Image: Barack Obama, Madeleine Bordallo
Susan Walsh  /  AP
Democratic presidential hopeful Sen. Barack Obama has a word with Del. Madeleine Bordallo of Guam, at the Capitol on May 8.
By Tom Curry National affairs writer
msnbc.com
updated 5/28/2008 11:15:47 AM ET 2008-05-28T15:15:47

The unrelenting contest between Barack Obama and Hillary Clinton has put the focus on what used to be overlooked details of the presidential nominating process.

One of those details? Nominating contests in U.S. territories.

People in places like Puerto Rico, who can’t vote in November’s presidential election, can vote for the delegates sent to both the Republican and the Democratic national conventions.

When a contender locks up the presidential nomination in March, as Democrat John Kerry did four years ago, no one much notices primaries in American Samoa or Puerto Rico.

But in a close contest, every delegate vote matters.

Underscoring the significance of next weekend's Puerto Rico primary, Clinton flew to the island last weekend. And former president Bill Clinton is campaigning there this week.

On Sunday, according to Mike Memoli of NBC News and the National Journal, the former first lady told one crowd in Puerto Rico, "This primary next Sunday is one of the most important votes you will cast. You will get to help pick the next president of the United States. Someday I hope that regardless of status you're able to help vote for the president of the United States in the general election.”

In theory, delegates’ votes from American Samoa, Guam, Puerto Rico or the U.S. Virgin Islands could decide who the presidential nominees are. And this fact has left some of our readers scratching their heads.

Can vote now, but not in November
Why is it that people in American Samoa, Guam, Puerto Rico, and the Virgin Islands are allowed to elect the delegates who choose the nominees, even if those voters aren’t eligible to cast ballots in the presidential election?

Here’s the short answer: each political party has decided to give people in the U.S. territories a role in the nominating process.

This decision isn't governed by federal statute or by the Constitution but rather by party rules.

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Veepstakes!“What is most unique in our American democracy is that the Republican and Democratic parties, the leadership and the members, have decided to give U.S. citizens and those living in the U.S. territories a chance to participate in the process,” said Eni Faleomavaega, the delegate who represents American Samoa in the House of Representatives.

Faleomavaega has endorsed Obama for the Democratic nomination.

“We participate and we always have for many, many years,” said Madeleine Bordallo, the delegate who represents Guam in the House. “I’ve been a (Democratic) national committeewoman for Guam since 1964. So we participate in the convention’s selection of the president and vice president, but we don’t vote for the president in the final election.”

Obama support in Guam
Obama won the May 3 Guam primary by a mere seven votes out of more than 4,500 cast. The territory has nine delegate votes at the Democratic convention, compared to 441 for the biggest state, California.

Bordallo, a Democratic superdelegate with an automatic vote at the convention, said last week that she was backing Obama.

“Obama grew up on an island, so I think he’d have more of an interest in island people,” she said.

If Obama is elected, Bordallo said, she’d ask him to rally support for and sign a bill she has introduced to compensate the people of Guam for the occupation they endured by Japanese forces from 1941 to 1944.

Guam, American Samoa, and the Virgin Islands tend to get forgotten because of their small size and remoteness: American Samoa is 7,000 miles away from Washington, D.C., an 18-hour plane ride.

But Puerto Rico has a lode of 63 delegate votes, nearly twice as many as South Dakota and Montana combined. Those two states vote next Tuesday and are the very last Democratic contests of the long primary season.

Could Puerto Rico be decisive?
A few weeks back, it seemed as if the Puerto Rico primary might supply the votes needed to give Clinton a popular vote total larger than Obama’s.

MSNBC’s Chris Matthews asked Clinton campaign spokesman Howard Wolfson, “Are you willing to say that you have a right to the nomination based on Puerto Rican votes?”

“Yes,” Wolfson said. “Which votes are you going to exclude from the process?”

Matthews pointed out that Puerto Rico residents can’t vote in the presidential election.

“The Democratic Committee has decided that Puerto Rico ought to have a voice in this process, and that's the right thing… I don't think we should be discriminating against certain voters,” Wolfson replied.

Residents of Guam, Puerto Rico and the Virgin Islands are U.S. citizens.

But most people in American Samoa are in a separate category. They are not automatically U.S. citizens; instead they are U.S. nationals, meaning they are entitled to the protection of the U.S. Government but do not enjoy all of the rights of citizenship.

American Samoans do not pay federal income taxes, Faleomavaega noted.

“In fairness to the system, why should we be getting the electoral vote when we don’t even do that? Not because we’re not patriotic but that’s just the way it is,” he said.

And Faleomavaega pointed out that it is no simple matter to grant American Samoa equal status with the 50 states.

“We still have our chieftain system in place,” he said. “Some of these things don’t necessarily conform to constitutional standards of equal protection or due process. We have it, but to a certain extent because of our chieftain system, our cultural system, and our way of protecting our communal lands, we are quite different from the other states.”

Clinton won the Feb. 6 American Samoa caucuses in which only 285 people took part. American Samoa is entitled to nine delegate votes at the Democratic convention.

Federal courts have rejected arguments that Americans living in the U.S. territories should be allowed to vote in presidential elections.

The Constitution, the courts have held, is clear: Article II explicitly says that the president shall be elected by electors who are chosen by the states.

That’s why it took a constitutional amendment to allow D.C. residents to finally vote in 1964.

In 2000, the U.S. Court of Appeals for the First Circuit heard for the second time an argument it had rejected in 1994, the Puerto Rico residents should have the right to cast ballots in presidential elections.

The plaintiffs said a treaty called International Covenant on Civil and Political Rights, ratified by the Senate in 1992, required that they be given a vote in presidential elections.

But the judges said that “this court held with undeniable clarity” in 1994 that “the residents of Puerto Rico have no constitutional right to participate in the national election of the President and Vice-President.”

So, for people in American Samoa, Guam, Puerto Rico or the Virgin Islands to be able to vote in a presidential election would require either:

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