Howard Hills*
Because statehood decisively won the status vote in 2012, Puerto Rico’s two local anti-statehood parties are seeking to delegitimize the last referendum. History and international law support those who argue that the statehood party should concede nothing to the revisionists who would deconstruct a valid act of self-determination, in which the U.S. citizens of Puerto Rico freely expressed their wishes in a fully informed and democratic manner.
The combined tactics of the parties favoring independence and status quo aimed at discrediting the 2012 vote are a frontal assault on referendum results certified by the duly-constituted Puerto Rico Elections Commission. Yet, history shows that the 2012 status vote was an act of self-determination more authoritative and definitive than many of the votes leading in the past to admission of territories to the union.
The 2012 vote met all federal and international legal criteria for a valid act of self-determination. The moral credibility of our nation’s condemnation of Russia for the controversial and hastily conducted vote in Crimea is undermined if we fail to honor the 2012 status vote in Puerto Rico, which was an orderly and fair process with high participation that was voluntary and free of coercion.
Contrary to rhetorical contentions by local anti-statehood factions in the territory, the 2012 referendum was not conducted in a local political vacuum outside the reach of federal law. Indeed, in 1952 the U.S. Congress amended and ratified the Constitution in Puerto Rico and authorized its entry into force based on congressionally mandated revisions. The 2012 vote was conducted pursuant to the authority of the local government conferred by Congress when it approved the local constitution.
While obviously the issue of territorial relations with Washington is not exclusively a local issue, it also is not exclusively a federal issue. The 1952 constitution gives the local government sufficient authority to authorize a vote enabling the U.S. citizens of the territory to inform Congress of their freely expressed wishes. This local capacity to conduct a status vote was confirmed by the U.S. Senate in S. Res. 279 (Sept. 17, 1998), recognizing but unfortunately failing to act on petitions by the local Legislative Assembly for a federally sponsored status resolution process leading to full self-government.
Thus, the 2012 vote was an orderly act of self-determination conducted consistent with and subject to federal law, and there is no historical or legal basis for disputing the certified results. In particular, the idea that another vote is needed because blank ballots should count against statehood has no support in U.S. or international election law.
Indeed, the state of Washington was admitted to the union based on self-determination process that included a referendum in which a large percentage of blank ballots were not counted, for the very reason that non-votes do not express the ascertainable will of the voters. Similarly, in 1984 the United Nations did not assign any legal meaning to a high percentage of blank ballots in the referendum to ratify the treaty of free association resolving the status of the Trust Territory of the Pacific Islands.
Of course, the anti-statehood parties in Puerto Rico did not rely on interpretation of blank ballots in respect of 1993 and 1998 locally controlled status votes in which the current status narrowly out-polled statehood, even though neither received a majority. After those earlier votes Congress and the White House recognized the need for ballot language that does not promote legally impossible status doctrines, thereby preventing a majority for a valid option.
The 2012 vote meets the criteria recognized by Congress and the White House for a valid act of self-determination based on the real options. Thus, if the anti-statehood parties obstruct further self-determination authorized by Congress, the 2012 will stand as the most recent and only legitimate and legally sufficient expression of the will of the U.S. citizens in Puerto Rico.
*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 second in a three-day series of articles.
