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Puerto Rico’s 2012 status vote: the validity of two-tiered voting and proposed next steps

By Howard Hills*

In 1984, President Reagan adopted two-tier balloting to enable the electorate in U.S. administered United Nations trust territories to decide on the first ballot question whether to continue the status quo, and on the second ballot question choose between the options for a non-colonial status. As a result, U.N. observed status votes were held, and the Republic of Palau, Federated States of Micronesia and the Republic of the Marshall Islands became sovereign self-governing nations, in “free association” with the U.S. rather than perpetual dependency.

Now that the non-colonial status of statehood finally won a vote in Puerto Rico, statehood opponents are demanding another vote based on a single tier vote that includes the status quo on terms incompatible with federal law. Another status vote may be appropriate to confirm the 2012 vote, but it must not be based on the falsehood that the 2012 vote was flawed.

The best historical and legal model for confirming the 2012 vote is an up or down vote on statehood as proposed by the Resident Commissioner. That is the most fair and orderly model because there was an up or down vote on the status quo under commonwealth and it lost in 2012, and the 2012 process was a fair vote on all other options that produced a clear majority for statehood.

In the 2012 vote, statehood opponents urged voters to approve the current status on the first question, but the current status was rejected by voters.  Significantly, the number of votes for statehood on the second ballot question was greater than the number of votes for the current status on the first question, even though second ballot question was boycotted by some statehood opponents.  That means statehood got more votes even with less voter participation on the second question than the current status got with full voters participation urged by the statehood opposition.

In addition, the pro-statehood Resident Commissioner got more votes in 2012 than the anti-statehood Governor. In that context, what is it about the Election Commission’s certification of those results that statehood opponent do not understand?

If there is to be a federally sponsored vote with multiple options again, another two-tiered ballot should be employed again. The ballot should present an up or down vote on statehood as the first question, and a second ballot question with a choice between nationhood, with or without a treaty of fee association, and the status quo as defined by federal territorial law.

Having the U.S. Attorney General certify options including the current status is appropriate, because federal law is supreme and controlling under the commonwealth constitution approved by Congress and the people of Puerto Rico in 1952. But if the opposition opposes further self-determination votes, then the 2012 vote will suffice going forward.

*The author served as lead counsel in the White House National Security Council and provided advice and counsel on territorial status affairs during the Reagan administration.  The views expressed above are his personal opinions only and do not necessarily represent the views of the Puerto Rico Report.  This is the third in a series of three articles.

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