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Constitutional Law Scholars Say the Time for Puerto Rico Statehood Is Now

The day after Puerto Rico’s plebiscite, Columbia University constitutional law expert Christina D. Ponsa-Kraus published an op-ed in The New York Times analzing the vote for statehood and urging Congress to respect and follow through on the electoration results.

“[S]tatehood opponents will start throwing up roadblocks,” she wrote. “Some will say that the ballot language was flawed; others that the margin of victory was not large enough. Skeptics will wonder whether the time is right, politically or economically. But these objections should not stand in the way. Congress should make Puerto Rico a state now.”

Harvard constitutional law scholar Laurence (Larry) Tribe endorsed and tweeted the op-ed, quoting from it: “You don’t annex a place, make it your colony for nearly a century and a quarter, and then reject its people’s vote for statehood. The time for Puerto Rican statehood is now.”

Ponsa-Kraus wrote, after the 2012 plebiscite, that she hoped that referendum, with 61% of the vote going for statehood, would be “the beginning of the end” for Puerto Rico’s colonial status. Now, she’s demanding action.

Her experience with the opposition’s attempts to confuse the issue led her to respond to the objections she foresees:


“Many Americans believe that Puerto Rico’s colonial status reflects some sort of deal to trade the right to federal representation for a break from federal taxes,” says Ponsa-Kraus. “But if this convenient rationalization of the status quo seems facile, that’s because it is.”

Puerto Ricans don’t pay federal income tax on wages earned on the Island, in most cases. They do, however, pay payroll taxes. Puerto Rico paid over $4,000,000 a year into the federal treasury before theithe 51%  economic collapse, Ponsa-Kraus points out. “Besides, according to estimates from the Tax Policy Center, over 40 percent of all households in the states will not earn enough money this year to owe federal income taxes. No one expects them to give up their right to vote in return.”

More importantly, Democracy doesn’t work that way. “In a democracy, the right to vote is not for sale,” the author says. “That’s why a majority of Puerto Ricans have chosen statehood, and why Congress should admit Puerto Rico now.”

Ballot language

Statehood opponents are adamant that the referendum should have included multiple status options. Puerto Rico actually has three possible status options under the U.S. Constitution: statehood, independence, or continued territory status.

Anti-statehood factions also wanted to include “enhanced commonwealth,” which has been identified by the federal government as unconstitutional. “Only two of these options, statehood and ‘enhanced’ commonwealth, have any real support,” says Ponsa-Kraus. Independence has never received more than 5% of the vote in any referendum, and is clearly not a popular option. “Enhanced commonwealth,” though many Puerto Ricans would like to have it, has been soundly rejected by the federal government.

Ponsa-Kraus also tells readers that Puerto Ricans overwhelmingly want the keep their U.S. citizenship, which is probably not an option with independence.

Should the ballot then have included the current territorial status? As Ponsa-Kraus points out, a “No” vote would have kept Puerto Rico in its current territorial status.

Margin of victory

In this vote, as in the rest of the votes undertaken during the general election, a majority wins. Anti-statehood factions are claiming that statehood passed with 26% of the vote — their take on a 52% majority with 51% turnout based on the overstated numbers of registered voters in Puerto Rico.

That is of course not how elections work. Only voters count. It would be possible for Congress to insist on a super majority for statehood — the result in 2017. “But no other territory has ever been subjected to such a requirement,” says Ponsa-Kraus, “and when it comes to treating Puerto Rico differently, enough is enough.”

“Time’s up on pondering the political and economic consequences of Puerto Rican statehood, let alone being opposed to it,” Ponsa-Kraus concludes. “It has been 122 years….The time for Puerto Rican statehood is now.”

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