Plebiscite on Statehood, Nationhood, or Both, Not “Commonwealth,” Now U.S. Law

Federal legislation to authorize a plebiscite in Puerto Rico on statehood, on nationhood, or on both — but not on “Commonwealth” — was signed into law last night.

The legislation, which was proposed by President Obama and embraced by Appropriations Committee chairmen in the Republican-controlled U.S. House of Representatives, was included as part of a larger bill to provide funding for Federal programs.

Puerto Rico’s Elections Commission will be given $2.5 million for a plebiscite if its proposed status option or options would resolve the question of the territory’s ultimate status and are found by the U.S. Department of Justice to not conflict with the Constitution, laws, and policies of the U.S.

The possible options are U.S. statehood, independence, and nationhood in an association with the U.S. that either nation could end. The vote could be on one or more of these options.

The current territory status, often misleadingly called “commonwealth” after the name of the insular government, could not be an option because it cannot resolve the question of Puerto Rico’s ultimate status.  As long as Puerto Rico is a territory, Puerto Ricans can seek statehood or nationhood.

The “Commonwealth” party has proposed a new “Commonwealth” arrangement but it, too, would not qualify: As the President’s Task Force on Puerto Rico’s Status has explained, Puerto Rico would remain subject to congressional authority under the Constitution’s Territory Clause under any “Commonwealth” proposal.

Obama proposed the plebiscite because the “Commonwealth” party governor and legislative majorities of Puerto Rico elected in November 2012 disputed the results of a plebiscite held the same day under insular law.  Fifty-four percent of the vote was against continuing territory status and 61.2% was for statehood among the possible alternatives. Nationhood options split the rest of the alternatives vote, with 33.3% for nationhood in an association with the U.S. and 4.5% for full independence.

The Obama Administration supported the plebiscite, and the President’s spokesman said its results were “clear” — Puerto Ricans voted to resolve the question of the territory’s ultimate status (choose statehood or nationhood) and a strong majority chose statehood.

Concerned that lobbying by Governor Alejandro Garcia Padilla against the territory’s statehood petition could result in congressional inaction on the self-determination decision of Puerto Ricans, the White House proposed another plebiscite under U.S. Justice Department auspices.  The Justice Department role would make it more difficult for a losing side to dispute the results.

Garcia and other “commonwealthers” had supported the failed territory status option in the 2012 plebiscite even though they said that Puerto Rico is not a territory — contrary to rulings of the U.S. Supreme Court, statements of successive presidents and their administrations, and congressional findings.

The “commonwealthers” also disputed the plebiscite’s results certified by Puerto Rico’s tripartisan Elections Commission.  They contended that ballots without votes on the alternative to territory status should be included in the percentage breakdown of the results — contrary to determinations of the Elections Commission and the Puerto Rico Supreme Court that only votes should be counted in determining results.

The real complaint of the “commonwealthers” was that the ballot did not include their proposal for an unprecedented “Commonwealth status.”  Under the proposal, the Federal government would permanently empower the Commonwealth government to: veto the application of Federal laws; restrict the authority of Federal courts; and enter into international agreements and organizations limited to sovereign nations. The proposal would also perpetually bind the U.S. Government to grant: a new subsidy to the Commonwealth government; all current assistance to Puerto Ricans; continued U.S. citizenship; continued free entry to the U.S. to any goods shipped from Puerto Rico; and ownership of most Federal land.

The Obama, George W. Bush, and Clinton Administrations and congressional leaders have said that the proposal is impossible for constitutional and other reasons.

When the likely enactment of the plebiscite authorization became clear this week, Garcia said he would make a proposal that would incorporate both the authorization and his 2012 campaign pledge for a Government assembly to determine a new status choice for Puerto Rico if the Federal government did not act on the 2012 plebiscite results in 2013 — even though the Federal government acted only two and half weeks later.

The “Commonwealth” party-controlled Legislative Assembly has already established a joint committee to draft assembly legislation.

Yesterday, the leadership of Puerto Rico’s statehood party said that the new law’s plebiscite should be on statehood since it won the 2012 plebiscite and the other possible options were clearly rejected.

The new law is the second in history to authorize Puerto Ricans to choose the territory’s status. Similar legislation proposed by President Clinton was approved by a Republican Congress in 2000 but was not implemented in 2001 due to the opposition of a “Commonwealth” party governor.

The plebiscite funding in that law expired with Fiscal Year 2001.  The authorization in the new law is not limited to one year.

Puerto Rico has been a territory of the U.S. not incorporated into the nation since 1898. This status prevents its 3.6 million people from having voting representation in the government that makes their national laws and enables Puerto Rico to be treated differently than the rest of the country in Federal programs — generally to the detriment of Puerto Ricans.