In the American political system, after a robust debate, it is usually a good thing that nobody gets to have their way completely. So it’s not unusual when everyone is at least somewhat unhappy with almost any government action contested by opposing interests.
That was true after the U.S. Department of Justice declaration of policy and law on April 13 delaying ballot certification for an upcoming plebiscite on Puerto Rico’s future political status. In reacting to the DOJ action each faction that was a stakeholder in the debate beforehand showed its true colors, with the biggest losers claiming victory and the winners doing a lot better than they seemed to realize.
So here is the real breakdown of winners and losers after DOJ’s declaration of terms for certifying the ballot, so a status plebiscite can go ahead under federal and local territorial law:
Biggest Losers: “Commonwealth” party of Puerto Rico
Leaders of the local political party that opposes both statehood and independent nationhood indulged themselves in triumphant but truly delusional celebration because final certification of the ballot was delayed. “Commonwealth” supporters also seemed thrilled DOJ demanded the current territorial status be included on the ballot, with party leaders grandiosely declaring the local government’s plebiscite plan “dead.”
Yet, DOJ also rejected in unusually strong terms as unconstitutional and misleading the “Commonwealth” party platform for converting territorial status into a confederacy of co-severeigns, absurdly combining the most attractive features of both statehood and independence. With the “Commonwealth Confederacy” nixed, DOJ’s demand that current territorial status appear on the ballot presents voters with a chance to confirm results of the 2012 local vote when a majority rejected and withdrew consent to the current territory status, and on a separate ballot question 61% chose statehood over 38% for nationhood.
If the “Commonwealth” party leaders had not been intoxicated with congratulatory self-deception they would have realized hollow, temporary success merely delaying ballot certification was far outweighed by the catastrophic long term implications of DOJ’s powerful repudiation of the “Commonwealth” party’s proposed co-sovereignty ballot option. In an historic moment of clarity, DOJ confirmed that the “enhanced Commonwealth” proposal to make Puerto Rico a separate nation within the U.S. is and always will be “incompatible with the Constitution, laws and policies of the United States.”
The only thing “dead” after the DOJ declaration of April 13 is the “Commonwealth” party political status platform.
First Runner Up Losers: Anti-statehood lobbyists who misled Congressional staff on ballot contents
On April 5 as the deadline for DOJ certification of the ballot neared, eight conservative Republicans in the U.S. Senate were duped by desperate lobbyists for the anti-statehood faction in Puerto Rico into supporting the “Commonwealth” party agenda. Somehow the Senators were persuaded to sign a letter demanding that “Commonwealth” must also be an option for voters in the plebiscite, but didn’t make it clear if they meant the current territorial status or the “enhanced Commonwealth” confederacy proposal that DOJ declared incompatible with the U.S. Constitution eight days later.
Embarrassingly, the April 13 declaration from DOJ declared the “Commonwealth” option endorsed by the eight Senators to be a term with no constitutional meaning or legal validity. Rather, “Commonwealth” remains well-understood to be a fake spoiler option used by the anti-statehood and anti-independence party in Puerto Rico to prevent constitutionally valid and fully democratic future status option – i.e. statehood or independent nationhood – from garnering a majority vote.
Second Runner Up Losers: Free association supporters
The DOJ declarations made it clear that “free association” is not just outside the “Territorial Clause,” but outside the U.S. Constitution itself. Rather, it is a sovereign nationhood status in which the constitution of Puerto Rico is the supreme law. There will be no obligation for the U.S. to agree on establishment or continuation of free association, which under applicable U.S. law and U.N. resolutions is terminable at will by either national government in favor of independence.
DOJ confirmed real free association is consistent with the right to “complete and unencumbered independence,” and if free association is terminated by the U.S. or Puerto Rico the default status is full independence without any special association.
The DOJ document also calmly and without trying to inflame the issue dismisses the assertion that open-ended mass “dual citizenship” or “common nationality” in the future will survive the transition from domestic U.S. territory to legally valid free associated state status. Indeed, the DOJ declaration slam dunks the proposed ballot statement that U.S. citizenship under free association will be “negotiable.” In doing so DOJ even compares the free association with citizenship concept to the “enhanced Commonwealth” co-sovereignty platform, noting both could “mislead” voters into false belief that domestic citizenship rights and separate sovereignty and nationality can be commingled at the whim of Puerto Rico’s autonomists.
Instead, DOJ does an end run and vaguely notes that both full independence and free association both will create the same need for “assessment of a variety of issues relating to citizenship.” Understanding what that understatement means begins with distinguishing between current citizenship acquired during the territorial period and future citizenship for those born in a separate sovereign nation of Puerto Rico.
Then read the CRS reports, DOJ testimony since 1991, and note the 2003 refusal of the U.S. to reconsider the denial of citizenship to the Pacific islands free associated states. The record before Congress is clear, DOJ’s vagueness is just to avoid being too blunt about the political reality that Puerto Rico can have separate national sovereignty but not future U.S. citizenship, or future U.S. citizenship without separate national sovereignty.
Major Winners: The Governor of Puerto Rico, the territory’s non-voting Member of Congress, and the Statehood party that controls the territorial Legislative Assembly
The elected leaders controlling the territorial government would have been legally correct and morally justified in challenging the DOJ declaration delaying ballot certification. Instead, the young and energetic new generation of territorial leaders – who have been witnesses to the tortured history of political status votes in the past – boldly decided to take the high road and meet the DOJ demands for revision of the ballot.
The wisdom in this response was not lost on anyone conversant in the history of U.S. rule in Puerto Rico, including the historic importance of holding the first federally sponsored status vote in 118 years. No matter what the results may be, beginning a federally recognized process of democratic self-determination is the paramount political principle at stake for those seeking equal rights of national citizenship through statehood, or independent sovereign nationhood.
It would not have been without merit if the elected leadership had opposed the DOJ declaration for exceeding the limits Congress mandated for review and certification of the ballot. In effect the DOJ action could have held local self-determination hostage to largely subjective DOJ legal compliance demands and policy preferences, rather than actual objective “incompatibility” as prescribed by Congress. After all, the U.S. Supreme Court has recognized the right of the local government to manage local elections under the territorial constitution for 67 years.
The federal plebiscite enabling act passed by Congress in 2014 explicitly allowed the local government latitude to determine ballot options “to resolve the status” of the territory based on fully democracy and equal citizenship. The DOJ declaration that “Any plebiscite…to ‘resolve Puerto Rico’s status’ should include the current status as an option” is supported only by a 2001 statement in a White House report that the current territorial status “must be an available option.”
Of course, the current status remains not only “available” but it is imposed indefinite and will continue perpetuity if a vote on future status options does not lead to full democratic government by consent through equal rights of national citizenship. Similarly, the DOJ assertion that people born in the territory have “an unconditional right to birthright citizenship” was met with open derision, since Congress can modify or repeal that statutory subclass of citizenship at any moment.
Instead of reacting in an ideologically idiosyncratic was to these deficiencies in the DOJ declarations, the elected leader of Puerto Rico displayed statesmanship and agreed to comply with DOJ demands so the voice of the people could be heard after decades of federal denial of self-determination.
Governor Rossello-Nevares and Congresswoman Gonazalez-Colon displayed trust in the people to begin the process of federally sponsored self-determination without further delay, even if as in several territories that became states it ultimately takes multiple votes before future status is fully resolved. What better demonstration that the current territorial status can never “resolve the status of Puerto Rico” than the DOJ action imposing the requirement that the current territorial status – rejected by a majority in 2012 – appear as a ballot option in 2017?
The history of past status votes more than justifies a ballot with statehood and independent nationhood options only. DOJ’s federal intrusion into local constitutional affairs is still possible under territory status, but not statehood or sovereign nationhood. That may turn out to be an important part of the voter education program for plebiscite!
Biggest Winners of all: Statehood Supporters
Rather than quibble with what was wrong with the DOJ explanation its action, most statehood supporters recognized the political logic of Puerto Rico’s leaders and chose to embrace much that was correct and clarifying in the DOJ explanation. That includes important DOJ declarations regarding the nature of the current territorial status, and the reasons why “commonwealth” as proposed by the “Commonwealth” party is not a legally valid option for a federally recognized status vote.
In light of the DOJ declarations, Puerto Rico should not have to repeat the locally sponsored 2012 local vote on the current territorial status, with or without a separate vote between statehood and independence. Instead, federal sponsorship of future status votes will now be the established self-determination procedure.
In both local and federal status voting there is historical precedent for employing the same two-tier ballot format relied on in the local 2012 vote. The two tier ballot was first designed to allow a majority vote in U.N. observed status votes for U.S. administered territories in the Pacific to ratify compacts of free association. Those acts of self-determination were upheld by the President of the United States, U.S. Congress, U.S. Supreme Court as well as the U.N. Trusteeship Council, General Assembly and Security Council.
In 2017 the DOJ declaration makes those procedural principles secondary, for future reference if needed. This is a time when messaging by statehood supporters is very important, especially to remind people of how other territories survived much worse opposition to statehood than Puerto Rico faces today. In the sweep of U.S. history the only thing abnormal is that Puerto Rico is not already a state.
The obstacles to Puerto Rico statehood are not as great as other territories have overcome. Other territories voted against statehood more than once before admission, and opposition in Congress was more intense by orders of magnitude.
The clear lesson of history is that U.S. citizenship makes statehood the only solution based on equality. Separate nationhood is only inevitable if loss of U.S. citizenship in the future is an acceptable trade off for sovereignty.
Even if the people were to choose continued territory status, that would be consent to a constitutionally temporary status, without full and equal rights of true citizenship or the right to meaningful government by consent. That will never resolve the status of Puerto Rico, so even if it were to win a majority in the plebiscite the federally sponsored self-determination process now underway will not be at an end, it will be only just beginning.