A Year after the Puerto Rico Plebiscite

On November 3, 2020, Puerto Rico voters chose statehood in a yes/no vote. 53% of voters selected “Yes,” and 48% chose “No.” One year later, Congress is still mulling over the issue.

Two status bills

Two Puerto Rico status bills are currently under consideration by the House Natural Resources Committee, which oversees legislation relating to Puerto Rico’s political status.  Puerto Rico is currently a U.S. territory – a situation increasingly recognized as undemocratic.

The first, the Puerto Rico Statehood Admission Act (HR 1522), recognizes the November 2020 vote and lays out a process to admit Puerto Rico as a State, including a confirmation vote. This bill explicitly calls for Congress to make an offer of statehood Puerto Rico. Voters will then have one more vote to ratify admission. If they vote for statehood again, Puerto Rico would become a State.

This bill was introduced by Rep. Jenniffer Gonzalez-Colon (R-PR), the Resident Commissioner of Puerto Rico, and Rep. Darren Soto (D-FL) of Florida. It currently has 74 cosponsors, both Republican and Democrat lawmakers.

The second, the Puerto Rico Self-Determination Act (HR 2070), does not acknowledge the vote held just over one year ago.  The proposal instead calls for a convention to discuss unnamed other status options to present to Puerto Rican voters in another referendum. Among other details, this bill provides for a Congressional Bilateral Negotiating Commission to provide advice to the convention delegates on matters including Puerto Rico’s language and culture, educational campaigns “through traditional paid media” on the status options being presented, and an opportunity for Congress to ratify the results of this new referendum.

The second bill was introduced by Nydia Velazquez (D-NY) and Alexandria Ocasio-Cortez (D-NY). It currently has 76 cosponsors – all Democrats.

A history of plebiscites in Puerto Rico

Puerto Rico has had six plebiscites – in 1967, 1993, 1998, 2012, 2017, and 2020.

1967 1993 1998 2012 2017 2020
Independence 4,248 (0.6%) 75,620 (4.4%) 39,838 (2.54%) NA 5.5% 1.5% NA
Commonwealth 425,132 (60.4%) 826,326 (48.6%) 993 (0.06%) 46.0% NA 1.3% NA
Free Association NA NA 4536 (0.29%) NA 33.2% Included with independence NA
Statehood 274,312 (39.0%) 788,296 (46.3%) 728,157 (46.49%) NA 61.3% 97.2% 655,505 (52.52%)
None of the above NA NA 787,900 (50.3%) NA NA 592,671 (47.48%)
Electoral turnout 66% 74% 71% 79% 22.9% 54.72%

Congress could have taken action on any of these votes but has not done so. Enhanced “commonwealth” options have been repeatedly declared unconstitutional, so Congress could not take action on that option even when its legal issues were not well known and it had support. Independence, with or without free association, has never won.

Statehood has won every referendum during the 21st century. However, Congress has yet to admit Puerto Rico as a State.

The “commonwealth” and “free association” complications

While all three branches of the federal government have said repeatedly that “enhanced commonwealth” is not a viable option, its supporters continue to argue for a new desirable yet legally impossible relationship with the U.S, increasingly under the label of “Free Association.”

The U.S. does have free association relationships with three nations – the Republic of Palau, the Republic of the Marshall Islands, and the Federated States of Micronesia – collectively known as the three Freely Associated States (FAS).  The residents of these three nations do not have U.S. citizenship, and the U.S. completely controls each nation’s defense and national security policy.

For example, The United States may block FAS government policies that it deems inconsistent with its duty to defend the FAS.  This is known as the U.S. “defense veto”.

The United States also has the prerogative to reject the strategic use of, or military access to, the FAS by third countries.  The is known as the “right of strategic denial.”

In addition, the United States has established military presence and related facilities in the FAS, and the U.S. enjoys unfettered access to these facilities.

These legal parameters of Free Association are not yet well known in Puerto Rico and tend to escape notice from even prominent local officials.  Rafael “Tatito” Hernández Montañez, President of the House of Representatives of Puerto Rico, is an example. “The status of Puerto Rico is a political issue, and not a legal one,” he told El Nuevo Dia. “The lack of inclusion and deference to the aspirations of all Puerto Ricans has only failed attempts to genuinely solve the problem.”

Hernández Montañez’s description of the status question as a political and not a legal issue echoes a claim that was frequently made by supporters of the “commonwealth” option when it is pointed out that “enhanced commonwealth” is not legal under the U.S. Constitution.

Yet there are legal parameters on Puerto Rico’s status.  As Senator Ron Wyden explained in 2013, “persistence in supporting [an] option— after it has been rejected as inconsistent with the U.S. Constitution by the U.S. Justice Department, by the bipartisan leadership of this committee, by the House and by the Clinton, Bush, and Obama Administrations—undermines resolution of Puerto Rico’s status question.”

 

 

 

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