People born in Puerto Rico are birthright citizens of the United States, but they cannot vote in presidential elections and do not have any senators or any voting representatives in the House of Representatives. That’s about three million U.S. citizens who are disenfranchised. A recent paper in the Brooklyn Law Review considered “other options for suffrage” — that is, the various ways in which Puerto Rico could get the democratic participation U.S. citizens all deserve. Statehood is one, but the author, Sigrid Vendrell-Polanco, proposes some other possibilities.
Statehood
The reason that Puerto Rico residents can’t vote in presidential elections is that the United States does not have direct democratic voting. That is, we don’t just have everyone vote and give the presidency to the person who gets the most votes. It is not the individual citizens who elect the president. It is the states.
Each state has electors and the electors represent their state during a vote of the Electoral College. According to Ballotpedia, there have been four U.S. presidents who won the Electoral College vote and lost the popular vote:
- Donald Trump in 2016
- George W. Bush in 2000
- Benjamin Harrison in 1888
- Rutherford B. Hayes in 1876
Since it is the states, not the individual voters, who actually elect the president, Puerto Rico can’t vote simply because it’s not a state. As soon as Puerto Rico is admitted as a state, U.S. citizens who live there will be able to vote just as all the stateside U.S. citizens can.
Striking down the Insular Cases
One option is to invalidate the Insular Cases. Vendrell-Polanco claims that Puerto Rico is, de facto, an incorporated territory and getting rid of the precedent of the Insular Cases would codify that.
However, incorporated territories also cannot vote in presidential elections. Striking down the Insular Cases would not give Puerto Rico the vote.
A constitutional amendment
Vendrell-Polanco suggests that Puerto Rico could get the presidential vote in the same way that the District of Columbia did: by a constitutional amendment.
The 23rd Amendment to the U.S. Constitution provides that “The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.”
This amendment gave D.C. the right to vote in presidential elections. However, D.C. still has no senators and no voting Members of the House, just like Puerto Rico. D.C. continues to work for statehood, just like Puerto Rico.
And, while the District of Columbia does not face the same inequities that Puerto Rico does, an amendment like the 23rd Amendment would not stop Congress from treating Puerto Rico differently from states. The enormous difference in federal funding for states and territories would still be an issue.
On the other hand, being able to vote in presidential elections could give Puerto Rico a stronger voice and more power than the Island currently has. Puerto Rican voters living in the states already have a great deal of influence in U.S. presidential politics. With electors in play, Puerto Rico could be a major force in presidential elections.
It is exactly this that causes Vendrell-Polanco to suggest that it would be hard to get that constitutional amendment passed. Unlike admission of a new state, which only requires a simple majority, passing a constitutional amendment requires not only a two-thirds majority in Congress but also ratification by three quarters (38) of the existing states. Would the states be willing to give that much power to Puerto Rico?
An Act of Congress
Vendrell-Polanco says that Congress could also just make a law saying that Puerto Rico can vote in presidential elections. In fact, the U.S. Constitution says, in Article II, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…” This article specifies that states — not states or territories — choose electors. Thus, Congress cannot actually make the type of law Vendrell-Polanco suggests.
If it were possible, it still would not be a solution. This idea has the same disadvantages as the constitutional amendment, plus the fact that a later Congress could change the law. If one Congress grants the right to vote in presidential elections, another Congress can take that right away just as easily.
Back to statehood
It’s good to consider other possibilities, but statehood would give Puerto Rico full participation in the American democratic process, equality and justice, and a level playing field for Puerto Rico’s economy. The other options for suffrage are probably not even easier to accomplish than statehood, and they would certainly be less powerful than admission as a state of the Union.
Contact your legislators and help with the vital work of educating Congress not only on the value of admitting Puerto Rico, but also on the fact that this is what their constituents want.
No responses yet