False Ballot Options Disenfranchise Voters

Lobbyists for the “commonwealth” party in Puerto Rico are gloating because eight members of the U.S. Senate signed a mischievously misleading April 5 letter to U.S. Attorney General Sessions. The letter incorrectly claims that “commonwealth” is a “viable” option to resolve the future political question, and must be included on the ballot in a federally sponsored plebiscite on Puerto Rico’s future political status.

Based on that easily disproven thesis and long discredited argument, the eight Senators call on U.S. Attorney General Sessions to deny certification of the ballot to be used in a political status plebiscite in Puerto Rico on June 11. In the federal law sponsoring the status vote, Congress required the U.S. Attorney General to approve terms of the territorial government’s plebiscite plan.

The Senators assert that exclusion of “commonwealth” is “incompatible with Constitution, laws and policies of the United States,” and therefore the plebiscite ballot does not meet certification criteria of the federal plebiscite enabling law.

The letter even argues that failure to offer a “commonwealth” option “disenfranchises” voters who chose that ballot option in past local status referendum votes.

The irony is that under federal law the term “commonwealth” refers to the current territorial status, which currently disenfranchises 3.3 million U.S. citizens in Puerto Rico, who are denied voting rights in federal elections because they are residents of the 118 year old U.S. territory.

It is under so-called “commonwealth” that the very citizens whose disenfranchisement the letter laments have remained U.S. citizens for a century, without a member to stand up for them in the U.S. Senate in which the eight signatories of the letter serve.

It is under “commonwealth” that millions of U.S. citizens from Puerto Rico have been forced to leave their homeland within U.S. borders and relocate to a state. That is the only way under the current status to end denial of voting representation in the U.S. House of Representatives and the Electoral College.

Placing “commonwealth” as an option on the June 11 ballot would deny the right of voters to make an informed democratic choice between real options to resolve the future status of the territory. Voters have a right and Congress has a sworn duty to ensure federally sponsored plebiscite status choices are based on legally valid definitions of real options.

It is the definition of “commonwealth” by the anti-statehood party that the Senators presumably never saw that is not compatible with federal law. Rather, it is based on false promises Puerto Rico can enter a confederacy of co-sovereigns with the United States, even though that “commonwealth” party doctrine has been rejected by Congress and the federal courts for 65 years.

The only legally and politically real “commonwealth” is the current federal territory status that disenfranchises voters. That is because only citizens in states of the union have federal voting rights. The lack of a sovereign and fully democratic status as long as territorial status continues was confirmed in 2016 by the U.S. Supreme Court in the Sanchez Valle case.

Clearly, “commonwealth” is not a “viable option” leading to a status solution for Puerto Rico. Yet, the federal statute requiring the U.S. Attorney General to certify the plebiscite plan and ballot content expressly mandates that voters must be presented with status options that will “resolve the future political status” of the territory.

The federal plebiscite act simply states that options on the ballot and related voter information must be certified by U.S. Attorney General as “not incompatible with the Constitution and laws and policies of the United States.” That does not go to the question of what options are on the ballot.

Rather, the federal statute authorizes the U.S. Attorney General to determine if options approved locally for the ballot are contrary to any federal statute or duly adopted policy. There is no federal mandate that preempts or supersedes the local constitutional process for the territorial government to determine future political status options for the plebiscite.

Except as a term referring to territory status, “commonwealth” as used by the Senators has no precise legal meaning, and is not even an actual political status option at all. It is the name that is sometimes given to U.S. territories that have adopted a local constitution, as authorized by federal territorial law.

In the modern era two other territories with local constitutions have been given the “commonwealth” name, but the constitutional and legal status of each “commonwealth” remained that of a U.S. territory.

For all U.S. territories, the only options to “resolve the future political status” of the people – based on fully democratic government at the national as well as local level – are statehood or independence.

Independence can be in the form of full sovereign and independent nationhood, or independence with a treaty of free association with another nation. Free association is consistent with the right of transition to full independence.

Those are the only status options recognized under the “Constitution, laws and policies of the United States,” as required for certification by the Attorney General. Those also are the only options recognized by U.N. self-determination resolutions supported by the United States.

More importantly, statehood or real independent nationhood are the only options that honor the undisputed choice of a clear majority of voters in a 2012 referendum to end the “current territorial status” of Puerto Rico.

The so-called “commonwealth” party in Puerto Rico is actually the party that opposes statehood or independence, and instead supports continuation of the current status.

In doing so for 65 years the “commonwealth” party has told voters the local territorial constitution makes Puerto Rico a “nation” and that “commonwealth” is actually “free association” status.

Based on that false doctrine, the “commonwealth” option on past status referendum ballots has misinformed voters that federal law applies in Puerto Rico and can be changed only by “mutual consent” of Puerto Rico. This is supposed to be accepted by millions of our fellow citizens as a substitute for equal federal voting rights and representation in Congress.

As noted, in 2016 the U.S. Supreme Court clarified and confirmed 65 years of sometimes confusing but always consistent results in federal court rulings rejecting the “commonwealth” party doctrine, as it was espoused to voters in 1967, 1993 and 1998 local political status plebiscites.

In 2012 the territorial government acted under the territorial constitution to conduct the first informed democratic act of self-determination in which only legally valid status options were presented to voters.

The ballot in that 2012 vote presented two separate stand alone options. The first was an up or down vote on the current territorial status. The second was a separate vote on the choice of statehood or real nationhood as the non-territorial future status options that would resolve the status of Puerto Rico.

The current status lost on the first question. That was a definitive act of self-determination that like votes in dozens of territories that became states, and one territory that became independent. There is no need to repeat that vote.

The second question was a vote on non-territorial options, and statehood won by 61%. So in 2014 Congress determined that a second vote was needed to confirm the results of the local vote on the second question.

That two tiered ballot format to get a majority vote on political status resolution options was used by the U.S. to achieve informed democratic self-determination in three U.S. administered Pacific island territories in 1982-1983. Those status votes were upheld by Congress, the federal courts and the United Nations.

The 2014 federal law respects the territorial government’s right under its constitution to determine what options will be on the ballot in light of the 2012 results. That local power over local elections exercised in a manner not incompatible with federal law was confirmed by the U.S. Supreme Court in the 1992 case of PDP v. Rodriguez.

Thus, Congress correctly restrained its exercise of federal power and limited the certification criteria to compatibility with federal law and limitation of options to non-terriotiial status choices the would resolve the territory’s status. Now that territory status has been rejected by the voters, it is clear consent of he governed to the status quo has ended.

Now the U.S. Attorney must decide whether to withhold certification and federal funding for the vote in accordance with the federal plebiscite enabling law. That would be a retreat from federal sponsorship of informed democratic self-determination. It would perpetuate disenfranchisement while pretending to do the opposite, at the behest of Senators beguiled and misled by the disinformation tactics of “commonwealth” party lobbyists.