A Presidential Status Plebiscite for Puerto Rico?

On July 17, 2013 the House Appropriations Committee approved the fiscal year 2014 Commerce, Justice, Science (CJS) Appropriations bill, which included a request by President Barack H. Obama to fund a voter education drive enabling a status plebiscite for Puerto Rico. This measure dismisses several initiatives by Puerto Rican political parties and potentially makes the resolution of the island’s political status a matter of civil rights.

As I have noted on several past postings, the United States annexed Puerto Rico in the aftermath of the Spanish-American War of 1898 and promptly ascribed it an unincorporated territorial status, a new territorial status invented to rule territories not destined to become states of the Union. Congress has not changed the constitutional status of Puerto Rico since 1898. Puerto Rico has remained an unincorporated territory for 115 years.

Notwithstanding, since 1900 both the Federal and the Puerto Rican legislatures have debated legislation and enacted laws providing for a change in the island’s constitutional status. Since 1900, Congress has debated upwards of 114 and the Puerto Rican legislature more than 100 (I am still counting) status bills. In 1967, Congress authorized the first and only status plebiscite granting Puerto Ricans an opportunity to choose among three status options, statehood, independence and the Commonwealth/unincorporated territorial status. The Puerto Rican legislature authorized three status plebiscites in 1993, 1998, and 2012. In every instance the pro-statehood party has held control of the office of the Governor and the Puerto Rican legislature. 

As I discussed in a previous posting, both the language and counting of votes of the 2012 Plebiscite on Puerto Rico’s Political Status led to contentious interpretations. Critics argued that the two-part plebiscite was designed to limit the ability of Puerto Rican voters to choose the Commonwealth option, the prevailing status choice of the Puerto Rican electorate. In addition, the Puerto Rican government did not count blank ballots, which under Puerto Rican electoral law represent a legitimate form of electoral protest. Pro-statehood advocates argued that the Statehood option garnered a majority of votes (61%) in the 2012 plebiscite. Everyone else noted that when counting blank or protest ballots, the Statehood option garnered a mere 45% of the ballot, a percentage consistent with the outcomes of all prior status plebiscites (both Federal and local).

Notwithstanding statements by the White House suggesting that President Obama would recognize the outcome of the 2012 plebiscite, the President’s Budget of the U.S. Government for the Fiscal-Year 2014 contained a request to fund a Puerto Rican plebiscite. More specifically, the President’s 2014 budget requested “$2,500,000 for objective, nonpartisan voter education about, and a plebiscite on, options that would resolve Puerto Rico’s future political status, which shall be provided to the State Elections Commission of Puerto Rico” (Appendix, DOJ 2014: 735). In other words, the ensuing funding would be allocated to the U.S. Department of Justice, which would in turn grant it to the State Elections Commission for the development of a voter education campaign (about the status options) and an ensuing plebiscite.

On May 15, 2013 Puerto Rican Resident Commissioner Pedro Pierluisi, a member of the Puerto Rican pro-statehood PNP and also a conservative member of the Democratic Party, introduced the Puerto Rico Status Resolution Act (H.R. 2000). The purpose of the Act is to “provide for a federally authorized ratification vote” or referendum on pro-statehood interpretation of the results for the 2012 plebiscite.

The ongoing legislative debates raise four important issues. First, President Obama’s request to fund a federal plebiscite for Puerto Rico sends a clear message that he does not recognize the outcome of the 2012 plebiscite (and by extension H.R. 2000). This position is consistent with earlier statements by President Obama indicating that he would only support an outcome that reflected a substantive majority of the vote (presumably at least a two-thirds majority). Ironically, Resident Commissioner Pierluisi is on record stating that his bill is not incompatible with the President’s plebiscite.

Second, the President’s initiative also rejects the proposal by Puerto Rican Governor Alejandro Garcia Padilla to hold a local constitutional convention and an ensuing referendum on the status question. In the latter case, Puerto Rican political parties would assume a central role in drafting a law that could resolve Puerto Rico’s status question and the local electorate would merely vote to ratify or reject the proposal. Governor Garcia Padilla, however, is on record supporting President Obama’s plebiscite.

Third, the President’s plebiscite potentially circumvents Congress. The power to conduct a status plebiscite is inherent to Congress’ powers under Article 4, Section 3, which establishes that Congress has the power to administer territories (clause 2) and to admit new states (clause 1). To this extent Congress is responsible for enacting legislation authorizing a plebiscite on the status of Puerto Rico. Notwithstanding, the House Appropriations Committee recently approved the President’s request for funding. Whether Congress will approve this budget is another matter.

In my opinion a fourth, and perhaps more interesting implication, is that the President’s proposal links the status plebiscite to the Department of Justice’s voter education mandates. To this extent, it is possible to argue that the President’s plebiscite opens a backdoor to the courts by making the status plebiscite a voting rights or civil rights issue. This latter interpretation raises other constitutional questions, but these are beyond the scope of this blog at this time.

Charles R. Venator-Santiago is an Assistant Professor in the Department of Political Science and the Institute for Latino/a, Caribbean and Latin American Studies at the University of Connecticut

The commentary of this article reflects the views of the author and do not necessarily reflect the views of Latino Decisions. Latino Decisions and Pacific Market Research, LLC make no representations about the accuracy of the content of the article.