERAL ELECTION COMMISSI N, U.S. ELECTION ASSISTANCE COMMISSION, FEDERAL VOTING ASSISTANCE PROGRAM, U.S. COMMISSION ON CIVIL RIGHTS, U.S. DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION, and U.S. DEPARTMENT OF JUSTICE, OFFICE 0 INSULAR AFFAIRS, Defendants. THOMPSON. U.S.D.J.1 Civ. No. 1:11-106 OPINION This matter has come before the Co rt on two separate Motions to Dismiss [docket #s 4, 6] filed by the Defendants the United State Federal Election Commission ("FEC"),2 the United States Election Assistance Commission, Fe era) Voting Assistance Program, the United States Commission on Civil Rights, the United St tes Department of Justice, Civil Rights Division, and the United States Department of the Interio Office of Insular Affairs (all Defendants collectively, "the Defendants" or "the Gov rnment"). PlaintiffBevron Goodwin opposes these motions [ 10, 11]. The Court has consider the parties' submissions and has reached a 1 The Hon. Anne E. Thompson, United States Distri t Judge for the District ofNew Jersey, sitting by designation. 2 The FEC has independent litigation authority. As uch, the FEC is represented by its own general counsel, while all other Defendants are represented by the Dep ent of Justice. 1/12 iI ~ I t ' ! ! ~ III r ft Case: 1:11-cv-00106-AET-GWC Document #: 16 Filed: 09/05/12 Page 1 of 11 16099892007 District Court 11:27:41 09-05-2012 detennination without oral argument pursu nt to Federal Rule of Civil Procedure 78(b). For the following reasons, Plaintiffs Complaint wi I be dismissed. I. ACKGROUND Plaintiffs Complaint in this matter ouches upon one of the most fundamental rights to citizenship-the right to vote. This is not e first time this Court has addressed the issue of voting rights for American citizens living i the Virgin Islands. See, e.g., Ballentine v. United States, No. 1999-130,2006 U.S. Dist. LEX S 96631 (D.V.I. Sept. 21, 2006), aff'd by and adopted by, 486 F.3d 806 (2007) [hereinaft r Ballentine II]. Just over a decade ago, the Honorable Thomas K. Moore recounted th political history between the United States and the Virgin Islands in considerable detail. See allentine v. United States, No. 1999-130,2001 U.S. Dist. LEXIS 16856, at *3-18 (D. V.I. Octo er 15, 2001) [hereinafter Ballentine I]. Furthermore, this Court in Ballentine II rejected a vote-ri ts challenge in a case very similar to the case now pending before the Court. Therefore, the h story of voting rights for American citizens living in the Virgin Islands need not be recounted at length here. In short, the Virgin Islands were p chased by the United States from Denmark in 1917 for $25 million. /d. at *3. At the time of a quisition, Congress continued the "semi- autonomous, fully organized system of go rnment" that existed in the Virgin Islands while under Danish rule. /d. at *8. Then, in 193 , acting pursuant to the Territorial Clause of Article N of the United States Constitution, Con ess enacted the Organic Act of 1936. /d. at *12. The Territorial Clause provides Congress the a thority "to dispose of and make all needful Rules and Regulations respecting the Territory or oth r property belonging to the United States." U.S. CONST. art. IV,§ 3, cl. 2. With the Organi Act, Congress intended "to provide a civil government for the Virgin Islands." /d. (q oting Organic Act of 1936,49 Stat. 1807). Eighteen years later, in 1954, Congress adopted the evised Organic Act, 48 U.S.C. § 1541, et seq., which 2 2/12 Case: 1:11-cv-00106-AET-GWC Document #: 16 Filed: 09/05/12 Page 2 of 11 16099892007 District Court 11:28:05 09-05-2012 is still in effect today. The Revised Organi Act is "the Virgin Islands equivalent of a constitution." Brow v. Farrelly, 994 F.2d 027, 1032 (3d Cir. 1993) (citations omitted). The Virgin Islands currently holds e status of an unincorporated territory of the United States; it does not have full statehood. See mith v. Gov't of the V.I., 375 F.2d 714, 718 (3d Cir. 1967). Despite being an unincorporated te 'tory, Congress has granted citizenship to all persons born in the Virgin Islands and subject to its jurisdiction. See 8 U.S.C. § 1406. Regardless of citizenship, however, United States citizen residing in the Virgin Islands cannot vote for President. See U.S. Canst. art. II, § 1, cl. 2 Furthermore, although Virgin Island residents send delegates to the United States Congress, th Virgin Islands congressional delegation does not have voting privileges. See 48 U.S.C. § 17 Plaintiff contends in his Complaint at "[t]he reason Virgin Islanders were denied the right to vote and the right to run for federal office is due to the prejudiced, racist, and bigoted rationale of a number of dated Supreme Co cases known as the Insular Cases." (Campi. -,r 14). It is the alleged racist and imperialist istory surrounding the Insular Cases, along with the lasting effects of this history, which unde 'ns Plaintiffs claims. Plaintiff further argues, among other things, that residents of the Virgin lsi ds have been continually and purposefully denied the right to vote for President of the United States and to have voting members sit in the United States Congress because, were the Virgin I lands and its citizens fully enfranchised on a federal level, it would be the first majority black ju · sdiction. This racism, according to Plaintiff, has paralyzed all branches of the federal gave ment from affording Virgin-Island-resident American citizens the elective franchise. Plaintiff, in his Complaint, asks the ourt for three forms of relief. First, Plaintiff asks for an injunction preventing the removal of this case from the Virgin Islands Superior Court to federal court. The contention that this Co cannot hear the pending case is frivolous. Removal 3 3/12 ' ) r, \II rI Case: 1:11-cv-00106-AET-GWC Document #: 16 Filed: 09/05/12 Page 3 of 11 16099892007 District Court 11:28:25 09-05-2012 is proper pursuant to 28 U.S.C. §§ 1441 an 1442. A plaintiff does not have the unilateral power to deprive a court of removal jurisdiction hen it is otherwise proper. Moreover, Plaintiffhas also apparently abandoned this claim in his opposition brief. This issue, therefore, will not be discussed further. Second, Plaintiff asks fo an award of damages, including punitive damages, from the Defendants for denying his right t vote for certain federal officials in violation of the Equal Protection Clause and the Due Proce s Clause. Finally, Plaintiff asks the Court to mandate that the federal government devel p a procedure for the Virgin Islands and its citizens to vote for President, register to run for Pre ident, register to run for Congressional office as a voting member, and to vote for those runni g for Congressional office as voting members. II. On a motion to dismiss for failure t state a claim, a "defendant bears the burden of showing that no claim has been presented." Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). When considering a Rule 12(b)(6) otion, a district court should conduct a three-part analysis. Malleus v. George, 641 F.3d 560 563 (3d Cir. 2011). "First, the court must 'take note of the elements a plaintiff must plead to sta e a claim."' Jd (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Second, the court must a cept as true all of a plaintiff's well-pleaded factual allegations and construe the complaint in light most favorable to the plaintiff. Fowler, 578 F.3d at 210-11. But, the court should disre ard any conclusory allegations proffered in the complaint. Id Finally, once the well-plea ed facts have been identified and the conclusory allegations ignored, a court must next dete ine whether the "facts alleged in the complaint are sufficient to show that plaintiff has a 'plaus ble claim for relief."' Id at 211 (quoting Iqbal, 556 U.S. at 679). This requires more than a me e allegation of an entitlement to relief. !d. "A complaint has to 'show' such an entitlemen with its facts." /d. A claim is only plausible if the facts pleaded allow a court reasonably to in er that the defendant is liable for the misconduct 4 4/12 Case: 1:11-cv-00106-AET-GWC Document #: 16 Filed: 09/05/12 Page 4 of 11 16099892007 District Court 11:28:45 09-05-2012 alleged. Jd at 210 (quoting Iqbal, 556 U.S at 678). Facts suggesting the "mere possibility of misconduct" fail to show that the plaintiffi entitled to relief. Id at 211 (quoting Iqbal, 556 U.S. at 679). III. ANALYSIS Plaintiff argues that his rights to vo for President, run for certain federal office, or to be represented by a voting-member ofCongr shave been denied on the basis of his race. In order to prevail on this claim Plaintiff must first stablish that he has a right to vote for President or to be represented by a voting-member of Con ess. There are two possible theories that Plaintiff could rely upon to establish this right. Un er either theory, however, Plaintiff's claim fails as a matter of law. First, Plaintiff could establi h that he has an individual right to vote for federal elective representatives pursuant to his sta s as a citizen. Courts, however, have consistently rejected the notion that individual citizens ave a personal right to vote for President or to be represented by voting Members of Congre s solely as a result of their status as an American citizen. Second, Plaintiff could establish at he has the above-stated rights as a citizen and resident of an area granted full statehood. ut, the Virgin Islands have not been granted full statehood, and pursuant to the political que tion doctrine, this Court is without authority to grant statehood. For these reasons, Plaintiff's C mplaint must be dismissed. The fact that individual citizens do ot have the right to vote for President and Vice President is well-established. In previousl addressing the question of whether United States citizens residing in the Virgin Islands have a right to vote in presidential elections, this Court, in Ballentine II, noted that "[t]he Constitutio does not grant the right to vote for President and Vice President to individual citizens, butt 'Electors' appointed by 'each state."' Ballentine II, 5 5/12 Case: 1:11-cv-00106-AET-GWC Document #: 16 Filed: 09/05/12 Page 5 of 11 16099892007 District Court 11:29:10 09-05-2012 2006 U.S. Dist. LEXIS 96631, at *5 (quoti g U.S. CONST. art. II,§ 1). More specifically, Article n of the federal Constitution provi es: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number fElectors, equal to the whole Number of Senators and Representatives to which the State rna be entitled in the Congress." U.S. CONST. art. II,'§ 1. "That the franchise for choosing electo is confined to 'states' cannot be 'unconstitutional' because it is what the Constitution itself pr vi des." lgartua de Ia Rosa v. United States, 417 F.3d 145, 147 (1st Cir. 2005); see also Att rney General of Territory of Guam v. United States, 738 F .2d 1017, 1019 (9th Cir. 1984). Mor over, as the United States Supreme Court has stated, "[t]he individual citizen has no federal con titutional right to vote for electors for the President of the United States unless and until the s te legislature chooses a statewide election as the means to implement its power to appoint embers of the Electoral College." Bush v. Gore, 531 U.S. 98, 104 (2000) (emphasis added). The Virgin Islands is not a state oft e Union and therefore bas no right to appoint electors. The consequence of this is "that itizens choosing to reside within its borders are not entitled to vote for electors even if they are denied a role in the selection of President and Vice- President." Ballentine II, 2006 U.S. Dist. EXIS 96631, at *6; see also Attorney General of Territory of Guam, 738 F.2d at 1019. It is also well-established that there s no individual right to be represented by a voting member of Congress. See generally Balle tine II, 2006 U.S. Dist. LEXIS 96631, at *7-10. Article I of the Constitution provides, in pe inent part, that "The House of Representatives shall be comprised ofMembers chosen every se ond Year by the People of the several States ... [and that] No Person shall be a Representative. t. who shall not, when elected, be an Inhabitant of that State in which he shall be chosen." U.f. CONST. art. I,§ 2. Moreover, "Representatives ... shall be apportioned amon the several Sta es which rna be included in this Union." ld A 6 6/12 Il ~ Case: 1:11-cv-00106-AET-GWC Document #: 16 Filed: 09/05/12 Page 6 of 11 16099892007 District Court 11:29:29 09-05-2012 plain reading of the Constitution similarly 1 mits the right to vote for, and to be represented by, I United States Senators to resident citizens fa state. Id § 3. Territory that has not been granted full statehood does not constitute a "state" or purposes of Article I. See Adams v. Clinton, 90 F. Supp. 2d 35, 48-49 (D.D.C. 2000) (three-j dge panel) (District of Columbia not a "state" under Article I), aff'd, 532 U.S. 941 (2000); see so Michel v. Anderson, 817 F. Supp. 126, 140 (D.D.C. 1993), aff'd, 14 F.3d 623,625 (D .. Cir. 1994); Ballentine II, 2006 U.S. Dist. LEXIS 99631, at* 7-10. The Court is not free to ignore these structural aspects of the voting procedure for President or members of Congress establis ed by the Constitution at the altar of either the Equal Protection or Due Process Clause. In other words, the Court cannot grant voting rights to an American citizen b~ed upon a violation o either the Fifth or Fourteenth Amendment that would be in direct contradiction to the structural pects of the voting procedure established in Articles I and II of the Constitution. Similarly, the ourt cannot grant representation by voting-members of Congress to American citizens residing· unincorporated territory, because to do so would be in direct opposition to the strictures of Arti leI. This is true regardless of whether Plaintiff's equal protection or due process rights mi otherwise be violated. "The Constitution is, in the end, a unitary, cohesive document and ev time any piece of it is ignored or interpreted away in the name of expedience, the entire fragil endeavor of constitutional government is made that much more insecure." Colgrove v. Battin, 13 U.S. 149, 187 (1973) (Marshall, J., dissenting). Thus, Plaintiff cannot establish that he has individual right to vote for President or to be represented by a voting-member of Congre s. 7 7/12 r I I Case: 1:11-cv-00106-AET-GWC Document #: 16 Filed: 09/05/12 Page 7 of 11 16099892007 District Court 11:29:46 09-05-2012 B. Plaintiff Cannot ~stablish That He is a Resident of a State ! The Insular Casel established "thb doctrine of territorial incorporation, under which the. Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories." Boum diene v. Bush, 553 U.S. 723, 578 (2008) (citations omitted). The practical significance of the e cases, however, extended far beyond the question of whether certain constitutional rights ha to be afforded to citizens living in certain geographic areas. What these cases sanctioned and en bled was a system of American imperialism, under which the United States could own and ho d territory that it never intended to fully incorporate into the Union. Plaintiff spends a consider ble portion of the Complaint discussing the alleged racist underpinnings of the Insular Cases, d he asks this Court to reject their continuing validity. The Court, however, cannot igno e the established doctrine of territorial incorporation, and even if it could, Plaintiff would still b unable to establish a viable claim as a matter of law. Plaintiff first asks the Court to reje the continuing validity of the Insular Cases. Affording Plaintiffs Complaint a broad re ding, it appears that his theory of this case is that, because the Insular Cases are no longer v id law the United States no longer has the authority to hold the Virgin Islands as an unincorpo ted territory. As a consequence, Plaintiff apparently contends, the Virgin Islands must be affor ed statehood.4 As discussed above, only after establishing these baseline contentions wo ld Plaintiff be able to prove that he has a right to vote in Presidential elections or be represented y a voting-member of Congress. And only after establishing that he has a right to vote for resident or to be represented by an Article I Congressional representative can Plaintiff stablish that these rights were denied on the basis of race. This, of course, is a difficult path to scend. 3 The Insular Cases consist of a set of twenty-three bases decided by the Supreme Court between 1901 through 1922. See Ballentine/, 2001 U.S. Dist. LEXIS 168r6, at *19 n.ll (collecting cases). 4 The Court notes that P1aintiffnever explicitly stat s that he seeks to have Virgin Island statehood recognized, but it the logical consequence of the relief that he seeks. 8 8112 Case: 1:11-cv-00106-AET-GWC Document #: 16 Filed: 09/05/12 Page 8 of 11 16099892007 District Court 11:30:07 09-05-2012 . The Court cannot accept Plaintiffs rvitation to reject the holdings of the Insular Cases. First, and most obviously, this Court is bo d by decisions of the Supreme Court and does not have the independent authority to question ose decisions. Plaintiff makes no attempt to differentiate the facts of this case from othe cases applying the doctrine of territorial incorporation or to otherwise show why thi doctrine does not apply here. Second, as recently as 2008, the Supreme Court implicitly reaffi ed the continuing validity of the Insular Cases. See id. at 758 (stating that "[i]t may well be tha over time the ties between the United States and any of its unincorporated Territories strengthen n ways that are of constitutional significance" (citations omitted)); see also id. at 764 (re sing to read Johnson v. Eisentrager, 339 U.S. 763 (1950) as a repudiation of the Insular Case ). Were the Court to reject the continu d validity of the Insular Cases, the likely result would be that the United States would have to hold the Virgin Islands as an incorporated territory-i.e., one destined for statehood r to relinquish ownership of the Virgin Islands. Even assuming arguendo that the United S tes could be forced to hold the Virgin Islands as an incorporated territory that is destined for s~tehood, this Court does not have the authority to grant statehood itself. The logical consequfnce of this is that the Court does not have the authority to grant Plaintiff, solely as a resut of his citizenship and residence in the Virgin Islands, the right to vote for President or to )be represented by voting-members of Congress. In accordance with the political quertion doctrine, certain cases present questions that are non-justiciable in the federal courts. A political question is present, and therefore a case is non- justiciable, when a concern over the separa ion of powers between coordinate branches of I government is so inextricably intertwined tr the case at hand that a judicial forum would be an inappropriate place for resolution of that is~ue. See Baker v. Carr, 369 U.S. 186, 217 (1962). Most relevant to this case, a political questfon exists where there is "a textually demonstrated 9 9/12 Case: 1:11-cv-00106-AET-GWC Document #: 16 Filed: 09/05/12 Page 9 of 11 16099892007 District Court 11:30:27 09-05-2012 i constitutional commitment of [an] issue to~ coordinate political department .... " Id Article i N, section three of the Constitution explici y provides that ''New States may be admitted by the Congress into this Union." U.S. CONST. art IV,§ 3 (emphasis added). Thus, our founders determined that it is for Congress-not the ourts-to decide whether the Virgin Islands should be granted statehood. Cf Jones v. United Sates, 137 U.S. 202,212 (1890) ("Who is the sovereign, de jure or de facto, of a territory s not a judicial, but a political question, the determination of which by the legislative d executive departments of any government conclusively binds the judges, as well as all other officers, citizens and subject of the government."). As a result, only Congress fan determine whether the citizens of the Virgin i Islands, including Plaintiff, should be affor<J,ed the right to vote for President or to be represented I by voting-members of Congress. Because te Court does not have the authority to grant the relief requested by Plaintiff, the Complaint btust be dismissed. ! I Finally, there is one additional reasJn why Plaintiff's Complaint must be dismissed. The I Complaint does not allege any specific wro gdoing by any ofthe named Defendants. The only mention of the Defendants in the Complai t can be found in one sentence, which reads: "Defendants are agencies and instrumental ties of the government of the United States of America." (Compl., 3). Plaintiff bas ther~fore failed to state a claim upon which relief can be granted within the meaning of Federal Rull of Civil Procedure 12(b)(6) and the Supreme Court's I decision in Iqbal, 556 U.S. 662. I I 10 10/12 Case: 1:11-cv-00106-AET-GWC Document #: 16 Filed: 09/05/12 Page 10 of 11 16099892007 District Court 11:30:45 09-05-2012 IV. !CONCLUSION For all of the reasons stated above, ~e Defendants' Motions will be granted and I Plaintiffs Complaint will be dismissed. A~ appropriate Order will follow. Is/ Anne E. Thompson ANNE E. THOMPSON, U.S.D.J. Date: August 16,2012 11 11 /12 { ' I I ' ! !i Case: 1:11-cv-00106-AET-GWC Document #: 16 Filed: 09/05/12 Page 11 of 11