Puerto Rico’s “commonwealth” party likes to claim that Puerto Rico voters have been disenfranchised. With a new status referendum coming up in November, we are once again hearing this claim.
What does “disenfranchised” mean?
Being disenfranchised means being unable to vote. All of Puerto Rico’s voters are disenfranchised in presidential elections, because Puerto Rico can’t vote in those elections. That is an accurate use of the word “disenfranchised.”
There have been cases in the past when voters in a territory really were disenfranchised. Both Idaho and Utah territories were affected by a federal law taking the vote away from practicing polygamists. Women had no vote in most territories. These people were disenfranchised in their territorial elections.
What does the commonwealth party mean by “disenfranchised”?
When the “commonwealth” party complains that people have been disenfranchised they mean that the “enhanced commonwealth” option is not on the ballot. It is not on the ballot in the upcoming vote, which will be a choice of “yes” or “no” for statehood. It was not on the ballot in 2012 or 2017, though all the viable options were.
Why is the “commonwealth” option not on the ballot? As former Resident Commissioner Pedro Pierluisi explained, “Over the past 20 years, both the White House and Department of Justice have declared it to be unconstitutional.”
We could argue that the disenfranchisement in the 2017 plebiscite was caused by the leaders who persuaded their followers not to use their votes. People who do not vote in U.S. elections have given up their vote.
However, Puerto Rico newspaper polls at the time found that most of the people who chose not to vote were not even responding to the boycott.
In any case, it is ridiculous to say that leaving an option off the ballot is disenfranchisement. Think of all the options that were left off the ballot. Puerto Rico could have voted to become a monarchy with Lin-Manuel Miranda as king. There could have been an option of making the United States a territory of Puerto Rico. Maybe some people would like to return to being a Spanish colony.
Voters can choose from among the options on the ballot. In the case of the 2017 plebiscite, the U.S. Department of Justice insisted that only the options that are viable under the U.S. Constitution could be on the ballot. That does not include “enhanced commonwealth.”
What is the “new commonwealth”?
The “commonwealth” option as the supporting party understands it is, in Pierluisi’s words, “a fairy-tale status that exempts the residents of Puerto Rico from the federal income tax, while providing them with access to all federal programs and a new federal subsidy.”
Party officials have been visiting members of the U.S. Congress to discuss their ideas about this new commonwealth. “For us, it is a negotiation process,” said the party president, “about what can come from the relationship… amendments to federal laws, a greater participation in Congress, for some, the elimination of the Cabotage Law.” In this answer we can see that the “commonwealth” party is not capable of specifying what a “new commonwealth” might be. They were unable to agree on a description of it for the 2017 plebiscite.
The federal government is in complete agreement on the “new commonwealth.” Every branch of the government has clearly stated that a negotiated “new commonwealth” is not possible.
In 2005, the President’s Task Force on Puerto Rico made this statement:
Some have proposed a “New Commonwealth” status. Under this proposal, the island would become an autonomous, non-territorial, non-State entity in permanent union with the United States under a covenant that could not be altered without the “mutual consent” of Puerto Rico and the federal Government. The U.S. Constitution, however, does not allow for such an arrangement. For entities under the sovereignty of the United States, the only constitutional options are to be a State or territory.
In 2007, the President’s Task Force on Puerto Rico said this:
The U.S. constitution would not permit the “new commonwealth” proposal because land under United States sovereignty must either be a State or a territory. As the Supreme Court stated over a hundred years ago, if land is “not included in any State,” it “must necessarily be governed by or under the authority of congress.”
There are plenty more statements like these, from Congress, from the Department of Justice, from the Supreme Court, and from legal scholars. The “new commonwealth” is unconstitutional.
An unconstitutional option should not be included on a ballot. Leaving it out does not constitute disenfranchisement.