What Is “Inclusive” Self Determination?

Some Puerto Ricans who live in the diaspora are advocating for an “inclusive” self-determination process.

An “inclusive” process would mean one that doesn’t leave out anyone or anything.  For Puerto Rico’s self-determination, this would naturally imply that all eligible voters are included and all – valid – options are on the table.

What is an “inclusive” ballot?

In previous plebiscites, voters of Puerto Rico were presented with status options for Puerto Rico that were clearly rejected by Congress and a wide range of credible sources, who called these choices presented to voters as unconstitutional. as well as “unrealistic,” “deceptive,” “unacceptable, and “unattainable myth.” 

These ballot choices, which were presented to the people of Puerto Rico as valid, involved governing arrangements that weren’t even close to being a realistic possibility. The ballot options included:

• guaranteed U.S. citizeship for an independent nation with its own seat at the United Nations,
• uncapped, mandatory U.S.federal spending for a sovereign nation lacking representation in Congress,
• an agreement that the U.S. would be powerless to change absent “mutual consent” from Puerto Rico, and
• seamless borders between an independent Puerto Rico and the U.S. even though Puerto Rico could determine its own trade and immigration laws.

Describing one such choice presented to voters, former Sen. Bingaman (D-NM) noted in a Congressional hearing, “[i]t seems that this fifth option that most people voted for was sort of the free beer and barbecue option, where everybody got everything and there was no pain involved.”

Puerto Rican-born former Rep. Jose Serrano simply called these make-believe ballot options presented to Puerto Rican voters  as “a letter to the Three Kings or a letter to Santa Claus.”  As he explained in 2007 Congressional testimony:

“[N]o one in Puerto Rico supports the present status.  When they say they support commonwealth, they support a new commonwealth, which I call a letter to the Three Kings or a letter to Santa Claus.  Because it says let me be a state, but let me be an independent nation; let me change, but not change. Does Puerto Rico deserve that after 109 years of colonialism?  Absolutely.  And I would vote for it.  Can any Member of Congress outside of three or four of us vote for that?  Absolutely not.   Because as it was said here, if you go back to your district, somebody is going to ask you that Sunday morning in church, what was it that you gave Puerto Rico that you can’t give my district.  And that is the problem, that it is not realistic.”

“Commonwealth” Is Unconstitutional

As then-resident commissioner and now Governor Pedro Pierluisi said at a Senate hearing in 2013, “Territory status should not be an option because it has failed. An enhanced Commonwealth cannot be an option because it is fiction.”

More recently, a group of constitutional law scholars from the University of Puerto Rico, Columbia, Yale, Harvard, and across the nation sent a letter to Congress explaining their support of the Puerto Rico Statehood Admissions Act (HR 1522), and pointing out legal problems with the competing proposal, the Puerto Rico Self-Determination Act (HR 2070).  As they explained:

“There are two, and only two, real self-determination options for Puerto Rico: statehood and independence. Yet the Puerto Rico Self-Determination Act defies constitutional reality by calling upon Puerto Ricans to define other non-territorial options.”

Last June, the United States Department of Justice issued an analysis consistent with the Constitutional law leaders who signed the letter, including Harvard’s Larry Tribe.  In its analysis of the proposed “self-determination” law, the Department of Justice clarified that it “agrees that the people of Puerto Rico should be allowed to choose whether to become a nation independent of the United States, become a state within the United States, or retain the current status of a territory.”  The Justice Department was clear, however, that only these three choices “are the three constitutional options available to Puerto Rico[.]”

What is an “inclusive” pool of voters?

The clearest way to figure out what the people of Puerto Rico want is to ask them.  Directly. In a vote.  A plebiscite.  Let all of the eligible voters of Puerto Rico speak for themselves. That is the definition of inclusive.

This type of vote has happened many times – most recently less than one year ago when the majority voted “Yes” on statehood. The lone elected – but non-voting – representative of Puerto Rico in Congress, Resident Commissioner Gonzalez Colon, introduced a statehood admissions bill, HR 1522, that recognizes the 2020 vote. The Governor of Puerto Rico, also elected by the residents of the Island, has also endorsed HR 1522.

Diaspora groups may not agree with the 2020 vote or the Resident Commissioner’s bill.  That is their choice.  But advocating to their Federal elected officials to ignore or reject the vote of Puerto Ricans who still live on the island – that is the very definition of exclusive.

Advocating to a voting Member of Congress as a constituent is a luxury that the people of Puerto Rico do not have.

Similarly, state-based U.S. citizens telling their Members of Congress to reject the voting preferences of U.S. citizens who don’t have a voice in Congress is also – painfully – exclusive.